June 10, 2016
Indiana

Judicial review upholds local BZA decision to increase setbacks

By Frank Denzler, Rushville Republican, rushvillerepublican.com

For a number of months, a well-defined line was drawn in the sand, so to speak, regarding Rush County residents viewpoint on wind turbines.

During a July 1, 2015 public hearing conducted by the Rush County Board of Zoning Appeals, a number of representatives from the parent company of Flat Rock Wind, LLC – Apex Clean Energy spoke to local board members, county officials and Rush County citizens on the proposed plan to place 66 wind energy conversion systems (WECS) turbines in the county. The proposal by Apex was to utilize more than 29,000 acres in the north eastern part of Rush County as well as property the south eastern Henry County for placement and development of 99 – 180 megawatt commercial of 99 WESC.

Following the presentation by Apex officials and hearing from remonstrators against the project moving forward, board members voted to extend the setback distance required for the proposed wind turbines from 1,000 feet to 2,300 feet away from non-participating property owners.

The decision led to Apex filing an appeal of the additional setback distance. Shortly after the decision, Rush County officials placed a no-communication moratorium with Apex.

Apex Clean Energy claimed that the BZA over-reached it authority by posting the setback at 2,300 feet distance.

A judicial review on the matter was held with Special Rush County Superior Court Judge Matthew D. Bailey presiding on the matter.

Judge Bailey ruled that the July 2015 decision by the Rush County BZA on the proposed Flat Rock Wind project would stand. The decision approved the special exception permits for the construction of the wind turbines with a 2,300 feet setback from non-participating property lines.

In his ruling, Judge Bailey noted that while the 1,000 feet setback was the minimum distance per the county’s ordinance, the BZA could enact a larger setback if it felt the need was to protect the health, property values and safety of its non- participating landowners. The 1,000 foot setback was a minimum and not a given distance for all projects. He continued by relaying the decision does not “kill the project,” as Apex had reported. Apex must abide by the 2,300 feet setback from all non-participating landowners’ property lines.

When contacted recently for a comment on Judge Bailey’s decision, Apex Public Affairs Manager Dan Blondeau said, “We are currently reviewing the court’s opinion. Once we have completed our review, we will evaluate our options to determine next steps.”

Bryant Niehoff assumed the county’s BZA Director position earlier this year and was not a part of the many steps which led to the recent judicial ruling.

When reached for comment, Niehoff said, “All in all the court upheld the BZA’s decision on the Flat Rock Wind Special Exception. The BZA will continue to do its best to diligently serve the citizens of Rush County on land use affairs in the community.”

URL to article:  https://www.wind-watch.org/news/2016/06/10/judicial-review-upholds-local-bza-decision-to-increase-setbacks/