Rush Co. wind fight hits Court of Appeals 

INDIANAPOLIS – It’s never over until it’s over, and that cliché is never more evident in the ongoing wind farm battle in Rush County.

APEX Clean Energy, under its limited liability corporation Flat Rock Wind, last week filed its appellant brief with the Indiana Court of Appeals contesting the May decision by Rush Superior Court Judge Matthew D. Bailey, which upheld the Rush County Board of Zoning Appeals decision in 2015 to enact a 2,300-foot wind turbine setback from non-participating property lines on the company’s special exception permits for wind turbine construction within the county.

Judge Bailey, in that decision, stated that the BZA was within its purview to decide it wanted to require the additional setback distance from the minimum 1,000-foot setback in the county’s zoning ordinance and that the setback distance would not kill the wind farm project.

The appeals brief, which states the argument of APEX Clean Energy and Flat Rock Wind LLC to the state’s Court of Appeals, was filed Aug. 8 with the court by attorneys with the Haller & Colvin law firm of Fort Wayne, and argues that not only was did the Rush County BZA not have the authority to subjectively change the setback distance, but that a group of residents opposed to the wind project should never have been involved in the court case. It also claims the wind project has been prejudiced by the decision – a decision the appeal also argues was made in error by Judge Bailey.

“This appeal presents this Court with a straightforward issue: does a developer have a right to rely on and develop its project based upon the uniform development regulations in the Zoning Ordinance, or can the BZA selectively change these legislatively established development requirements on a project-by-project basis?” the brief states. “Flat Rock submits that the BZA’s zoning decision rewriting the setback requirements in the Zoning Ordinance, and the Trial Court’s judgment affirming the legality of this zoning decision, is erroneous and contrary to law, and must be reversed.”

The brief goes on to argue that the group of remonstrators, who oppose the wind project and spoke out at the July 2015 BZA meeting where the increased setback decision was made, had no business being involved in the case. That group expressed its concerns about the possible negative impact on health and property values, due to the wind turbines, to the BZA at that time.

“The Remonstrators were not proper parties to intervene in this judicial review action,” the brief states. “The Remonstrators failed to make any showing that they were ‘aggrieved’ … when they sought to intervene. Thus, the Trial Court erred in allowing the Remonstrators to intervene below without any demonstration of standing. This error was significant as it allowed to Remonstrators to assert their anti-wind arguments.”

The Flat Rock Wind appeal goes on to lay out the argument that the BZA replaced the county’s objective setback standard of 1,000 feet based “on the emotions of those opposed to Flat Rock’s wind energy development,” along with claiming that Judge Bailey’s decision “has granted the BZA carte blanche to rewrite the Zoning Ordinance at the BZA’s whim and has allowed the BZA to impose a poison pill condition that effectively kills a wind energy project that meets the objective setback requirements in the Zoning Ordinance.”

It’s for those reasons, Flat Rock Wind LLC argues, that the Court of Appeals should reverse Judge Bailey’s decision and allow the wind project to move forward.

“For the foregoing reasons, Flat Rock respectfully requests that this Court reverse the Trial Court’s Judgment below, that it reverse the Trial Court’s order granting the Remonstrator’s motion to intervene and that it reverse the Setback Condition and allow Flat Rock to develop its wind energy project in accordance with the setback regulations of the Rush County Zoning Ordinance, and for all just and proper relief,” the brief concludes.

No dates had been set, as of Monday, for future hearings or meetings in the appeal.