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Local wind lawsuit dismissed

The fight might not be over for a group of Fayette County residents regarding a proposed wind farm within the county, but that fight was dealt a setback this week.

Franklin Circuit Judge Clay Kellerman, in a ruling made Dec. 12 and filed Wednesday with the Fayette County Clerk’s Office, has dismissed a civil suit brought by a group of Fayette County landowners against both Whitewater Wind LLC, a subsidiary of NextEra Energy Resources, and the Fayette County Commissioners which had alleged that the energy company’s decommissioning agreement with the county was not valid or in accordance with existing county zoning ordinances.

The civil suit, filed in March by Syracuse, Ind.-based attorney Stephen R. Snyder on behalf of 34 Fayette County residents, claimed the decommissioning agreement did not adhere to the county’s zoning ordinance, specifically regarding financial assurance related to the decommissioning and removal of commercial wind turbines once they’ve reached their lifespan of roughly 30 years.

The landowner group also claimed that the addendum signed by the county and Whitewater Wind LLC – which was created in response to many concerns from residents about the original decommissioning agreement allegedly not addressing financial assurances for taking the turbines down – still did not adequately address the issue, and was not in compliance with the county’s zoning code.

Kellerman was serving as special judge in the case, which had been filed in Fayette Circuit Court, due to Fayette Circuit Judge Beth A. Butsch recusing herself to avoid the appearance of impropriety.

In his ruling last week, he cited Rule 12(B)(6) and Rule 12(B)(1) of the Indiana Rules of Trial – Rule 12(B)(1) being that the court had lack of jurisdiction over the subject matter, and Rule 12(B)(6) being that there had been a failure by the plaintiffs to state a claim upon which relief can be granted – as the reasons for his dismissal of the civil suit.

Both those reasons for Kellerman’s dismissal of the lawsuit concurred with arguments made by NextEra’s attorney in Indiana, Mary Solada of Indianapolis, in the company’s response to the lawsuit filed back in June.

That response by NextEra sought to dismiss the civil suit entirely based on claims that it was not filed in the proper amount of time per state law, that the suit improperly challenges the decisions by both the Fayette County Area Plan Commission and Board of Zoning Appeals, and that the court does not have subject matter jurisdiction, among other arguments.

“Accordingly, the Court should dismiss the Plaintiffs’ Complaint in its entirety and disallow Plaintiffs’ misguided efforts to interfere in the planned development of a wind energy conversion system,” the response stated at that time.

NextEra Energy Resources is the company behind the proposed West Fork Wind Energy Center, formerly known as the Whitewater Wind Farm, which would include the construction of a roughly $250 million commercial wind farm of more than 80 turbines spread over Fayette, Henry and Rush counties, with the bulk of the project – 56 turbines – being located in Fayette County’s Posey and Fairview townships. The project’s future in Rush County is still up in the air, however, after a ruling earlier this month by the Rush County Board of Zoning Appeals which required larger setback distance and smaller height requirements for the construction of the project’s turbines within that county.

The company was thrilled with the news Wednesday of the lawsuit’s dismissal, per Bryan Garner, manager of communications for NextEra Energy Resources.

“We’re pleased this baseless lawsuit was dismissed and we look forward to bringing the benefits of the West Fork wind project to area residents,” he said in an email.

A spokesman for the group of landowners who brought the case against NextEra, Fayette County resident Joe Schultz, declined to comment about the dismissal Wednesday or the group’s plans going foward.

“We can’t really make a comment about it until we have a chance to review it with our attorney,” Schultz said.

The West Fork project, according to its manager Zachary Melda during public meetings held recently in Fayette County, is still in search of a buyer for the electricity which would be produced by the wind farm, but that a buyer is close to being secured.