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Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al.  

Credit:  Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 12 NFP memorandum decision(s)) | The Indiana Law Blog | Tuesday, February 14, 2017 | indianalawblog.com ~~

In Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al., a 26-page opinion, Judge Riley writes:

Appellant-Petitioner, Flat Rock Wind, LLC (Flat Rock), appeals the trial court’s decision, affirming Appellee-Respondent’s, Rush County Area Board of Zoning Appeals (BZA), grant of Flat Rock’s amended application to construct a commercial Wind Energy Conversion System, subject to the requirement to locate each industrial wind turbine at least 2,300 feet from a non-participating owner’s property line. We affirm.

Appellant raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings pursuant to Indiana Trial Rule 24(A)(2); and

(2) Whether the trial court erred in affirming the BZA’s zoning decision approving Flat Rock’s amended application for a special exception to construct a commercial Wind Energy Conversion System, subject to a setback requirement that was both greater and measured differently than the zoning ordinance’s minimum setback requirement. * * *

Based on the explicit language of the Zoning Ordinance, we conclude that the BZA did not exceed its authority by creating the Setback Condition, as well as a new method for measuring this Setback. In interpreting the Zoning Ordinance, the BZA viewed the siting setback as a “minimum” guideline, which was subject to “reasonable restrictions” to preserve the health and safety of the public. (Zoning Ordinance, Sec. 6.4.2; see also Zoning Ordinance 10.2). By evaluating Flat Rock’s proposed commercial WECS project as planned and the evidence and testimony received during the hearings, the BZA imposed the Setback Condition to promote the Zoning Ordinance’s and the WECS’ special exception’s stated purpose to promote the public interest. Because we find the BZA’s interpretation reasonable and consistent with the Zoning Ordinance itself, we must defer to the agency’s decision. See Hoosier Outdoor Advertising Corp., 844 N.E.2d at 163. Accordingly, as the BZA did not exceed its powers, we affirm the trial court’s decision.

CONCLUSION. Based on the foregoing, we hold that the trial court properly permitted Remonstrators to intervene pursuant to T.R. 24(A)(2); and the BZA did not exceed its power by interpreting the WECS special exception in the Zoning Ordinance.

Source:  Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 12 NFP memorandum decision(s)) | The Indiana Law Blog | Tuesday, February 14, 2017 | indianalawblog.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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