May 30, 2017

Wind company dealt blow by Supreme Court

By James Sprague | News Examiner |

INDIANAPOLIS – A court saga which has been ongoing for almost two years was finally settled last week by the Indiana Supreme Court.

The state’s highest court ruled May 25 to deny a request from Flat Rock Wind, LLC. – also known as Apex Clean Energy – to hear the case of the company’s appeal of the decision, made earlier this year by the Indiana Court of Appeals, upholding a Rush County judge’s decision that the Rush County Area Board of Zoning Appeals was within its right to enact a 2,300-foot setback distance for industrial wind turbines in the proposed Flat Rock Wind Farm.

The Rush County BZA made that decision in July 2015 to enact a 2,300-foot setback distance, from non-participating property lines, on Apex’s special exception permits for construction of industrial wind turbines as part of the proposed wind project which is slated to span both Rush and Henry counties.

That decision by the BZA was later upheld, during a challenge by Apex Clean Energy in Rush Superior Court, by Judge Matthew D. Bailey. Apex argued that the BZA did not have the authority to change the setback distance from the county-stated minimum of 1,000 feet, while Bailey ruled that the BZA did, in fact, have such authority. The decision led to Apex appealing the ruling, thus sending the case to the Court of Appeals.

Apex, in its arguments in the court, questioned whether or not the Rush County courts had “abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings,” and 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.”

The courts felt differently, however, with the Indiana Court of Appeals stating that simply due to owning real estate in the affected area, landowners could have a say, while also adding that if the Rush County BZA reversed its decision, it would no longer adequately represent those very landowners.

The courts also decided that, despite arguments by Apex that the Rush County BZA abused its power by enacting larger setback distances than the minimum stated in the county’s zoning code, those minimum setbacks are simple just minimum guidelines and that the BZA has the authority to enact more stringent setbacks in order to “preserve the health and safety of the public.”

The vote to deny the Flat Rock appeal to the Indiana Supreme Court was unanimous, and took place after all the Supreme Court Justices had examined the case and the previous decisions.

The decision by the Indiana Supreme Court brings the case by Flat Rock Wind, LLC., agains the Rush County BZA, to an official close.

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