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A group of Henry County residents who are challenging local wind turbine rules have until the middle of September to respond to a ‘motion to dismiss’ filed by Big Blue River Wind Farm LLC.
Petitioners from Middletown, Straughn, New Castle, Shirley, Spiceland, Mooreland, Sulphur Springs and Hagerstown asked the local courts in May to review the Henry County Wind Energy Conversion System (WECS) ordinance.
The filings claimed that the WECS ordinance is invalid because the Henry County Planning Commission didn’t provide proper notice in 2009 before they added the new rules to the county development code. The claim also raised questions of whether the planning commission has the legal authority to issue commission-approved uses (CAUs) to projects around the county.
The case is being heard in Henry Circuit Court 1 by Special Judge Linda Ralu Wolf from Delaware County.
Within their defensive arguments, the Henry County Planning Commission and the Henry County Commissioners responded that, among other things, the petitioners waited too long to challenge the ordinances.
Big Blue River Wind Farm’s lawyers told the court that the claim should fail because the petitioners “wholly failed to act within a reasonable period of time.” This is a legal concept known as the doctrine of laches.
“Here, Petitioners waited for almost eight (8) years before deciding that the 2009 Amendment was improper and almost fifteen (15) years to challenge the authority of the Plan Commission and the concept of Commission Approved Uses,” the attorneys said.
According to the rebuttal, the law presumes that all the petitioners knew about the WECS ordinance. Big Blue River Wind Farm argues that everyone now challenging the ordinance “knowingly acquiesced in its application since its inception.”
The company’s lawyers also pointed out that the Henry County Planning Commission has been issuing CAUs since 2002.
Any findings that declare the WECS ordinance or the CAU process invalid “could potentially unravel eight years of wind and other decision, resulting in extreme prejudice to the Plan Commission and third parties pursuing those projects in Henry County,” the attorneys stated.
Arguing against the claim that no proper notice was given in 2009, the wind company’s legal team said the specific public notice announcing discussions about the WECS ordinance was published alongside multiple other planning commission ads that contained the date and time of the meeting.
The county and Big Blue River Wind Farm also claimed that the petitioners had failed to “exhaust all administrative remedies” by requesting a judicial review of the county’s WECS ordinance.
The wind farm’s attorneys said the proper procedure for challenging the legality of an ordinance is to file a “declaratory judgment action” against the legislative body that adopted the ordinance.
The Henry County Planning Commission cannot take any action to amend the current WECS ordinance until the lawsuit is resolved.
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