September 19, 2017
Indiana

Wind petitioners respond to motion to dismiss

By Travis Weik | The Courier-Times | September 19, 2017 | www.thecouriertimes.com

A group of Henry County residents who are challenging local wind turbine rules filed a response Friday to a ‘motion to dismiss’ that had been 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.

Attorneys representing the group argue that Big Blue River Wind Farm, a subsidiary of Calpine Corporation, reached out of bounds when the company filed to have the case dismissed last month.

The initial filings from May 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.

That claim also raised questions of whether the planning commission has the legal authority to issue commission-approved uses (CAUs) to projects around the county.

Big Blue River Wind Farm argued that the petitioners waited too long to challenge the ordinances and that they had not followed proper protocol when challenging the validity of the ordinances.

“In its Brief in Support of Motion to Dismiss, Big Blue improperly relies upon matters outside the pleadings, and it disregards the standard adhered to by courts when determining whether a pleading states a claim upon which relief may be granted,” attorneys from Snyder Morgan Federoff & Kuchmay argued. “The law simply does not support the arguments advanced by Big Blue and its Motion to Dismiss should be denied.”

In their response, the petitioners also claim that “the statutorily required notice to enact the wind ordinance was fatally deficient.”
Citing Indiana law, the WECS ordinance opponents said the Henry County Planning Commission was required to hold a public hearing, after first posting a public notice that has specific requirements.

According to state law, public meeting notices need to have the time and place of the hearing, the location and a summary of what was to be discussed.

The petitioners refer to the legal notice of the public hearing as “the Deficient Wind Ordinance Notice.” They claim that the notice did not satisfy any of the state’s requirements.

“Most glaring is that fact that the date of the public hearing was not identified – effectively precluding any participation by the public,” the petitioners said.

The motion to strike Big Blue River Wind’s motion to dismiss challenged their argument that proper notice was given because other notices running published that day contained the required information.

The original petition only challenged the notice about the WECS ordinance meeting.

“This Court may not go beyond the Petition filed in this case when deciding the motion to dismiss,” the lawyers said.

The original petition also ask the courts to invalidate a decision by the planning commission to allow two meteorological towers to be placed in northern Henry County.

Big Blue River Wind claims that the towers are included as part of a Wind Energy Conversion System and falls under the “Utility” umbrella.

The arguments is that the towers are not utility services nor are they pieces of equipment providing a utility service, so the planning commission doesn’t have the authority to approve their installation.

“It (a meteorological tower) provides no utility service but is simply a measuring tool that collects data,” the petitioners said.

The law firm also asks the deciding judge to ignore Big Blue River Winds’ “speculative implications” about the effects of striking down the Henry County Planning Commission’s authority to issue commission-approved uses for local projects.

“Big Blue’s speculation is entirely irrelevant. The issue is whether the Petition states a claim upon which relief may be granted,” they said. “The Petition does state valid claims, and that should be the end of the inquiry.”

The WECS ordinance review case is being heard in Henry Circuit Court 1 by Special Judge Linda Ralu Wolf from Delaware County. As of Monday, Wolf had not responded to the most recent filing.