New judge selected in wind case 

RUSHVILLE – A Franklin County judge, who has already served as a special judge in one wind farm civil case, has been selected to preside over another one.

Franklin Circuit Court II Judge Clay Kellerman was selected last week as special judge in the civil case involving West Fork Wind LLC and the Rush County Board of Zoning Appeals, in which West Fork Wind – better known as NextEra Energy Resources – is challenging the Rush County BZA’s decision on their special exception permit applications back in December 2016.

In that instance, NextEra had been seeking a special exception for the construction of 22 turbines for the West Fork Wind Energy Center project in Rush County – a project also slated to encompass Fayette and Henry counties – with a height of roughly 500 feet, and a setback distance from non-participating property owners of 1,500 feet.

The Rush County BZA unanimously denied the special exception application at that time, however, and added their own requirements for setback distance and turbine height for future special exception application NextEra might submit.

Those requirements included that any wind turbines constructed in Rush County by NextEra, for the West Fork Wind Energy Center, must adhere to a 2,640-foot setback from non-participating landowners, in addition to be 200 feet or less in height.

The BZA’s decision, and added requirements, prompted NextEra to file a civil action in January of this year requesting a judicial review of the decision, stating that the Rush County BZA “has effectively imposed a moratorium on WECS projects in Rush County in direct contravention of the Rush County Zoning Ordinance,” and that the conditions the BZA placed on any future special exception application by NextEra “are not supported by substantial or reliable evidence. Instead, the unreasonable conditions are the results of votes influenced by improper communications by individuals outside of the formal BZA proceedings and improper bias against wind projects.”

The civil action filed by NextEra also claims that one BZA board member, Joseph Trent, was already prejudiced against the West Fork Wind Energy Center project, due to having spoke out publicly in July 2015 – before he joined the BZA in October 2016 – against the Flat Rock Wind Farm project by Apex Clean Energy. The company claims that his vote in December 2016, on the West Fork special exception permits, violated the company’s due process along with state law. NextEra also claims another BZA board member, Dohn Green, had “improper external communications” regarding the special exception application, and that such communication influenced his decision and also violated state law and NextEra’s due process rights.

“Rush County BZA members elected to impose unreasonable and arbitrary height and setback limits on the West Fork Wind project. These limits are not supported by any reliable evidence, they go well beyond what’s needed, and they effectively prohibit construction of any commercially viable wind turbine in Rush County, violating both the county’s own zoning ordinance and Indiana code,” said Bryan Garner, manager of communications for NextEra Energy Resources, at the time of the filing. “The BZA’s action could deprive citizens of the millions of dollars in financial benefits and clean energy the project would provide. We have filed a petition asking the court to review this decision and overturn it.”

The case has already seen three judges, with the original judge assigned to the case, Rush Superior Court Judge Brian Hill, recusing himself. A second judge, Fayette Circuit Court Judge Hubert Branstetter, also declined appointment to the case as special judge due to “conflict.”

That led to Hancock County Circuit Court Judge Richard Culver being appointed as special judge back in April, but Culver retired from the bench on Oct. 1, prompting the selection of another special judge.

Kellerman has already presided over one wind farm-related case, that being a civil suit filed in March 2016 by a group of 34 Fayette County residents against Whitewater Wind LLC – which later changed its name to West Fork Wind LLC – and the Fayette County Commissioners, which alleged that the energy company’s decommissioning agreement with the county was not valid or in accordance with existing county zoning ordinances, specifically regarding financial assurance related to the decommissioning and removal of commercial wind turbines once they’ve reached their lifespan of roughly 30 years.

Kellerman was appointed special judge in that case after then-Fayette Circuit Court Judge Beth A. Butsch recused herself, and later dismissed the case against Whitewater Wind LLC in December 2016 – ironically, just two days before the Rush County BZA made their decision on the West Fork Wind Energy Center special exception permits.