October 20, 2017
Indiana
Indiana
Wind farm says protestors ‘miss the mark’ with lawsuit; Reiterate motion to dismiss judicial review request
By Travis Weik | The Courier-Times | October 20, 2017 | www.thecouriertimes.com
By Travis Weik | The Courier-Times | October 20, 2017 | www.thecouriertimes.com
Big Blue River Wind Farm, LLC has volleyed the ball back to Henry County residents who claim there is no legal right for wind turbines to be set up around these parts.
Specifically, Big Blue River Wind Farm, LLC (”Blue River) responded in court this week to a petition from local residents who are arguing that Henry County’s rules on industrial wind turbines never should have been passed in the first place and are, therefore, invalid.
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 WECS ordinance was adopted in 2009.
The lawsuit claims proper notice was not given when the ordinance was passed and that the Henry County Planning Commission doesn’t have the authority in the first place to allow special uses of land in the county, and even if they did, the ordinance doesn’t cover meteorological (or “met”) towers.
Big Blue River Wind Farm, a subsidiary of Calpine Corporation, asked the court in August to dismiss the case for several reasons, including that the petitioners waited too long to challenge the ordinances and that Henry County courts didn’t actually have authority over matters of legislation.
The local residents responded by asking Special Judge Linda Ralu Wolf to strike part of Blue River’s argument.
In this week’s legal reply, the attorneys for Blue River said the petitioners’ arguments “miss the mark and should be rejected for several reasons.”
The attorneys argued that the WECS ordinance is a legislative act and can only be challenged through a “declaratory judgment action.”
Big Blue’s legal team claims the Henry County petitioners “slipped in a vague request” to have the wind ordinance declared invalid in their original filing for judicial review.
The original petition did not bring a separate claim for a declaratory judgement, the attorneys from Bingham Greenebaum Doll LLP said.
“It is therefore not a petition for declaratory judgment and, because it seeks invalidation of a legislative act that can only be obtained in a declaratory judgment action, it should be dismissed,” they argued.
The Big Blue response said previous court cases that the petitioners had used to bolster their arguments actually worked against them by serving as examples of plaintiffs filing separate judicial review and declaratory judgment requests.
The wind farm also reinforced its argument that the petitioners can’t challenge the WECS ordinance because too much time has passed since it went into force.
“The Plan Commission has acted on numerous petitions seeking approver under the Commission-Approved-Use procedure in Henry County,” the court filing said. “Each of these past action could be called into question if the WECS ordinance and/or the Commission-Approved-Use procedure were invalidated.”
Big Blue River Wind Farm also argued that the courts have legal authority to consider all the county public notices that ran alongside the 2009 newspaper ad publicizing the WECS ordinance meeting. The legal notice met all requirements in that case, the company argued.
According to the court documents, Blue River said the Henry County petitioners failed to state valid arguments to support their original judicial review request.
“The petition should therefore be dismissed,” the attorney said.
As of press time, Judge Wolf had not granted a time limit for the petitioners to respond to Big Blue River Wind Farm’s reply.