Charles and Donna Smith say statute illegally prohibits landowners from building on property | By Carson Gerber | Kokomo Tribune | Feb 8, 2018 | www.kokomotribune.com
PERU – A couple living in the area of a proposed wind-farm project in northern Miami County says the county’s wind-energy ordinance is unconstitutional and is asking a judge to strike down parts of the statute.
Charles and Donna Smith filed a lawsuit last month against the Miami County Board of Commissioners claiming the wind ordinance violates both the U.S. and Indiana constitutions by restricting property rights.
The county wind-farm statute requires a minimum setback of 1,000 feet from residential properties and bars property owners from building a residential structure within the setback area.
That means even landowners who aren’t participating in the project could not build a residential building, or add onto their current home, if it’s within 1,000 feet of a wind turbine.
The lawsuit argues that violates Section 21 of Indiana’s constitution, which states “no person’s property should be taken by law, without just compensation; nor, except in the case of the State, without such compensation first assessed and tendered.”
The lawsuit also says the setback requirements violate the Fifth Amendment of the U.S. Constitution, which says private property cannot be taken for public use without just compensation.
The wind statute infringes on those rights because it limits property owners’ ability to use portions of their property without just compensation, according to the lawsuit.
Miami County Circuit Court Judge Tim Spahr has now ordered the case to be forwarded to the Office of the Indiana Attorney General since the lawsuit makes claims about a statute being unconstitutional.
Indiana code permits the attorney general to present evidence and make arguments on questions of constitutionality.
The lawsuit comes after RES, an international renewable energy company with its U.S. headquarters based in Colorado, announced plans to build up to 75 wind turbines in the northern part of Miami County. The proposed project would also extend into Cass and Fulton counties.
The Smiths own agricultural land near the Miami-Fulton county line and believe a wind turbine is set to be constructed near their land, according to the lawsuit.
The proposed wind farm has received heavy pushback from some area residents since the project became public last year.
That led to the Miami County Planning and Building Commission in December to create a study committee to review the county’s wind farm ordinance after dozens of residents packed a meeting room to oppose the wind farm project.
Attorney Pat Roberts, who represents the Miami County Board of Commissioners, said the new ordinance the committee comes up with could change setback requirements, which could then impact the lawsuit.
“At this point, we have a committee that is meeting to potentially change those setback requirements,” he said. “They are in the process doing that, so the government is at work on this in that regard. This isn’t something being ignored.”
Miami County Building Commissioner Tammy Gamble said the study committee plans to present proposed changes to the wind farm ordinance during next month’s meeting of the planning and building commission.
URL to article: https://www.wind-watch.org/news/2018/02/15/miami-co-faces-lawsuit-over-wind-farm-ordinance/