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County responds to turbine setback lawsuit; Commissioners ask for wind turbine case to be dismissed

The Cass County Commissioners argue a lawsuit filed against them regarding the county’s wind energy rules should be dismissed.

John L. Baker and Mike Gingrich, both northern Cass County agricultural landowners, filed the lawsuit against the commissioners in Cass County Circuit Court in January.

Cass County’s wind energy conversion systems ordinance requires commercial wind turbines to be at least 1,000 feet from residences. Baker and Gingrich argue the rule prevents landowners from building residences on their properties if they were less than 1,000 feet from a turbine. That’s an unlawful taking of private property, according to their lawsuit.

Kara M. Kapke, an attorney with Barnes & Thornburg LLP in Indianapolis, represents the commissioners. She filed a motion to dismiss in the case on Monday. It argues Baker and Gingrich lack standing because “they cannot demonstrate non-speculative injury.” They assume a turbine will be approved and built near their properties and ask the court to rule that if a turbine project is approved and a turbine is sited near their properties, that it results in an unreasonable taking, the motion continues.

“The alleged harm they have suffered is purely speculative and hypothetical at this point,” according to the motion.

The motion goes on to argue that property owners wouldn’t be able to build a home less than 1,000 feet from a turbine if a turbine is approved, if it doesn’t include additional requirements, if the developer sited it in such a manner, if a neighboring property owner intended to build a residence and if they didn’t pursue a variance from the setback rule.

“Plaintiffs do not allege that any of those ‘ifs’ have occurred, either generally or specific to them, nor can they,” the motion states.

Baker and Gingrich’s claims are also premature, according to the motion, as they have yet to exhaust all administrative remedies. The motion goes on to argue that accusations of a zoning ordinance being unconstitutional must first be presented to a board of zoning appeals.

The motion argues that Baker and Gingrich allege commercial wind turbines “will require a special exception permit.”

Cass County’s zoning ordinance permits commercial wind turbines in agricultural districts through a special exception granted by the county’s board of zoning appeals.

The county commissioners’ motion to dismiss states that the board of zoning appeals could increase setback requirements and that Baker and Gingrich don’t yet know what kind of turbine project will be approved, if any, and therefore cannot determine whether an unlawful taking has occurred.

The motion goes on to argue that the county’s wind ordinance does not take away any economic value from Baker’s and Gingrich’s land, as they would still be able to use it for the agricultural purposes it’s zoned for regardless of the ordinance or a turbine project.

Syracuse-based Snyder Morgan Federoff & Kuchmay LLP represent Baker and Gingrich.

The lawsuit is being argued as Renewable Energy Systems Americas out of Broomfield, Colorado, pursues a wind turbine project in northern Cass and Miami counties.