April 19, 2018

Miami Co. files motion to dismiss wind farm suit

Local couple argues county's wind ordinance violates the U.S., Indiana constitutions | By Carson Gerber | Kokomo Tribune | April 19, 2018 | www.kokomotribune.com

PERU – The Miami County Board of Commissioners has filed a motion to dismiss a lawsuit alleging the county’s wind-energy ordinance is unconstitutional and violates residents’ property rights.

Charles and Donna Smith, who live in the area of a proposed wind farm project in northern Miami County, filed the lawsuit in January claiming the wind ordinance violates both the U.S. and Indiana constitutions by restricting land 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 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.

The litigation 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.

But Miami County is now asking a judge to dismiss the lawsuit, arguing no one is taking the Smiths’ land or property.

County attorney Pat Roberts, who filed the motion, said no company has officially filed an application to build any wind turbines in the county.

“The [Smiths] must be affected or aggrieved by the challenged ordinance,” Roberts said in the motion. “… This court cannot review what the RES project, based upon information and belief, will propose. Without factual information based upon true facts, this court cannot determine if a taking has occurred.”

The motion also argues the Smiths should first seek a remedy through the county plan commission and board of zoning appeals, which could grant a variance from the current ordinance, instead of asking a judge to preemptively strike it down.

The motion also notes the Miami County Plan Commission last week approved a recommendation to change setback requirements in the county’s wind ordinance. Those amendments would require a 2,000-foot setback of turbines from property lines, roads, public lands and city limits.

County commissioners must now vote on whether to accept or reject the plan commission’s recommendation to change the ordinance. During their Monday meeting, commissioners certified they had received the recommendations but tabled the decision on whether to approve the new wind ordinance.

The motion argues that until that is done, “For a court to allow a hypothetical harm to one person’s property from a yet-to-be-built (or even permitted-to-be-built) wind farm to upend a county-wide ordinance would be an absurd judicial intrusion into the public regulation of land uses.”

URL to article:  https://www.wind-watch.org/news/2018/04/19/miami-co-files-motion-to-dismiss-wind-farm-suit/