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Judge mulls motion to dismiss wind lawsuit; Indiana Attorney General sides with Cass County

A Cass County judge says he’ll decide by the end of the week whether to grant a request to dismiss a lawsuit over the county’s wind energy ordinance.

John L. Baker and Mike Gingrich, both northern Cass County agricultural landowners, filed the lawsuit against the Cass County commissioners in Cass 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 unconstitutional taking of private property, according to their lawsuit.

The county commissioners filed a motion to dismiss the lawsuit in March indicating Baker and Gingrich lack standing because they assume wind turbines will be going near their properties. The motion calls the harm Baker and Gingrich claim speculative and hypothetical.

Kara Kapke, an attorney with Barnes & Thornburg LLP in Indianapolis, represents the commissioners. She expanded on the commissioners’ stance at a court hearing on Monday. Kapke said more would need to happen before Baker and Gingrich could claim the wind turbine rules harmed them and that it doesn’t make sense to file a lawsuit beforehand. The county would need to finish negotiating with a developer over a plan for wind turbines, she continued.

Renewable Energy Systems Americas out of Broomfield, Colorado, continues to negotiate a proposed wind turbine project with Cass County officials.

During those talks, Kapke said county officials can make setbacks more stringent than the county’s minimums. If the commissioners approve the plan that results from the negotiations, the developer would have to follow that plan and site the wind turbines accordingly. It’s not conclusive that Baker’s and Gingrich’s properties would be affected, Kapke went on to say, adding all they’re claiming is that a plan is proposed and they think they’ll be harmed.

“That’s not enough,” she added.

A wind energy developer could choose not to site turbines near the plaintiffs’ properties, Kapke also said.

Cass Circuit Court Judge Leo Burns granted Baker and Gingrich’s motion in January to certify to the Office of the Indiana Attorney General that they claim Cass County’s wind energy ordinance is unconstitutional. That order also indicated the attorney general’s office could intervene if desired.

Ryan Sterling, an Indiana deputy attorney general, said at Monday’s hearing that the attorney general’s office had joined Cass County’s motion to dismiss. Sterling echoed Kapke’s argument that the lawsuit is premature.

Jason Kuchmay, at attorney with Syracuse-based Snyder Morgan Federoff & Kuchmay LLP, represents Baker and Gingrich. He argued Monday that the county’s motion to dismiss is inappropriate and that his clients’ claim became ripe when the wind energy ordinance was enacted.

In a memorandum opposing the motion to dismiss, Kuchmay accused the commissioners’ motion of using “selective quotations from cases” that were “taken out of context.”

Before closing the hearing, Burns said he would make a decision on the motion to dismiss by the end of the week.

Cass County property owners at Monday’s court hearing also attended the county commissioners meeting later in the afternoon and continued voicing their opposition to the county’s wind energy ordinance along with the proposed project.

Jim Sailors, president of the Cass County commissioners, said at the meeting that negotiations with Renewable Energy Systems should be complete by May 21. The resulting agreements will be on the county’s website ahead of the commissioners’ votes on them, he said.