A Cass County judge has denied a motion 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 are 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.
Both sides argued the motion to dismiss in court on Monday. The Office of the Indiana Attorney General also argued in favor of the motion.
Cass Circuit Court Judge Leo Burns issued an order on May 9 denying the commissioners’ motion to dismiss.
“Motions to dismiss are viewed with disfavor in Indiana because they undermine the policy of deciding cases on their merits,” the order states.
The order goes on to state that a complaint shouldn’t be dismissed unless it’s certain plaintiffs wouldn’t be entitled to relief.
“Indiana law requires that allegations contained in a complaint be presumed to be true and that all inferences that could be drawn by the presumption must be viewed in a light favorable to the plaintiffs,” according to the order.
Jason Kuchmay, at attorney with Syracuse-based Snyder Morgan Federoff & Kuchmay LLP, represents Baker and Gingrich.
“We’re very pleased with the judge’s decision to allow the case to go forward and be decided on the merits,” Kuchmay said by phone Friday.
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