August 14, 2018

Taylor warns of possible repercussions

Jim Johnson | Journal Review |

Towns adopting ordinances with restrictions on wind farm development are making a mistake, said county attorney Dan Taylor.

Several Montgomery County towns have either adopted or are considering adopting such ordinances that Taylor says wouldn’t stand if challenged in court.

“I think the courts in Indiana have made clear that you can’t regulate land use for any use, whether it be a sanitary landfill or cell towers or wind farms, without having zoning in place,” Taylor made the remarks Monday near the end of the Montgomery County Commissioners’ meeting after Commissioner John Frey asked for his legal opinion regarding the decisions being made by town councils and boards.

“I understand and empathize with the small towns that are trying to control wind energy,” Frey said. “It seems there’s obviously some misinformation and misunderstanding.”

Taylor said the repercussions from such decisions could be costly and that other cases prove it would be all for nothing.

Next month Alamo is expected to adopt an ordinance with a handful of restrictions based around safety. In March, the Darlington Town Council passed an ordinance reducing the noise level produced by wind turbines to a maximum 38 decibels – a drop from the county’s maximum restriction of 50 decibels, which commissioners passed last month.

With the cases in Darlington and Alamo, both ordinances reach four miles beyond the town’s borders.

“I think that to the extent that these towns are considering or have adopted ordinances with land use regulation within them, they’re not going to be enforceable,” Taylor said. “I think, also, that people who have property rights, whether they be farmers or the wind turbine companies who have options, are probably going to challenge those ordinances. And in my opinion, they have a pretty good chance of prevailing because that’s what the courts have said. It would be different if there were cases on the other side, but there are none.”

Taylor referenced a 2002 case heard in the federal court of appeals after Fountain County was sued over an ordinance regulating landfills. Another case from 1992 was heard in the federal court of appeals over Jay County’s sanitary landfill moratorium.

“They struck those regulations down,” Taylor said. “The courts have also recently struck down land use regulation in Tippecanoe County for blasting for mining.”

Those who have opposed wind farm development are leaning on what they say are public health and safety concerns to keep wind turbines from going up around their property. They say an Indiana law gives towns the right to regulate conduct or property that may endanger the public.

“It is clearly not a zoning ordinance and does not require the lengthy procedure to establish a zoning ordinance,” said Stephen Snyder, the attorney representing the group, No Wind Farm Montgomery County. “If a town determines that commercial wind turbines would or could be detrimental to the health and safety of the town’s residents, the ordinance could be used to protect the residents. Exercise of the 4-mile extraterritorial jurisdiction allowed is reasonable in light of the height of turbines and the potential to have effects on persons several miles away.”

The two interpretations could be battled in court, but Taylor believes the county’s towns won’t have many options. He believes they will have to spend taxpayer money trying to defend their decisions.

“With rare exceptions, those town councils don’t have the right to (regulate four miles outside the town limits),” he said. “I don’t think they’re going to be enforceable.”

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