Rush, Henry County wind farm may be in jeopardy following judge's ruling

Special Rush Superior Court Judge Matthew D. Bailey ruled May 27 to let the July 2015 decision, by the Rush County Board of Zoning Appeals, to approve special exception permits for the construction of wind turbines for the proposed Flat Rock Wind project stand, despite claims from Aoex Clean Energy – the company behind the project – that the BZA over-stepped its authority in stipulating that the setback distance for those turbines would have to be 2,300 feet from non-participating property lines, instead of 1,000 feet.

Apex Clean Energy had petitioned the court, shortly after the BZA’s decision in July 2015, to conduct a judicial review of the decision. The roughly $200 million Flat Rock Wind project, if it come to fruition, would see 65 wind turbines erected in Rush County, on property owned by 88 Rush County residents, and an additional 20-plus turbines in Henry County.

Apex, in its filing, claimed that the company has “been prejudiced by the BZA’s zoning decision because the BZA’s imposition of the setback condition effectively prevents Petitioner from developing the WECS project in accordance with the Special Exception and the Zoning Ordinance; and was wholly arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and contrary to constitutional right, power, privilege, or immunity; and in excess of statutory jurisdiction, authority, limitations, or short of statutory right.”

Essentially, the energy company claimed the BZA overstepped its authority, while also enacting a setback requirement contradicting its own ordinance, which requires a minimum setback of 1,000 feet.

Bailey, in his ruling, disagreed, stating that the BZA was wholly within its purview as a board to make such a decision.

Among his reasons for siding with the BZA in his decision, Bailey cited that while 1,000 feet is the minimum setback distance per the county’s zoning ordinance, that the BZA can choose to enact a larger setback, especially if it feels such is needed for protection of the health, property values and safety of non-participating landowners. A 1,000-foot setback is simply the minimum, not the given, according to Bailey.

The BZA, at their July 2015 public hearing regarding the Apex special exception application, heard much testimony from wind farm opponents on how the wind farm could negatively affect their health and property values, and were provided with studies to support those views, prompting the BZA’s decision to extend the setback distance for Apex’s applications.

Bailey also stated in his decision that, despite Apex’s argument that the increased setbacks would essentially be a “prohibition” on wind turbines in Rush County, the increased setback distance does not prevent wind turbines from being constructed in Rush County – they simply must be 2,300 feet from a non-participating landowners property line.

He added that the BZA’s role is to protect property owners first, as a governmental body, and that the burden falls to APEX to show the turbines – and a 1,000-foot setback distance – would not harm non-participating property owners.

Syracuse, Ind., attorney Stephen Snyder, who has helped represent the group of Rush County residents also named in the APEX/BZA case, and represents the group of Fayette County residents currently taking the Fayette County Commissioners and NextEra Energy Resources – the company behind the proposed Whitewater Wind Farm in Fayette, Rush and Henry counties – said the ruling by Bailey was a victory for landowners throughout the area.

“I think it is, because you now have a decision by a Board of Zoning Appeals that reviewed all of the evidence that supports the remonstrators’ position, and said no, we need more of a setback,” he said. 

He also commended the Rush County BZA on simply taking the time, when they made their decision to extend the setback distance in July 2015, to analyze the evidence. That is what should be done in all cases.

“The Board of Zoning Appeals went through that massive hearing, reviewed the evidence and did a superb job of analyzing the information and making their decision,” Snyder said. “So I think from the standpoint of the (decision), Judge Bailey’s standpoint is very detailed and clearly shows the connection between the evidence that was presented and the 2,300-foot setback.”

Snyder believes the ruling could also have an impact on other proposed wind projects in the area, as well.

“It’s a very significant expression, in a condensed fashion, of the opposition’s position regarding these commercial operations,” he said. “How much effect that has on other bodies in adjoining counties, we won’t know until we get there, but certainly it’s telling. It’s one more indication there’s strong opposition to commercial wind farms ... it’s support for the position the remonstrators take on these issues.”

Efforts Thursday by the News-Examiner to contact Scott Koziar, Apex Clean Energy project manager for the Flat Rock Wind project, seeking comment on the decision were unsuccessful.

Apex officials, at the time of the BZA’s decision last year, did state the increased setback distance would effectively “kill” the project.

Apex has 30 days, if it decides, to appeal Bailey’s ruling to the Indiana Court of Appeals.