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Wind energizing state

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Indiana Lawyer Focus

Taking a drive on Interstate 65 just north of Lafayette, it’s hard to miss the many wind turbines along the highway. As wind power continues to gain momentum in Indiana, and as more counties change their zoning ordinances to include wind turbines, this will likely be a sight in more counties, especially in the northern part of the state.

Near a wind farm, one may also see the larger-than-life blades or other components of the wind turbines on the backs of semi-trucks or being hoisted by cranes.

While the visuals might seem out of the ordinary for most Hoosiers, the rest of the process – land leases, construction agreements, and zoning ordinances – are more or less like any other construction project, according to attorneys familiar with the legal issues of wind farms.

It’s just on a much grander scale.

shoultz Shoultz

Before a company can even start building a wind farm, it must consider location and wind, said J. Spencer Harmon of the Jeffersonville office of Stites & Harbison, who works on environmental issues and has been following wind-farm development in Indiana.

Location also includes whether the county has a zoning ordinance that allows for wind turbines based on height, noise, and other restrictions. For instance, some counties will account for things like the color and finish of the turbine, and “shadow flicker,” which happens when the sun shines on a turbine blade. This effect can potentially distract someone who is driving in the area.

Nikki Shoultz, an attorney at Bose McKinney & Evans, said that some counties have yet to allow for wind turbines to be installed, likely because those counties anticipate growth that would spread to land that is currently used for agriculture but may someday include residential properties.

“In White County, I think among the farmers I represent, they think the land will likely remain agricultural land for the next 30 to 50 years,” she said. That may not be the case for counties that are reluctant to add wind-farm ordinances, such as Boone County, which has been expanding in terms of residential property in the area north of Indianapolis.

Shoultz and Alan Townsend, also from Bose McKinney & Evans, will address these and other legal issues of wind farms at a Nov. 10 CLE, “The Winds of Change: Wind Leases in Indiana” at the Indiana Continuing Legal Education Forum’s Conference Facility, 230 E. Ohio St., Indianapolis.

Shoultz started representing land owners on their leases with wind companies in 2007. Since then, she has worked

on at least 20 deals on behalf of the farmers, and the groups have included anywhere from three to 80 landowners.

For the first deal she worked on, a wind farm in Randolph County, she worked with 80 landowners who had been approached by a handful of different companies to build turbines on their properties, she said.

To help the farmers make a decision, she helped coordinate presentations for the companies to share their proposed leases with the landowners. Then attorneys at the firm, including Shoultz, created a matrix with all the different possible issues.

“Ultimately, they selected a company and we negotiated the lease,” she said.

wind farm Wind turbines, like these in Benton County, appear on the landscape along Interstate 65 in northwestern Indiana. Companies consider farmers’ concerns when negotiating use of their land. (IBJ file photo)

Among the provisions to consider on wind farm leases are the company’s history; is the company financially sound; what is the possible damage to the property, including crops, soil, and access roads; what happens if the wind farm is decommissioned and the company walks away from the turbines they’ve installed; and what happens if the company is taken over by another company of which the landowner may not approve.

While some landowners are concerned about what farmers in neighboring counties had been paid for their leases, she said one of the biggest concerns is the damage the wind companies can do during the installation process.

Heavy trucks and cranes need to go through the fields, which can cause soil compaction, crop damage, and damage to drainage tiles that are under the fields.

Another potentially damaging aspect of the construction phase is how the wind company moves the turbine components from point A to point B via access roads, something she said wasn’t obvious in her early negotiations.

She also tries to work with the wind companies for a severable lease so that everything except the language about the overhead transmission lines will be in the first lease the farmers sign, and the overhead transmission lines will be part of a separate contract.

The reason, she said, is during the early stages of the process, the company doesn’t yet know where those lines will go, as they will need to study the wind patterns and other aspects of the land before they come up with a schematic and start installing the turbines.

These overhead lines can also impede farming, she said, particularly when a farmer has a large sprayer boom used to spray the crops that can’t open if overhead transmission lines are in the way.

Another aspect of the lease her clients consider is how they will get paid. In one scenario, the wind company will pay the farmer based on how much land they are using and what the turbine is rated in terms of energy production. In this case, there is a flat rate so the landowner will always know what he will get.

Another scenario is based on the amount of energy produced by the entire wind farm, and each land owner is paid based on how much energy is produced and the percentage of those turbines that are on his land.

Leases can also be a hybrid of those two, she said.

Harmon said that some farmers may also want to consider some kind of wording in the lease to account for payments based on inflation and anticipated increases for cost of living.

While Shoultz expects wind-farm development to continue in Indiana, she said one trend she has noticed is the individual farmers seeking her help as opposed to the large groups that she worked with early on. She would suggest the farmers try to work together on a lease because if they can offer more land to the company, they usually have more of a say in what they want in their lease and may get better terms than if they go it alone.

spencer harmon Shoultz

She and Harmon both mentioned the grid system for delivering energy will also need to be updated in some way as the energy from the wind turbines needs somewhere to go and a way to get to people who can use it.

This is also an issue when it comes to where the wind companies set up their turbines, Harmon said, because as electricity travels to the grid system, it loses energy along the way.

There are similar issues for individuals to consider if they want a wind turbine to power their home, Harmon added, particularly when it comes to zoning ordinances.

The Indiana Court of Appeals addressed this issue Aug. 31 when it affirmed a decision from the Warrick Superior Court that found the Board of Zoning Appeals of the Area Plan Commission of Warrick County was right in allowing a 20-foot variance for the construction of a residential wind turbine in Timothy Hamby, et al. v. Board of Zoning Appeals of the Area Plan Commission of Warrick County and the Board of Commissioners of Warrrick County, No. 87A04-0912-CV-700.

But Harmon said he didn’t anticipate too many more wind turbines built for residences. For one, they’re still expensive so the return on investment isn’t very good; and second, some ordinances might not allow a turbine to be high enough in a residential area to catch enough wind to produce the energy needed to power a house.

Regardless of the issues for building a wind turbine – either on a farm or for one’s personal use – Harmon and Shoultz expect more wind farms to be constructed in the future, especially as counties continue to change their ordinances to allow for them and as wind companies continue to see Indiana as a good place to build.•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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