COA affirms setback distance for Eastern Indiana wind farm

The Indiana Court of Appeals on Tuesday upheld a Rush County zoning ruling requiring industrial wind turbines to be at least 2,300 feet from some people’s property lines. The judges emphasized that the zoning ordinances outline minimum distances and the zoning board is able to increase those distances when warranted.

Flat Rock Wind LLC seeks to construct a wind farm on more than 29,000 acres in Rush and Henry counties with 95 wind turbines, with 65 of those in Rush County. Flat Rock in March 2015 filed an application for approval of a special exception to the Rush County zoning ordinance to build and operate a portion of the wind energy conversion system in Rush County. Zoning ordinances require a minimum setback of 1,000 feet from residential dwellings. But there were concerns about harmful side effects of the placement of the turbines, and studies showing sleep disruption, stress and annoyance associated with wind turbines near residences.

Flat Rock then amended its application to have a 1,400-foot setback from non-participating owners, those who weren’t leasing land to Flat Rock as part of the project. A zoning board member moved to make the minimum 2,300 feet, which passed by a majority vote.

Flat Rock sought judicial review of the setback condition, which Special Judge Matthew Bailey upheld. Bailey also allowed several landowners to intervene, which Flat Rock challenged on appeal.

Judge Patricia Riley for the Court of Appeals wrote that the BZA has the power to impose the enlarged setback condition under Section 6.4 of the Rush County Zoning Ordinance by its reference to a “minimum setback distance.”

“Based on the explicit language of the Zoning Ordinance, we conclude that the BZA did not exceed its authority by creating the Setback Condition, as well as a new method for measuring this Setback. In interpreting the Zoning Ordinance, the BZA viewed the siting setback as a ‘minimum’ guideline, which was subject to ‘reasonable restrictions’ to preserve the health and safety of the public,” Riley wrote.

The COA also affirmed the trial court’s decision to grant the remonstrators’ motion to intervene. Flat Rock claimed it was an abuse of discretion because the remonstrators didn’t show that they were “aggrieved” under Indiana statute. Indiana cases addressing Trial Rule 24(A)(2), which was used by the judge and allows for intervention, impart a three-part test, requiring intervenors to show an interest in the subject of the action; disposition of the action may as a practical matter impede the protection of that interest; and representation of the interest by the existing parties is inadequate.

Riley noted if the decision of the BZA was ever modified or reversed, remonstrators’ health and real estate values will be directly affected and they would no longer be adequately represented by the BZA.

The case is Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al.,70A01-1606-PL-1382.

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