COA affirms disputed votes in favor of Madison Co. solar farm

The votes of two Madison County Board of Zoning Appeals members regarding a disputed solar energy project were valid, the Indiana Court of Appeals has ruled. It also held that the board’s approval of special use applications and setback variances were supported by substantial evidence.

The dispute arose between a group of Madison County neighbors, the local BZA and Lone Oak Solar Energy over Lone Oak’s putative development of a 120-megawatt solar energy farm in the community.

The project was originally designed to involve the installation of solar panels across 900 acres of land, which Lone Oak had leased in 35 parcels from 23 landowners, with some of the parcels being contiguous. The project also had a decommissioning plan and a soil reclamation plan to return the land to agricultural viability after 35 years.

After Lone Oak submitted three applications regarding the project, one of the BZA members, Mary Jane Baker, recused herself because a friend owned land that was to be used in the project. But another member, Beth VanSickle, did participate in the vote that ultimately ruled in Lone Oak’s favor.

Lone Oak soon thereafter submitted a second set of applications nearly identical to the first, which brought heat from the neighbors after discovering Lone Oak sought an additional 350 acres zoned for agriculture. Meanwhile, it was discovered that VanSickle did not meet the residency requirements to be a member of the BZA and stepped away from that role.

Contentions were subsequently raised about the legitimacy of her vote on the solar farm issue. Concerns were likewise raised after Baker voted on Lone Oak’s second request, with the neighbors calling out her previous conflict of interest.

But the Madison Circuit Court concluded the neighbors had waived their argument regarding the validity of VanSickle’s vote by failing to raise it before petitioning for review. It also held that no evidence had been presented that Baker was biased at the time she recused herself.

Siding with the BZA on the issue of VanSickle’s vote, the COA determined that it was valid and that the neighbors had waived their challenge to the validity of her tenure because they did not object to her authority before or at the hearings leading up to the vote on the original applications.

“However, even if Neighbors had not waived their claim, it would not have been meritorious,” Judge Patricia Riley wrote for the COA panel in the case of David K. and Jane A. Burton, et al. v. Board of Zoning Appeals of Madison County, and Lone Oak Solar, LLC, 20A-MI-2186.

The panel concluded VanSickle was acting as a de facto officer of the BZA because she claimed her office, possessed it by appearing and participating in the BZA’s business, and acted under the color of the BZA’s authority by casting her vote on the original applications.As to Baker, the COA affirmed there was insufficient evidence of a disqualifying bias on her part. Without more, it found that the circumstances surrounding her previous voluntary recusal and her statements at the hearings did not show that she had direct or indirect financial interest in the outcome of the proceedings.

The panel also rejected the neighbors’ argument that the BZA was required by the county’s comprehensive plan to always prioritize the interests of agriculture over a proposed special, nonagricultural use. The COA concluded the conditions imposed on Lone Oak did address the “size, extent, and degree” of the impact of the project on its surroundings and its neighbors and, thus, addressed the scale of the project.

Lastly, the COA found that the neighbors failed to demonstrate that the BZA clearly erred in granting setback variances.

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