COA finds ‘shall’ is unambiguous in requirements for solar farm application

The Court of Appeals of Indiana has affirmed that the plug must be pulled on the first phase of what has been described as one of the largest commercial solar farms in the world because the developers failed to follow the instructions on the application seeking permission to build the project.

Mammoth Solar filed an application in 2020 to build a 4,511-acre commercial solar energy farm in Pulaski County. This was to be the first phase of a three-phase plan to build and operate one of the largest commercial solar energy systems in the world. When completed, the farm would expand across 12,000 acres and generate up to one gigawatt of electricity to serve 80,000 people.

The construction and operation of the first phase was governed by the Unified Development Ordinance, which the Pulaski County Board of Commissioners adopted in 2019. Specifically, Section 2.3(R)(3) details the information that must be included in applications for commercial solar energy systems.

Despite Mammoth’s lack of a fire safety plan and the decrease in property values of at least 220 homes, the Pulaski County Board of Zoning Appeals approved the solar farm.

Neighbors to the proposed farm filed a petition for judicial review in September 2020. In part, they claimed the application did not contain the required information, including an engineering certification, site layout plan, topographical map and communication study.

The Pulaski Superior Court reversed the BZA’s approval in a 28-page order issued in August 2021. Specifically, the trial court highlighted that the application submitted by Mammoth failed to comply with the minimum legal requirements of the Unified Development Ordinance.

While the zoning appeals board was satisfied with Mammoth’s explanation that the required information would be provided at a different time, Special Judge Kim Hall ruled state law prohibited the board from approving the application.

“The BZA was required to act in accordance with the law and was not at liberty to ignore clearly defined legal procedures,” Hall wrote.

Before the Court of Appeals, Mammoth asserted the BZA properly interpreted the ordinance when approving the application.

However, the appellate panel agreed with the trial court that the approval of the application was arbitrary and capricious and thus reversed in Mammoth Solar, a/k/a Starke Solar, LLC v. Connie Ehrlich, Daniel Knebel, Jennifer Knebel, John Masterson, Larry Lambert, Gail Lambert, Keith Davis, Gale Davis, and Dean Cervenka, 21A-PL-2060.

The Court of Appeals found the ordinance used “plain and unambiguous” language in stating that “an application for a (commercial solar energy system) shall include the specific information set forth in sections 2.3(R)(1) and (3).”

“… (T)he clear import of sections 2.3(R)(1) and (3) is that the specific information set forth in these sections is required to be in a CSES application. Because Mammoth Solar’s application did not include the required information, the BZA should not have approved the Application. Specifically, the BZA’s incorrect interpretation of the UDO is entitled to no weight, and we are required to reverse the BZA’s approval of the Application as being arbitrary and capricious,” Judge Rudolph Pyle wrote citing Chambers v. Delaware-Muncie Metropolitan Board of Zoning, 150 N.E.3d 603 at 608 (Ind. Ct. App. 2020).

In a footnote, the Court of Appeals pointed out that Mammoth tried to argue an appointed administrator had the authority to establish the requirements for the content of each development application. Also, the information that was to be put into the application was not required until the building permit application process, Mammoth argued.

But the appellate court found nothing in the Unified Development Ordinance to support either contention.

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