On March 15, 2015, Flat Rock Wind, LLC (“Flat Rock”), a subsidiary of Apex Clean Energy, submitted to the Rush County Board of Zoning Appeals (the “BZA”) an application for a special exception permit (the “Application”) to construct a 180 megawatt commercial Wind Energy Conversion System (“WECS”), commonly known as a wind farm, on over 29,000 acres of land located in Rush and Henry Counties. Specifically, Flat Rock planned to install ninety-five three megawatt wind turbines, with approximately sixty-six wind turbines located in Rush County. The BZA held a public hearing on the Application on May 7, 2015. There, Flat Rock and other supporters testified in favor of the WECS. The BZA also received comments from a group of opponents (the “Landowners”), regarding allegations of potential adverse health effects and impact on property values from the proposed WECS. Once such comment the Landowners presented to the BZA was a paper authored by two acoustical engineering “experts” on studies describing alleged health effects associated with living in the vicinity of this type of wind turbine and recommending a setback distance of at least one kilometer, or approximately 3,280 feet, between a rural residence and the proposed wind turbines. Consistent with this recommendation, the BZA was requested to impose increased setback distances between the turbines and residences as a condition on any grant of this particular Application.

Needing additional time to evaluate the specific issues, the BZA continued the public hearing. Flat Rock subsequently amended its Application to include a setback distance of 1,400 feet. On July 1, 2015, the BZA conducted a lengthy public hearing on the amended Application. Flat Rock presented testimony and submittals which set out the benefits to the county of its proposed project and which it believed established compliance with the required findings of fact. Once more, Landowners refuted Flat Rock’s submittals and addressed the potential for adverse health effects and decreased property values from proximity to the proposed turbines. Moreover, the BZA’s staff submitted their own “research” addressing the particular sounds and low frequency noises of commercial wind turbines, and the alleged resulting long-term adverse health effects on those living nearby. The BZA also received information alleging hazards associated with ice and blade throw from wind turbines constructed as proposed by Flat Rock. Additionally, information was presented alleging a significant reduction in property value from a turbine on the property. Flat Rock, of course, highly disagreed with these assertions.

Following the hearing’s public comment period, a BZA member moved to approve Flat Rock’s WECS Application as presented. The motion failed for lack of a second. Another BZA member then moved to approve the Application with the condition that the setback distance be increased to 2,640 feet from any property line. This motion also failed for lack of a second. Then, a third BZA member moved to approve the Application with the condition that the setback distance between the wind turbines and the properties of non-participating owners be 2,300 feet. This time, the motion passed by a majority vote of the BZA.

On July 22, 2015, Flat Rock timely filed a timely verified petition for judicial review of the BZA’s decision. Arguments of counsel were heard on April 13, 2016. On May 27, 2016, a Rush County Superior Court judge issued findings of fact and conclusions of law and affirmed the BZA’s approval of Flat Rock’s WECS Application, with the 2,300-foot setback provision. In doing so, the Court cited the BZA’s requirement under Section 10.2 the Rush County Zoning Ordinance (the “Zoning Ordinance”) to find that “‘satisfactory provision and arrangement has been made concerning’ matters such as the economic and noise effects on adjoining properties generally in the district, screening or buffering ‘objectionable or unsafe’ views, noises or vibrations, and the ‘general compatibility with adjacent properties and other property in the district.’” Recognizing that the BZA’s decision is presumed correct under Indiana law, and consequently that the BZA’s conditional approval of the Application is “entitled to great weight and deference by this Court,” the Court found that “the Setback Condition was supported by substantial evidence in the record,” as “[t]he evidence received by the BZA supported setback distances of at least 2,300 feet from a non-participating owner’s property line for reasons of both health and preservation of property values.”

Thus, the Court’s affirmation of the BZA’s approval of the Application with the 2,300-feet setback distance was based upon comments and information provided in the record before the BZA, which the Court determined to be adequate evidence; that is, the Court determined that, under the circumstances, the BZA’s finding that the setback distance was necessary to protect the health and safety of non-participating property owners was in accordance with the Zoning Ordinance — an extremely fact-sensitive determination that is necessarily confined to these circumstances. Because the Court’s decision has not been reviewed by the Indiana Court of Appeals or the Indiana Supreme Court, no precedent is created from this decision that will bind other trial courts faced with similar facts.

Flat Rock has until Monday, June 27 to either file a motion to correct error with the Rush County Superior Court or appeal to the Court of Appeals.

See Flat Rock Wind, LLC v. Rush Cnty. Area Bd. of Zoning Appeals and Intervening Respondents, Case No. 70D01-1507-PL-000220