In Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals et al., 70A01-1606-PL-1382, the Indiana Court of Appeals affirmed the trial court’s decision upholding the Rush County Board of Zoning Appeals’ decision to grant petitioner Flat Rock Wind, LLC’s application to construct a commercial Wind Energy Conversion System (WECS), subject to a requirement that the every wind turbine be sited at least 2,300 feet from non-participating owners’ property lines. Flat Rock sought to build 65 wind turbines in Rush County, where the county Zoning Ordinance requires a special exception for a WECS project to be approved.

The Rush County Zoning Ordinance requires WECS turbines to be set back a minimum of 1,000 feet from residential dwellings. Over the course of multiple hearings, Flat Rock filed an amended application that voluntarily increased the setback for its wind turbines to 1,400 feet from non-participating residences. The hearings, which were well attended by both proponents and opponents of the Flat Rock project, ultimately concluded with the BZA approving Flat Rock’s application on the condition that all wind turbines be set back 2,300 feet from the property line of any non-participating owner.

After appealing the BZA’s decision to a state trial court and losing, Flat Rock appealed the decision to the Indiana Court of Appeals. On appeal, Flat Rock made two primary arguments. First, Flat Rock argued that the trial court had erred by allowing a group of landowners to intervene in the judicial review proceeding pursuant to Indiana Trial Rule 24(A)(2). Second, Flat Rock argued that the trial court erred in affirming the BZA’s decision to grant Flat Rock’s special exception with the 2,300 foot setback condition, measured from a property line as opposed to the Ordinance requirement, noted above.

With regard to the remonstrator’s right to join the judicial proceedings, Flat Rock argued that the remonstrators should not have been allowed to intervene because they could not show that they were “aggrieved” as required by the 1600 series of Chapter 4 of the Indiana Code, which, among other things, sets out the requirements for intervention in the judicial review of zoning decisions. The trial court, however, reviewed the remonstrators right to intervene under Indiana Trial Rule 24(A)(2), which requires a potential intervenor to show, among other things they have an interest in the action and that their interest will not be represented by existing parties.

The Court of Appeals determined that the trial court had correctly judged the remonstrators’ ability to intervene based on Indiana Trial Rule 24 and not the 1600 Series of Chapter 4 of the Indiana Code. The Court noted that the 1600 Series applies when an aggrieved person seeks to obtain judicial review of a zoning decision. In this case, the remonstrators were not seeking judicial review of a zoning decision; they had won before the BZA, and Flat Rock was the party that sought judicial review of the BZA’s decision. Finally, the Court determined that the trial court had correctly concluded that the remonstrators met standard to intervene under 24(A)(2), quoted above.

With regard to the setback requirement imposed by the BZA, Flat Rock argued that the BZA essentially rewrote the Zoning Ordinance by requiring a setback of 2,300 feet from turbine to property line when the minimum setback in the Zoning Ordinance was 1,000 feet from a residence. The Court of Appeals rejected this argument as well, relying on the fact that the Zoning Ordinance was intended to promote the health and safety of Rush county and that the Zoning Ordinance gave the BZA authority to grant a special exception with conditions that serve the purpose of the Zoning Ordinance.

Further homing in on the fact that the Zoning Ordinance outlined only minimum setbacks, the Court of Appeals upheld the trial court’s decision. The court also focused on the fact that the Zoning Ordinance was intended to serve the public interest. The court therefore concluded that the BZA’s interpretation of the Zoning Ordinance was reasonable.

The decision does reaffirm that review of a BZA decision is a de novo review and is based upon whether there was substantial evidence supporting a decision in the record. There is heavy reliance in this decision regarding the specific Rush County ordinance language.That said, this is an important decision for applicants before a BZA in that the case upholds the BZA’s authority to impose conditions that are not consented to by petitioner based upon the framework in that specific ordinance.