Jennifer Nelson for www.theindianalawyer.com
The Indiana Court of Appeals affirmed that landowners in Wells County who lived next to property that will house wind turbines were not prejudiced by the zoning decision to allow the project to proceed.
In James E. and Tamara L. Dunmoyer, Jr., Linus and Karen Harrold, Theron and Clara Miller, et al. v. Wells County, Indiana Area Plan Commission, Wells County Wind II, LLC, et al., 90A02-1407-MI-460, James and Tamara Dunmoyer and other landowners appealed the grant of summary judgment in favor of the county and the wind turbine developers regarding the landowners’ request for judicial review of a zoning decision by the Indiana Area Plan Commission. The commission approved a petition for the development of a large wind energy conversion system filed by a group collectively referred to as Apex; the wind turbines would be placed on land adjacent to that of the landowners.
The zoning ordinance in Wells County outlines what parameters a group must meet in order to be allowed to construct a large wind energy conversion system, which includes Article 14 on development plans and Article 15 on development criteria for a WECS project.
The plan commission ultimately approved Apex’s WECS petition to place the wind turbines on land zoned Agricultural-1. The landowners then filed their complaint. In Count I, the landowners sought judicial review of the zoning decision; in Count II, they sought a declaratory judgment that the reciprocal setback provision in Article 15 of the zoning ordinance was invalid and should be stricken because it constituted a taking of private property without just compensation.
The defendants – the plan commission and Apex – alleged the landowners lacked standing in Count I because they failed to allege facts showing they are aggrieved by the approval of Apex’s plan. The trial court ruled in favor of the defendants on Count I, effectively upholding the plan’s approval.
The General Assembly has decided that a plan commission has exclusive authority to approve or disapprove a development plan for real property located within the plan commission’s jurisdiction, Judge James Kirsch wrote.
“The circumstances about which Landowners contend they have been prejudiced, their proximity to the wind turbines and its resultant noise and shadow flicker plus a decrease in the value of their land, were circumstances created not by the Plan Commission’s approval of Apex’s Development Plan, but instead, by the legislative body’s enactment of Article 15. By reaching this conclusion, we are not diminishing the concerns of Landowners regarding the placement of wind turbines in their community. Instead, we are recognizing the power our legislature has given to the Wells County legislative body to determine the uses that will be permitted in various zones of the county,†he wrote.
The trial court granted the landowners’ petition for declaratory judgment as to Count II and ordered that the reciprocal setback provision in Article 15 of the ordinance is invalid and should be stricken from the zoning ordinance, which was not appealed by either of the parties. The trial court also remanded the development plan to the plan commission to review the plan again to make sure it complies with Article 15. The COA remanded this appeal to the trial court to remand the development plan to the commission so that the commission follows the instructions set forth in the trial court decision.
