Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals
70 N.E.3d 848
| Ind. Ct. App. | 2017Background
- Flat Rock Wind, LLC sought a special-exception permit under Rush County zoning to build a 180 MW WECS with turbines sited in Rush County; the ordinance required a minimum 1,000 ft setback from non‑participating residences (measured from turbine center to dwelling corner).
- After public hearings with conflicting expert testimony about noise, infrasound, health effects, and property‑value impacts, Flat Rock amended its application to voluntarily increase setbacks to 1,400 ft from non‑participating residences.
- The Rush County BZA voted to grant the special exception but imposed a condition requiring a 2,300 ft minimum setback from turbine center to the property line of non‑participating owners (changing both distance and measurement point).
- Flat Rock filed for judicial review in trial court challenging the BZA’s authority to impose the larger and differently measured setback; nearby landowners (Remonstrators) moved to intervene and the trial court allowed intervention under Trial Rule 24(A)(2).
- The trial court affirmed the BZA, concluding (1) the BZA reasonably interpreted the zoning ordinance’s use of “minimum setback” as permitting greater setbacks where necessary to protect health and safety, and (2) substantial evidence supported the 2,300 ft condition. Flat Rock appealed.
Issues
| Issue | Plaintiff's Argument (Flat Rock) | Defendant's Argument (BZA/Remonstrators) | Held |
|---|---|---|---|
| Whether trial court abused discretion allowing remonstrators to intervene | Remonstrators lacked statutory standing as "aggrieved" persons under I.C. ch. 36-7-4 and thus could not intervene | Remonstrators properly sought intervention under Trial Rule 24(A)(2) in the judicial review proceeding and met the three‑part T.R. 24 test | Trial court did not abuse discretion; intervention allowed under T.R. 24(A)(2) |
| Whether BZA exceeded authority by imposing 2,300 ft setback and measuring to property line instead of dwelling | BZA rewrote objective WECS requirements (Section 6.4) using discretionary Section 10.2, creating a nonuniform, project‑killing condition beyond ordinance limits | Ordinance labels the 1,000 ft as a "minimum" and authorizes the BZA to impose conditions to protect health/safety; substantial evidence supported larger setback | BZA’s interpretation was reasonable and within its authority; trial court affirmed BZA decision |
Key Cases Cited
- Bagnall v. Town of Beverly Shores, 726 N.E.2d 782 (Ind. 2000) (defines who is an "aggrieved" party for zoning judicial review)
- Fulton Cnty. Advisory Plan Comm’n v. Groninger, 810 N.E.2d 704 (Ind. 2004) (ordinance minimums may be increased when language and purpose place applicants on notice that more may be required)
- Hoosier Outdoor Advertising Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157 (Ind. Ct. App. 2006) (deference to administrative agency interpretation of an ordinance when interpretation is reasonable)
- Crooked Creek Conservation & Gun Club, Inc. v. Hamilton Cnty. North Bd. of Zoning Appeals, 677 N.E.2d 544 (Ind. Ct. App. 1997) (standard of review for zoning board decisions limited to whether decision is supported by substantial evidence)
- Story Bed & Breakfast, LLP v. Brown Cnty. Area Plan Comm’n, 819 N.E.2d 55 (Ind. 2004) (zoning ordinance interpretation follows statutory construction principles)
- Midwest Minerals, Inc. v. Bd. of Zoning Appeals of Area Plan Dept./Com’n of Vigo Cnty., 880 N.E.2d 1264 (Ind. Ct. App. 2008) (presumption that BZA determinations are correct and reversal only for arbitrary or ultra vires action)