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Wind ordinance challenge moves forward

By TRAVIS WEIK - tweik@thecouriertimes.com

Following a judge’s decision to not throw out a legal challenge to Henry County’s wind turbine rules, Big Blue River Wind Farm, LLC, has filed its defenses against the original petition for judicial review.

The court case, overseen by Delaware County Special Judge Linda Ralu Wolf, seeks to determine if Henry County leaders followed the proper rules when they adopted the current wind energy conversion system (WECS) ordinance in 2009.

The suit claims that if those rules are invalid, the Henry County Planning Commission does not have the legal authority to approve projects related to wind farms within the county.

A group of Henry County residents and property owners filed the petition for judicial review in May 2017.

Part of the petition asserts that Indiana law does not give the planning commission “the power to approve uses in a particular zoning district following a public hearing.”

“By enacting the Zoning Ordinance, and creating the procedure for Commission Approved Uses, the County Commissioners improperly sought to expand the powers of the Plan Commission beyond those granted by the enabling statute,” the petitioners claimed.

In its legal response, Big Blue River Wind Farm stated “the Zoning Ordinance speaks for itself and denies any allegations contrary to its terms.”

Big Blue River Wind denies that the people who filed the lawsuit are being aggrieved or unfairly treated by the Henry County Planning Commission’s actions to approve meteorological tower construction according to their zoning ordinance.

The wind farm company denies the claim that the judicial review was “timely filed.”

Big Blue River Wind Farm claims that the current and former Henry County residents filing suit waited too long after the rules were enacted in 2009 to challenge them now. The wind farm developers say the suit falls outside of “relevant statutes of limitation.”

Additionally, Big Blue River Wind argues that the published advertisement about the 2009 WECS ordinance adoption meeting complied with applicable law and “adequately informed interested parties of the proceedings at which the WECS Ordinance would be heard.”

The claims against Henry County are invalid because “the harm Petitioners purport to have suffered was caused by Petitioners own action or inaction,” Big Blue River Wind Farm said.

The petitioners also failed to take “reasonable action” to mitigate any harm they may have suffered, Big Blue River Wind continued.

The company also argued that their application to build wind measuring towers were validly approved under the statute that was in effect at the time it was submitted.

Counterclaim filed

At the same time, Big Blue River Wind Farm, LLC, filed an additional counterclaim for declaratory judgment that its representatives complied with all of the local requirements and notices and should be permitted to keep its meteorological towers in place.

The original group of petitioners admit that the Henry County Planning Commission voted to approve the towers. They argue, however, that the planning commission does not have the legal authority to grant a “commission approved use” under Indiana statute.

The petitioners deny that Big Blue River Wind “followed the established procedure adopted by Henry County seeking approval of its Application.”

The petitioners argue that the planning commission’s decision approving Big Blue River Wind’s request is invalid “because the Plan Commission acted in excess of its statutory authority to approve uses within a zoning district and it is unable to grant Commission Approved Uses as a matter of law.”

The petitioners charge that the wind ordinance is invalid and “without observance of procedure required by law due to the complete lack of statutorily require notice by the Plan Commission.”

Judge Wolf gave both sides of the argument 30 days to file more responses to the petition for judicial review, the defenses from both sides and the counterclaim.