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DUNMOYER, JAMES E., ET AL. v. WELLS COUNTY, IN AREA PLAN CO.

The Wells County, Indiana Area Plan Commission approved a petition for the development of a large wind energy conversion system project that was filed by Wells County Wind II, LLC, Apex Clean Energy Holdings, LLC, and Apex Wind Energy, Inc. thereby allowing the construction of approximately 68 wind turbines on private property located in southern Wells County, Indiana. Adjacent landowners including James E. and Tamara L. Dunmoyer, Jr. and others filed with the trial court a two-count petition. In Count I, Landowners requested judicial review of the Zoning Decision, and in Count II they sought declaratory judgment on the setbacks supported by the county ordinance. The appellate county ruled that the county vote was not in error but found that the reciprocal setback provision of the ordinance was not legal. A portion of the ruling is presented below. The full ruling can be accessed at the links on this page.. 

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. 

The trial court did not err in granting summary judgment as to Count I upon a finding that Landowners were not prejudiced by the Zoning Decision.

Here, the Wells Superior Court granted summary judgment only as to Count I; however, the court also granted Landowners’ petition for declaratory judgment as to Count II and ordered that “the Reciprocal Setback provision in Article 15 of the Zoning Ordinance is declared invalid and should be stricken from the Zoning Ordinance.” Appellants’ App. at 22. Additionally, the trial court ordered “that the Development Plan submitted by Wells County Wind II is hereby remanded to the Plan Commission with instructions that the Plan Commission review the Development Plan and its record of proceedings leading up to its decision on August 14, 2013, to determine if the Development Plan satisfies or fails to satisfy the requirements of Article 15 of the Zoning Ordinance and any additional requirements incorporated into these Articles by reference.” Id. at 23. The parties do not appeal the trial court’s conclusions on these two issues.

Therefore, while we affirm the trial court’s grant of partial summary judgment upon a finding that Landowners were not aggrieved or prejudiced by the Plan be reviewed sua sponte by appellate court). Because Landowners feel harmed by the reciprocal setback [see editor's note]  and Remonstrators have failed to make a specific argument on appeal, we do not address this issue. Commission’s approval of Apex’s Development Plan, consistent with the trial court’s decision, we also remand this action to the trial court with instructions to remand the Apex Development Plan to the Plan Commission. The Plan Commission, in turn, must follow the instructions set forth in the trial court decision to strike the Reciprocal Setback provision in Article 15 of the Zoning Ordinance, and review Apex’s Development Plan and the Plan Commission’s record of proceedings leading up to its decision on August 14, 2013, to determine if the Development Plan “satisfies or fails to satisfy the requirements of Article 15 of the Zoning Ordinance and any additional requirements incorporated into these Articles by reference.” 

Editor's note: A reciprocal setback in this case means that the setback distance from the turbine to the nearest dwelling as established in the local law also applies to any dwellings constructed after the turbines are erected. 

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Source: http://www.in.gov/judiciary...

MAY 12 2015
http://www.windaction.org/posts/42734-dunmoyer-james-e-et-al-v-wells-county-in-area-plan-co
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