This complaint, filed by residents of Fayette County, Indiana, seeks a declaratory judgment by the Fayette Circuit Court that both the Decommissioning Plan and its addendum between the county and NextEra Energy Resources in reference to the proposed Whitewater Wind facility, be declared invalid and void, for failing to comply with the county’s zoning ordinance. The complaint also seeks “costs of this action” and other relief. Paragraphs 9-13 of the complaint are presented below. The full complaint can be accessed by clicking the document on this page.
This complaint, filed by residents of Fayette County, Indiana, seeks a declaratory judgment by the Fayette Circuit Court that both the Decommissioning Plan and its addendum between the county and NextEra Energy Resources in reference to the proposed Whitewater Wind facility, be declared invalid and void, for failing to comply with the county’s zoning ordinance. The complaint also seeks “costs of this action” and other relief. Paragraphs 9-13 of the complaint are presented below. The full complaint can be accessed by clicking the document on this page.
9. The Fayette County Decommissioning Agreement and the Addendum to Fayette County Decommissioning Agreement ("Decommissioning Plan") fail to conform to the provisions of the Fayette County Zoning Ordinance, in particular, Section 153.24(F)(66)(XI) in the following manner:
A. A conforming Decommissioning Plan was not submitted at the time of filing of the Special Exception Application;
B. The Decommissioning Plan submitted at the time of the filing of the Special Exception Application failed to include a contractor cost estimate for demolition and removal of the WECS facility;
C. The Decommissioning Plan failed to provide financial assurance at least equal to the demolition and removal contractor cost estimate that will continue for the project life of the WECS facility;
10. The approval of the Decommissioning Plan by the Board of Commissioners of Fayette County, Indiana was arbitrary and capricious in that insufficient information was available to such Board at the time of approval of the Decommissioning Plan as a result of the failure of Whitewater Wind, LLC to timely file the required contractor cost estimate and financial assurance concurrently with the Special Exception Application or prior to approval of the Decommissioning Plan by the Board of Commissioners of Fayette County, Indiana.
11. The Fayette County Decommissioning Agreement and Addendum to Fayette County Decommissioning Agreement each provide that the "restoration fund" shall have an initial term of eight (8) years as opposed to a term that would expire only at the end of the serviceable life of a WECS or upon becoming a discontinued or abandoned use. Defendant Whitewater Wind, LLC has indicated to the Fayette County Area Plan Commission, the Fayette County Board of Zoning Appeals and the Board of Commissioners of Fayette County, Indiana that the anticipated serviceable life of the turbines to be installed as a part of the Whitewater Wind, LLC project is 30 years.
12. A dispute exists between Plaintiffs and Defendants Board of Commissioners of Fayette County, Indiana and Whitewater Wind, LLC as to the validity of the Fayette County Decommissioning Agreement and Addendum to Fayette County Decommissioning Agreement, in particular, whether such agreements are in compliance with the provisions of the Fayette County Zoning Ordinance or were approved in an arbitrary and capricious manner.
13. Plaintiffs are persons interested under the Fayette County Decommissioning Agreement and Addendum to Fayette County Decommissioning Agreement and whose rights and status will be affected thereby. Plaintiffs are entitled to have determined by this Court the question of the validity of such agreements.
