Last week, Apex Clean Energy filed a judicial review regarding the Rush County Area Board of Zoning Appeals’ adjustment to setbacks concerning the Flat Rock Wind Project.
The petition stated:
“Petitioner, Flat Rock Wind, LLC (‘Petitioner’), by counsel, respectfully petitions the Court, pursuant to the provisions of IND. CODE 36-7-4-1016 and 36-7-4-1602, for judicial review of a zoning decision made by the Rush County Area Board of Zoning Appeals (the ‘BZA’) on July 1, 2015.”
In the document, Apex stated that the BZA’s setback condition was enact to prevent them from developing the WECS project in accordance with the approved special exception and zoning ordinance. They also stated that the BZA’s setback condition is contrary to the zoning ordinance.
BZA board members Mike Holzback, Steve Cain and Joe Rathz were all contacted concerning the judicial review. None of the three wanted to make a comment at this time.
“Our motivation is that filing the appeal is really the only avenue that we have to address what we believe to be is a requirement that we believe is not just,” Senior Project Developer from Apex Rob Propes said. “We wanted to address the 2,300 foot setback from non-participating property lines. We don’t think there was any basis for the decision, and there wasn’t any evidence presented at the hearing nor were we aware of any of evidence to support an aggressive setback. The other thing that the appeal gives us the opportunity to do is to seek settlement conversations with the boarding of zoning appeals. We can’t ask for them to do that had we not filed the appeal. What we hope to be the next step in this process is to ask the BZA to engage in settlement conversations.”
For the 88 landowners that have signed leases and contracts, their agreement will continued to be honored until the final decision has been made.
“We are obviously going to continue to honor the agreements (with landowners) until this completely plays itself out,” Propes explained. “If the county is not willing to have settlement conversations or we are not able to reach an outcome, this appeal with proceed to the court and a judge will have to make a ruling. We really don’t want to go down that path, it will take a lot of time and it will not only cost us money, but also the county money to defend a decision that we think was not a good decision. We really want to avoid and protracted appeal process that required the intervention by a judge.”
In the upcoming week, Apex will need to file a request for an appeal.
“We will do that in the coming weeks,” Propes said, “we don’t have an exact timeline.”
Propes also explained that not only have they put time and money into the project but many landowners have as well.
“I think that Apex and our landowners have invested a significant amount of time, energy and money into the development of the Flat Rock Wind Project according to the county rules and we don’t believe its right for the BZA to change the rules of the game midstream. We also feel that it is really the county zoning ordinance that encourages land owners to incorporate wind energy on their land to supplement farm revenues and really part of the motivation of this appeal is to defend the rights of the landowners to use the land as they desire,” Propes added.
“This isn’t something that we wanted to do, file an appeal, but it is our only recourse to remedy a decision we think was put in place without any evidence that the 2,300 foot setbacks are appropriate in anyway. I think we really do desire to have settlement conversations that can yield a more rational outcome.”