Apex Clean Energy continues to gauge the interest of Henry County landowners interested in placing a wind turbine on their property as it awaits a judicial review of a decision made last summer in Rush County.
July 1, 2015, the Rush County Board of Zoning Appeals gave Apex the go-ahead to erect turbines throughout a large area of northern Rush County, but changed the setback requirements to 2,300 feet from any turbine to the property line of any nearby non-participating landowner. The Wind Energy Conversion System (WECS) ordinance Rush County already had in place called for a 1,000-foot setback to the nearest non-participating residence and Apex, doing business as Flat Rock Wind, LLC, appealed that July 1 decision.
In Flat Rock Wind’s legal brief in support of its verified petition for judicial review of the Rush County BZA decision, the company asserts that the BZA unjustly increased setbacks greater than the minimum established by the county ordinance, failed to provide any evidence to support the 2,300-feet setback from property lines, and exceeded its legal authority in trying to use powers that are granted to the county commissioners.
The brief notes that at a May 7, 2015, public hearing conducted by the Rush County BZA its legal counsel said, “The BZA is not here to and cannot amend the zoning ordinance. They have no legal authority to do so.”
It also states, “The setback of 2,300 feet from the property line meant the standards became unobtainable, as the BZA setbacks would effectively kill the WECS project. Therefore, the setbacks adopted were not reasonable conditions that could be met by Flat Rock Wind.”
As for a factual basis for changing the setbacks to 2,300 feet the brief states, “The setback imposed by the BZA fails for a very basic reason. The determination by a zoning board must be supported by ‘substantial evidence.’ ... There is absolutely no evidence in the record to support a 2,300-foot setback. No expert testified that 2,300 feet was appropriate and no attorney argued for a 2,300-foot setback.”
Rush County BZA attorney Grant Reeves was unavailable for comment on this story.
According to Brenna Gunderson, Senior Development Manager for the Flat Rock Wind project, Apex anticipates a decision or ruling of the judicial review sometime in May.
Gunderson also indicated Thursday that Apex and Henry County Highway Department officials are close to finalizing a road use agreement needed before the wind farm project can move forward. This document basically stipulates that Apex will repair any damage to Henry County roads that might occur during the construction process. Economic development and decommissioning agreements have already been approved by the Henry County Commissioners, who would also have to approve the road use agreement.
Joe Copeland, Henry County Highway Department engineer, said in February that he and Apex representatives were close to terms on the road use agreement and that he expected it to be finalized in the near future. He was unavailable for comment on this story.
Gunderson said Apex is hopeful the wind farm can be built in both northern Rush and southern Henry County.
“We remain committed to developing Flat Rock Wind with the goal of both Henry and Rush communities benefiting from the project. We continue to press forward in Rush County. We are currently meeting with additional landowners in an expanded project area in Henry County, particularly in Wayne and Dudley Townships,” she said.
The company has also said in the recent past that if Rush County is eliminated from the project it will continue to explore the possibility of placing all of the turbines involved in Henry County.
Details of the proposed project are subject to change based on a wide range of factors. Most recently, Gunderson said if Apex constructs 30 turbines in Henry County it would represent a $66 million dollar investment and the company would also spend $175,000 in permit fees, make $11 million dollars in landowner payments and would create 200 temporary jobs during the construction process, along with eight to 10 full-time jobs after the project is complete.
“The anticipated start date for construction of Flat Rock Wind is spring 2017. We encourage community members who want to show their support for bringing this project to their communities to visit www.flatrockwindpower.com or call (765) 274-4526 to learn more about the project,” Gunderson said.
Apex is one of three companies looking into the possibility of placing wind turbines in Henry County. The others are NextEra, which is also interested in southern Henry County, and Calpine, which has started soliciting interested landowners in northwestern Henry County.