Claims plaintiffs have no 'actionable property right'
Roughly two months after it was filed, the Fayette County Commissioners have now responded in the lawsuit brought against it and Whitewater Wind LLC by several county residents.
Attorney Kirk A. Horn, with Mandel Horn P.C. of Carmel, Ind., filed the county’s response this week to the lawsuit, filed in March by attorney Stephen R. Snyder of Snyder Morgan LLP in Syracuse, Ind., on behalf of 34 Fayette County residents.
The lawsuit, spearheaded by residents Craig Mosburg, Joe Schultz and Cecil Bell, claims the county’s contract with NextEra Energy Resources, regarding the decommissioning of wind
turbines in the proposed project, is not valid or in accordance with the county’s zoning ordinance.
The project, slated to span Fayette, Henry and Rush counties and begin construction this year, would see approximately 43 wind turbines place in Fayette County, specifically in Posey and Fairview townships.
The complaint filed against both the focuses specifically on an addendum to the decommissioning agreement the county and NextEra Energy signed off on for the project in September 2015, which was supposed to clarify language in the contract for how long and how much the security bond required by the energy company would be for regarding decommissioning wind turbines at the end of the project.
According to the plaintiffs, a conforming decommissioning agreement – per county zoning ordinances – “was not submitted at the time of filing of the Special Exception Application,” along with the 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,” along with failing “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.”
The complaint goes on to state that the decision by county commissioners to approve the original decommissioning plan – without the addendum – was “arbitrary and capricious” because they had insufficient information at that time, due to 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 commissioners.
The decommissioning agreement between the two parties has been called into question several times since August 2015, when NextEra’s special exception applications for construction of the Whitewater Wind Farm project were heard at the county’s Board of Zoning Appeals hearing.
Among the concerns from some included the ambiguous language in the original decommissioning agreement and the length of time listed for the security bonds required to pay for the decommissioning of the wind turbines – which appeared to much for a much shorter period of time than the estimated lifespan of the wind farm project, which is required by Fayette County zoning code.
The projected lifespan of the Whitewater Wind Farm, as previously stated by NextEra project manager Jeremy Ferrell, is 30 years.
NextEra, in August 2015, agreed to sign off on an addendum by the county to the decommissioning contract, which better detailed that subject. The addendum states that Whitewater Wind LLC would provide a security bond for the duration of the wind farm project to pay for decommissioning, with the amount of that security bond to be looked at after an initial eight-year period and then reevaluated every five years after for the life of the project.
Even that working, however, raised eyebrows for residents concerned whether the county could be stuck with the cost of decommissioning the wind turbines – which at this time cost roughly $100,000 to decommission – should the Whitewater Wind LLC, formed by NextEra, go belly-up and a security bond could not be obtained from the dissolved entity.
In the county’s response to the lawsuit, it lists several defenses as to why judgment should be in favor of the county and NextEra in the lawsuit.
Among those defenses are that the plaintiff ’s “claims are barred because there is no privity of contract between Plaintiff’s and Defendant,” along with the plaintiffs having “no actionable property right.”
It also denies that the decommissioning addendum does not conform with county zoning ordinances and their decision was “arbitrary and capricious.”
The county, in its response, also claims it has legislative immunity and that the lawsuit is not suitable for a declaratory ruling.
The plaintiffs are seeking a declaratory judgment by the Fayette Circuit Court in the case which deems both the Decommissioning Plan and its addendum between the county and NextEra Energy Resources be declared invalid and void, for failing to comply with the county’s zoning ordinance. It also seeks “costs of this action” and other relief.
A response from NextEra Energy Resources, the codefendant in the civil suit, has yet to be filed with the Fayette County Clerk’s Office. NextEra and its counsel have until the end of May to file their response to the suit.