Court rules in favor of county setback regulations

In regards to the request for a judicial review filed by Apex, Judge Bailey of Greensburg entered his judgment on June 1, 2016 affirming the Rush County Board of Zoning Appeals July 1, 2015 decision, with the Setback Condition. If no appeal is filed, the judicial review will conclude. A brief summary of the ruling can be found below. The order issued by the judge can be accessed by clicking the link(s) on this page. 

In action taken in July 2015, Apex Clean Energy sought a judicial review regarding the Rush County Area Board of Zoning Appeals’ adjustment to setbacks concerning the Flat Rock Wind Project. According to the petition, Apex asked the court to determine whether the county's setback condition was enacted in order to prevent the company from developing the wind project. Apex also complained that the setback condition was contrary to the zoning ordinance. In an order released June 1, 2016, the court ruled in favor of the county's setback condition. 

Readers are encouraged to read the full order. A short excerpt is provided below:

Flat Rock separately contend before this Court that the Setback Condition “is completely unsupported by any evidence in the BZA Record.” In this regard, under the applicable standard, “a reviewing court, whether at the trial or appellate level, is limited to determining whether the zoning board’s decision was based on substantial evidence.” “When determining whether an administrative decision is supported by substantial evidence, the reviewing court must determine from the entire record whether the agency’s decision lacks a reasonably sound evidentiary basis.”

Based upon the record, and within the applicable standard of review, the Court concludes that the Setback Condition was supported by substantial evidence in the record. The evidence received by the BZA supported setback distances of at least 2,300 feet from a non-participating owner’s property line for reasons of both health and preservation of property values. While the BZA had before it various conflicting evidence, a reviewing court does not “reweigh the evidence or reassess the credibility of witnesses; rather, the reviewing court must accept the facts as found by the zoning board.”


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JUN 1 2016
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