Denial of Flat Rock Wind upheld by Appeals Court: Decision

An application prepared by Apex Clean Energy to construct and operate the Flat Rock wind facility was submitted to the Rush County Board of Zoning Appeals (the “BZA”) on March 15, 2015. The 180 MW project consisted of 95-3 MW turbines with approximately 66 turbines located in Rush County and the remaining turbines to be sited in Henry County. The Rush County BZA ultimately approved the application with the condition that the setback distance between the wind turbines and non-participating properties be 2,300 feet. The County's ordinance established a setback distance of 1,000 feet. Apex filed a petition before the Rush County Superior Court for judicial review of the BZA’s decision. On May 27, 2016, a judge issued findings of fact and conclusions of law that upheld the BZA’s approval with the 2,300-foot setback provision. Apex appealed the decision to the Indiana Court of Appeals. The decision by the Appeals Count was in favor of Rush County. The full decision can be accessed by clicking the links on the page. A portion of the decision is provided below.

Statement of the Case

Appellant-Petitioner, Flat Rock Wind, LLC (Flat Rock), appeals the trial court’s decision, affirming Appellee-Respondent’s, Rush County Area Board of Zoning Appeals (BZA), grant of Flat Rock’s amended application to construct a commercial Wind Energy Conversion System, subject to the requirement to locate each industrial wind turbine at least 2,300 feet from a non-participating owner’s property line.


Appellant raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings pursuant to Indiana Trial Rule 24(A)(2); and
(2) Whether the trial court erred in affirming the BZA’s zoning decision approving Flat Rock’s amended application for a special exception to construct a commercial Wind Energy Conversion System, subject to a setback requirement that was both greater and measured differently than the zoning ordinance’s minimum setback requirement.

Discussion and Decision


II. Zoning Ordinance

By increasing the siting requirements for Flat Rock’s WECS from the Zoning Ordinance’s 1,000 feet to the BZA’s imposed Setback Condition of 2,300 feet, the BZA interpreted Rush County’s Zoning Ordinances and applied them to the situation at hand. Flat Rock now contends that affirming the BZA’s action would grant “the BZA carte blanche to re-write the Zoning Ordinance at the BZA’s whim and has allowed the BZA to impose a poison pill condition that effectively kills a wind energy project that meets the objective setback requirements in the Zoning Ordinance.” (Appellant’s Br. pp. 22-23).

A. Standard of Review

When reviewing a decision of a zoning board, an appellate court is bound by the same standard of review as the certiorari court. Under this standard, a reviewing court, whether at the trial or appellate level, is limited to determining whether the zoning board’s decision was based upon substantial evidence. The proceeding before the certiorari court is not intended to be a trial de novo, and neither that court nor the appellate court may reweigh the evidence or reassess the credibility of witnesses; rather, reviewing courts must accept the facts as found by the zoning board. Id.

However, as here, a review of the interpretation of a zoning ordinance is a question of law. The ordinary rules of statutory construction apply in interpreting the language of a zoning ordinance. Accordingly, if one statute deals with a subject matter in general terms and another deals with a specific part of the same subject, the provisions of the specific statute should prevail over any inconsistent provision of the general statute. Statutes which relate to the same general subject matter are in pari materia and should be construed with reference to each other in order to give effect to the provisions of each. By construing these statutes as we do, we are giving force and effect to each. Specifically with respect to zoning ordinances, we have held that 

the express language of the ordinance controls our interpretation and our goal is to determine, give effect to, and implement the intent of the enacting body. When an ordinance is subject to different interpretations, the interpretation chosen by the administrative agency charged with the duty of enforcing the ordinance is entitled to great weight, unless that interpretation is inconsistent with the ordinance itself. If a court is faced with two reasonable interpretations of an ordinance, one of which is supplied by an administrative agency charged with enforcing the ordinance, the court should defer to the agency. Once a court determines that an administrative agency’s interpretation is reasonable, it should end its analysis and not address the reasonableness of the other party’s interpretation. Terminating the analysis reinforces the policies of acknowledging the expertise of agencies empowered to interpret and enforce ordinances and increasing public reliance on agency interpretations. Ct. App. 2006) (internal references omitted), trans. denied.

Consequently, we presume the determination of the BZA, an administrative agency with expertise in zoning matters, to be correct. We will reverse only if the BZA’s decision is arbitrary, capricious, or an abuse of discretion. The powers of the BZA are strictly limited to those granted by its authorizing statute. Any acts of the BZA that exceed the powers enumerated by the Indiana Code and the local zoning ordinance are ultra vires and void. Id. 

B. Rush County’s Zoning Ordinance 

Flat Rock contends that the trial court erred in affirming the BZA’s decision and focuses its argument squarely upon the denial of its application for a special exception for the WECS project. Its primary argument revolves around the contention that the BZA exceeded its authority by creating a new, extended Setback Condition as well as to alter the prescribed method for measuring this Setback (property line versus residence).  Referencing the difference instituted by case law between regulatory special exceptions and discretionary special exceptions, Flat Rock characterizes Section 6.4 of the Zoning Ordinance as a “specific objective regulation that a WECS applicant must satisfy;” whereas it views Section 10.2 of the Zoning Ordinance as purely discretionary because it imposes “general, subjective criteria.” (Appellant’s Br. pp. 29, 30). Accordingly, Flat Rock concludes that the trial court employed the discretionary criteria of Section 10.2 to “impose the Setback Condition, which rewrote the specific, objective development requirements for a WECS in Section” (Appellant’s Br. p. 30). 

Building on this distinction, Flat Rock argues that because it met the objective setback requirement listed in Section of the Zoning Ordinance, and even exceeded it by agreeing to modify the location of its wind turbines to 1,400 feet from all non-participating residences, its petition should have been granted. The BZA’s reliance on the discretionary Section 10.2—and the trial court’s affirmance thereof—to impose the Setback Condition now creates an illegal, arbitrary, and ad hoc situation that is “non-uniformly measured only for Flat Rock’s WECS project” and that creates ambiguity for future wind turbine investments. (Appellant’s Br. p. 32).


Turning to the Ordinance before us, we first note that Rush County’s general intent in instituting zoning ordinances is “to maintain certain rights of the individual, but to carefully control them in the hope that his development will not have adverse effects on the society around him.” (Zoning Ordinance,
Preamble). Overall, the Ordinance’s aim is to promote “the health, safety, or general welfare of Rush County.” (Zoning Ordinance, Preamble). 


When faced with an interpretation of its Zoning Ordinance, the BZA is guided by Section 15, which clarified that: In their interpretation and application, the provisions of this ordinance shall be held to be minimum requirements, adopted for the promotion of the public health, safety, or general welfare. Whenever the requirements of this ordinance are at variance with the requirements of any other lawfully adopted rules, regulations, ordinances, deed restrictions, or covenants, the most restrictive or that imposing the higher standards, shall govern. (Zoning Ordinance, Sec. 15) (emphasis added).

Unlike Flat Rock, who maintains that the BZA derived its discretionary power from the general subjective criteria of Section 10.2 of the Zoning Ordinance, we find that the BZA’s power to impose the enlarged Setback Condition squarely derives from Section 6.4 of the Zoning Ordinance by its reference to a “minimum setback distance.” (Zoning Ordinance, Sec. Section 10.2 of the Zoning Ordinance explicitly reinforces the BZA’s discretionary power under Section 6.4 while at the same time defining the boundaries of this discretion as the “condition and safeguards as are appropriate under this ordinance or to deny special exceptions when not in harmony with the purpose and intent of this ordinance.” (Zoning Ordinance, Sec. 10.2). Similar to Groninger, Flat Rock was placed on notice by the insertion of the word “minimum” that the setback would be evaluated by the BZA in light of Section 10.2 of the Zoning Ordinance. See Groninger, 810 N.E.2d at 709. 

Flat Rock Wind Rush County In Appeal Order

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FEB 14 2017
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