Rush County BZA being challenged by new company

RUSHVILLE — It’s back to court again for the Rush County Board of Zoning Appeals, yet again for another decision the board has made regarding proposed wind projects.

West Fork Wind LLC, also known as NextEra Energy Resources, last month filed a civil action in Rush Superior Court requesting a judicial review of the Rush County BZA’s decision, in December 2016, regarding NextEra’s special exception permit application for the construction of 22 industrial wind turbines within the county, as part of the West Fork Wind Energy Center project. The project is slated to span Rush, Fayette and Henry counties.

NextEra had been seeking a special exception for the construction of the turbines, with a height of roughly 500 feet, and a setback distance from non-participating property owners of 1,500 feet. The Rush County BZA unanimously denied the special exception application, however, and added their own requirements for setback distance and turbine height for future special exception application NextEra might submit.

The BZA, at the December 2016 meeting, announced that any wind turbines constructed by NextEra, in Rush County, must adhere to a 2,640-foot setback from non-participating landowners, in addition to be 200 feet or less in height.

In their court filing, filed Jan. 13, NextEra requests the judicial review of the BZA’s decision based its view that the BZA “has effectively imposed a moratorium on WECS projects in Rush County in direct contravention of the Rush County Zoning Ordinance,” and that the conditions the BZA placed on any future special exception application by NextEra “are not supported by substantial or reliable evidence. Instead, the unreasonable conditions are the results of votes influenced by improper communications by individuals outside of the formal BZA proceedings and improper bias against wind projects.”

The civil action filed by NextEra goes on to claim that one BZA board member, Joseph Trent, was biased regarding the special exception application –based on his speaking out publicly against the Flat Rock Wind Farm project, by Apex Clean Energy, in July 2015 at a BZA meeting, before his special appointment by Rush County Commissioners in October 2016 to the BZA.

Trent voted on the NextEra special exception application at the December 2016 meeting.

“The Indiana Code mandates that a BZA board member who is ‘biased or prejudiced or otherwise unable to be impartial’ be disqualified and not allowed to participate in any hearing which that person cannot be impartial,” the court filing states. “Because Joseph Trent was appointed as a special member of the BZA after he spoke out against wind energy projects in Rush County, Joseph Trent was biased and the BZA’s actions violated Indiana law and West Fork’s due process rights. Accordingly, the BZA’s decision is contrary to law and void.”

The court filing also claims that another BZA board member, Dohn Green, had “improper external communications” regarding the special exception application.

“At the December 14 meeting, board member Dohn Green admitted that his support for the Setback Requirement and the Height Restriction was influenced by external comments he had received from members of the public outside of the formal BZA meetings discussing the Application,” the court filing states. “Indiana statute prohibits external communications with ‘any member of the (BZA) before the hearing with intent to influence the member’s action on a matter pending before the board ... these external communications therefore violated Indiana Law and West Fork’s due process rights. Accordingly, the BZA’s decision is contrary to law and void.”

NextEra goes on to claim in the court filing that the BZA’s decision was not supported by substantial evidence, in part citing the testimony of Ted Hartke, an Illinois resident who spoke to the BZA about the reported health and sound effects of wind turbines on people, during the BZA’s initial November 2016 meeting concerning the special exception application.

“The only testimony or evidence that the BZA heard or received that would in any way support the Setback and Height restriction was testimony from Ted Hartke,” the filing reads. “Mr. Hartke is not a human health specialist or a sound specialist. Rather, he is an Illinois resident who lives over 150 miles away from Rush County and is a regular opponent of WECS projects. The testimony that Mr. Hartke gave to the BZA was not based in science, and Mr. Hartke did not present any evidence to the Board that would indicate he was qualified to testify to these matters at the meeting.”

Bryan Garner, manager of communications for NextEra, spoke briefly Tuesday with the News-Examiner regarding the civil action.

“Rush County BZA members elected to impose unreasonable and arbitrary height and setback limits on the West Fork Wind project. These limits are not supported by any reliable evidence, they go well beyond what’s needed, and they effectively prohibit construction of any commercially viable wind turbine in Rush County, violating both the county’s own zoning ordinance and Indiana code,” Garner said in an email. “The BZA’s action could deprive citizens of the millions of dollars in financial benefits and clean energy the project would provide. We have filed a petition asking the court to review this decision and overturn it.”

As the case currently stands, there will be a special judge in the matter –who has yet to be selected – as Rush Superior Court Judge Brian Hill recused himself from the case last week.

Just this week, the Rush County BZA received news of its victory in the Indiana Court of Appeals, where the Flat Rock Wind LLC, also known as Apex Clean Energy, had been challenging both the BZA’s decision regarding its special exception permits – in which the BZA had required a 2,300-foot setback for wind turbines from the property lines of non-participating landowners – back in July 2015, but also the decision of Rush Superior Court Judge Matthew Bailey in upholding the BZA’s decision during a judicial review.

The Indiana Court of Appeals ruled Tuesday to uphold both the BZA’s original decision, along with Bailey’s ruling.