COMPLAINT FOR DECLARATORY JUDGMENT
John L. Baker (“Baker”), Mike Gingerich (“Gingerich”), and William Randall Cole (“Cole”) (Baker, Gingerich, and Cole are collectively referred to as, the “Plaintiffs”), by counsel, for their Complaint for Declaratory Judgment against the Cass County, Indiana, Board of Commissioners (the “Commissioners”), state as follows:
1. Baker is the owner of the following real property located in Cass County, Indiana: 4293 N. SR 17, Logansport, IN 46947 (the “Baker Property”).
2. Gingerich is the owner of the following real property located in Cass County, Indiana: 3560 Indian Creek Rd., Logansport, IN 46947 (the “Gingerich Property”).
3. Cole is the owner of the following real property located in Cass County, Indiana: 483 W. CR 400 N., Logansport, IN 46947 (the “Cole Property”).
4. The Baker Property, the Gingerich Property, and the Cole Property are collectively referred to as, the “Plaintiffs’ Properties”.
5. The Plaintiffs’ Properties are zoned agricultural.
6. The Commissioners are the legislative body for Cass County, Indiana.
7. In 2016, the Commissioners amended the Zoning Ordinance by enacting Ordinance 2016-02, an ordinance amending the Cass County Zoning Ordinance Wind Energy Conversion System Regulations (the “WECS Ordinance), a copy of which is attached as Exhibit “A”.
8. The Plaintiffs owned the Plaintiffs’ Properties prior to the amendment of the WECS Ordinance.
9. The WECS Ordinance provides a regulatory scheme for the construction and operation of Wind Energy Conversion Systems (“WECS”) in Cass County, Indiana. That regulatory scheme, and the associated setbacks, did not exist under the Zoning Ordinance in place at the time the WECS Ordinance was adopted.
10. As a result of their ownership of real property in Cass County, Indiana, the Plaintiffs are subject to the terms and conditions set forth in the WECS Ordinance.
11. Section 523.04 of the WECS Ordinance provides that Commercial WECS are permitted as a special exception in the agricultural zoning district.
12. Renewable Energy Systems, Ltd. is in the process of developing a Commercial WECS Tower project in Cass County. Upon information and belief, the project will be located on property adjacent to the Plaintiffs’ Properties.
13. Section 523.04(B)(2) of the WECS Ordinance provides that there is no limitation on height of Commercial WECS beyond those imposed by the Federal Aviation Administration.
14. Section 523.04(C)(1) of the WECS Ordinance provides for a minimum setback distance of 1,000 feet from residential dwellings for Commercial WECS Towers, measured from the center of the WECS Tower to the nearest corner of the structure.
15. Section 523.04(C)(1) of the WECS Ordinance also provides that the setback for residential dwellings is reciprocal in that no residential dwelling shall be constructed within 1,000
feet of a Commercial WECS Tower, measured from the center of the WECS Tower to the nearest corner of the structure.
16. By measuring the setbacks for Commercial WECS Towers from the corner of a residential dwelling instead of the property line, the WECS Ordinance authorizes the taking of private property without compensation being paid.
17. Specifically, once a Commercial WECS Tower is placed within 1,000 feet of a residence, the owner can no longer use the portion of his or her property located between the residence and the Commercial WECS Tower to expand or relocate their residence. Further, if a Commercial WECS Tower is placed near a property line with no existing neighboring residence, the neighboring property owner can no longer use a significant portion of their property to construct a residence. For example, if a Commercial WECS Tower is constructed 250 feet from a property line, a neighboring property owner desiring to construct a residence can no longer construct that residence on 750 feet of their property.
18. Pursuant to Indiana Code §34-14-1-2, “[a]ny person interested under a deed…or whose rights, status, or other legal relations are affected by a…municipal ordinance…may have determined any question of construction or validity arising under the…ordinance…and obtain a declaration of rights, status, or other legal relations thereunder.
19. The Fifth Amendment of the U.S. Constitution provides that private property shall not be taken for public use, without just compensation. The Fifth Amendment’s Takings Clause applies to the states via the Due Process Clause of the Fourteenth Amendment.
20. Section 21 of the Indiana Constitution states that “[n]o person’s property shall be taken by law, without just compensation; nor, except in the case of the State, without such compensation first assessed and tendered.”
21. The setback requirements in Section 523.04 of the WECS Ordinance result in a taking in violation of the Fifth Amendment of the U.S. Constitution and Section 21 of the Indiana Constitution in that it limits a property owner’s ability to use a portion of their property without just compensation.
22. Under Indiana law, setback requirements must be reasonable since they interfere with the enjoyment of property rights.
23. To the extent that Section 523.04 of the WECS Ordinance is read to measure the setback from a residential structure, as opposed to a property line, the ordinance is unreasonable, it violates the U.S. Constitution and the Indiana Constitution, and the WECS Ordinance should be declared void.
WHEREFORE, the Plaintiffs, by counsel, respectfully request that the Court enter an Order: (i) declaring the WECS Ordinance to be void to the extent it imposes a residential setback, and reciprocal setback, of 1,000 feet measured from the center of the WECS Tower to the nearest corner of the structure; (ii) declaring that the 1,000 foot setback should be measured, instead, from the property line (obviating the need for a reciprocal setback); and (iii) providing for the costs of this action, as well as all other just and proper relief.