As of March 4, 2016, Apex filed a Notice of Tort Claim Pursuant to Indiana Code 34-13-3 (Indiana Tort Claims Against Governmental Entities and Public Employees Act). To summarize the notice, Apex claims that the commissioner’s official action on September 8th, 2015 to cease and desist all negotiations with Apex and to arbitrarily and capriciously reject the wind energy project will cause Apex to sustain economic losses. A portion of the tort claim is provided below. The full document can be accessed by clicking the links on this page.
As of March 4, 2016, Apex filed a Notice of Tort Claim Pursuant to Indiana Code 34-13-3 (Indiana Tort Claims Against Governmental Entities and Public Employees Act). To summarize the notice, Apex claims that the commissioner’s official action on September 8th, 2015 to cease and desist all negotiations with Apex and to arbitrarily and capriciously reject the wind energy project will cause Apex to sustain economic losses. A portion of the tort claim is provided below. The full document can be accessed by clicking the links on this page.
This notice is pursuant to Ind. Code 34-13-3, the Indiana Tort Claims Against Governmental Entities and Public Employees Act.
1. Circumstances which brought about loss
On March 30, 2015, Flat Rock Wind, LLC and Apex Clean Energy, Inc. (collectively "Apex") applied to the Rush County Area Board of Zoning Appeals ("BZA") for a special exception under the Rush County Zoning Ordinance for a Wind Energy Conversion System ("WECS"). The WECS project included land in both Rush County and Henry County. As part of the WECS, and in reliance on the Rush County Zoning Ordinance adopted by the Board of Commissioners for the County of Rush ("County Commissioners"), Apex was induced to enter into numerous lease agreements with landowners who desired to use their real estate for the development of the wind energy project, and Apex has spent hundreds of thousands of dollars in lease payments and development costs in reliance on the zoning ordinance. The Rush County Zoning Ordinance states that the purpose of the WECS provisions are, in part, “to facilitate economic opportunities for local residents” and “to promote the supply of wind energy in support of Indiana’s alternative energy sources potential and other such economic development tools.” The Rush County Zoning Ordinance states that an applicant for a WECS and Rush County must enter into an [sic] a Decommissioning Plan and Economic Development, Drainage, and Road Use and Maintenance Agreements.
On May 7, 2015, at the BZA hearing, County Attorney Leigh Morning testified, under oath, that Rush County and Apex:
have reached a point for the Economic Development and the Decommissioning Agreement where I think we’re about 98% complete on those two agreements and we’re close to being able to sign. There’s a couple of terms left on the Economic Development Agreement that need to be completed and those are just basically the dates for the abatement hearing. The council and the commissioners have wanted to wait until all three Agreements are ready to sign before we set the date for the abatement hearing to sign all three Agreements.
It’s been a long road, but we’ve got to the point where we least with the Decommissioning Agreements and the Economic Development Agreement – those terms have been satisfactorily met.
After the May 9 BZA hearing was continued, on May 25, 2015, Apex received approval from the Henry County Plan Commission for a portion of the WECS development; however, at the conclusion of the BZA hearing, the BAZ voted to recommend to the County Commissioners to enact a moratorium upon further WECS development in Rush County. Upon information and belief, the County Commissioners had previously negotiated and entered in an Agreement Regarding County Roads and Drains, and Economic Development Agreement, and a Decommissioning Agreement with a competing wind developer, Whitewater Wind, LLC.
On September 9, 2015, after the BZA had approved Apex’s WECS special exception, the County Commissioners made a motion “to cease and desist all negotiations with APEX Wind Energy on the Flat Rock Wind and reject the project.”
