PERU – A lawsuit alleging Miami County’s wind-energy ordinance is unconstitutional is set to be decided by a special judge after all the county’s judges recused themselves from the suit.
Charles and Donna Smith, who live in the area of a proposed wind farm project in northern Miami County, filed the lawsuit in January in Miami Circuit Court against the Miami County Board of Commissioners.
The suit argues the wind ordinance violates both the U.S. and Indiana constitutions by restricting land rights.
But all three county judges last month recused themselves from hearing the case.
An order issued by Circuit Court Judge Tim Spahr argues that all the judges deal regularly with the county’s board of commissioners, which is responsible for maintaining the courthouse where all three courts are housed.
“None of the parties have sought a change of venue from the judge in this case,” he said. “However, after having reflected on the matter at some length, the (judges) conclude that recusal is appropriate in order to avoid any appearance of impropriety.”
On Monday, Spahr requested Fulton County Circuit Court Judge Christopher Lee to assume jurisdiction of the case after both parties failed to agree upon a special judge they wanted to hear the suit.
Spahr said in the order the decision to recuse would not significantly delay the case, since the first hearing isn’t scheduled until July 10.
The litigation comes after RES, an international renewable energy company with its U.S. headquarters based in Colorado, announced plans to build up to 75 wind turbines in the northern part of the county
Miami County commissioners are now asking the special judge to dismiss the lawsuit, arguing no one is taking the Smiths' land or property since RES has not officially filed an application to build any wind turbines in the county.
The lawsuit comes after the Miami County Plan Commission in April approved a recommendation to change setback requirements in the wind ordinance. Those amendments would require a 2,000-foot setback of turbines from property lines, roads, public lands and city limits.
County commissioners must now vote on whether to accept or reject the plan commission’s recommendation to change the ordinance.