Israeli Ambassador Gilad Erdan, Indiana Gov. Eric Holcomb, Doral LLC officials and others throw a ceremonial shovelful of dirt Oct. 14, 2021, to announce the launch of a $1.5 billion solar energy installation in Starke and Pulaski counties. The Pulaski County portion of the project has been held up in court.
Aplan to construct in Northwest Indiana one of the largest commercial solar energy systems in the world is likely to remain at least partially unrealized for the near future.
On Wednesday, the Indiana Court of Appeals affirmed
the Aug. 24, 2021, Pulaski Superior Court ruling that halted the portion of the Mammoth Solar project that aims to deploy solar panels across 4,511 acres of Pulaski County farmland.
In a 3-0 decision, the appellate court said Special Judge Kim Hall, who normally presides in neighboring Starke County, got it right when he concluded Mammoth Solar failed to submit a complete application for zoning approval, and the Pulaski County Board of Zoning Appeals (BZA) erred by nevertheless consenting to the Mammoth Solar deployment plan.
Judge Rudolph Pyle III, writing for the Court of Appeals, said there's no question Pulaski County's unified development ordinance (UDO) sets out a series of mandatory components that must be included in any application for a solar energy system project in the county.
Likewise, Pyle said it's undisputed that the Mammoth Solar application did not contain all the required information, including a site layout plan, a fire protection plan, a topographic map, a communications study, utility certification and evidence of compliance with storm drainage, erosion and sediment control regulations.
"Because Mammoth Solar’s application did not include the required information, the BZA should not have approved the application. Specifically, the BZA’s incorrect interpretation of the UDO is entitled to no weight, and we are required to reverse the BZA’s approval of the application as being arbitrary and capricious," Pyle said.
The appellate court also agreed with the trial court that the 10 Pulaski County residents objecting to the solar farm development would be sufficiently harmed by the project to have standing to file suit.
In addition, the appeals court found a minor clerical error relating to when and where documents were filed at the trial court to be an insufficient basis for overturning the lower court ruling.
"The petitioners were directly prejudiced by the BZA’s arbitrary and capricious approval of Mammoth Solar’s application, which failed to comply with the UDO’s application requirements. Specifically, the BZA’s approval of an incomplete application denied the petitioners access to information that would have allowed them to meaningfully participate in the public hearings," Pyle said.
"In addition, the petitioners’ prejudice resulting from their proximity to the solar panels and the decrease in their property values was also caused by the BZA’s approval of Mammoth Solar’s incomplete application. The petitioners have met their burden to prove that they were prejudiced by the BZA’s decision as required by Indiana law," he added.
Mammoth Solar can now request the Indiana Supreme Court consider reviewing and overturning the Court of Appeals' decision.
Otherwise, it will need to submit a complete application to the BZA that complies with the UDO, and the BZA will need to assess the application and hold the required public hearings before voting to approve or deny the application.
That may be easier said than done after the Pulaski County Board of Commissioners triggered another lawsuit when they agreed earlier this year to revise the UDO to seemingly make it easier for the Mammoth Solar project to move forward.
Several of the same litigants claim the county's UDO changes, and the methods used to adopt them, are unlawful, and Special Judge Micah Cox, the Starke Circuit Court magistrate, appears to be a long way from reaching a final judgment, according to court records.
In the meantime, the Starke County portion of the Mammoth Solar project is moving forward under the overall direction of Israel-based developer Doral Group.
Though, in August, the International Union of Operating Engineers Local 150 filed unfair labor practice charges against SOLV Energy and recruiter Aerotek, charging they are recruiting workers from outside Indiana for the Mammoth Solar project and paying them "substantially lower than Indiana standards."
"Local workers are being systematically excluded from this project," said Local 150 Financial Secretary David Fagan at the time. "Despite the economic incentives our communities have given this developer, it is seeking to use a low-wage workforce from out of state while offering Indiana workers even less. It is a slap in the face."
Altogether, the $1.5 billion Mammoth Solar farm is projected to cover some 13,000 acres in the two counties and generate 1.3 gigawatts of electricity, or enough to power hundreds of thousands of homes.
The project is being built in three phases, with the $475 million first phase — producing 400 megawatts of clean energy — expected to become operational by mid-2023.
Starke County is located immediately south of LaPorte County, and Pulaski County is south of Starke.
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