NextEra Moss Creek Solar approval reversed on appeal: Decision

On October 7, 2022, The Honorable Greta Stirling Friedman, serving as special judge for the Pulaski Superior Court, issued a decision (the “Decision”) reversing the Pulaski County Board of Zoning Appeals’ approval of Moss Creek Solar’s application for special exception (the “Application”). The Application sought approval for a large commercial solar development spanning more than 1,620 acres of agricultural farmland in Pulaski County. Several neighboring property owners initiated a judicial review proceeding before Judge Friedman in an effort that successfully reversed the BZA’s approval of the Application.

 

Key to the Judge’s decision was Moss Creek Solar’s failure to comply with the application requirements of Pulaski County’s Unified Development Ordinance (the “UDO”). The UDO Section 7.1(B) states “the intent of this ordinance is to provide a regulatory scheme for construction and operation...Solar Energy Systems (SES) in the county; subject to reasonable restrictions, these regulations are intended to preserve the health and safety of the public.” Further, a complete application is required before the BZA can take any action on the Application, including the holding of any public hearing. Judge Friedman found that Moss Creek Solar failed in that regard. Among other things, the Judge noted that “[t]he Court finds the lack of an adequate fire prevention safety plan is a fatal flaw, which means the UDO requirements were not fully met.” The Judge further found that Moss Creek Solar failed to prove it had authority to file the Application in the first place. In this case, the Application should not have been processed for further review, should not have been scheduled, and should not have been approved.

 

In reversing the approval of the Application, Judge Friedman noted that “[t]he BZA decision is arbitrary and capricious and contrary to law, not in accordance with the law, and without observance of procedure required by law. As such, the BZA decision is reversed and set aside.” As a result, Judge Friedman reversed the approval of the Application, and remanded the matter back to the BZA. Only after a complete application is provided by Moss Creek Solar, can the matter proceed to public hearing.

 

On April 8, 2022, Pulaski County Commissioners Chuck Mellon and Mike McClure voted to remove or (in the Petitioners’ opinion) drastically weaken over 80 requirements from the UDO favoring solar developers. The Commissioners also voted to allow commercial solar developments as a permitted use on all agriculture ground, thus removing public notices and the requirement for public hearings. A Complaint for Declaratory Judgment has been filed against the Pulaski County Board of County Commissioners regarding the adoption of the UDO revisions, citing multiple violations of Indiana law and statute, and of the County’s Plan Commission rules.

 

The Petitioners are pleased with the Court’s ruling on the Moss Creek Solar Application, and they have many concerns with the proposed commercial solar development. Those concerns include the impact on neighboring property values, the removal of valuable farmland from production, the destruction of the rural character of the area, and the inconsistency with the Pulaski County Comprehensive Plan, among other things. Moss Creek Solar and/or the BZA have the right to appeal the Decision to the Indiana Court of Appeals.