Agenda - Planning Commission - 08/06/2015

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Zoning Bulletin July 10, 2015 I Volume 9 1 Issue 13 "Apex") filed with the Wells County, Indiana, Area Plan Commission (the "Plan Commission") a petition for the development of a large wind energy conversion system ("WECS") project. The WECS project sought to construct approximately 68 wind turbines on private property located in southern Wells County, Indiana. Development of the WECS proposed project was governed by the Wells County Zoning and Floodplain Management Ordinance ("the Zoning Ordinance"). Apex proposed to build the WECS project on land in Wells County that was zoned "A-1," Agriculture -Intensive. Pursuant to the Zoning Ordinance, large WECS projects were permitted uses in A-1 districts provided that they complied with the provisions of Zoning Ordinance Article 15. Article 15 set forth specific requirements with which a WECS project must comply, including: property setback; noise; shadow flicker; color and finish; signage; and safety and installation standards. Article 15 also required review and ap- proval of a WECS Project Development Plan be conducted in accordance with the requirements of Zoning Ordinance Article 14. Article 14 of the Zoning Ordinance addressed development plans in general, including requirements that development plans be: compatible with the surrounding land uses; harmonious with adjacent buildings and grounds; and allow for a total visual impression that is consistent with the environment of the neighborhood. Adjacent landowners (the "Landowners") opposed Apex's proposed WECS project. The Landowners noted that the WECS project would result in wind turbines being in close proximity to their homes. They contended that the WECS project would: decrease their property values; subject them to shadow flicker and noise from the wind turbines; and result in a loss of use and enjoy- ment of their land. Ultimately, the Plan Commission approved Apex's WECS Project Develop- ment Plan. The Landowners appealed. Among other things, they argued that the Development Plan failed to comply with other requirements of the Zoning Ordinance, including compliance with: floodplain management; traffic management; and environmental performance standards. They also argued that the Plan Commission made no findings regarding whether the WECS project was compatible with surrounding land use, harmonious with adjacent buildings and properties, and visually consistent with the environment of the neighborhood as required by Zoning Ordinance sections 14-05(1), (2), and (3). The trial court found that the Landowners had failed to show that they were "prejudiced by an illegal zoning decision," as required for relief. (See I.C. § 36-7-4-1614(d).) Noting that a WECS was a permitted use on land zoned A-1 and that Apex's Development Plan met or exceeded the WECS develop- mentrequirements (section 15 of the Zoning Ordinance) about which the Landowners complained, the trial court determined that the Landowners were neither aggrieved nor prejudiced by the approval of Development Plan. Find- ing no material issues of fact and deciding the matter on the law alone, the court issued summary judgment in favor of the Plan Commission. The Landowners again appealed. DECISION: Judgment of superior court affirmed, and matter re- manded with instructions. © 2015 Thomson Reuters 3