Agenda - Planning Commission - 08/06/2015

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July 10, 2015 ( Volume 9 I Issue 13 Zoning Bulletin The Court of Appeals of Indiana agreed that the Landowners were not prejudiced by the Plan Commission's approval of Apex's WECS Project Development Plan, and therefore were not entitled to relief sought. The court explained that relief was available to the Landowners only if they could prove that they were prejudiced by the Plan Commission's approval of Apex's WECS Project Development Plan. ( I.C. § 36-7-4-1614(d).) The court also explained that, pursuant to powers bestowed upon local legislative bodies by Indiana's Zoning Enabling Act, the Wells County legislative body established the Zoning Ordinance. (I.C. § 36-7-4-1401.5, -1403.) Here, the court found that Apex's Development Plan was in accordance with Article 9 of the Zoning Ordinance (pelirutted uses in a zoning district) and Article 15 (setting forth requirements for WECS projects). The appellate court concluded that the circumstances about which the Land- owners contended they had been prejudiced—including their proximity to the wind turbines and its resultant noise and shadow flicker plus a decrease in the value of their land—were circumstances created not by the Plan Commis- sion's approval of Apex's Development Plan, but instead, by the legislative body's enactment of Article 15. Accordingly, the court held that the trial court did not err in granting summary judgment to the Plan Commission upon a finding that Landowners were not prejudiced by the zoning decision approv- ing Apex's WECS Project Development Plan. Case Note: In Count II of their complaint, the Landowners had also asked the superior court to de- clare that a reciprocal setback provision in Article 15 of the Zoning Ordinance was in- valid and should be stricken from the Zoning Ordinance because it constituted a taking of private property without just compensation. The trial court had granted the Land- owners' petition and ordered that "the Reciprocal Setback provision in Article 15 of the Zoning Ordinance is declared invalid and should be stricken from the Zoning Ordinance. "Additionally, the trial court had ordered that the WECS Project Develop- ment Plan submitted by Apex be remanded to the Plan Commission with instructions that the Plan Commission review the Development Plan and its record of proceedings leading up to its decision, to determine if the Development Plan satisfied or failed to satisfy the requirements of Article 15 of the Zoning Ordinance and "any additional requirements incorporated .into these Articles by reference" (i.e., Article 14 and its compatibility requirements). The parties did not appeal the trial court's conclusions on those two issues. Therefore, while the appellate court affirmed the trial court's grant of partial summary judgment upon a finding that the Landowners were not aggrieved or prejudiced by the Plan Commission's approval of Apex's Development Plan, the ap- pellate court also remanded the action to the trial court with instructions to remand the Apex Development Plan to the Plan Commission. 4 © 2015 Thomson Reuters