Agenda - Planning Commission - 05/04/2017

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Zoning Bulletin April 10, 2017 I Volume 11 I Issue 7 The Background/Facts: Flat Rock Wind, LLC ("Flat Rock") sought to develop a 180-megawatt commercial Wind Energy Conversion System ("WECS") located on more than 29,000 acres of land in Rush and Henry Counties. In March 2015, Flat Rock filed an application for approval of a special exception to the Rush County zoning ordinance (the "Zoning Ordinance") to construct and oper- ate the portion of the WECS located in Rush County (the "County"). Under the Zoning Ordinance, a WECS is a special exception, subject to approval of the County's Board of Zoning Appeals ("BZA"). In the special exception application, Flat Rock certified that the proposed wind turbines would meet the Zoning Ordinance's requirement of a 1,000-foot setback from residential dwellings. The BZA held public hearings on Flat Rock's application. At those hearings, landowners and "other remonstrators" provided evidence on the "adverse health effects and negative impact to property values resulting from Flat Rock's proposed WECS." Among other things, the remonstrators presented evidence of a paper by acoustical engineering experts that addressed "the long-term adverse health effects documented to result from residing in the proximity of a com- mercial wind turbine." In that paper, those experts "proposed increasing the distance between a rural residence and the current industrial grade wind turbines" to at least 3,280 feet. Relying on that paper, the remonstrators requested the BZA to impose, as a condition to any grant of Flat Rock's application, increased setback distances "to a much more safe distance of 2,640 feet" between the turbines and residences of non -participating owners (i.e., those who had not leased their land to Flat Rock). Eventually, the BZA approved Flat Rock's WECS special excep- tion with a 2,300-foot setback condition (the "Setback Condition"), "as measured from the center of the WECS turbine to the property line of the non -participating property owner's land." The BZA found that setback distance was necessary "[i]n order to protect health and safety." Flat Rock appealed the BZA's zoning decision to superior court. Among other things, Flat Rock argued that the BZA exceeded its authority when granting the WECS special exception subject to the Setback Condition, which was both greater and measured differently than the Zoning Ordinance's minimum setback requirement. Section 6.4.6.4.1 of the Zoning Ordinance provided that the distance from a "[r]esidential dwelling, measured from the center of the WECS to the nearest comer of the structure" must have a "minimum setback distance" of "one thousand (1,000) feet for nonparticipating landowners." The trial court affirmed the BZA's zoning decision. The court concluded that the BZA acted "within its broad authority and discretion in imposing the Setback Condition . . . ," and that the substantial evidence in the recorded supported the Setback Condition. Flat Rock again appealed. On appeal, Flat Rock argued that affirming the BZA's action would grant "the BZA carte blanche to re -write the Zoning Ordinance at the BZA's whim and has allowed the BZA to impose a poison pill condition that effectively kills a wind energy project that meets the objective setback requirements in the Zoning Ordinance." Flat Rock contended that because it met the "objective setback requirement" of 1,000 feet under Section 6.4.6.4.1 of the Zoning Ordinance, its petition should have been granted. Flat Rock argued that "to impose the Setback Condition now creates an illegal, arbitrary, and ad hoc situation that is `non -uniformly measured only for Flat Rock's WECS proj- ect' and that creates ambiguity for future wind turbine investments." DECISION: Judgment of superior court affirmed. 2017 Thomson Reuters 7