Agenda - Planning Commission - 05/04/2017

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April 10, 2017 I Volume 11 I Issue 7 Zoning Bulletin Looking at the language of the Zoning Ordinance, the Court of Appeals of In- diana held that the BZA did not exceed its authority by creating the Setback Condition, as well as a new method for measuring that setback. In so holding, the court noted that the Zoning Ordinance delegated to the BZA "the authority to interpret and enforce the [Z]oning [O]rdinance, as well as the exclusive power to hear and decide applications for special exceptions." The court noted that an applicant for a WECS special exception such as Flat Rock here —bears the burden of satisfying both Section 10.2 of the Zoning Ordinance, which sets forth general criteria applicable to all special exceptions, and Section 6.4 of the Zoning Ordinance, which pertains specifically to the construction of WECS in Rush County. Section 10.2 of the Zoning Ordinance provides that the BZA is authorized "to decide such questions as are involved in determining whether special exceptions should be granted" and "to grant special exceptions with such conditions and safeguards as are appropriate under this ordinance, or to deny special exceptions when not in harmony with the purpose and intent of the ordinance." With regard to setback requirements, Section 6.4.6.4.1 of the Zoning Ordinance again provided that the distance from a "[r]esidential dwelling, mea- sured from the center of the WECS to the nearest corner of the structure" must have a "minimum setback distance" of "one thousand (1,000) feet for nonpartici- pating landowners." The Court of Appeals concluded that the BZA had the authority to impose "the enlarged Setback Condition," and that such authority derived "squarely" from Section 6.4.6.4.1 of the Zoning Ordinance by its reference to a "minimum setback distance." Further, the court found that Section 10.2 of the Zoning Ordinance "explicitly reinforce[d] the BZA's discretionary power under Section 6.4 while at the same time defining the boundaries of this discretion as the `condition and safeguards as are appropriate under this ordinance or to deny special exceptions when not in harmony with the purpose and intent of this ordinance.' " Finally, in response to Flat Rock's argument that there would be ambiguity for future wind turbine investments if the BZA was allowed to impose setback requirements greater than the objective requirements in the Zoning Ordinance, the court found that Flat Rock (and future wind turbine investors) was placed on notice by the insertion of the word "minimum" that the setback would be evalu- ated by the BZA in light of Section 10.2 of the Zoning Ordinance. In summary, the court concluded that the BZA had the authority to view the Zoning Ordinance's siting setback as a "minimum" guideline, which was subject to "reasonable restrictions" to preserve the health and safety of the public. (Zon- ing Ordinance, Sec. 6.4.2 and Zoning Ordinance, Sec. 10.2). The court found that the BZA imposed the Setback Condition on Flat Rock's WECS to promote the Zoning Ordinance's and the WECS' special exception's stated purpose to promote the public interest. See also: Fulton. County Advisory Plan Cont'n v. Groninget; 810 N.E.2d 704 (Ind. 2004) Case Note: Flat Rock had also argued that the trial court abused its discretion in permitting a group of landowners to intervene in the judicial proceedings. The Court of Appeals rejected that argument, finding that those intervening satisfied a legal three-part test required to intervene. 8 © 2017 Thomson Reuters