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Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals

Court of Appeals of Indiana

February 14, 2017

Flat Rock Wind, LLC, Appellant-Petitioner,
Rush County Area Board of Zoning Appeals, Appellee-Respondent, and Daniel Sprinkle, et al., Appellees-Intervening Respondents.

         Appeal from the Rush Superior Court Trial Court Cause No. 70D01-1507-PL-220 The Honorable Matthew D. Bailey, Special Judge

          Attorneys for Appellant Robert W. Eherenman Andrew L. Teel Haller & Colvin Fort Wayne, Indiana

          Attorneys for Appellees The Rush County Area Board of Zoning Appeals: Grant M. Reeves Barada Law Office Rushville, Indiana Intervening Respondent Appellees: Stephen R. Snyder Randall L. Morgan Snyder Morgan, LLP Syracuse, Indiana

          Riley, Judge.


         [¶1] Appellant-Petitioner, Flat Rock Wind, LLC (Flat Rock), appeals the trial court's decision, affirming Appellee-Respondent's, Rush County Area Board of Zoning Appeals (BZA), grant of Flat Rock's amended application to construct a commercial Wind Energy Conversion System, subject to the requirement to locate each industrial wind turbine at least 2, 300 feet from a non-participating owner's property line.[1]

         [¶2] We affirm ISSUES

         [¶3] Appellant raises two issues on appeal, which we restate as follows:

(1)Whether the trial court abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings pursuant to Indiana Trial Rule 24(A)(2); and
(2)Whether the trial court erred in affirming the BZA's zoning decision approving Flat Rock's amended application for a special exception to construct a commercial Wind Energy Conversion System, subject to a setback requirement that was both greater and measured differently than the zoning ordinance's minimum setback requirement.


         [¶4] This case stems from Flat Rock's efforts 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. As originally planned, the WECS would be comprised of ninety-five wind turbines, with sixty-five wind turbines sited in Rush County. On March 30, 2015, Flat Rock filed an application for approval of a special exception to the Rush County zoning ordinance (Zoning Ordinance) to construct and operate that portion of the WECS located in Rush County. Prior to applying for the special exception, and in reliance on the Zoning Ordinance, Flat Rock entered into numerous lease agreements with landowners in Rush County who agreed to make their land available for the commercial development of wind energy. This proposed development represented an estimated $305 million investment in the county that would create more than 200 construction jobs and up to twelve full-time local positions. The project was anticipated to pay an estimated $21.9 million in landowner lease payments and substantial amounts in local property taxes.

         [¶5] Rush County's Zoning Ordinance characterizes the construction of a WECS as a special exception to the Zoning Ordinance, subject to approval of the BZA and certain uniform siting regulations. The Zoning Ordinance, as a whole, emphasizes that "[t]he general trend in zoning has been to maintain certain rights of the individual, but to carefully control them in the hope that his development will not have adverse effects on the society around them. This is the basic aim of zoning in general, and this ordinance in particular." (Appellees' App. Vol II, p. 23). Its intent, in pertinent part, is "to preserve property values and promote public health, safety, comfort, convenience, and general welfare." (Appellees' App. Vol II, p. 24). Beyond this general statement, the WECS-specific provisions of the Zoning Ordinance underscore that they are "intended to preserve the health and safety of the public." (Zoning Ordinance, Sec. 6.4.2).

         [¶6] The Zoning Ordinance delegates to the BZA the authority to interpret and enforce the zoning ordinance, as well as the exclusive power to hear and decide applications for special exceptions. "In their interpretation and application, the provisions of [the Zoning Ordinance] shall be held to be minimum requirements, adopted for the promotion of the public health, safety or general welfare." (Zoning Ordinance, Sec. 15). With respect to Flat Rock's WECS special exception application, the BZA is authorized, among other duties, "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." (Zoning Ordinance, Sec. 10.2). The applicant for a WECS special exception bears the burden of satisfying both Section 10.2 of the Zoning Ordinance, setting forth general criteria applicable to all special exceptions, and Section 6.4 of the Zoning Ordinance, pertaining specifically to the construction of WECS in Rush County.

         [¶7] In its WECS special exception application, Flat Rock provided a certification that the proposed wind turbines would meet the Zoning Ordinance's requirement of a 1, 000 feet setback from residential dwellings. On May 7, 2015, the BZA held a public hearing on Flat Rock's application. Flat Rock's representatives and a number of supporters appeared at the hearing to speak in favor of the proposed WECS, while landowners and numerous other Rush County residents were present as remonstrators against the proposed project.

         [¶8] The BZA's staff and planning consultant had prepared a comprehensive report, evaluating Flat Rock's application. The overall review of the project was hindered, however, because of the incomplete nature of the application. Due to numerous issues with the application, and since Flat Rock had yet to determine the size, number, or design of the wind turbines, the BZA's planning consultant acknowledged that "there's still a lot of information that's still in the air" and there were "so many things that-that we are still not clear on." (Appellant's App. Vol. II, p. 13). The BZA's staff report affirmed that "[b]ecause of the detailed information involved in this request and the unusual nature of the land use, it is recommended that the BZA continue this request until it has had adequate time to review all of the material." (Appellant's App. Vol. II, p. 13). Before continuing the hearing, the BZA received evidence from the landowners and other remonstrators bearing on the adverse health effects and negative impact to property values resulting from Flat Rock's proposed WECS. Among other authorities purporting to establish adverse impacts from the WECS, the evidence before the BZA included a paper authored by two acoustical engineering experts acknowledging that "[s]tudies already completed and currently in progress describe significant health effects associated with living in the vicinity of industrial grade wind turbines." (Appellant's App. Vol. II, p. 13). After addressing the long-term adverse health effects documented to result from residing in the proximity of a commercial wind turbine, these experts proposed increasing the distance between a rural residence and the current industrial grade wind turbines to at least one kilometer (equating to approximately 3, 280 feet). Relying on the conclusions of this paper, the remonstrators requested the BZA to impose, as a condition to any grant of the application, increased setback distances "to a much more safe distance of 2, 640 feet" between the turbines and residences of non-participating owners[2]. (Appellant's App. Vol. II, p. 133). Agreeing with the staff's recommendation and the finding that additional time was needed to further study Flat Rock's request for a special exception, the BZA continued the public hearing to July 1, 2015. On June 17, 2015, Flat Rock amended its WECS special exception application by voluntarily increasing the distance of its wind turbines from non-participating residences by 40%-from 1, 000 feet to 1, 400 feet.

         [¶9] On July 1, 2015, the BZA conducted a lengthy hearing on Flat Rock's amended WECS application. Again, as during the first hearing, the BZA staff and the planning consultant had prepared and submitted a comprehensive report which evaluated Flat Rock's application and addressed the general criteria applicable to all special exceptions under the Zoning Ordinance, as well as the additional criteria applicable to WECS. Relying on a study from the nonprofit Acoustic Ecology Institute in Santa Fe, New Mexico, the staff report noted, in pertinent part, that:

Most of the reports to date that have concluded turbines are harmless examined "direct" effects of sound on people and tended to discount "indirect" effects moderated by annoyance, sleep disruption, and associated stress. Research that considered indirect pathways has yielded evidence strongly suggesting the potential for harm.
Noise Variability - Turbine noise (the aerodynamic noise produced by air moving around the spinning blades as opposed to any mechanical noise from the motor) is often deemed more annoying than the hum or roar of transportation noise because of its repetitive nature and high variability in both level and quality - from "swoosh" to "thump" to silence, all modulated by wind speed and direction. This pulsing, uneven quality enables the noise to repeatedly capture the attention and become even more difficult to ignore.
Night Noise - Unlike vehicle traffic, which tends to get quieter after dark, turbines can sound louder overnight. The absolute noise level of the wind farm may be no more than during the day, but it can be 10-20 decibels louder than the quieter nighttime ambient sound levels. This detail has important implications for sleep disruption.
Noise frequency - Wind turbines generate lower frequencies of sound than traffic. These lower frequencies tend to be judged as more annoying than higher frequencies and are more likely to travel through walls and windows. Sound frequency lower than 20 Hz - inaudible to the human ear - has been associated in some studies with symptoms including fatigue, sleeplessness, and irritability, as well as changes to the physiology of the inner ear that have poorly understood complications.
Residents of rural areas where turbines are more common may be people who are naturally more sensitive to noise than the population at large. They may have greater expectations of quiet and be more aware of noise disturbances, amplifying the potential for health effects related to environmental noise.
There will likely be noise impacts on the surrounding area resulting from the proposed commercial WECS.

(Appellant's App. Vol. II, pp. 15-16).

         [¶10] As with the initial public hearing, following Flat Rock's presentation, remonstrators presented evidence to the BZA as to the adverse health effects and impact on property values resulting from WECS. Consistent with the information conveyed in the BZA's staff report and addressed during the planning consultant's presentation, the BZA received evidence that included an acoustical engineering expert's published report analyzing the peculiar infrasound and low frequency noises generated by commercial wind turbines and resulting long-term adverse health effects to those residing in proximity to such large turbines. The BZA also received evidence about the recommended setback requirement-with one remonstrator noting a turbine manufacturer's recommended setback distance as 6, 562 feet-and the wind farm's potential negative impact on surrounding property values, with potential price reductions of 65%.

         [¶11] Following the public comments, BZA member Joe Rathz moved to approve Flat Rock's amended WECS application "as presented" with the conditions and commitment "that have been provided to us." (Appellant's App. Vol. II, p. 17). The motion failed for lack of a second. BZA member Steve Cain (Cain) then moved to approve the WECS special exception with the condition that the setback distance be increased from the Zoning Ordinance's specified 1, 000 feet to 2, 640 feet from any property line. That motion likewise failed for lack of a second. Expressing concern over the proximity of the large wind turbines to residential properties, and with Cain's preceding motion having failed, BZA member Larry Copley (Copley) moved to approve the WECS special exception with a 2, 300 feet setback condition (Setback Condition). This motion was clarified to reflect that the 2, 300 feet applied to the setback distance between the wind turbines and properties of non-participating owners, with the special exception subject to the remaining conditions and written commitment addressed in the staff report's recommendations. Copley's motion passed by a majority vote of the BZA members. The BZA's written findings of fact were approved on September 3, 2015. In its findings, the BZA formulated the Setback Condition as follows:

In order to protect health and safety and for any other set forth within these findings, the BZA imposes a greater minimum setback for non-participating properties of 2, 300 feet, as measured from the center of the WECS turbine to the property line of the non-participating property owner's land.

         (Appellant's App. Vol. III, p. 12). The BZA also included multiple references to several other special criteria being satisfied only after factoring in the Setback Condition.

         [¶12] On July 22, 2015, Flat Rock filed a verified petition with the trial court seeking judicial review of the BZA's zoning decision, with particular emphasis on the Setback Condition. Several landowners (Remonstrators) filed a motion and an amended motion to intervene on August 5 and August 17, 2015, respectively. Flat Rock objected to the motion to intervene on August 26, 2015. ...

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