Indiana court agrees with Ohio- BigWind SETBACKS SHOULD BE INCREASED

Bravo, Indiana, the citizens were informed and tenacious against their BigWind bully. Ohio legislators need to take note of the court findings….

  1. Over the course of two hearings, the BZA had the opportunity to carefully consider the statutory setback requirement of Section 6.4 and its implications on the life, health, and safety of the surrounding landowners. It received evidence in favor of the project and in opposition of constructing the windfarm. Ultimately, and based on the evidence presented at the hearings, the BZA, in its approved Findings of Fact, explicitly found that “an additional setback is

    necessary to protect health and safety on non-participating properties and
    Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017 Page 24 of 26

owners, and imposes as a condition on the grant of the special exception a minimum setback of 2,300 feet, to be measured from the center of the WECS turbine to the non-participating property line.” (Appellant’s App. Vol. III, p. 7).

  1. [36]  Based on the explicit language of the Zoning Ordinance, we conclude that the BZA did not exceed its authority by creating the Setback Condition, as well as a new method for measuring this Setback. In interpreting the Zoning Ordinance, the BZA viewed the siting setback as a “minimum” guideline, which was subject to “reasonable restrictions” to preserve the health and safety of the public. (Zoning Ordinance, Sec. 6.4.2; see also Zoning Ordinance 10.2). By evaluating Flat Rock’s proposed commercial WECS project as planned and the evidence and testimony received during the hearings, the BZA imposed the Setback Condition to promote the Zoning Ordinance’s and the WECS’ special exception’s stated purpose to promote the public interest. Because we find the BZA’s interpretation reasonable and consistent with the Zoning Ordinance itself, we must defer to the agency’s decision. See Hoosier Outdoor Advertising Corp., 844 N.E.2d at 163. Accordingly, as the BZA did not exceed its powers, we affirm the trial court’s decision.

    CONCLUSION

  2. [37]  Based on the foregoing, we hold that the trial court properly permitted Remonstrators to intervene pursuant to T.R. 24(A)(2); and the BZA did not exceed its power by interpreting the WECS special exception in the Zoning

    Ordinance.
    Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017 Page 25 of 26

  1. [38]  Affirmed.
  2. [39]  Crone, J. and Altice, J. concur
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