james-e-and-tamara-l-dunmoyer-jr-linus-and-karen-harrold-theron-and ( 2015 )

May 12 2015, 10:03 am
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Patrick R. Hess APEX WIND ENERGY, APEX
Brian C. Heck CLEAN ENERGY, AND WELLS
Beckman Lawson, LLP COUNTY WIND II
Fort Wayne, Indiana
Robert W. Eherenman
Andrew L. Teel
Haller & Colvin, P.C.
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
WELLS COUNTY AREA PLAN
COMMISSION
Colin Z. Andrews
Carnall, Andrews & Crell, P.C.
Bluffton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. and Tamara L. May 12, 2015
Dunmoyer, Jr., Linus and Karen Court of Appeals Case No.
Harrold, Theron and Clara 90A02-1407-MI-460
Miller, Clarence and Beverly Appeal from the Wells Superior
Zimmerman, individually and as Court
Trustees of the Clarence The Honorable Thomas M. Hakes,
Zimmerman and Beverly Special Judge
Zimmerman Revocable Living Cause No. 90D01-1309-MI-23
Trust, Michael and Barbara
Butche, and Jeffrey and Janet
Harshman,
Appellants-Petitioners,
Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015 Page 1 of 26
v.
Wells County, Indiana Area
Plan Commission, Wells County
Wind II, LLC, Apex Clean
Energy Holdings, LLC, and
Apex Wind Energy, Inc.,
Appellees-Respondents.
Kirsch, Judge.
[1] The Wells County, Indiana Area Plan Commission (“Plan Commission”)
approved a petition for the development of a large wind energy conversion
system (“WECS”) project that was filed by Wells County Wind II, LLC, Apex
Clean Energy Holdings, LLC, and Apex Wind Energy, Inc. (collectively,
“Apex”),1 thereby allowing the construction of approximately sixty-eight wind
turbines on private property located in southern Wells County, Indiana
(“Zoning Decision”).2 Adjacent landowners, James E. and Tamara L.
Dunmoyer, Jr.; Linus and Karen Harrold; Theron and Clara Miller; Clarence
1
We note that Apex’s petition for approval of a WECS project was submitted solely in the name of Wells
County Wind II, LLC. Appellants’ App. at 650. The petition, however, was submitted by means of a cover
letter written on Apex Wind Energy letterhead and signed by the President of Apex Wind Energy. Id. at 649.
Wells County Wind II is a subsidiary of Apex Wind Energy and was formed specifically for this WECS
project. Id. at 1190. It is not clear, however, what the relationship is between those parties and Apex Clean
Energy Holding, LLC. In their brief, the Appellees refer to all three WECS entities, collectively, as “Apex.”
Appellees’ Br. at 1. We will do the same.
2
Apex was permitted to construct wind turbines on private property only with the permission of the property
owners.
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and Beverly Zimmerman, individually and as Trustees of the Clarence
Zimmerman and Beverly Zimmerman Revocable Living Trust; Michael and
Barbara Butche; and Jeffrey and Janet Harshman (collectively, “Landowners”),
filed with the trial court a two-count petition. In Count I, Landowners
requested judicial review of the Zoning Decision,3 and in Count II they sought
declaratory judgment. Landowners now appeal the trial court’s grant of
summary judgment in favor of Apex and the Plan Commission as to Count I.
Landowners raise four issues, which we consolidate and restate as whether the
trial court erred in granting partial summary judgment in favor of the Plan
Commission and Apex upon a finding that Landowners were not aggrieved and
not prejudiced by the Zoning Decision.
[2] We affirm and remand with instructions.4
Facts and Procedural History
[3] Development in Wells County, Indiana, is governed by the “Wells County
Zoning and Floodplain Management Ordinance” (“the Zoning Ordinance”).
The Zoning Ordinance, which was adopted by the legislative bodies of Wells
3
Section 7-04(3) of the Wells County Zoning and Floodplain Management Ordinance provides: “Each
decision of the Plan Commission . . . is subject to review by certiorari. Each person aggrieved by a decision
of the Plan Commission . . . may file with the Circuit or Superior Court of the county in which the premise
affected is located, a verified petition setting forth that the decision is illegal in whole or in part and specifying
the grounds of the illegality.” Appellants’ App. at 453.
4
We commend the trial court for the clarity and thoroughness of its written judgment, which have
significantly assisted our appellate review.
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County, Indiana,5 established an Area Planning Department consisting of the
Plan Commission, a Plat Committee, a Board of Zoning Appeals (“BZA”), an
Executive Director (“PC Director”), and “such staff as the Plan Commission
considers necessary.” Appellants’ App. at 439.
Zoning Ordinance
[4] The Zoning Ordinance sets forth the purpose (Article 2) and administration
(Article 4) of the ordinance; the composition, appointments, and jurisdiction of
the Plan Commission, Plat Committee, and BZA (Article 3); and the guidelines
for meeting minutes (Article 5), findings of fact and rulings (Article 6), and
violations and appeals (Article 7). Id. at 438-54. Additionally, the Zoning
Ordinance sets forth guidelines pertaining to zoning districts (Article 9), general
regulations (Article 11), performance standards (Article 12), development plans
(Article 14), and development criteria for a WECS project (Article 15). Id. at
458-90.
[5] Article 9 describes the zoning districts and the specific “permitted uses” allowed
in each. Id. at 461-63. The zoning districts include, “A-R,” Agriculture-
Residential; “A-1,” Agriculture-Intensive; “I-1,” Industrial; “I-2,” Industrial;
“B-1,” Central Business District; “C-1,” Conservation; and “R-1,” Residential.
5
The local legislative bodies of Wells County consist of: County Commissioners of Wells County; Common
Council of the City of Bluffton, Indiana; Town Council of Ossian, Indiana; Town Council of Poneto,
Indiana; Town Council of Uniondale, Indiana; Town Council of Vera Cruz, Indiana; and Town Council of
Zanesville, Indiana. Appellants’ App. at 433-36.
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Id. at 458. Large WECS projects6 are permitted uses in four zoning districts,
including A-1. Id. at 463. Apex proposed to build a WECS project on land in
Wells County zoned as A-1. Other permitted uses in A-1 districts include:
concentrated animal feeding operation control, airports, grain elevators,
manure lagoons, mineral excavation, communication towers, and commercial
bulk fuel storage. Id. at 461-63.
[6] Article 14 of the Zoning Ordinance addresses development plans in general,
including the purpose, jurisdiction, procedure, and requirements of an
acceptable plan. Under section 14-05, a Development Plan may be approved
only if it meets or complies with certain requirements, including:
(1) The proposed Development Plan must be compatible with
surrounding land uses.
(2) The proposed Development Plan shall be sited, oriented, and
landscaped to produce a harmonious relationship of building and
grounds to adjacent buildings and properties.
(3) Land uses between structures located upon the subject parcel, scale,
building materials, and building style of the proposed development
shall be sufficient to allow for total visual impression and environment
that is consistent with the environment of the neighborhood.
....
Appellants’ App. at 1406.
6
The Zoning Ordinance addresses four kinds of WECS: WECS Testing Facility; WECS, Large; WECS,
Medium; and WECS, Small. Appellants’ App. at 463. Apex’s project is for the development of a large WECS
project; therefore, for ease of reference we will refer to a large WECS as merely “WECS.”
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[7] Article 15 of the Zoning Ordinance, which specifically applies to “Wind Energy
Conversion Systems (WECS) and Communication Towers,” likewise sets forth
its purpose, jurisdiction, procedures, requirements, and states as its purpose, to
“facilitate the development and growth of WECS Projects and Communication
Towers while preserving public health, welfare, and safety for all real estate
owners and occupants.” Id. at 481. A party may not construct or operate a
WECS project in Wells County without having fully complied with the
provisions of Article 15 and any additional requirements incorporated into that
article by reference. Id.
[8] Section 15-03(5), regarding review and approval, incorporates Article 14 and
provides:
Except as expressly provided otherwise in this Article, review and
approval of an application for Development Plan Approval for a
WECS Project . . . shall be conducted in the manner provided in, and
in accordance with the requirements of, Article 14 with respect to
Development Plans generally.
Id. at 482.
[9] Section 15-05 sets forth the specific requirements with which a WECS project
must comply. Section 15-05(2) requires a WECS project to have a setback
“from a property line a distance of 1.1 times the length of the highest point
reached by the [WECS] blade” of the turbine in question, and “from all existing
residential dwellings a distance of 1000 feet.” Id. at 483. These two
requirements are further limited because the “setback requirement is reciprocal”
to all future “property lines” and “residential dwellings” as approved, “unless a
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fully executed and recorded written waiver agreement is secured from the
WECS Project Owner and Operator” and adjoining landowners, and the
variance is granted by the BZA. Id. That section also requires that each
individual turbine have a setback “from all public road right-of-ways a distance
equal to a multiple of 1.1 times the length of the highest point reached by the
[WECS] blade” in question,” and from certain cities and towns a distance
designated by the Zoning Ordinance. Id. at 483-84. WECS “guy wires” and
“horizontal extensions” also must be set back twenty feet from all property lines
and public road right-of ways. Id. at 484.
[10] Sections 15-05(3) and (4) set forth the specific guidelines that a WECS project
must meet, including: (1) color and finish for each turbine; (2) safety design
and installation standards, including, braking systems, climb prevention
measures, blade clearance, compliance with Federal Aviation Administration
rules for height and lighting, and proof of approvals of other local, state, and
federal agencies; (3) hazard signage; and (4) electrical components. Id. at 486-
87. Further, Section 15-05(4) specifies that each WECS project: (1) shall not
make noise exceeding fifty decibels on the “DBA scale as measured at the
nearest existing residential dwelling”; (2) “shall be designed to minimize
shadow flicker on an existing residential dwelling”; (3) shall not permit signs on
a turbine, except to identify the WECS manufacturer or for safety purposes; (4)
“shall be designed, constructed, and operated so not to interfere with local
broadcast television, telecommunication, communication, or microwave
transmission”; and (5) shall provide for the prompt removal from the site of all
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solid waste and hazardous materials in accordance with applicable local, state,
and federal laws. Id. at 487.
[11] Before the Plan Commission can grant approval, section 15-05(5) requires
agreement among the local legislative body, the local fiscal body, and the owner
operator regarding the decommissioning of the WECS project, including the
anticipated manner and cost of removal. Id. Pursuant to section 15-05(7), the
WECS operator must submit to the Plan Commission an agreement for use,
repair, and improvement of the roads, and repair of the drainage facilities. Id.
at 488. Sections 15-05(8), (9), and (10), respectively, require an operator to
submit: a Project Layout Plan showing the general layout of the WECS
project; a Utility Layout Plan showing the general layout of the WECS project’s
collection and distribution systems, including required easements; and a Noise
and Shadow Flicker Analysis Plan, including accompanying data. Id. at 489.
Finally, section 15-05(13) concludes with: “Any applicable provisions, rules,
restrictions, standards, and conditions imposed by other provisions or Articles
of this Zoning Ordinance are incorporated by reference as development
requirements. . . .” Id.
Approval of Development Plan
[12] To obtain approval to build a WECS project, an operator must submit a
development plan and obtain the Plan Commission’s approval. See id. at 478
(under § 14-02(1)(J), development plan is required for new construction or
expansion of a WECS project). In March 2013, Apex asked the Plan
Commission to approve its development plan for a WECS project in a part of
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Wells County zoned as A-1. Id. at 566-648. Apex’s development plan, which
was about 80-pages long, set forth the manner in which Apex planned to
comply with the Zoning Ordinance. During the Plan Commission’s April 2013
meeting, PC Director Michael W. Lautzenheiser reported that four proposed
turbines did not meet the 1.1 times setback from the property line, fourteen
residences would have over thirty hours per year of shadow flicker, and one
turbine did not meet the 1000 foot setback. Id. at 393. At that time, the PC
Director advised the Plan Commission that it had the option of rejecting the
plan, because some of the items did not meet the ordinance, or it could approve
the development plan with the condition that those items in violation would be
fixed or removed. Id. The Plan Commission took no action on this petition
and, as permitted by Section 15-09 of the Zoning Ordinance, Apex submitted
an amended development plan in May 2013. Id. at 1419-1504.
[13] After reviewing the amended development plan (“Development Plan”), the PC
Director prepared a “Non-Binding Opinion” for use at the Plan Commission’s
next meeting. Id. at 1388-91. In that opinion, the PC Director observed that
one of the turbines was “located in the 1/100 percent chance floodplain,” and
would have to be moved in Apex’s final plan. The PC Director concluded that,
with that exception, the Development Plan met the permitted use requirements
and the lot requirements because Article 15 was controlling. Id. at 1390.
Additionally, the PC Director noted, “This is by far the best filing we have
received as it concerns ordinance compliance.” Id. at 1391.
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[14] More than three hundred interested parties attended the Plan Commission’s
June 2013 public hearing, most of whom opposed approval of the WECS
project. Remonstrators, including Landowners, testified that the Development
Plan should be denied. Minutes of that meeting reflect that Patrick R. Hess
(“Hess”), an attorney for Landowners, testified that his clients opposed the
reciprocal setback “because it is a taking of property.” Id. at 290. Additionally,
Hess argued that the Development Plan must comply with the requirements of
not only Article 15, but also with Article 14. Specifically, Hess maintained that
Apex had the burden to show how the WECS project is compatible with
surrounding land use, and that Apex’s petition should be denied based on “not
meeting the ordinance requirements in article 14.” Id.
[15] The Plan Commission discussed the reciprocal setback rule, recognizing that it
impacts safety concerns by preventing people from building too close to a wind
turbine, while also impacting property concerns because it limits “people’s
rights to use their property.” Id. at 294. The PC Director asked for input from
the members of the Plan Commission. “Many of the board members stated
that they felt the petition meets the ordinance but it is unpopular with the
majority of citizens, who they want to support.” Id. A few members were still
unsure on what they thought, and one board member expressed that he thought
the petition did not comply with Article 14. Id.
[16] The Plan Commission discussed the height restriction for A-1 zoning, which
was followed by “comments on if the turbines were harmonious and
compatible with the surrounding area.” Id. Jim Berger, a Plan Commission
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member, made a motion to deny Apex’s Development Plan due to the fact that
Section 14-05(1), (2), and (3) were not met; those requirements required that:
(1) Development Plan be compatible with surrounding land uses; (2)
Development Plan be sited, oriented, and landscaped to produce harmonious
relationship to adjacent buildings and properties; and (3) land uses between
structures allow a total visual impression consistent with the neighborhood. Id.
at 479. Berger’s motion to deny the Development Plan did not pass. Id. at 295.
A vote regarding whether to approve Apex’s Development Plan was tabled
until a future meeting.
[17] A large crowd appeared for the Plan Commission’s meeting in July 2013.
Concerned that the open door law would be violated if the crowd could not
hear or see the proceedings due to the small venue, the Plan Commission
continued the meeting to a later date. Id. at 307. Apex’s WECS project was
next discussed at a meeting in August 2013. Plan Commission member Berger
again “restated some of his comments from the June [] 2013 meeting[,] . . .
[and] asked the board to review certain areas of the ordinance . . . .” Appellants’
App. at 314. Becoming more specific, “[h]e stated that [Apex] is responsible for
following other articles in the ordinance not just the WECS ordinance [Article
15] because it is a development plan also.” Id. Berger again argued that Apex
failed to meet the requirements of article 14-05(1), (2), and (3). At the close of
the meeting, the Plan Commission voted six to three to approve Apex’s
Development Plan. Id. at 315. The Plan Commission set forth its written
findings and rulings in the Zoning Decision. Id. at 324-34.
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Appeal
[18] Landowners filed a petition in the Wells Superior Court on January 31, 2014,7
naming the Plan Commission and Apex as Respondents. Appellants’ App. at
235. In Count I, Landowners sought judicial review of the Zoning Decision on
the basis that it was not supported by substantial evidence, stating, “[T]he Plan
Commission erred in approving the Development Plan because . . . [it] did not
satisfy all of the necessary requirements for development plan approval under
the terms of the Zoning Ordinance.” Id. at 245.
[19] Landowners noted that the Development Plan failed: to comply with
floodplain management (Section 14-05(7)(A)); to present a traffic management
plan (Section 14-05(4)); to enter into contracts with utilities or political entities
to install or extend necessary services (Section 14-05(6)); and to comply with
performance standards of air, water, waste matter, and fire protection (Sections
12-07, 12-09, 12-10, and 12-11 respectively). Id. at 246, 248-50. Additionally,
they argued that the Plan Commission made no findings regarding whether the
WECS project was compatible with surrounding land use, harmonious with
adjacent buildings and properties, and visually consistent with the environment
of the neighborhood as required by section 14-05(1), (2), and (3), respectively.
Id. at 247-48.
7
The January 2014 petition was in fact an amended petition to their initial September 2013 petition.
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[20] In Count II, Landowners sought declaratory judgment that the reciprocal
setback provision in Article 15 of the Zoning Ordinance was invalid and should
be stricken from the Zoning Ordinance because it constituted a taking of private
property without just compensation. Id. at 251. Landowners argued that, once
the reciprocal setback provision was invalidated, the Plan Commission’s
approval of Apex’s petition for the WECS project under that Article, would be
void. Id. at 252.
[21] The Plan Commission and Apex (together, “Respondents”) filed separate
answers to the petition for judicial review. As part of their answer, the Plan
Commission denied Landowners’ allegations that Apex failed to meet the
requirements pertaining to air quality, water quality, waste matter, and fire
protection. Id. at 249, 349. Thereafter, Respondents filed a joint motion for
partial summary judgment, contending that, as a matter of law, Landowners
lacked standing as to Count I because they “failed to specifically allege facts
that are sufficient to show that they are ‘aggrieved’ by the Plan Commission’s
ministerial act of approving Apex’s Development Plan.” 8 Id. at 27-28. The trial
court held a hearing on Respondents’ motion for partial summary judgment
and concluded that it had jurisdiction over both the parties and the subject
matter. Following the hearing, the trial court granted Respondents’ motion for
8
Pursuant to Indiana Code section 36-7-4-1602, a person is entitled to judicial review of a final zoning
decision if that person has standing pursuant to section 1603, has exhausted all administrative remedies
pursuant to section 1604, has filed a petition for review pursuant to section 1605, and has timely filed the
record required for review pursuant to section 1613. Apex contends that Landowners did not have standing
to appeal; however, no claim is made regarding a deficiency regarding the other requirements.
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partial summary judgment only as to Count I, thus effectively upholding the
Plan Commission’s approval of Apex’s Development Plan. Id. at 19. In
reaching its decision, the trial court observed that Landowners have the burden
of proving both that they are “‘aggrieved parties’ under I.C. § 36-7-4-1603,” and
“have been prejudiced by an illegal zoning decision under I.C. § 36-7-4-
1614(d).” Id. Additionally, Landowners have the burden of proving that the
Plan Commission’s decision is arbitrary, capricious, an abuse of discretion, not
in accordance with law, unconstitutional, or not supported by substantial
evidence. Appellants’ App. at 19 (citing I.C. § 36-7-4-1614(d)(1)-(5)).
[22] The trial court observed that Landowners’ claim of being aggrieved and
prejudiced arose from the Plan Commission’s act of approving the
Development Plan because that approval resulted in turbines being in close
proximity to Landowners’ homes, a decrease in property value, homeowners
being subjected to shadow flicker and noise from the wind turbines, and a loss
of use and enjoyment of land. Noting that a WECS is a permitted use on land
zoned A-1 and that Apex’s Development Plan met or exceeded the WECS
development requirements about which Landowners complained, the trial court
determined that Landowners were neither aggrieved nor prejudiced by the
approval of Development Plan. Landowners now appeal.
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Discussion and Decision
Standard of Review
[23] Landowners contend that the trial court erred when it granted summary
judgment in favor of Respondents as to Count I by finding that Landowners
were not aggrieved and not prejudiced by the Plan Commission’s approval of
Apex’s Development Plan in Wells County. When reviewing a grant or denial
of summary judgment, the standard of review is the same as the standard
governing summary judgment in the trial court: whether there is a genuine
issue of material fact, and whether the moving party is entitled to judgment as a
matter of law. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006).
We liberally construe pleadings, affidavits, testimony, and other evidence in a
light most favorable to the non-moving party. Id. Questions of law we review
de novo, and the party appealing the grant of summary judgment has the
burden of persuading this court that the trial court’s ruling was improper. Floyd
Cnty. v. City of New Albany, 1 N.E.3d 207, 213 (Ind. Ct. App. 2014), trans. denied;
Bd. of Comm’rs of Hendricks Cnty. v. Town of Plainfield, 909 N.E.2d 480, 485-86
(Ind. Ct. App. 2009). We will affirm the trial court’s grant of summary
judgment if it is sustainable on any theory or basis in the record. Floyd Cnty., 1
N.E.3d at 213; Beck v. City of Evansville, 842 N.E.2d 856, 860 (Ind. Ct. App.
2006), trans. denied.
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Judicial Review of Zoning Decisions
[24] Indiana Code sections 36-7-4-1600 through -1616 (“the 1600 Series”)
“establish[] the exclusive means for judicial review of zoning decisions[.]”9 Ind.
Code § 36-7-4-1601(a). The 1600 Series sets forth the procedure that a
petitioner must follow. Section 1602 entitles a petitioner to judicial review
upon a showing that the petitioner qualifies under: (1) Section 1603 concerning
standing; (2) Section 1604 concerning exhaustion of administrative remedies;
(3) Section 1605 concerning the time for filing a petition for review; and (4)
Section 1613 concerning the time for filing the board record for review. See
Town of Pittsboro Advisory Plan Comm’n v. Ark Park, LLC, 26 N.E.3d 110, 117
(Ind. Ct. App. 2015). Section 1614 allows a trial court to grant relief from the
zoning decision only if the court determines that the petitioner has been
prejudiced by a zoning decision that is: (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) contrary to
constitutional right, power, privilege, or immunity; (3) in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right; (4) without
observance of procedure required by law; or (5) unsupported by substantial
evidence. Relevant to this appeal, the petitioners must set forth specific facts in
their petition to demonstrate that they (1) are entitled to obtain judicial review
9
When the General Assembly amended the Zoning Enabling Act in 2011, it brought the judicial review
concepts from the Administrative Orders and Procedures Act (“AOPA”) into the zoning arena. Howard v.
Allen Cnty. Bd. of Zoning Appeals, 991 N.E.2d 128, 130 (Ind. Ct. App. 2013) (citing Habig v. Bruning, 613
N.E.2d 61, 64 (Ind. Ct. App. 1993), trans. denied). Accordingly, the judicial review provisions of the 1600
Series of the Zoning Enabling Act are interpreted in the same manner as the relevant provisions of the AOPA
and rely on case law established under the AOPA. Id.Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015 Page 16 of 26
under Section 1602 and (2) have been prejudiced by one or more of the grounds
in section 1614. I.C. § 36-7-4-1607(b)(5), (6).
[25] The trial court reviewed copious quantities of designated evidence before
distilling those documents into the following “undisputed facts”:
21. Petitioners alleged in the Amended Petition that they were
“aggrieved and prejudiced” by the Plan Commission’s decision to
approve the WECS Development because of the close proximity of the
wind turbines to their homes and property.
22. Petitioners alleged that the Plan Commission’s approval of the
WECS Development Plan would decrease their property values.
23. Petitioners claimed that they would suffer noise because of the
wind turbines.
24. Petitioners alleged that they would incur shadow flicker from the
wind turbines.
25. Petitioners alleged in their Amended Petition that they would
suffer a loss of enjoyment caused by the wind turbine setbacks in the
Zoning Ordinance.
....
32. All of the wind turbines in the WECS Development exceed the
Zoning Ordinance’s setback of 1000 feet and are further away from the
Petitioners’ dwellings than the required 1000-foot setback.
33. Apex’s WECS Development Plan meets the Zoning Ordinance
requirements regarding sound. The Zoning Ordinance requires that a
WECS produce no more than 50 decibels of sound, and Apex’s WECS
Development Plan will produce no more than 48 decibels of sound.
34. Apex’s WECS Development Plan meets the Zoning Ordinance
requirements regarding shadow flicker. Apex agreed to minimize
shadow flicker to no more than thirty (30) hours per year.
35. Article 15 of the Zoning Ordinance does not permit the Plan
Commission to weigh the issues of property value or loss of enjoyment
when making its ministerial decision to approve a WECS
Development Plan.
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36. Petitioners agree that Apex’s WECS Development Plan satisfied
the Zoning Ordinance’s development requirements in Article 15
regarding proximity, noise, and shadow flicker.
Appellants’ App. at 17-18 (internal citations omitted).
[26] From these facts, the trial court determined, and the parties do not dispute, that
it had jurisdiction over the parties and the subject matter of the cause of action.
The trial court also noted that, in order to prevail, Landowners “have the
burden of proving that they are ‘aggrieved parties’ under I.C. § 36-7-4-1603, and
that they have been prejudiced by an illegal zoning decision under I.C. § 36-7-4-
1614(d). See I.C. §36-7-4-1614(a) (stating that the burden of demonstrating the
invalidity of a zoning decision is on the party asserting the invalidity).” Id. at
19. In other words, Landowners have the burden of proving both that they
have standing and also that they were prejudiced by a Planning Commission
zoning decision that was arbitrary, capricious, an abuse of discretion, or not in
accordance with law; unconstitutional; in excess of statutory jurisdiction,
authority, or limitation, without observance of procedure; or not supported by
substantial evidence. I.C. § 36-7-4-1614(d)(1)-(5).
Zoning Enabling Act
[27] Prior to reaching its legal conclusions, the trial court explained the context in
which its decision was being made. Highlighting the impact of Indiana Code
sections 36-7-4-1401 through 1406 (“the Zoning Enabling Act”), the trial court
noted:
39. Here, the Plan Commission’s zoning decision to approve Apex’s
WECS Development Plan was a ministerial decision to approve a
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development plan for a permitted use under [the Zoning Enabling
Act]. The Plan Commission is required to review a development plan
to determine if the development plan satisfies the concrete
development requirements specified in the Zoning Ordinance.
Appellants’ App. at 19.
[28] The Zoning Enabling Act “specifies the requirements by which a local
government may designate zoning districts in their jurisdiction.” The Kroger Co.
v. Plan Comm’n of Town of Plainfield, 953 N.E.2d 536, 540 (Ind. Ct. App. 2011),
trans. denied; Hendricks Cnty. Bd. of Comm’rs v. Rieth-Riley Constr. Co., 868 N.E.2d
844, 849 (Ind. Ct. App. 2007). Through the Zoning Enabling Act, the General
Assembly has “permit[ted] local legislative bodies to divide their jurisdiction
into zoning districts and mandates property owners to submit a development
plan before engaging in a project in the particular zoning district.” Id. at 849-50
(citing I.C. § 36-7-4-1401.5). To establish these zoning districts, the Zoning
Enabling Act requires the legislative body, here, the local legislative bodies of
Wells County—“to enact a local ordinance that ‘must specify’ the ‘[d]evelopment
requirements that must be satisfied before the plan commission may approve a
development plan.’” Id. at 850 (quoting I.C. § 36-7-4-1402(b)(1) (emphasis
added)). “The Zoning Enabling Act itself provides a non-exclusive
enumeration of the type of development requirements that “must be specified
under section 1402(b)(1).” Id. (citing I.C. § 36-7-4-1403(a)).
[29] The Zoning Enabling Act also mandates, “If a zoning district is designated . . .,
the plan commission must approve or disapprove a development plan under
this series for real property within the zoning district.” I.C. § 36-7-4-1401.5(b).
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The General Assembly has determined, “The plan commission has exclusive
authority to approve or disapprove a development plan for real property located
within the plan commission’s jurisdiction.” I.C. § 36-7-4-1401(b).
[30] In this context and based upon the undisputed facts, the trial court concluded:
40. Petitioners claim that they are aggrieved under I.C. § 36-7-4-1603
and prejudiced under I.C. § 36-7-4-1614(d) by the Plan Commission’s
decision . . . . Petitioners’ claims . . . are based on the proximity of the
turbines to their respective residences; on an alleged, prospective
decrease in property values; on shadow flicker and noise from the
wind turbines; and on an alleged loss of use and enjoyment of their
real estate.
41. There is substantial evidence in the record that demonstrates that
Apex’s WECS Development Plan meets or exceeds Section 15-05’s
development requirements concerning (a) setbacks and proximity
requirements of the wind turbines to existing dwellings; (b) shadow
flicker; and (c) noise requirements.
42. A WECS is a permitted use in an agricultural zoning district and
property values and loss of use and enjoyment are not discretionary
factors considered by the Plan Commission under the Zoning
Ordinance when making its ministerial decision to approve a WECS
Development Plan.
43. Petitioners are not aggrieved under I.C. § 36-7-4-1603 by the Plan
Commission’s ministerial decision to approve Apex’s WECS
Development Plan.
44. Petitioners have failed to allege specific facts, as required by I.C. §
36-7-4-1607(b)(6), in their Amended Petition demonstrating that they
are prejudiced by Plan Commission’s ministerial decision to approve
Apex’s WECS Development Plan.
Appellants’ App. at 19-20.
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Standing
[31] On appeal, Landowners primarily focus on the issue of standing, contending
that summary judgment in favor of Respondents was inappropriate because the
trial court erred in determining that they lacked standing. We note, however,
that the trial court’s grant of summary judgment in favor of Respondents also
rested upon a finding that Landowners have not demonstrated that they were
prejudiced by the Zoning Decision. Error, if any, in finding that petitioner
lacked standing to petition for review of the Zoning Decision is harmless where,
like here, the trial court, in effect, afforded standing by addressing on the merits
the very issues that petitioners were said to lack standing to raise. Boffo v. Boone
Cnty. Bd. of Zoning Appeals, 421 N.E.2d 1119, 1132 (Ind. Ct. App. 1981).
Furthermore, even if we were to conclude that the trial court erred in finding
that Landowners lacked standing, our remedy would be to remand this case to
the trial court for further findings regarding whether Landowners were
prejudiced by the Zoning Decision. The trial court, however, has already made
this determination. Given that the trial court’s decision effectively afforded
standing to Landowners, and in the interest of judicial efficiency, we will not
address the merits of Landowners’ claim on the trial court’s determination
regarding standing. Accordingly, we proceed, assuming, without deciding, that
the trial court erred in finding no standing.
Landowners were not Prejudiced by the Zoning Decision
[32] Relief is available to Landowners only if they can prove that they were
prejudiced by the Plan Commission’s approval of the Zoning Decision. I.C. §
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36-7-4-1614(d). Pursuant to powers bestowed upon local legislative bodies by
the Zoning Enabling Act, the Wells County legislative body established the
Zoning Ordinance. I.C. § 36-7-4-1401.5, -1403. In Article 9 of the Zoning
Ordinance, the legislative body created zoning districts and set forth the specific
permitted uses within those districts. WECS projects were specifically included
as a permitted use on land in Wells County zoned as A-1. Appellants’ App. at
463. Landowners live on land zoned as A-1. Through Article 14 of the Zoning
Ordinance, the Wells County legislative body established the general
requirements to obtain approval from the Plan Commission for a WECS
development plan. Thereafter, in 2009, the legislative body added the WECS
ordinance as Article 15. Appellants’ App. at 425.
[33] Landowners maintain that they were prejudiced by the Zoning Ordinance
because wind turbines will be in close proximity to their homes and they will
suffer additional noise and shadow flicker. In Article 15, the Wells County
legislative body established specific requirements that must be met in order for a
WECS Development Plan to be approved by the Plan Commission. Included
in that list were requirements regarding turbines having a 1000-foot setback
from a dwelling; the color and finish for each turbine; safety design and
installation standards, including, braking systems, climb prevention measures,
blade clearance, compliance with Federal Aviation Administration rules for
height and lighting, and proof of approvals of other local, state, and federal
agencies; hazard signage; and electrical components. Appellants’ App. at 486-
87. Section 15-05(4), in part, provided that each WECS project: shall not make
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noise exceeding fifty decibels on the “DBA scale as measured at the nearest
existing residential dwelling”; and “shall be designed to minimize shadow
flicker on an existing residential dwelling.” Id. at 487.
[34] Landowners also contend that the Plan Commission failed to consider the
proximity of turbines on the value of their properties. The stated purpose of
Article 15 is to “facilitate the development and growth of WECS Projects and
Communications Towers while preserving public health, welfare, and safety for
all real estate owners and occupants.” Id. at 481. While Article 2 of the Zoning
Ordinance sets forth the legislative body’s general purpose to, in part, “conserve
the value of land and of the buildings and improvements upon the land,” Id. at
438 (citing Section 2-01(2) of the Zoning Ordinance), that goal is conspicuously
absent from the above-stated purpose of Article 15—the Article that specifically
applies to WECS projects.
[35] The General Assembly has decided that “the plan commission has exclusive
authority to approve or disapprove a development plan for real property located
within the plan commission’s jurisdiction.” I.C. § 36-7-4-1401.5(b). The
manner in which the Plan Commission undergoes this approval is to review the
development plan to see if it is consistent with the comprehensive plan and
satisfies the development requirements specified in the zoning ordinance. I.C.
36-7-4-1405(a). The legislative body of Wells County consciously elected to
allow WECS projects in land zoned as A-1, as long as those projects complied
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with specific requirements set forth in the Zoning Ordinance. 10 The legislative
body did not include preservation of land value as one of the purposes of Article
15. It did, however, determine that a turbine must have a setback from a
property line of 1.1 times the length of the highest point of the blade, must have
a setback from a residential dwelling of 1000 feet, must have a noise level
outside a nonparticipating dwelling of no greater than 50 decibels, and must
produce a minimal amount of shadow flicker—here that amount was
determined to be thirty hours per year. Appellants’ App. at 483, 487.
[36] The circumstances about which Landowners contend they have been
prejudiced, 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 Commission’s approval of Apex’s Development Plan,
but instead, by the legislative body’s enactment of Article 15. By reaching this
conclusion, we are not diminishing the concerns of Landowners regarding the
placement of wind turbines in their community. Instead, we are recognizing
the power our legislature has given to the Wells County legislative body to
10
Landowners contend that the Plan Commission failed to consider whether the Development Plan
complied with Sections 14-05(1), (2), and (3), i.e., that the Development Plan was compatible with
surrounding land use, was sited, oriented, and landscaped to be harmonious with adjacent land and
buildings, and was consistent with the environment of the neighborhood. Assuming without deciding that it
was error for the Plan Commission to not specifically address these provisions, that error was harmless. Our
court has noted, “The inclusion of the particular use in the ordinance as one which is permitted under certain
conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the
other uses permitted in the district.” Boffo v. Boone Cnty. Bd. of Zoning Appeals, 421 N.E.2d 1119, 1124 (Ind.
Ct. App. 1981) (quoting 3 A. H. Rathkopf, The Law of Zoning and Planning, § 41.10 (1980)). Following the
same reasoning, we believe that a legislative body’s inclusion of a permitted use under certain circumstances
also suggests that the use is compatible with the surrounding environment and consistent with the
environment of the neighborhood.
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determine the uses that will be permitted in various zones of the county. The
trial court did not err in granting summary judgment as to Count I upon a
finding that Landowners were not prejudiced by the Zoning Decision.
[37] Here, the Wells Superior Court granted summary judgment only as to Count I;
however, the court also granted Landowners’ petition for declaratory judgment
as to Count II 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.” Appellants’ App. at 22. Additionally, the trial court ordered
“that the Development Plan submitted by Wells County Wind II is hereby
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 on August 14, 2013, to determine if the Development Plan satisfies or
fails to satisfy the requirements of Article 15 of the Zoning Ordinance and any
additional requirements incorporated into these Articles by reference.” Id. at
23. The parties do not appeal the trial court’s conclusions on these two issues.11
Therefore, while we affirm the trial court’s grant of partial summary judgment
upon a finding that Landowners were not aggrieved or prejudiced by the Plan
11
In their brief, Respondents note that, although they believe that the trial court was incorrect in finding that
the reciprocal setback violated the constitution, that finding is ultimately irrelevant for the purposes of Apex’s
WECS Development Plan and whether the Remonstrators had standing under the 1600 Series. Appellees’ Br.
at 3 n.2. Respondents offer that, to the extent this court wishes to review the trial court’s constitutional ruling
on the reciprocal setback sua sponte, they rely on their arguments to the trial court on that issue. Id. (citing
Appellants’ App. at 1288-94. See Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992) (constitutionality of a statute
may be reviewed sua sponte by appellate court). Because Landowners feel harmed by the reciprocal setback
and Remonstrators have failed to make a specific argument on appeal, we do not address this issue.
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Commission’s approval of Apex’s Development Plan, consistent with the trial
court’s decision, we also remand this action to the trial court with instructions
to remand the Apex Development Plan to the Plan Commission. The Plan
Commission, in turn, must follow the instructions set forth in the trial court
decision to strike the Reciprocal Setback provision in Article 15 of the Zoning
Ordinance, and review Apex’s Development Plan and the Plan Commission’s
record of proceedings leading up to its decision on August 14, 2013, to
determine if the Development Plan “satisfies or fails to satisfy the requirements
of Article 15 of the Zoning Ordinance and any additional requirements
incorporated into these Articles by reference.” Appellants’ App. at 23.
[38] Affirmed and remanded with instructions.
Friedlander, J., and Crone, J., concur.
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