Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals ( 2017 )

FILED
Feb 14 2017, 9:59 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Robert W. Eherenman The Rush County Area Board of
Andrew L. Teel Zoning Appeals:
Haller & Colvin Grant M. Reeves
Fort Wayne, Indiana Barada Law Office
Rushville, Indiana
Intervening Respondent Appellees:
Stephen R. Snyder
Randall L. Morgan
Snyder Morgan, LLP
Syracuse, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Flat Rock Wind, LLC, February 14, 2017
Appellant-Petitioner, Court of Appeals Case No.
70A01-1606-PL-1382
v. Appeal from the Rush Superior
Court
Rush County Area Board of The Honorable Matthew D.
Zoning Appeals, Bailey, Special Judge
Appellee-Respondent, Trial Court Cause No.
70D01-1507-PL-220
and
Daniel Sprinkle, et al.,
Appellees-Intervening Respondents.
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Riley, Judge.
STATEMENT OF THE CASE
[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
1
We held oral argument in this cause on January 13, 2017, at the court of appeals courtroom in Indianapolis,
Indiana. We thank the parties for their excellent advocacy.
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setback requirement that was both greater and measured differently than
the zoning ordinance’s minimum setback requirement.
FACTS AND PROCEDURAL HISTORY
[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
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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
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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
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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.
2
A non-participating owner is a landowner who does not lease his land to Flat Rock as part of the WECS
project.
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[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.
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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
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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
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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. After a
hearing, the trial court granted Remonstrators’ amended motion to intervene on
November 18, 2015.
[13] On April 13, 2016, after receiving briefs from Flat Rock, the BZA, and
Remonstrators with respect to their various positions, the trial court conducted
a hearing on Flat Rock’s petition for judicial review. On May 27, 2016, the trial
court entered its findings of fact and conclusions thereon, affirming the BZA’s
July 1, 2015 zoning decision. In its Judgment, the trial court noted, in pertinent
part, as follows:
33. Implicit in the BZA’s decision is that, but for the imposition
of the condition increasing the setback distance to 2,300 feet, the
commercial WECS special exception failed to satisfy the Zoning
Ordinance. In particular, absent the Setback Condition, Flat
Rock’s WECS special exception would at minimum adversely
affect the public interest, not be in harmony with the purpose and
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intent of the Zoning Ordinance, fail to adequately address the
economic and noise effects on adjoining properties generally in
the district, and not be generally compatible with adjacent and
other properties in the district. This position is further consistent
with the BZA’s written Findings of Fact subsequently approved
on September 3, 2015. The BZA’s Findings of Fact contain
references to multiple special exception criteria being satisfied
only after factoring in the Setback Condition[.]
58. The BZA had the opportunity to carefully consider the
purpose and intent of the Zoning Ordinance and all of the
applicable provisions concerning the commercial WECS special
exception. Through a majority vote of its members, the BZA
interpreted the “Minimum Setback Distance” set forth in Section
6.4.6.4.1 of the Zoning Ordinance as the “minimum” and subject
to being increased based on the particular record before it as a
condition to granting Flat Rock’s commercial WECS exception.
****
63. Based upon the record and applicable law, the [c]ourt
concludes that the BZA in this case properly acted within its
broad authority and discretion in imposing the Setback
Condition, along with numerous other conditions and
restrictions, as part of the decision granting Flat Rock’s amended
commercial WECS special exception application.
****
66. Based upon the record, and within the applicable standard of
review, the [c]ourt concludes that the Setback Condition was
supported by substantial evidence in the record. The evidence
received by the BZA supported setback distances of at least 2,300
feet from non-participating owner’s property line for reasons of
both health and preservation of property values. While the BZA
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had before it various conflicting evidence, a reviewing court does
not “reweigh the evidence or reassess the credibility of witnesses;
rather, the reviewing court must accept the facts as found by the
zoning board.”
(Appellant’s App. Vol. II, pp. 18, 24, 26, 27-28) (internal references omitted).
[14] Flat Rock now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Intervening Remonstrators
[15] Relying on I.C. § 36-7-4-1606(f), Flat Rock contests the trial court’s grant of
Remonstrators’ motion to intervene. The grant or denial of a motion to
intervene is within the discretion of the trial court. Herdrich Petroleum Corp. v.
Radford, 773 N.E.2d 319, 324 (Ind. Ct. App. 2002), reh’g denied, trans. denied.
We review a trial court’s decision to allow an intervention for an abuse of
discretion. Id. An abuse of discretion occurs when the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before the
court or reasonable and probable inferences to be drawn therefrom. Id.
[16] Flat Rock disputes the Remonstrators’ intervention because the Remonstrators
failed to demonstrate that they were persons “aggrieved” pursuant to I.C. §§ 36-
7-4-1606(f) & -1603(a)(2). The 1600 series of Chapter 4 of the zoning code
pertains to judicial review, with section 1606(f) elaborating on the requirements
for intervention. Specifically, the section provides:
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Any person who has standing under section 1603(a)(2) or section
1603(a)(3) of this chapter [] an unconditional right to intervene in
a proceeding for review. A motion to intervene in a proceeding
for review shall be filed in the manner provided by the rules of
procedure governing civil actions in courts.
Section 1603(a)(2) requires a person seeking “to obtain judicial review of a
zoning decision” to be “[a] person aggrieved by the zoning decision[.]” In
order to be aggrieved by a zoning decision, our supreme court has held that:
the petitioner must experience a substantial grievance, a denial of
some personal or property right or the imposition . . . of a burden
or obligation. The board of zoning appeals’ decision must
infringe upon a legal right of the petitioner that will be enlarged
or diminished by the result of the appeal and the petitioner’s
resulting injury must be pecuniary in nature. A party seeking to
petition for certiorari on behalf of a community must show some
special injury other than that sustained by the community as a
whole.
Bagnall v. Town of Beverly Shores, 726 N.E.2d 782, 786 (Ind. 2000) (internal
references omitted).
[17] Instead of applying these statutory requirements, the trial court evaluated
Remonstrators’ motion to intervene in accordance with Indiana Trial Rule
24(A)(2). Indiana Trial Rule 24(A)(2) provides for an intervention
when the applicant claims an interest relating to a property, fund
or transaction which is the subject of the action and he is so
situated that the disposition of the action may as a practical
matter impair or impede his ability to protect his interest in the
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property, fund or transaction, unless the applicant’s interest is
adequately represented by existing parties.
Indiana cases addressing T.R. 24(A)(2) have traditionally adopted a three-part
test, requiring intervenors to show: (1) an interest in the subject of the action;
(2) disposition of the action may as a practical matter impede the protection of
that interest; and (3) representation of the interest by existing parties is
inadequate. See, e.g., Moran Elec. Serv., Inc. v. Comm’r, Ind. Dep’t of Environmental
Mngmt, 8 N.E.3d 698, 707 (Ind. Ct. App. 2014) (internal reference omitted),
affirmed on reh’g, trans. denied.
[18] We posit that the trial court pursued the proper review of Remonstrators’
motion to intervene. As noted above, I.C. § 36-7-4-1603(a)(2) sets forth the
standing requirement of being “aggrieved” for a person seeking “to obtain
judicial review of a zoning decision.” (emphasis added). Once this standing
requirement is met, the person receives “an unconditional right to intervene” in
a proceeding for review. I.C. § 36-7-4-1606(f). Here, Remonstrators did not
seek judicial review of the BZA’s decision; rather, the BZA’s decision rejecting
Flat Rock’s application for a WECS special exception was favorable to them.
Accordingly, as such, Remonstrators fell outside the province of I.C. § 36-7-4-
1603(a)(2) and could not apply for an unconditional right to intervene.
Nonetheless, after Flat Rock initiated judicial review of the BZA’s decision,
Remonstrators sought intervention in a pending judicial proceeding pursuant to
the second sentence of I.C. § 36-7-4-1606(f) and availed itself of the “rules of
procedure governing civil actions in courts.” See I.C. § 36-7-4-1606(f).
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[19] We expressly reject Flat Rock’s assertion that “[t]he 1600 Series requires that all
parties to a judicial review proceeding—including any intervenors—have
standing as an [sic] ‘aggrieved persons.’” (Appellant’s Reply Br. p. 11). Flat
Rock’s generalized claim interprets the statute too narrowly and would
effectively make the second sentence of I.C. § 36-7-4-1606(f) meaningless.
Spaulding v. Int’l Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind. 1990) (“Where
possible, we interpret a statute such that every word receives effect and meaning
and no part is rendered meaningless if it can be reconciled with the rest of the
statute.”)
[20] By applying the “rules governing civil actions in court,” the trial court relied on
the tripartite test of T.R. 24(A)(2) to review Remonstrators’ motion to intervene
and found all three elements satisfied by the Remonstrators. See I.C. § 36-7-4-
1606(f). When evaluating the applicability of T.R. 24(A)(2), “the facts alleged
in a petition to intervene must be taken as true and the decision on a motion to
intervene turns on the sufficiency of the claim asserted.” Allstate Ins. Co. v.
Keltner, 842 N.E.2d 879, 882 (Ind. Ct. App. 2006). In their petition,
Remonstrators alleged to be interested parties by virtue of their ownership of
real estate in the immediate vicinity of the wind facility proposed by Flat Rock.
They claim that if the decision of the BZA is modified or reversed, their real
estate values and personal health will be significantly and directly affected.
Additionally, if the BZA, at some point, elects to change its decision or settle
the lawsuit, Remonstrators would no longer be adequately represented by the
BZA. As all three requirements of T.R. 24(A)(2) are satisfied, we conclude that
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the trial court did not abuse its decision by granting the Remonstrators’ motion
to intervene.
II. Zoning Ordinance
[21] By increasing the siting requirements for Flat Rock’s WECS from the Zoning
Ordinance’s 1,000 feet to the BZA’s imposed Setback Condition of 2,300 feet,
the BZA interpreted Rush County’s Zoning Ordinances and applied them to the
situation at hand. Flat Rock now contends 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.” (Appellant’s Br. pp. 22-23).
A. Standard of Review
[22] When reviewing a decision of a zoning board, an appellate court is bound by
the same standard of review as the certiorari court. Crooked Creek Conservation
and Gun Club, Inc., v. Hamilton Co. North Bd. of Zoning Appeals, 677 N.E.2d 544,
547 (Ind. Ct. App. 1997), reh’g denied, trans. denied. Under this standard, a
reviewing court, whether at the trial or appellate level, is limited to determining
whether the zoning board’s decision was based upon substantial evidence. Id.
The proceeding before the certiorari court is not intended to be a trial de novo,
and neither that court nor the appellate court may reweigh the evidence or
reassess the credibility of witnesses; rather, reviewing courts must accept the
facts as found by the zoning board. Id.
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[23] However, as here, a review of the interpretation of a zoning ordinance is a
question of law. Story Bed & Breakfast, LLP v. Brown Cnty. Area Plan Comm’n, 819
N.E.2d 55, 65 (Ind. 2004). The ordinary rules of statutory construction apply in
interpreting the language of a zoning ordinance. Id. Accordingly, if one statute
deals with a subject matter in general terms and another deals with a specific
part of the same subject, the provisions of the specific statute should prevail
over any inconsistent provision of the general statute. Ind. Waste Systems, Inc. v.
Bd. of Com’rs of Howard Cnty., 389 N.E.2d 52, 59 (Ind. Ct. App. 1979). Statutes
which relate to the same general subject matter are in pari materia and should be
construed with reference to each other in order to give effect to the provisions of
each. Id. By construing these statutes as we do, we are giving force and effect
to each. Id. Specifically with respect to zoning ordinances, we have held that
the express language of the ordinance controls our interpretation
and our goal is to determine, give effect to, and implement the
intent of the enacting body. When an ordinance is subject to
different interpretations, the interpretation chosen by the
administrative agency charged with the duty of enforcing the
ordinance is entitled to great weight, unless that interpretation is
inconsistent with the ordinance itself. If a court is faced with two
reasonable interpretations of an ordinance, one of which is
supplied by an administrative agency charged with enforcing the
ordinance, the court should defer to the agency. Once a court
determines that an administrative agency’s interpretation is
reasonable, it should end its analysis and not address the
reasonableness of the other party’s interpretation. Terminating
the analysis reinforces the policies of acknowledging the expertise
of agencies empowered to interpret and enforce ordinances and
increasing public reliance on agency interpretations.
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Hoosier Outdoor Advertising Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind.
Ct. App. 2006) (internal references omitted), trans. denied.
[24] Consequently, we presume the determination of the BZA, an administrative
agency with expertise in zoning matters, to be correct. Midwest Minerals Inc., v.
Bd. of Zoning Appeals of Area Plan Dept./Com’n of Vigo Cnty., 880 N.E.2d 1264,
1268 (Ind. Ct. App. 2008), reh’g denied, trans. denied. We will reverse only if the
BZA’s decision is arbitrary, capricious, or an abuse of discretion. Id. The
powers of the BZA are strictly limited to those granted by its authorizing
statute. Schlehuser v. City of Seymour, 674 N.E.2d 1009, 1014 (Ind. Ct. App.
1996). Any acts of the BZA that exceed the powers enumerated by the Indiana
Code and the local zoning ordinance are ultra vires and void. Id.
B. Rush County’s Zoning Ordinance
[25] Flat Rock contends that the trial court erred in affirming the BZA’s decision
and focuses its argument squarely upon the denial of its application for a special
exception for the WECS project. Its primary argument revolves around the
contention that the BZA exceeded its authority by creating a new, extended
Setback Condition as well as to alter the prescribed method for measuring this
Setback (property line versus residence).
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[26] Referencing the difference instituted by case law between regulatory special
exceptions and discretionary special exceptions, 3 Flat Rock characterizes
Section 6.4 of the Zoning Ordinance as a “specific objective regulation that a
WECS applicant must satisfy;” whereas it views Section 10.2 of the Zoning
Ordinance as purely discretionary because it imposes “general, subjective
criteria.” (Appellant’s Br. pp. 29, 30). Accordingly, Flat Rock concludes that
the trial court employed the discretionary criteria of Section 10.2 to “impose the
Setback Condition, which rewrote the specific, objective development
requirements for a WECS in Section 6.4.6.4.1.” (Appellant’s Br. p. 30).
[27] Building on this distinction, Flat Rock argues that because it met the objective
setback requirement listed in Section 6.4.6.4.1 of the Zoning Ordinance, and
even exceeded it by agreeing to modify the location of its wind turbines to 1,400
feet from all non-participating residences, its petition should have been granted.
The BZA’s reliance on the discretionary Section 10.2—and the trial court’s
affirmance thereof—to impose the Setback Condition now creates an illegal,
arbitrary, and ad hoc situation that is “non-uniformly measured only for Flat
3
“[I]f a petitioner for a special exception presents sufficient evidence of compliance with the relevant
statutory requirements, the exception must be granted. Crooked Creek, 677 N.E.2d at 547-48. The granting of
a special exception is mandatory once the petitioner shows compliance with the relevant statutory criteria.
Town of Merrillville Bd. of Zoning Appeals v. Public Storage, Inc., 568 N.E.2d 1092, 1094 (Ind. Ct. App. 1991),
trans. denied. On the other hand, special exceptions are discretionary when the zoning ordinance provides the
BZA with a discernable amount of discretion and the board is entitled to determine whether a petitioner has
demonstrated that its proposed use will comply with the relevant statutory criteria. See Crooked Creek, 677
N.E.2d at 548.
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Rock’s WECS project” and that creates ambiguity for future wind turbine
investments. (Appellant’s Br. p. 32).
[28] To support its decision denying Flat Rock’s petition, the trial court relied on our
supreme court’s opinion in Fulton Cnty. Advisory Plan Comm’n v. Groninger, 810
N.E.2d 704 (Ind. 2004), reh’g denied. In Groninger, the appellees were denied
primary approval for a proposed subdivision for failure to comply with the
vision clearance standards of the ordinance, after an engineering report
obtained by the Zoning Administrator concluded that “the proposed entrance
would create hazardous driving conditions.” Id. at 707. The pertinent part of
the ordinance provided that:
The intent of Vision Clearance Standards are [sic] to provide for
a safe vehicular and pedestrian transportation system. The
visibility at intersections, driveways, curb cuts, and entrances are
particularly important for the safe movement of vehicles and
pedestrians.
The following Vision Clearance Standards apply to all
intersections, drive[s], curb cuts, and entrances.
A. No curb cut or drive shall be permitted when:
(a) A minimum of 225 feet from the crest of a hill where . . .
(b) A minimum of 175 feet from the crest of a hill where . . .
(c) The visibility to or from the desired location is determined to
be impaired by the Zoning Administrator.
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Id. at 706. After modification of their original petition, the Groningers
submitted a modified plan that changed the location of the roadway entrance
and which met the vision clearance standards. Id. at 707. Nonetheless, instead
of starting construction, the Groningers filed a complaint arguing that their
original proposal had complied with the standards. Id. The Groningers argued
that (a) and (b) were the “requirements” of the ordinance for approval, and
because both had been met, they were entitled to approval. Id. at 708.
[29] Our supreme court defined the issue at hand as to “whether the language and
requirements of the ordinance can be understood with reasonable certainty.”
Id. Interpreting the Vision Clearance Standards, the Groninger court noted that
subsections (a) and (b) set forth minimum standards and clarified that
the import of the use of the word “minimum” in both subsections
(a) and (b) is that 225 feet or 175 feet may well not be enough if
visibility is nevertheless impaired because of the grade or shape of
the road, foliage considerations, and the like. Because the plain
language of subsections (a) and (b)—again, the use of the word
“minimum”—puts a reader on notice that more may very well be
required in order to receive approval for an entrance, the
Groningers are incorrect in asserting that their plat was entitled
to be approved simply because it met the 225/175 feet
benchmarks.
Id. By reading all subsections together, the supreme court found that “an
applicant would understand the [o]rdinance with reasonable certainty to require
an entrance to be built to satisfy the purpose of avoiding visual impairment, not
just the minimums of sections (a) and (b).” Id. at 709. Our supreme court
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concluded that the visual clearance standards “placed the Groningers on
notice” of a condition that would be evaluated by the Plan Commission:
whether the proposed entrance created a visual impairment. Id.
[30] Turning to the Ordinance before us, we first note that Rush County’s general
intent in instituting zoning ordinances is “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 him.” (Zoning Ordinance,
Preamble). Overall, the Ordinance’s aim is to promote “the health, safety, or
general welfare of Rush County.” (Zoning Ordinance, Preamble).
[31] To be granted a WECS special exception, an applicant bears the burden of
satisfying both Section 10.2 of the Zoning Ordinance setting forth the general
criteria applicable to all applications, as well as Section 6.4 of the Zoning
Ordinance, pertaining specifically to WECS. The Zoning Ordinance in Section
10.2 (emphasis added) provides, in part, that the BZA can:
[] Hear and decide only such special exceptions as the [BZA] is
specifically authorized to pass on by the terms of this ordinance;
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 this ordinance.
[32] The purpose of Section 6.4, WECS Regulations, is defined as:
Assure that any development and production of wind-generated
electricity in Rush County is safe and effective:
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Facilitate economic opportunities for local residents; and
Promote the supply of wind energy in support of Indiana’s
alternative energy sources potential and other such economic
development tools.
(Zoning Ordinance, Sec. 6.4.1). The expressed legislative intent is “to provide a
regulatory scheme for the construction and operation of WECS in the county;
subject to reasonable restrictions these regulations are intended to preserve the health and
safety of the public.” (Zoning Ordinance, Sec. 6.4.2) (emphasis added). The
Zoning Ordinance’s specifications for WECS projects are over twenty pages
long and cover the entire scope of a WECS development, from the initial
zoning application, to permitting, to the final decommissioning of the wind
energy project. In particular, with regard to the setback requirements, the
Zoning Ordinance details that the distance from a “[r]esidential dwelling,
measured 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 non-
participating landowners.” (Zoning Ordinance, Sec. 6.4.6.4.1) (emphasis
added).
[33] When faced with an interpretation of its Zoning Ordinance, the BZA is guided
by Section 15, which clarified that:
In their interpretation and application, the provisions of this
ordinance shall be held to be minimum requirements, adopted for
the promotion of the public health, safety, or general welfare.
Whenever the requirements of this ordinance are at variance with
the requirements of any other lawfully adopted rules, regulations,
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ordinances, deed restrictions, or covenants, the most restrictive or
that imposing the higher standards, shall govern.
(Zoning Ordinance, Sec. 15) (emphasis added).
[34] Unlike Flat Rock, who maintains that the BZA derived its discretionary power
from the general subjective criteria of Section 10.2 of the Zoning Ordinance, we
find that the BZA’s power to impose the enlarged Setback Condition squarely
derives from Section 6.4 of the Zoning Ordinance by its reference to a
“minimum setback distance.” (Zoning Ordinance, Sec. 6.4.6.4.1). Section 10.2
of the Zoning Ordinance explicitly reinforces 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.” (Zoning Ordinance, Sec. 10.2). Similar to
Groninger, Flat Rock was placed on notice by the insertion of the word
“minimum” that the setback would be evaluated by the BZA in light of Section
10.2 of the Zoning Ordinance. See Groninger, 810 N.E.2d at 709.
[35] 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
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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).
[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
[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.
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[38] Affirmed.
[39] Crone, J. and Altice, J. concur
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