Dunmoyer v. Wells County, Indiana Area Plan Commission

32 N.E.3d 785, 2015 Ind. App. LEXIS 393, 2015 WL 2229452
CourtIndiana Court of Appeals
DecidedMay 12, 2015
DocketNo. 90A02-1407-MI-460
StatusPublished
Cited by4 cases

This text of 32 N.E.3d 785 (Dunmoyer v. Wells County, Indiana Area Plan Commission) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunmoyer v. Wells County, Indiana Area Plan Commission, 32 N.E.3d 785, 2015 Ind. App. LEXIS 393, 2015 WL 2229452 (Ind. Ct. App. 2015).

Opinion

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 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 instruc[787]*787tions.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 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-l,” Agriculture-Intensive; “I—1,” Industrial; “1-2,” Industrial; “B-l,” Central Business District; “C-l,” Conservation; and “R-l,” Residential. Id. at 458. Large WECS projects6 are permitted uses in four zoning districts, including A-l. Id. at 463. Apex proposed to build a WECS project on land in Wells County zoned as A-l. Other permitted uses in A-l 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 [788]*788environment that is consistent with the environment of the neighborhood.
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Appellants’App. at 1406.

[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 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.

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32 N.E.3d 785, 2015 Ind. App. LEXIS 393, 2015 WL 2229452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunmoyer-v-wells-county-indiana-area-plan-commission-indctapp-2015.