Wind farm suing Henry County Board of Zoning Appeals; wants judge to review official decision
The year may be almost over, but the fight for a wind farm in Henry County continues.
Big Blue River Wind Farm, LLC, has asked a judge to review a decision the Henry County Board of Zoning Appeals (BZA) made in November.
This court filing is the latest in a step in a process that started with the Henry County Planning Commission.
Big Blue River Wind Farm, a part of Calpine, filed a commission approved use (CAU) with the planning commission earlier this year. The CAU request was to build 38 turbines in northwestern Henry County.
The planning commission hosted a public hearing July 23 in Bundy Auditorium to hear from people supporting the request and people opposing the request. The hearing ended after the Henry County Planning Commission came to a 4-4 tie vote on the request.
In September, the planning commission approved a “Findings of Fact” that the CAU was officially denied because it had not received enough votes.
Lawyers for the wind farm argued the planning commission cannot take any official action without a majority vote, that is, the request may not have been officially approved, but it also was not officially denied.
The BZA voted Nov. 9 to uphold the Henry County Planning Commission decision that the CAU was denied.
Big Blue River Wind Farm filed a verified petition for judicial review Dec. 9 in Henry Circuit Court 1.
According to court documents, the wind farm claims the BZA decision “did not address the adequacy or non-substance of the Findings, instead simply affirming the [Henry County Planning Commission] without explanation.”
The lawsuit noted the BZA cited two previous cases in which the planning commission had deemed a petition denied because of a tie vote.
“And, in doing so, assumed that prior tie votes were handled correctly and comported with the local procedural rules,” the suit stated.
Throughout the filing, Big Blue River Wind Farm refers to Henry County Rules of Procedure.
The lawsuit claimed these rules require majority votes for official action. The lawsuit also points to the rules regarding members of the planning commission who recuse themselves from any vote.
Big Blue River Wind Farm is arguing the Henry County Rules of Procedure “indicate that an alternate must participate” in place of the absent member.
“The BZA’s decision was contrary to the evidence before the BZA, the local Rules of Procedure, and Indiana law,” the suit claimed.
The lawsuit also claims the decision by the Henry County Board of Zoning Appeals was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “contrary to constitutional right, power, privilege, or immunity,” “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” “without observance of procedure required by law,” and “unsupported by substantial evidence.”
The request for judicial review is asking the court to find that Big Blue River Wind Farm “has been prejudiced” and send the case back to the BZA “to take official action on the Application and make findings of fact tied to the evidence and testimony presented at the Hearing and/or to grant Big Blue River’s Application.”
Big Blue River Wind Farm filed a summons Dec. 9 for Henry County BZA chair Dan Roach.
As of Thursday, no court dates had been scheduled in the case.