Kokomo Tribune; Kokomo, Indiana

August 30, 2013

Prairie Breeze Wind Farm fight headed to court

BZA limits property value guarantee testimony.

By Ken de la Bastide Kokomo Tribune
Kokomo Tribune

---- — TIPTON – The battle over the Prairie Breeze Wind Farm in northwestern Tipton County will be continued in court as developer juwi Wind attempts to modify the conditions imposed on the project.

Attorneys for juwi Wind and leaseholders in the area of the proposed Prairie Breeze Wind Farm contend their clients were denied due process by the Tipton County Board of Zoning Appeals.

“The chairman of the BZA has created a dysfunctional, unstable business environment in Tipton County for investors looking to create economic development opportunities and jobs,” Michael Rucker, CEO of juwi Wind, said Thursday.

“Ground rules change at a moment’s notice based on arbitrary political decisions, not regulations that have been adopted by those elected in the community. Fortunately, citizens still have the courts to rely upon. Unfortunately, that is where we are headed.”

The BZA met Wednesday at the Tipton High School to hear testimony regarding a proposed property value guarantee for the project, but no testimony was heard after BZA President Jerry Acres decided to limit the scope of the hearing.

In March, the BZA approved a conditional use permit for the wind farm with conditions requiring a 1,500-foot setback from property lines and creation of a property value guarantee to protect non-participating property owners in the project area.

The company submitted a plan covering residential property within three-quarters of a mile of a wind turbine and involving only the first sale after Prairie Breeze goes into operation. It limited juwi’s liability to $1 million.

Acres got into heated arguments with Mary Solada, attorney for juwi Wind, and Tim Ochs, who was representing the leaseholders.

Solada said juwi Wind was prepared to present a property value guarantee and was prepared to provide testimony that it would not benefit residents of Tipton County.

Acres asked if juwi was going to argue against a property value guarantee, to which Solada said it was an option.

“We’re not going to consider testimony to eliminate the property value guarantee,” Acres said.

Last month, Steve Edson, administrator of the Tipton County Plan Commission, denied a request from juwi Wind to consider elimination of the property value guarantee. Edson’s decision was based on its inclusion as a condition for the permit.

Solada said juwi Wind’s due process was being denied and asked if a majority of the BZA’s five members agreed with Acres’ position.

“A vote is not required,” he said.

Solada said if that testimony could not be presented, her client was being denied their due process rights.

Ochs objected to the decision and also cited denial of due process to his clients.

“The best decisions are reached when an emphasis is placed on making the right decision,” Ochs said. “This is a big decision worth millions of dollars. Instead of restricting testimony, the board should receive as much information as you can to make the right decision.”

Acres said juwi Wind and the leaseholders are upset with the BZA decisions and missed the chance to appeal the initial approval within 30 days of the March meeting.

“I’m trying to protect the integrity of the board. First you wanted to modify the decision, then amend it and now eliminate it,” he said, referring to the property value guarantee.

“Your intent is to sue,” Acres proclaimed. “Save everyone time and file it.”

Pat Hess, attorney for the Tipton County Citizens for Responsible Development, said it is the board’s decision on whether to take a vote. He said the petitioners had due process in March and failed to file an appeal that the conditions imposed by the BZA were unreasonable.

“They’re trying to make a case that you’re biased,” Hess told Acres. “They are trying to get you removed.”