The legal battle between a company seeking to build a commercial solar farm in eastern Howard County and some adjacent property owners who want to stop it made its way to a Howard County courtroom.

Jason Kuchmay, the hired attorney for the 10 Greentown-area residents who filed the petition for judicial review in March 2023, and Greg Neibarger, hired attorney for ENGIE North America, laid out their respective arguments in front of Howard County Circuit Judge Lynn Murray last week for oral argument.

Kuchmay’s clients are seeking a reversal of a special exception approval given by the Howard County Board of Zoning Appeals to ENGIE North America in February 2023. ENGIE is asking the court to uphold the BZA’s decision so it can continue with its planned 200 megawatt utility scale solar farm dubbed Emerald Green Solar.

Murray did not make a ruling after the hearing. Instead, she took the case under advisement and said her decision would likely come around May 12, a month after she’s asking both sides to file their proposed findings of fact, conclusions of law and orders.

THE ARGUMENTS

Both sides argued several different points, but one — whether or not the BZA must have found the proposed solar farm would be a “clear benefit” to adjacent property owners — took up most of the time during the one-hour hearing.

Under “district intent” in the county’s zoning ordinance, it reads the BZA should “allow a special exception only when there is clear benefit to the adjacent properties.”

ENGIE, Kuchmay argues, did not meet that burden of proof during the BZA hearing nor did the BZA find there is a “clear benefit” to adjacent property owners in its findings of fact drafted after the approval.

In addition, Kuchmay argues the BZA’s approval was both “arbitrary and capricious” because the board voted down the special exception request twice before, and when it did approve it, ENGIE’s proposed project was virtually unchanged from the previous two failed attempts.

“It’s arbitrary and capricious to ignore that prior denial,” Kuchmay said.

Lastly, Kuchmay argued there were multiple Indiana Open Door Law violations during or before the BZA hearing, including a failure to post the meeting notice and agenda, the doors to the building during the public hearing being locked and a BZA member, Greg Tipton, was allowed to vote on a drafted policy to allow remote participation by members while he himself was participating in the meeting remotely.

In contrast, Neibarger spent most of his allotted time for rebuttal attacking the insinuation the BZA must find a “clear benefit” to nearby property owners to approve a special exception, arguing it is merely a “guiding principle” and not a requirement for the BZA to address.

“I have shown at the top of this document that says ‘district intent.’ Intent is not a requirement,” Neibarger said during oral argument. “You won’t find it as a synonym.”

Instead, Neibarger argued, the only questions the BZA have to answer are the four points it’s required to address in its findings of fact:

• The proposal will not be injurious to the public health, safety, morals and general welfare of the community.

• The requirements and development standards for the requested use as described by the zoning ordinance will be met.

• Granting the exception will not subvert the general purposes served by the zoning ordinance and will not permanently injure other property or uses in the same district and vicinity.

• The proposed use will be consistent with the character of the district therein, the spirit and intent of the zoning ordinance and the Comprehensive Plan.

Addressing Kuchmay’s argument that the BZA should have considered past denials, Neibarger said there’s no such requirement in the county’s zoning ordinance.

Instead, Neibarger argued, the fact the county’s zoning ordinance allows petitioners to apply for a special expectation six months after a denial means each application should be “considered anew.”

Lastly, Neibarger argued Kuchmay’s and the petitioners’ allegations of Open Door Law violations are merely “hearsay” and predicated not on a ruling by the Indiana Public Access Counselor but an unsworn letter written by a private citizen, Clee Oliver, to the public counselor alleging violations occurred.

“This would be the first time in history that any court in the United States would find a violation of the Open Door Law or Sunshine Law based on an unsworn letter to the public access counselor,” Neibarger said.

To further his argument, Neibarger pointed out the fact that more than 150 people attended the meeting and dozens were able to express their opinion during the public hearing, negating any suggestion the public was not able to properly participate in the meeting.

In its court filings, ENGIE also includes a declaration of Dianne Trobaugh, secretary for the county BZA, in which she says the right exterior door of the Howard County Administration was locked but not the left door and the photos Oliver provides in his letter to show there was no meeting notice are not photos of where Trobaugh normally posts meeting notices — immediately outside the doorway of the BZA’s office.
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