A group of Greentown-area residents who live near ENGIE’s proposed Emerald Green Solar farm are asking a judge to reverse the Howard County Board of Zoning Appeals’ decision to grant a special exception permit for the project.
The civil plenary lawsuit, filed Thursday in Howard County Circuit Court, lists nine petitioners. Emerald Green Solar, LLC and the Howard County Board of Zoning Appeals are the defendants.
It argues that the BZA did not consider evidence presented by those in opposition, that ENGIE North America failed to present evidence that its proposed solar farm is “clearly a benefit” to adjacent property owners and that there were violations of the Indiana Open Door Law during the Feb. 28 BZA meeting.
The petitioners are: Bradley Semon, Stanley Oyler, Joe Northcutt, Merwyn Hall, Jodie Hall, Robert Little, Angela Little, Kevin Blanton and Larry Myer, who all live in the project’s footprint.
ENGIE is looking to operate an approximately 1,800 acre utility scale solar farm just east of the town of Greentown near the Duke Energy owned Greentown Substation. The proposed project would generate 200 MW, enough energy to power 30,000 homes and bring in an estimated $30 million in tax revenue during the life of the project, according to ENGIE.
Proponents of the project point to its tax revenue benefits and their desire for Howard County to participate in the growing renewable energy market. Some of the participating landowners spoke at the Feb. 28 meeting in support of the project stating that the lease payments would help diversify their income.
The project’s opponents have largely argued that the project would negatively impact neighboring property values, would take away valuable farmland out of production and could potentially be a nuisance because of the sounds from the invertors.
The BZA’s Feb. 28 approval of the special exception permit was the third time the five-person board voted on the project. It rejected the application the previous two times.
In previous written findings after the denials, the BZA found that the proposed solar farm project would negatively impact neighboring property values. In the most recent findings after the Feb. 28 meeting, the BZA found the exact opposite.
That fact, the petitioners argue, makes the BZA’s Feb. 28 approval “arbitrary and capricious” because the details of the project did not change substantially from the first time ENGIE filed for a special exception permit to the third time it filed. What did change from the first time ENGIE applied for a special exception permit was the members of the BZA.
The petitioners also state that BZA member Greg Tipton was not able to receive or review any of the physical material submitted to the BZA by the petitioners during the Feb. 28 meeting because he was not able to attend the meeting in-person, and instead, had to attend the meeting virtually.
Being able to review materials submitted mid-meeting could be important to any BZA decision as the BZA is a quasi-judicial board and state law states both the public and applicants are not allowed to “communicate with any member of the BZA before the hearing with intent to influence the member’s action on a matter pending before the board.”
“Even though BZA member Greg Tipton did not review submitted materials in opposition, he nonetheless voted to approve the application,” the petitioners write. “If that improper vote is disregarded, the Application fails due to an insufficient number of favorable votes.”
Lastly, the petitioners argue there were violations of the Indiana Open Door Law committed at the Feb. 28 meeting, including the doors to the basement of the Howard County Administration Building, 220 N. Main St., where the Feb. 28 meeting was held, were locked, “impeding access to individuals who wished to be present and heard.” Those who wanted to attend the meeting could use the building’s elevator to reach the basement.
As of Tuesday afternoon, neither ENGIE nor the BZA have formally responded to the petition for judicial review.
County Attorney Alan Wilson declined to comment on the pending litigation when reached for comment.
Tom Schoder, developer for Emerald Green Solar, told the Tribune in an emailed statement the company is “confident” the BZA’s decision will be upheld.
“We are focused on the next steps in working with Howard County leaders to bring this $300 million investment and its many additional benefits to the community and we are confident the BZA decision will stand,” Schoder said.
The petition for judicial review made by the Greentown-area residents is another entry into the Emerald Green Solar legal saga.
ENGIE filed its own petition for judicial review in August after the BZA’s second denial of their special exception permit request. The company argued in its petition that the BZA was “capricious” in its ruling, its rejection was “unsupported” by evidence and that one now former board member was biased against the project.
A hearing in Miami County Superior Court in regards to ENGIE’s petition is scheduled for May 18.