Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017 Page 1 of 26

ATTORNEYS FOR APPELLANT

Robert W. Eherenman

Andrew L. Teel

Haller & Colvin

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEES

The Rush County Area Board of 

Zoning Appeals:

Grant M. Reeves

Barada Law Office

Rushville, Indiana

Intervening Respondent Appellees:

Stephen R. Snyder

Randall L. Morgan

Snyder Morgan, LLP

Syracuse, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Flat Rock Wind, LLC,

Appellant-Petitioner,

v.

Rush County Area Board of 

Zoning Appeals,

Appellee-Respondent,

and

Daniel Sprinkle, et al.,

Appellees-Intervening Respondents.

February 14, 2017

Court of Appeals Case No.

70A01-1606-PL-1382

Appeal from the Rush Superior 

Court

The Honorable Matthew D. 

Bailey, Special Judge

Trial Court Cause No.

70D01-1507-PL-220
Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017 Page 2 of 26

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Petitioner, Flat Rock Wind, LLC (Flat Rock), appeals the trial 

court’s decision, affirming Appellee-Respondent’s, Rush County Area Board of 

Zoning Appeals (BZA), grant of Flat Rock’s amended application to construct a 

commercial Wind Energy Conversion System, subject to the requirement to 

locate each industrial wind turbine at least 2,300 feet from a non-participating 

owner’s property line.1

 

[2] We affirm

ISSUES

[3] Appellant raises two issues on appeal, which we restate as follows: 

(1) Whether the trial court abused its discretion in permitting a group of 

landowners to intervene in these judicial review proceedings pursuant to 

Indiana Trial Rule 24(A)(2); and 

(2) Whether the trial court erred in affirming the BZA’s zoning decision 

approving Flat Rock’s amended application for a special exception to 

construct a commercial Wind Energy Conversion System, subject to a 

 

1 We held oral argument in this cause on January 13, 2017, at the court of appeals courtroom in Indianapolis, 

Indiana. We thank the parties for their excellent advocacy. 
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setback requirement that was both greater and measured differently than 

the zoning ordinance’s minimum setback requirement.

FACTS AND PROCEDURAL HISTORY

[4] This case stems from Flat Rock’s efforts to develop a 180-megawatt commercial 

Wind Energy Conversion System (WECS) located on more than 29,000 acres 

of land in Rush and Henry Counties. As originally planned, the WECS would 

be comprised of ninety-five wind turbines, with sixty-five wind turbines sited in 

Rush County. On March 30, 2015, Flat Rock filed an application for approval 

of a special exception to the Rush County zoning ordinance (Zoning 

Ordinance) to construct and operate that portion of the WECS located in Rush 

County. Prior to applying for the special exception, and in reliance on the 

Zoning Ordinance, Flat Rock entered into numerous lease agreements with 

landowners in Rush County who agreed to make their land available for the 

commercial development of wind energy. This proposed development 

represented an estimated $305 million investment in the county that would 

create more than 200 construction jobs and up to twelve full-time local 

positions. The project was anticipated to pay an estimated $21.9 million in 

landowner lease payments and substantial amounts in local property taxes.

[5] Rush County’s Zoning Ordinance characterizes the construction of a WECS as 

a special exception to the Zoning Ordinance, subject to approval of the BZA 

and certain uniform siting regulations. The Zoning Ordinance, as a whole, 

emphasizes that “[t]he general trend in zoning has been to maintain certain 

rights of the individual, but to carefully control them in the hope that his 
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development will not have adverse effects on the society around them. This is 

the basic aim of zoning in general, and this ordinance in particular.” 

(Appellees’ App. Vol II, p. 23). Its intent, in pertinent part, is “to preserve 

property values and promote public health, safety, comfort, convenience, and 

general welfare.” (Appellees’ App. Vol II, p. 24). Beyond this general 

statement, the WECS-specific provisions of the Zoning Ordinance underscore 

that they are “intended to preserve the health and safety of the public.” (Zoning 

Ordinance, Sec. 6.4.2).

[6] The Zoning Ordinance delegates to the BZA the authority to interpret and 

enforce the zoning ordinance, as well as the exclusive power to hear and decide 

applications for special exceptions. “In their interpretation and application, the 

provisions of [the Zoning Ordinance] shall be held to be minimum 

requirements, adopted for the promotion of the public health, safety or general 

welfare.” (Zoning Ordinance, Sec. 15). With respect to Flat Rock’s WECS 

special exception application, the BZA is authorized, among other duties, “to 

decide such questions as are involved in determining whether special exceptions 

should be granted” and “to grant special exceptions with such conditions and 

safeguards as are appropriate under this ordinance, or to deny special 

exceptions when not in harmony with the purpose and intent of the ordinance.” 

(Zoning Ordinance, Sec. 10.2). The applicant for a WECS special exception 

bears the burden of satisfying both Section 10.2 of the Zoning Ordinance, 

setting forth general criteria applicable to all special exceptions, and Section 6.4 
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of the Zoning Ordinance, pertaining specifically to the construction of WECS 

in Rush County. 

[7] In its WECS special exception application, Flat Rock provided a certification 

that the proposed wind turbines would meet the Zoning Ordinance’s 

requirement of a 1,000 feet setback from residential dwellings. On May 7, 

2015, the BZA held a public hearing on Flat Rock’s application. Flat Rock’s 

representatives and a number of supporters appeared at the hearing to speak in 

favor of the proposed WECS, while landowners and numerous other Rush 

County residents were present as remonstrators against the proposed project. 

[8] The BZA’s staff and planning consultant had prepared a comprehensive report, 

evaluating Flat Rock’s application. The overall review of the project was 

hindered, however, because of the incomplete nature of the application. Due to 

numerous issues with the application, and since Flat Rock had yet to determine 

the size, number, or design of the wind turbines, the BZA’s planning consultant 

acknowledged that “there’s still a lot of information that’s still in the air” and 

there were “so many things that—that we are still not clear on.” (Appellant’s 

App. Vol. II, p. 13). The BZA’s staff report affirmed that “[b]ecause of the 

detailed information involved in this request and the unusual nature of the land 

use, it is recommended that the BZA continue this request until it has had 

adequate time to review all of the material.” (Appellant’s App. Vol. II, p. 13). 

Before continuing the hearing, the BZA received evidence from the landowners 

and other remonstrators bearing on the adverse health effects and negative 

impact to property values resulting from Flat Rock’s proposed WECS. Among 
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other authorities purporting to establish adverse impacts from the WECS, the 

evidence before the BZA included a paper authored by two acoustical 

engineering experts acknowledging that “[s]tudies already completed and 

currently in progress describe significant health effects associated with living in 

the vicinity of industrial grade wind turbines.” (Appellant’s App. Vol. II, p. 

13). After addressing the long-term adverse health effects documented to result 

from residing in the proximity of a commercial wind turbine, these experts 

proposed increasing the distance between a rural residence and the current 

industrial grade wind turbines to at least one kilometer (equating to 

approximately 3,280 feet). Relying on the conclusions of this paper, the 

remonstrators requested the BZA to impose, as a condition to any grant of the 

application, increased setback distances “to a much more safe distance of 2,640 

feet” between the turbines and residences of non-participating owners2

. 

(Appellant’s App. Vol. II, p. 133). Agreeing with the staff’s recommendation 

and the finding that additional time was needed to further study Flat Rock’s 

request for a special exception, the BZA continued the public hearing to July 1, 

2015. On June 17, 2015, Flat Rock amended its WECS special exception 

application by voluntarily increasing the distance of its wind turbines from nonparticipating residences by 40%—from 1,000 feet to 1,400 feet. 

 

2 A non-participating owner is a landowner who does not lease his land to Flat Rock as part of the WECS 

project. 
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[9] On July 1, 2015, the BZA conducted a lengthy hearing on Flat Rock’s amended 

WECS application. Again, as during the first hearing, the BZA staff and the 

planning consultant had prepared and submitted a comprehensive report which 

evaluated Flat Rock’s application and addressed the general criteria applicable 

to all special exceptions under the Zoning Ordinance, as well as the additional 

criteria applicable to WECS. Relying on a study from the nonprofit Acoustic 

Ecology Institute in Santa Fe, New Mexico, the staff report noted, in pertinent 

part, that:

Most of the reports to date that have concluded turbines are 

harmless examined “direct” effects of sound on people and 

tended to discount “indirect” effects moderated by annoyance, 

sleep disruption, and associated stress. Research that considered 

indirect pathways has yielded evidence strongly suggesting the 

potential for harm.

Noise Variability – Turbine noise (the aerodynamic noise 

produced by air moving around the spinning blades as opposed 

to any mechanical noise from the motor) is often deemed more 

annoying than the hum or roar of transportation noise because of 

its repetitive nature and high variability in both level and quality 

– from “swoosh” to “thump” to silence, all modulated by wind 

speed and direction. This pulsing, uneven quality enables the 

noise to repeatedly capture the attention and become even more 

difficult to ignore. 

Night Noise – Unlike vehicle traffic, which tends to get quieter 

after dark, turbines can sound louder overnight. The absolute 

noise level of the wind farm may be no more than during the day, 

but it can be 10-20 decibels louder than the quieter nighttime 

ambient sound levels. This detail has important implications for 

sleep disruption.
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Noise frequency – Wind turbines generate lower frequencies of 

sound than traffic. These lower frequencies tend to be judged as 

more annoying than higher frequencies and are more likely to 

travel through walls and windows. Sound frequency lower than 

20 Hz – inaudible to the human ear – has been associated in 

some studies with symptoms including fatigue, sleeplessness, and 

irritability, as well as changes to the physiology of the inner ear 

that have poorly understood complications.

Residents of rural areas where turbines are more common may 

be people who are naturally more sensitive to noise than the 

population at large. They may have greater expectations of quiet 

and be more aware of noise disturbances, amplifying the 

potential for health effects related to environmental noise. 

There will likely be noise impacts on the surrounding area 

resulting from the proposed commercial WECS.

(Appellant’s App. Vol. II, pp. 15-16).

[10] As with the initial public hearing, following Flat Rock’s presentation, 

remonstrators presented evidence to the BZA as to the adverse health effects 

and impact on property values resulting from WECS. Consistent with the 

information conveyed in the BZA’s staff report and addressed during the 

planning consultant’s presentation, the BZA received evidence that included an 

acoustical engineering expert’s published report analyzing the peculiar 

infrasound and low frequency noises generated by commercial wind turbines 

and resulting long-term adverse health effects to those residing in proximity to 

such large turbines. The BZA also received evidence about the recommended 

setback requirement—with one remonstrator noting a turbine manufacturer’s 
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recommended setback distance as 6,562 feet—and the wind farm’s potential 

negative impact on surrounding property values, with potential price reductions 

of 65%.

[11] Following the public comments, BZA member Joe Rathz moved to approve 

Flat Rock’s amended WECS application “as presented” with the conditions 

and commitment “that have been provided to us.” (Appellant’s App. Vol. II, p. 

17). The motion failed for lack of a second. BZA member Steve Cain (Cain) 

then moved to approve the WECS special exception with the condition that the 

setback distance be increased from the Zoning Ordinance’s specified 1,000 feet 

to 2,640 feet from any property line. That motion likewise failed for lack of a 

second. Expressing concern over the proximity of the large wind turbines to 

residential properties, and with Cain’s preceding motion having failed, BZA 

member Larry Copley (Copley) moved to approve the WECS special exception 

with a 2,300 feet setback condition (Setback Condition). This motion was 

clarified to reflect that the 2,300 feet applied to the setback distance between the 

wind turbines and properties of non-participating owners, with the special 

exception subject to the remaining conditions and written commitment 

addressed in the staff report’s recommendations. Copley’s motion passed by a 

majority vote of the BZA members. The BZA’s written findings of fact were 

approved on September 3, 2015. In its findings, the BZA formulated the 

Setback Condition as follows:

In order to protect health and safety and for any other set forth 

within these findings, the BZA imposes a greater minimum 

setback for non-participating properties of 2,300 feet, as 
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measured from the center of the WECS turbine to the property 

line of the non-participating property owner’s land.

(Appellant’s App. Vol. III, p. 12). The BZA also included multiple references 

to several other special criteria being satisfied only after factoring in the Setback 

Condition. 

[12] On July 22, 2015, Flat Rock filed a verified petition with the trial court seeking 

judicial review of the BZA’s zoning decision, with particular emphasis on the 

Setback Condition. Several landowners (Remonstrators) filed a motion and an 

amended motion to intervene on August 5 and August 17, 2015, respectively. 

Flat Rock objected to the motion to intervene on August 26, 2015. After a 

hearing, the trial court granted Remonstrators’ amended motion to intervene on 

November 18, 2015.

[13] On April 13, 2016, after receiving briefs from Flat Rock, the BZA, and 

Remonstrators with respect to their various positions, the trial court conducted 

a hearing on Flat Rock’s petition for judicial review. On May 27, 2016, the trial 

court entered its findings of fact and conclusions thereon, affirming the BZA’s 

July 1, 2015 zoning decision. In its Judgment, the trial court noted, in pertinent 

part, as follows:

33. Implicit in the BZA’s decision is that, but for the imposition 

of the condition increasing the setback distance to 2,300 feet, the 

commercial WECS special exception failed to satisfy the Zoning 

Ordinance. In particular, absent the Setback Condition, Flat 

Rock’s WECS special exception would at minimum adversely 

affect the public interest, not be in harmony with the purpose and 
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intent of the Zoning Ordinance, fail to adequately address the 

economic and noise effects on adjoining properties generally in 

the district, and not be generally compatible with adjacent and 

other properties in the district. This position is further consistent 

with the BZA’s written Findings of Fact subsequently approved 

on September 3, 2015. The BZA’s Findings of Fact contain 

references to multiple special exception criteria being satisfied 

only after factoring in the Setback Condition[.]

58. The BZA had the opportunity to carefully consider the 

purpose and intent of the Zoning Ordinance and all of the 

applicable provisions concerning the commercial WECS special 

exception. Through a majority vote of its members, the BZA 

interpreted the “Minimum Setback Distance” set forth in Section 

6.4.6.4.1 of the Zoning Ordinance as the “minimum” and subject 

to being increased based on the particular record before it as a 

condition to granting Flat Rock’s commercial WECS exception. 

* * * *

63. Based upon the record and applicable law, the [c]ourt 

concludes that the BZA in this case properly acted within its 

broad authority and discretion in imposing the Setback 

Condition, along with numerous other conditions and 

restrictions, as part of the decision granting Flat Rock’s amended 

commercial WECS special exception application.

* * * *

66. Based upon the record, and within the applicable standard of 

review, the [c]ourt concludes that the Setback Condition was 

supported by substantial evidence in the record. The evidence 

received by the BZA supported setback distances of at least 2,300 

feet from non-participating owner’s property line for reasons of 

both health and preservation of property values. While the BZA 
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had before it various conflicting evidence, a reviewing court does 

not “reweigh the evidence or reassess the credibility of witnesses; 

rather, the reviewing court must accept the facts as found by the 

zoning board.” 

(Appellant’s App. Vol. II, pp. 18, 24, 26, 27-28) (internal references omitted).

[14] Flat Rock now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Intervening Remonstrators

[15] Relying on I.C. § 36-7-4-1606(f), Flat Rock contests the trial court’s grant of 

Remonstrators’ motion to intervene. The grant or denial of a motion to 

intervene is within the discretion of the trial court. Herdrich Petroleum Corp. v. 

Radford, 773 N.E.2d 319, 324 (Ind. Ct. App. 2002), reh’g denied, trans. denied. 

We review a trial court’s decision to allow an intervention for an abuse of 

discretion. Id. An abuse of discretion occurs when the trial court’s decision is 

clearly against the logic and effect of the facts and circumstances before the 

court or reasonable and probable inferences to be drawn therefrom. Id. 

[16] Flat Rock disputes the Remonstrators’ intervention because the Remonstrators

failed to demonstrate that they were persons “aggrieved” pursuant to I.C. §§ 36-

7-4-1606(f) & -1603(a)(2). The 1600 series of Chapter 4 of the zoning code 

pertains to judicial review, with section 1606(f) elaborating on the requirements 

for intervention. Specifically, the section provides:
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Any person who has standing under section 1603(a)(2) or section 

1603(a)(3) of this chapter [] an unconditional right to intervene in 

a proceeding for review. A motion to intervene in a proceeding 

for review shall be filed in the manner provided by the rules of 

procedure governing civil actions in courts.

Section 1603(a)(2) requires a person seeking “to obtain judicial review of a 

zoning decision” to be “[a] person aggrieved by the zoning decision[.]” In 

order to be aggrieved by a zoning decision, our supreme court has held that:

the petitioner must experience a substantial grievance, a denial of 

some personal or property right or the imposition . . . of a burden 

or obligation. The board of zoning appeals’ decision must 

infringe upon a legal right of the petitioner that will be enlarged 

or diminished by the result of the appeal and the petitioner’s 

resulting injury must be pecuniary in nature. A party seeking to 

petition for certiorari on behalf of a community must show some 

special injury other than that sustained by the community as a 

whole.

Bagnall v. Town of Beverly Shores, 726 N.E.2d 782, 786 (Ind. 2000) (internal 

references omitted).

[17] Instead of applying these statutory requirements, the trial court evaluated 

Remonstrators’ motion to intervene in accordance with Indiana Trial Rule 

24(A)(2). Indiana Trial Rule 24(A)(2) provides for an intervention 

when the applicant claims an interest relating to a property, fund 

or transaction which is the subject of the action and he is so 

situated that the disposition of the action may as a practical 

matter impair or impede his ability to protect his interest in the 
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property, fund or transaction, unless the applicant’s interest is 

adequately represented by existing parties. 

Indiana cases addressing T.R. 24(A)(2) have traditionally adopted a three-part 

test, requiring intervenors to show: (1) an interest in the subject of the action; 

(2) disposition of the action may as a practical matter impede the protection of 

that interest; and (3) representation of the interest by existing parties is 

inadequate. See, e.g., Moran Elec. Serv., Inc. v. Comm’r, Ind. Dep’t of Environmental 

Mngmt, 8 N.E.3d 698, 707 (Ind. Ct. App. 2014) (internal reference omitted), 

affirmed on reh’g, trans. denied.

[18] We posit that the trial court pursued the proper review of Remonstrators’ 

motion to intervene. As noted above, I.C. § 36-7-4-1603(a)(2) sets forth the 

standing requirement of being “aggrieved” for a person seeking “to obtain

judicial review of a zoning decision.” (emphasis added). Once this standing 

requirement is met, the person receives “an unconditional right to intervene” in 

a proceeding for review. I.C. § 36-7-4-1606(f). Here, Remonstrators did not 

seek judicial review of the BZA’s decision; rather, the BZA’s decision rejecting 

Flat Rock’s application for a WECS special exception was favorable to them. 

Accordingly, as such, Remonstrators fell outside the province of I.C. § 36-7-4-

1603(a)(2) and could not apply for an unconditional right to intervene. 

Nonetheless, after Flat Rock initiated judicial review of the BZA’s decision, 

Remonstrators sought intervention in a pending judicial proceeding pursuant to 

the second sentence of I.C. § 36-7-4-1606(f) and availed itself of the “rules of 

procedure governing civil actions in courts.” See I.C. § 36-7-4-1606(f). 
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[19] We expressly reject Flat Rock’s assertion that “[t]he 1600 Series requires that all 

parties to a judicial review proceeding—including any intervenors—have 

standing as an [sic] ‘aggrieved persons.’” (Appellant’s Reply Br. p. 11). Flat 

Rock’s generalized claim interprets the statute too narrowly and would 

effectively make the second sentence of I.C. § 36-7-4-1606(f) meaningless. 

Spaulding v. Int’l Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind. 1990) (“Where 

possible, we interpret a statute such that every word receives effect and meaning 

and no part is rendered meaningless if it can be reconciled with the rest of the 

statute.”)

[20] By applying the “rules governing civil actions in court,” the trial court relied on 

the tripartite test of T.R. 24(A)(2) to review Remonstrators’ motion to intervene 

and found all three elements satisfied by the Remonstrators. See I.C. § 36-7-4-

1606(f). When evaluating the applicability of T.R. 24(A)(2), “the facts alleged 

in a petition to intervene must be taken as true and the decision on a motion to 

intervene turns on the sufficiency of the claim asserted.” Allstate Ins. Co. v. 

Keltner, 842 N.E.2d 879, 882 (Ind. Ct. App. 2006). In their petition, 

Remonstrators alleged to be interested parties by virtue of their ownership of 

real estate in the immediate vicinity of the wind facility proposed by Flat Rock. 

They claim that if the decision of the BZA is modified or reversed, their real 

estate values and personal health will be significantly and directly affected. 

Additionally, if the BZA, at some point, elects to change its decision or settle 

the lawsuit, Remonstrators would no longer be adequately represented by the 

BZA. As all three requirements of T.R. 24(A)(2) are satisfied, we conclude that 
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the trial court did not abuse its decision by granting the Remonstrators’ motion 

to intervene. 

II. Zoning Ordinance

[21] By increasing the siting requirements for Flat Rock’s WECS from the Zoning 

Ordinance’s 1,000 feet to the BZA’s imposed Setback Condition of 2,300 feet, 

the BZA interpreted Rush County’s Zoning Ordinances and applied them to the 

situation at hand. Flat Rock now contends that affirming the BZA’s action 

would grant “the BZA carte blanche to re-write the Zoning Ordinance at the 

BZA’s whim and has allowed the BZA to impose a poison pill condition that 

effectively kills a wind energy project that meets the objective setback 

requirements in the Zoning Ordinance.” (Appellant’s Br. pp. 22-23). 

A. Standard of Review

[22] When reviewing a decision of a zoning board, an appellate court is bound by 

the same standard of review as the certiorari court. Crooked Creek Conservation 

and Gun Club, Inc., v. Hamilton Co. North Bd. of Zoning Appeals, 677 N.E.2d 544, 

547 (Ind. Ct. App. 1997), reh’g denied, trans. denied. Under this standard, a 

reviewing court, whether at the trial or appellate level, is limited to determining 

whether the zoning board’s decision was based upon substantial evidence. Id. 

The proceeding before the certiorari court is not intended to be a trial de novo, 

and neither that court nor the appellate court may reweigh the evidence or 

reassess the credibility of witnesses; rather, reviewing courts must accept the 

facts as found by the zoning board. Id. 
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[23] However, as here, a review of the interpretation of a zoning ordinance is a 

question of law. Story Bed & Breakfast, LLP v. Brown Cnty. Area Plan Comm’n, 819 

N.E.2d 55, 65 (Ind. 2004). The ordinary rules of statutory construction apply in 

interpreting the language of a zoning ordinance. Id. Accordingly, if one statute 

deals with a subject matter in general terms and another deals with a specific 

part of the same subject, the provisions of the specific statute should prevail 

over any inconsistent provision of the general statute. Ind. Waste Systems, Inc. v. 

Bd. of Com’rs of Howard Cnty., 389 N.E.2d 52, 59 (Ind. Ct. App. 1979). Statutes 

which relate to the same general subject matter are in pari materia and should be 

construed with reference to each other in order to give effect to the provisions of 

each. Id. By construing these statutes as we do, we are giving force and effect 

to each. Id. Specifically with respect to zoning ordinances, we have held that 

the express language of the ordinance controls our interpretation 

and our goal is to determine, give effect to, and implement the 

intent of the enacting body. When an ordinance is subject to 

different interpretations, the interpretation chosen by the 

administrative agency charged with the duty of enforcing the 

ordinance is entitled to great weight, unless that interpretation is 

inconsistent with the ordinance itself. If a court is faced with two 

reasonable interpretations of an ordinance, one of which is 

supplied by an administrative agency charged with enforcing the 

ordinance, the court should defer to the agency. Once a court 

determines that an administrative agency’s interpretation is 

reasonable, it should end its analysis and not address the 

reasonableness of the other party’s interpretation. Terminating 

the analysis reinforces the policies of acknowledging the expertise 

of agencies empowered to interpret and enforce ordinances and 

increasing public reliance on agency interpretations.
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Hoosier Outdoor Advertising Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. 

Ct. App. 2006) (internal references omitted), trans. denied.

[24] Consequently, we presume the determination of the BZA, an administrative 

agency with expertise in zoning matters, to be correct. Midwest Minerals Inc., v. 

Bd. of Zoning Appeals of Area Plan Dept./Com’n of Vigo Cnty., 880 N.E.2d 1264, 

1268 (Ind. Ct. App. 2008), reh’g denied, trans. denied. We will reverse only if the 

BZA’s decision is arbitrary, capricious, or an abuse of discretion. Id. The 

powers of the BZA are strictly limited to those granted by its authorizing 

statute. Schlehuser v. City of Seymour, 674 N.E.2d 1009, 1014 (Ind. Ct. App. 

1996). Any acts of the BZA that exceed the powers enumerated by the Indiana 

Code and the local zoning ordinance are ultra vires and void. Id. 

B. Rush County’s Zoning Ordinance

[25] Flat Rock contends that the trial court erred in affirming the BZA’s decision 

and focuses its argument squarely upon the denial of its application for a special 

exception for the WECS project. Its primary argument revolves around the 

contention that the BZA exceeded its authority by creating a new, extended 

Setback Condition as well as to alter the prescribed method for measuring this 

Setback (property line versus residence). 
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[26] Referencing the difference instituted by case law between regulatory special 

exceptions and discretionary special exceptions,3 Flat Rock characterizes 

Section 6.4 of the Zoning Ordinance as a “specific objective regulation that a 

WECS applicant must satisfy;” whereas it views Section 10.2 of the Zoning 

Ordinance as purely discretionary because it imposes “general, subjective 

criteria.” (Appellant’s Br. pp. 29, 30). Accordingly, Flat Rock concludes that 

the trial court employed the discretionary criteria of Section 10.2 to “impose the 

Setback Condition, which rewrote the specific, objective development 

requirements for a WECS in Section 6.4.6.4.1.” (Appellant’s Br. p. 30). 

[27] Building on this distinction, Flat Rock argues that because it met the objective 

setback requirement listed in Section 6.4.6.4.1 of the Zoning Ordinance, and 

even exceeded it by agreeing to modify the location of its wind turbines to 1,400 

feet from all non-participating residences, its petition should have been granted. 

The BZA’s reliance on the discretionary Section 10.2—and the trial court’s 

affirmance thereof—to impose the Setback Condition now creates an illegal, 

arbitrary, and ad hoc situation that is “non-uniformly measured only for Flat 

 

3 “[I]f a petitioner for a special exception presents sufficient evidence of compliance with the relevant 

statutory requirements, the exception must be granted. Crooked Creek, 677 N.E.2d at 547-48. The granting of 

a special exception is mandatory once the petitioner shows compliance with the relevant statutory criteria. 

Town of Merrillville Bd. of Zoning Appeals v. Public Storage, Inc., 568 N.E.2d 1092, 1094 (Ind. Ct. App. 1991), 

trans. denied. On the other hand, special exceptions are discretionary when the zoning ordinance provides the 

BZA with a discernable amount of discretion and the board is entitled to determine whether a petitioner has 

demonstrated that its proposed use will comply with the relevant statutory criteria. See Crooked Creek, 677 

N.E.2d at 548. 
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Rock’s WECS project” and that creates ambiguity for future wind turbine 

investments. (Appellant’s Br. p. 32).

[28] To support its decision denying Flat Rock’s petition, the trial court relied on our 

supreme court’s opinion in Fulton Cnty. Advisory Plan Comm’n v. Groninger, 810 

N.E.2d 704 (Ind. 2004), reh’g denied. In Groninger, the appellees were denied 

primary approval for a proposed subdivision for failure to comply with the 

vision clearance standards of the ordinance, after an engineering report 

obtained by the Zoning Administrator concluded that “the proposed entrance 

would create hazardous driving conditions.” Id. at 707. The pertinent part of 

the ordinance provided that:

The intent of Vision Clearance Standards are [sic] to provide for 

a safe vehicular and pedestrian transportation system. The 

visibility at intersections, driveways, curb cuts, and entrances are 

particularly important for the safe movement of vehicles and 

pedestrians.

The following Vision Clearance Standards apply to all 

intersections, drive[s], curb cuts, and entrances.

A. No curb cut or drive shall be permitted when:

(a) A minimum of 225 feet from the crest of a hill where . . . 

(b) A minimum of 175 feet from the crest of a hill where . . . 

(c) The visibility to or from the desired location is determined to 

be impaired by the Zoning Administrator.
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Id. at 706. After modification of their original petition, the Groningers 

submitted a modified plan that changed the location of the roadway entrance 

and which met the vision clearance standards. Id. at 707. Nonetheless, instead 

of starting construction, the Groningers filed a complaint arguing that their 

original proposal had complied with the standards. Id. The Groningers argued 

that (a) and (b) were the “requirements” of the ordinance for approval, and 

because both had been met, they were entitled to approval. Id. at 708.

[29] Our supreme court defined the issue at hand as to “whether the language and 

requirements of the ordinance can be understood with reasonable certainty.” 

Id. Interpreting the Vision Clearance Standards, the Groninger court noted that 

subsections (a) and (b) set forth minimum standards and clarified that 

the import of the use of the word “minimum” in both subsections 

(a) and (b) is that 225 feet or 175 feet may well not be enough if 

visibility is nevertheless impaired because of the grade or shape of 

the road, foliage considerations, and the like. Because the plain 

language of subsections (a) and (b)—again, the use of the word 

“minimum”—puts a reader on notice that more may very well be 

required in order to receive approval for an entrance, the 

Groningers are incorrect in asserting that their plat was entitled 

to be approved simply because it met the 225/175 feet 

benchmarks. 

Id. By reading all subsections together, the supreme court found that “an 

applicant would understand the [o]rdinance with reasonable certainty to require 

an entrance to be built to satisfy the purpose of avoiding visual impairment, not 

just the minimums of sections (a) and (b).” Id. at 709. Our supreme court 
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concluded that the visual clearance standards “placed the Groningers on 

notice” of a condition that would be evaluated by the Plan Commission: 

whether the proposed entrance created a visual impairment. Id. 

[30] Turning to the Ordinance before us, we first note that Rush County’s general 

intent in instituting zoning ordinances is “to maintain certain rights of the 

individual, but to carefully control them in the hope that his development will 

not have adverse effects on the society around him.” (Zoning Ordinance, 

Preamble). Overall, the Ordinance’s aim is to promote “the health, safety, or 

general welfare of Rush County.” (Zoning Ordinance, Preamble). 

[31] To be granted a WECS special exception, an applicant bears the burden of 

satisfying both Section 10.2 of the Zoning Ordinance setting forth the general 

criteria applicable to all applications, as well as Section 6.4 of the Zoning 

Ordinance, pertaining specifically to WECS. The Zoning Ordinance in Section 

10.2 (emphasis added) provides, in part, that the BZA can:

[] Hear and decide only such special exceptions as the [BZA] is 

specifically authorized to pass on by the terms of this ordinance; 

to decide such questions as are involved in determining whether 

special exceptions should be granted; and to grant special exceptions 

with such conditions and safeguards as are appropriate under this 

ordinance, or to deny special exceptions when not in harmony with the 

purpose and intent of this ordinance. 

[32] The purpose of Section 6.4, WECS Regulations, is defined as:

Assure that any development and production of wind-generated 

electricity in Rush County is safe and effective:
Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017 Page 23 of 26

Facilitate economic opportunities for local residents; and 

Promote the supply of wind energy in support of Indiana’s 

alternative energy sources potential and other such economic 

development tools.

(Zoning Ordinance, Sec. 6.4.1). The expressed legislative intent is “to provide a 

regulatory scheme for the construction and operation of WECS in the county; 

subject to reasonable restrictions these regulations are intended to preserve the health and 

safety of the public.” (Zoning Ordinance, Sec. 6.4.2) (emphasis added). The 

Zoning Ordinance’s specifications for WECS projects are over twenty pages 

long and cover the entire scope of a WECS development, from the initial 

zoning application, to permitting, to the final decommissioning of the wind

energy project. In particular, with regard to the setback requirements, the 

Zoning Ordinance details that the distance from a “[r]esidential dwelling, 

measured from the center of the WECS to the nearest corner of the structure” 

must have a “minimum setback distance” of “one thousand (1,000) feet for nonparticipating landowners.” (Zoning Ordinance, Sec. 6.4.6.4.1) (emphasis 

added). 

[33] When faced with an interpretation of its Zoning Ordinance, the BZA is guided 

by Section 15, which clarified that:

In their interpretation and application, the provisions of this 

ordinance shall be held to be minimum requirements, adopted for 

the promotion of the public health, safety, or general welfare. 

Whenever the requirements of this ordinance are at variance with 

the requirements of any other lawfully adopted rules, regulations, 
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ordinances, deed restrictions, or covenants, the most restrictive or 

that imposing the higher standards, shall govern.

(Zoning Ordinance, Sec. 15) (emphasis added). 

[34] Unlike Flat Rock, who maintains that the BZA derived its discretionary power 

from the general subjective criteria of Section 10.2 of the Zoning Ordinance, we 

find that the BZA’s power to impose the enlarged Setback Condition squarely 

derives from Section 6.4 of the Zoning Ordinance by its reference to a 

“minimum setback distance.” (Zoning Ordinance, Sec. 6.4.6.4.1). Section 10.2 

of the Zoning Ordinance explicitly reinforces the BZA’s discretionary power 

under Section 6.4 while at the same time defining the boundaries of this 

discretion as the “condition and safeguards as are appropriate under this 

ordinance or to deny special exceptions when not in harmony with the purpose 

and intent of this ordinance.” (Zoning Ordinance, Sec. 10.2). Similar to 

Groninger, Flat Rock was placed on notice by the insertion of the word 

“minimum” that the setback would be evaluated by the BZA in light of Section 

10.2 of the Zoning Ordinance. See Groninger, 810 N.E.2d at 709.

[35] Over the course of two hearings, the BZA had the opportunity to carefully 

consider the statutory setback requirement of Section 6.4 and its implications on 

the life, health, and safety of the surrounding landowners. It received evidence 

in favor of the project and in opposition of constructing the windfarm. 

Ultimately, and based on the evidence presented at the hearings, the BZA, in its 

approved Findings of Fact, explicitly found that “an additional setback is 

necessary to protect health and safety on non-participating properties and 
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owners, and imposes as a condition on the grant of the special exception a 

minimum setback of 2,300 feet, to be measured from the center of the WECS 

turbine to the non-participating property line.” (Appellant’s App. Vol. III, p. 

7). 

[36] Based on the explicit language of the Zoning Ordinance, we conclude that the 

BZA did not exceed its authority by creating the Setback Condition, as well as a 

new method for measuring this Setback. In interpreting the Zoning Ordinance, 

the BZA viewed the siting setback as a “minimum” guideline, which was 

subject to “reasonable restrictions” to preserve the health and safety of the 

public. (Zoning Ordinance, Sec. 6.4.2; see also Zoning Ordinance 10.2). By 

evaluating Flat Rock’s proposed commercial WECS project as planned and the 

evidence and testimony received during the hearings, the BZA imposed the 

Setback Condition to promote the Zoning Ordinance’s and the WECS’ special 

exception’s stated purpose to promote the public interest. Because we find the 

BZA’s interpretation reasonable and consistent with the Zoning Ordinance 

itself, we must defer to the agency’s decision. See Hoosier Outdoor Advertising 

Corp., 844 N.E.2d at 163. Accordingly, as the BZA did not exceed its powers, 

we affirm the trial court’s decision. 

CONCLUSION

[37] Based on the foregoing, we hold that the trial court properly permitted 

Remonstrators to intervene pursuant to T.R. 24(A)(2); and the BZA did not 

exceed its power by interpreting the WECS special exception in the Zoning 

Ordinance.
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[38] Affirmed. 

[39] Crone, J. and Altice, J. concur