Mammoth Solar v. Ehrlich

• Docket Number: Court of Appeals Case No. 21A-PL-2060
• Decision Date: 21 September 2022
• Parties: MAMMOTH SOLAR, a/k/a Starke Solar LLC, Appellant-Respondent v. Connie EHRLICH, Daniel Knebel, Jennifer Knebel, John Masterson, Larry Lambert, Gail Lambert, Keith Davis, Gale Davis, and Dean Cervenka, Appellees-Petitioners.
• Court: Indiana Appellate Court

196 N.E.3d 221

MAMMOTH SOLAR, a/k/a Starke Solar LLC, Appellant-Respondent

v.Connie EHRLICH, Daniel Knebel, Jennifer Knebel, John Masterson, Larry Lambert, Gail Lambert, Keith Davis, Gale Davis, and Dean Cervenka, Appellees-Petitioners.

Court of Appeals Case No. 21A-PL-2060

Court of Appeals of Indiana.

Filed September 21, 2022

Attorneys for Appellant: Christopher D. Shelmon, Anthony E. Dowell, Rachel S. Bir, Gutwein Law, Lafayette, Indiana

Attorney for Appellees: Jason M. Kuchmay, Snyder Morgan Federoff & Kuchmay LLP, Fort Wayne, Indiana

Pyle, Judge.

Statement of the Case

[1] In 2019, the Pulaski County Board of Commissioners ("the Commissioners") approved and adopted a Unified Development Ordinance ("the UDO") that provides a regulatory scheme for the construction and operation of solar energy systems in the county. In 2020, Mammoth Solar ("Mammoth Solar") submitted an application for a special exception ("the Application") seeking approval to construct a commercial solar energy farm on 4,511 acres of farmland in Pulaski County. Following a public hearing, the Pulaski County Board of Zoning Appeals ("the BZA") unanimously approved the Application. Petitioners Connie Ehrlich, Daniel and Jennifer Knebel, John and Toni Masterson, Larry and Gail Lambert, Keith and Gale Davis, and Dean Cervenka, (collectively "the Petitioners"), who either own property within 660 feet of the proposed solar farm, reside within one mile of the proposed solar farm, or have homes that will be bordered by the solar farm's panels, filed a petition for judicial review asking the trial court to enter an order reversing the BZA's decision and denying the Application. The trial court concluded that the Application had failed to comply with the minimum requirements of the UDO, that the BZA should not have considered or acted on Mammoth Solar's incomplete application, and, that by disregarding the UDO's requirements, the BZA's actions were arbitrary and capricious, not in accordance with the law, and without observance of procedure required by law. The trial court vacated all actions taken on Mammoth Solar's Application and remanded the matter to the BZA.

[2] Mammoth Solar now appeals the trial court's order. Mammoth Solar specifically argues that: (1) the Petitioners lack standing to challenge the BZA's approval of the Application; (2) the Petitioners did not timely transmit the BZA's record to the trial court; (3) the BZA's approval of the Application was not arbitrary and capricious; and (4) the Petitioners failed to demonstrate that they had been prejudiced by the BZA's approval of the Application. Concluding that: (1) the Petitioners have standing to challenge the BZA's approval of the Application; (2) the Petitioners timely transmitted the BZA's record to the trial court; (3) the BZA's approval of the application was arbitrary and capricious; and (4) the Petitioners have demonstrated that they were prejudiced by the BZA's approval of the Application, we affirm the trial court's judgment.¹

[3] We affirm.

Issues

1. Whether the Petitioners had standing to challenge the BZA's approval of the Application.

2. Whether the Petitioners timely transmitted the BZA's record to the trial court.

3. Whether the BZA's approval of the Application was arbitrary and capricious.

4. Whether the Petitioners demonstrated that they had been prejudiced by the BZA's approval of the Application.

Facts

[4] In 2019, the Commissioners approved and adopted the UDO to set standards for development within Pulaski County.² The UDO became effective January 1, 2020. UDO section 7 concerns solar energy systems ("SES") and provides that "[t]he purpose of this section is to ... [a]ssure that any development of and production of ... solar-generated electricity in Pulaski County is safe and effective[.]" (Appellant's App. Vol. 4. at 162). Section 7.5(A) provides that "permits and variances shall be applied for and reviewed under the procedures established by this UDO and the application procedures ... for a[n] ... SES Improvement Location Permit." (Appellant's App. Vol. 4 at 165). Section 7.5(A)(2) further directs the applicant to section 2.3(R) for the specific application procedures.

[5] Section 2.3(R)(1) sets forth the information that an application for any SES "shall include[.]" (Appellees’ App. Vol. 3 at 5). Specifically, Section 2.3(R)(1) provides as follows:

R. Applications for All Solar Energy Systems

1. An application for any SES shall include the following information:

a. Contact information of project applicant. The name(s), address(es), and phone number(s) of the applicant(s), as well as a description of the applicant's business structure and overall role in the proposed project.

b. Contact information of current project owner. The name(s), address(es), and phone number(s) of the owner(s), as well as a description of the owner's business structure (commercial SES only) and overall role in the proposed project, and including documentation of land ownership or legal control of the property on which the SES is proposed to be located. The Plan Commission shall be informed of any changes in ownership.

c. Contact information of project operator. The name(s), address(es), and phone number(s) of the operator(s), as well as a description of the operator's business structure (commercial SES only) and overall role in the proposed project. The Plan Commission shall be informed of any changes in operatorship.

d. Legal description. The legal description, address, and general location of the project.

e. Project description. A CSES Project Description including:

1) Number of panels;

2) Type;

3) Name Plate generating capacity;

4) Maximum spatial extent (height and fence lines)[;]

5) The means of interconnecting with the electrical grid;

6) The potential equipment manufacturer(s); and

7) All related accessory structures.

f. Engineering Certification. For all SES, the manufacturer's engineer or another qualified registered professional engineer shall certify, as part of the building permit application, that all equipment is within accepted professional standards, given local soil and climate conditions. An engineering analysis of the equipment showing compliance with the applicable regulations and certified by a licensed professional engineer shall also be submitted. The analysis shall be accompanied by standard drawings of the solar panel, including the base.

(Appellees’ App. Vol. 3 at 5-6) (emphasis added).

[6] In addition, section 2.3(R)(3) sets forth the information that an application for commercial solar energy systems ("CSES"), such as that submitted by Mammoth Solar, "shall include[.]" (Appellees’ App. Vol. 3 at 7). Specifically, section 2.3(R)(3) provides as follows:

3. Applications for Commercial SES (CSES). In addition to the application requirements listed in Section 2.3(R)(1), applications for CSES shall also include the following information:

a. A site layout plan. A Development Plan, drawn to scale, including distances and certified by a registered land surveyor. All drawings shall be at a scale not smaller than one inch equals 200 feet (1"=200’) and not larger than one inch equals 50 feet (1" = 50’). Any other scale must be approved by the Administrator. No individual sheet or drawing shall exceed twenty-four inches by thirty-six inches (24" x 36"). The plan should include the following:

1) address, general location, acreage, and parcel number(s) of subject property

2) names of subdivision in which property exists (if applicable)

3) location/key with north arrow

4) property dimensions

5) location of and distance to any substations or other means of connection to the electrical grid, including above-ground and underground electric lines, as well as a copy of the written notification provided to the electric company requesting interconnection

6) existing and proposed buildings and solar panels, with appropriate setbacks, parking areas, natural features, including vegetation (type and location) and wetlands, and other manmade features, including locations of any utilities, wells, drainage tiles, and/or waterways

7) Electrical cabling

8) Ancillary equipment

9) adjacent or on-site public or private streets/roads and alleys

10) existing and proposed ingress/egress

11) existing building setbacks and separation

12) delineation of all requested variant development standards (if applicable)

13) existing easements

14) approximate locations of neighboring uses and structures

15) brief description of neighboring uses and structures

16) existing and proposed landscaping, lighting, and signage

17) a fire protection plan for the construction and operation of the facility, including emergency access to the site[ ]

18) proof of correspondence and cooperation with wildlife agencies re[garding] endangered species[ ]

19) map scale

20) Dimensional representation of the structural components of the construction including the base and footings

21) Any other item reasonably requested by the Board of Zoning Appeals.

22) dated signature of applicant and owner

b. Topographic Map. A USGS topographical map, or map with similar data, of the property and the surrounding area, including any other CSES, flood plains or wetland within 1 mile, with contours of not more than five (5) foot intervals.

c. Copy of a Communications Study

d. The CSES applicant shall certify that the applicant will comply with the utility notification requirements contained in Indiana law and accompanying regulations through the Indiana Public Utility Commission.

e. Evidence of compliance with storm drainage, erosion, and sediment control regulations (Rule 5)[.]

(Appellees’ App. Vol. 3 at 7-8) (emphasis added).

[7] In addition to the above sections governing applications for CSES, Section 2.2(E) of the UDO authorizes the Pulaski County Plan Commission ("the Commission") to designate "an Administrator [("the Administrator")] with the principal authority for implementing and enforcing [the UDO]." (Appellee's App. Vol. 2 at 126). Section 2.2(E)(2)(b)(4) grants the Administrator the...