                                                                                    FILED
                                                                                Feb 14 2017, 9:59 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Robert W. Eherenman                                        The Rush County Area Board of
Andrew L. Teel                                             Zoning Appeals:
Haller & Colvin                                            Grant M. Reeves
Fort Wayne, Indiana                                        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,                                       February 14, 2017
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           70A01-1606-PL-1382
        v.                                                 Appeal from the Rush Superior
                                                           Court
Rush County Area Board of                                  The Honorable Matthew D.
Zoning Appeals,                                            Bailey, Special Judge
Appellee-Respondent,                                       Trial Court Cause No.
                                                           70D01-1507-PL-220
and

Daniel Sprinkle, et al.,

Appellees-Intervening Respondents.




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

      Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017                   Page 2 of 26
              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
      Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 3 of 26
      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




      Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 4 of 26
      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

      Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 5 of 26
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 owners 2.

(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 non-

participating 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.

Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017                 Page 6 of 26
[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.
      Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 7 of 26
               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

       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 8 of 26
       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
       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 9 of 26
               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

       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 10 of 26
        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

Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 11 of 26
               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:




       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 12 of 26
               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



       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 13 of 26
               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).

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


       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 15 of 26
       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.


       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 16 of 26
[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.


       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 17 of 26
       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).




       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 18 of 26
[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.

       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017                     Page 19 of 26
       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.


       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 20 of 26
       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


       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 21 of 26
       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 22 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 non-

       participating 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,

       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017      Page 23 of 26
               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
       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 24 of 26
       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.
       Court of Appeals of Indiana | Opinion 70A01-1606-PL-1382 | February 14, 2017   Page 25 of 26
[38]   Affirmed.


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




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