                                                                         May 12 2015, 10:03 am




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Patrick R. Hess                                           APEX WIND ENERGY, APEX
Brian C. Heck                                             CLEAN ENERGY, AND WELLS
Beckman Lawson, LLP                                       COUNTY WIND II
Fort Wayne, Indiana
                                                          Robert W. Eherenman
                                                          Andrew L. Teel
                                                          Haller & Colvin, P.C.
                                                          Fort Wayne, Indiana
                                                          ATTORNEYS FOR APPELLEE
                                                          WELLS COUNTY AREA PLAN
                                                          COMMISSION
                                                          Colin Z. Andrews
                                                          Carnall, Andrews & Crell, P.C.
                                                          Bluffton, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

James E. and Tamara L.                                    May 12, 2015
Dunmoyer, Jr., Linus and Karen                            Court of Appeals Case No.
Harrold, Theron and Clara                                 90A02-1407-MI-460
Miller, Clarence and Beverly                              Appeal from the Wells Superior
Zimmerman, individually and as                            Court
Trustees of the Clarence                                  The Honorable Thomas M. Hakes,
Zimmerman and Beverly                                     Special Judge
Zimmerman Revocable Living                                Cause No. 90D01-1309-MI-23
Trust, Michael and Barbara
Butche, and Jeffrey and Janet
Harshman,
Appellants-Petitioners,


Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                           Page 1 of 26
              v.

      Wells County, Indiana Area
      Plan Commission, Wells County
      Wind II, LLC, Apex Clean
      Energy Holdings, LLC, and
      Apex Wind Energy, Inc.,
      Appellees-Respondents.




      Kirsch, Judge.

[1]   The Wells County, Indiana Area Plan Commission (“Plan Commission”)

      approved a petition for the development of a large wind energy conversion

      system (“WECS”) project that was filed by Wells County Wind II, LLC, Apex

      Clean Energy Holdings, LLC, and Apex Wind Energy, Inc. (collectively,

      “Apex”),1 thereby allowing the construction of approximately sixty-eight wind

      turbines on private property located in southern Wells County, Indiana

      (“Zoning Decision”).2 Adjacent landowners, James E. and Tamara L.

      Dunmoyer, Jr.; Linus and Karen Harrold; Theron and Clara Miller; Clarence




      1
        We note that Apex’s petition for approval of a WECS project was submitted solely in the name of Wells
      County Wind II, LLC. Appellants’ App. at 650. The petition, however, was submitted by means of a cover
      letter written on Apex Wind Energy letterhead and signed by the President of Apex Wind Energy. Id. at 649.
      Wells County Wind II is a subsidiary of Apex Wind Energy and was formed specifically for this WECS
      project. Id. at 1190. It is not clear, however, what the relationship is between those parties and Apex Clean
      Energy Holding, LLC. In their brief, the Appellees refer to all three WECS entities, collectively, as “Apex.”
      Appellees’ Br. at 1. We will do the same.
      2
       Apex was permitted to construct wind turbines on private property only with the permission of the property
      owners.

      Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                          Page 2 of 26
      and Beverly Zimmerman, individually and as Trustees of the Clarence

      Zimmerman and Beverly Zimmerman Revocable Living Trust; Michael and

      Barbara Butche; and Jeffrey and Janet Harshman (collectively, “Landowners”),

      filed with the trial court a two-count petition. In Count I, Landowners

      requested judicial review of the Zoning Decision,3 and in Count II they sought

      declaratory judgment. Landowners now appeal the trial court’s grant of

      summary judgment in favor of Apex and the Plan Commission as to Count I.

      Landowners raise four issues, which we consolidate and restate as whether the

      trial court erred in granting partial summary judgment in favor of the Plan

      Commission and Apex upon a finding that Landowners were not aggrieved and

      not prejudiced by the Zoning Decision.


[2]   We affirm and remand with instructions.4


                                     Facts and Procedural History
[3]   Development in Wells County, Indiana, is governed by the “Wells County

      Zoning and Floodplain Management Ordinance” (“the Zoning Ordinance”).

      The Zoning Ordinance, which was adopted by the legislative bodies of Wells




      3
        Section 7-04(3) of the Wells County Zoning and Floodplain Management Ordinance provides: “Each
      decision of the Plan Commission . . . is subject to review by certiorari. Each person aggrieved by a decision
      of the Plan Commission . . . may file with the Circuit or Superior Court of the county in which the premise
      affected is located, a verified petition setting forth that the decision is illegal in whole or in part and specifying
      the grounds of the illegality.” Appellants’ App. at 453.
      4
        We commend the trial court for the clarity and thoroughness of its written judgment, which have
      significantly assisted our appellate review.

      Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                                   Page 3 of 26
      County, Indiana,5 established an Area Planning Department consisting of the

      Plan Commission, a Plat Committee, a Board of Zoning Appeals (“BZA”), an

      Executive Director (“PC Director”), and “such staff as the Plan Commission

      considers necessary.” Appellants’ App. at 439.


                                              Zoning Ordinance

[4]   The Zoning Ordinance sets forth the purpose (Article 2) and administration

      (Article 4) of the ordinance; the composition, appointments, and jurisdiction of

      the Plan Commission, Plat Committee, and BZA (Article 3); and the guidelines

      for meeting minutes (Article 5), findings of fact and rulings (Article 6), and

      violations and appeals (Article 7). Id. at 438-54. Additionally, the Zoning

      Ordinance sets forth guidelines pertaining to zoning districts (Article 9), general

      regulations (Article 11), performance standards (Article 12), development plans

      (Article 14), and development criteria for a WECS project (Article 15). Id. at

      458-90.


[5]   Article 9 describes the zoning districts and the specific “permitted uses” allowed

      in each. Id. at 461-63. The zoning districts include, “A-R,” Agriculture-

      Residential; “A-1,” Agriculture-Intensive; “I-1,” Industrial; “I-2,” Industrial;

      “B-1,” Central Business District; “C-1,” Conservation; and “R-1,” Residential.




      5
       The local legislative bodies of Wells County consist of: County Commissioners of Wells County; Common
      Council of the City of Bluffton, Indiana; Town Council of Ossian, Indiana; Town Council of Poneto,
      Indiana; Town Council of Uniondale, Indiana; Town Council of Vera Cruz, Indiana; and Town Council of
      Zanesville, Indiana. Appellants’ App. at 433-36.

      Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                    Page 4 of 26
      Id. at 458. Large WECS projects6 are permitted uses in four zoning districts,

      including A-1. Id. at 463. Apex proposed to build a WECS project on land in

      Wells County zoned as A-1. Other permitted uses in A-1 districts include:

      concentrated animal feeding operation control, airports, grain elevators,

      manure lagoons, mineral excavation, communication towers, and commercial

      bulk fuel storage. Id. at 461-63.


[6]   Article 14 of the Zoning Ordinance addresses development plans in general,

      including the purpose, jurisdiction, procedure, and requirements of an

      acceptable plan. Under section 14-05, a Development Plan may be approved

      only if it meets or complies with certain requirements, including:

              (1) The proposed Development Plan must be compatible with
              surrounding land uses.
              (2) The proposed Development Plan shall be sited, oriented, and
              landscaped to produce a harmonious relationship of building and
              grounds to adjacent buildings and properties.
              (3) Land uses between structures located upon the subject parcel, scale,
              building materials, and building style of the proposed development
              shall be sufficient to allow for total visual impression and environment
              that is consistent with the environment of the neighborhood.
              ....
      Appellants’ App. at 1406.




      6
       The Zoning Ordinance addresses four kinds of WECS: WECS Testing Facility; WECS, Large; WECS,
      Medium; and WECS, Small. Appellants’ App. at 463. Apex’s project is for the development of a large WECS
      project; therefore, for ease of reference we will refer to a large WECS as merely “WECS.”

      Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                      Page 5 of 26
[7]   Article 15 of the Zoning Ordinance, which specifically applies to “Wind Energy

      Conversion Systems (WECS) and Communication Towers,” likewise sets forth

      its purpose, jurisdiction, procedures, requirements, and states as its purpose, to

      “facilitate the development and growth of WECS Projects and Communication

      Towers while preserving public health, welfare, and safety for all real estate

      owners and occupants.” Id. at 481. A party may not construct or operate a

      WECS project in Wells County without having fully complied with the

      provisions of Article 15 and any additional requirements incorporated into that

      article by reference. Id.


[8]   Section 15-03(5), regarding review and approval, incorporates Article 14 and

      provides:

              Except as expressly provided otherwise in this Article, review and
              approval of an application for Development Plan Approval for a
              WECS Project . . . shall be conducted in the manner provided in, and
              in accordance with the requirements of, Article 14 with respect to
              Development Plans generally.
      Id. at 482.


[9]   Section 15-05 sets forth the specific requirements with which a WECS project

      must comply. Section 15-05(2) requires a WECS project to have a setback

      “from a property line a distance of 1.1 times the length of the highest point

      reached by the [WECS] blade” of the turbine in question, and “from all existing

      residential dwellings a distance of 1000 feet.” Id. at 483. These two

      requirements are further limited because the “setback requirement is reciprocal”

      to all future “property lines” and “residential dwellings” as approved, “unless a

      Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015         Page 6 of 26
       fully executed and recorded written waiver agreement is secured from the

       WECS Project Owner and Operator” and adjoining landowners, and the

       variance is granted by the BZA. Id. That section also requires that each

       individual turbine have a setback “from all public road right-of-ways a distance

       equal to a multiple of 1.1 times the length of the highest point reached by the

       [WECS] blade” in question,” and from certain cities and towns a distance

       designated by the Zoning Ordinance. Id. at 483-84. WECS “guy wires” and

       “horizontal extensions” also must be set back twenty feet from all property lines

       and public road right-of ways. Id. at 484.


[10]   Sections 15-05(3) and (4) set forth the specific guidelines that a WECS project

       must meet, including: (1) color and finish for each turbine; (2) safety design

       and installation standards, including, braking systems, climb prevention

       measures, blade clearance, compliance with Federal Aviation Administration

       rules for height and lighting, and proof of approvals of other local, state, and

       federal agencies; (3) hazard signage; and (4) electrical components. Id. at 486-

       87. Further, Section 15-05(4) specifies that each WECS project: (1) shall not

       make noise exceeding fifty decibels on the “DBA scale as measured at the

       nearest existing residential dwelling”; (2) “shall be designed to minimize

       shadow flicker on an existing residential dwelling”; (3) shall not permit signs on

       a turbine, except to identify the WECS manufacturer or for safety purposes; (4)

       “shall be designed, constructed, and operated so not to interfere with local

       broadcast television, telecommunication, communication, or microwave

       transmission”; and (5) shall provide for the prompt removal from the site of all


       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015    Page 7 of 26
       solid waste and hazardous materials in accordance with applicable local, state,

       and federal laws. Id. at 487.


[11]   Before the Plan Commission can grant approval, section 15-05(5) requires

       agreement among the local legislative body, the local fiscal body, and the owner

       operator regarding the decommissioning of the WECS project, including the

       anticipated manner and cost of removal. Id. Pursuant to section 15-05(7), the

       WECS operator must submit to the Plan Commission an agreement for use,

       repair, and improvement of the roads, and repair of the drainage facilities. Id.

       at 488. Sections 15-05(8), (9), and (10), respectively, require an operator to

       submit: a Project Layout Plan showing the general layout of the WECS

       project; a Utility Layout Plan showing the general layout of the WECS project’s

       collection and distribution systems, including required easements; and a Noise

       and Shadow Flicker Analysis Plan, including accompanying data. Id. at 489.

       Finally, section 15-05(13) concludes with: “Any applicable provisions, rules,

       restrictions, standards, and conditions imposed by other provisions or Articles

       of this Zoning Ordinance are incorporated by reference as development

       requirements. . . .” Id.


                                       Approval of Development Plan

[12]   To obtain approval to build a WECS project, an operator must submit a

       development plan and obtain the Plan Commission’s approval. See id. at 478

       (under § 14-02(1)(J), development plan is required for new construction or

       expansion of a WECS project). In March 2013, Apex asked the Plan

       Commission to approve its development plan for a WECS project in a part of
       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015    Page 8 of 26
       Wells County zoned as A-1. Id. at 566-648. Apex’s development plan, which

       was about 80-pages long, set forth the manner in which Apex planned to

       comply with the Zoning Ordinance. During the Plan Commission’s April 2013

       meeting, PC Director Michael W. Lautzenheiser reported that four proposed

       turbines did not meet the 1.1 times setback from the property line, fourteen

       residences would have over thirty hours per year of shadow flicker, and one

       turbine did not meet the 1000 foot setback. Id. at 393. At that time, the PC

       Director advised the Plan Commission that it had the option of rejecting the

       plan, because some of the items did not meet the ordinance, or it could approve

       the development plan with the condition that those items in violation would be

       fixed or removed. Id. The Plan Commission took no action on this petition

       and, as permitted by Section 15-09 of the Zoning Ordinance, Apex submitted

       an amended development plan in May 2013. Id. at 1419-1504.


[13]   After reviewing the amended development plan (“Development Plan”), the PC

       Director prepared a “Non-Binding Opinion” for use at the Plan Commission’s

       next meeting. Id. at 1388-91. In that opinion, the PC Director observed that

       one of the turbines was “located in the 1/100 percent chance floodplain,” and

       would have to be moved in Apex’s final plan. The PC Director concluded that,

       with that exception, the Development Plan met the permitted use requirements

       and the lot requirements because Article 15 was controlling. Id. at 1390.

       Additionally, the PC Director noted, “This is by far the best filing we have

       received as it concerns ordinance compliance.” Id. at 1391.




       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015   Page 9 of 26
[14]   More than three hundred interested parties attended the Plan Commission’s

       June 2013 public hearing, most of whom opposed approval of the WECS

       project. Remonstrators, including Landowners, testified that the Development

       Plan should be denied. Minutes of that meeting reflect that Patrick R. Hess

       (“Hess”), an attorney for Landowners, testified that his clients opposed the

       reciprocal setback “because it is a taking of property.” Id. at 290. Additionally,

       Hess argued that the Development Plan must comply with the requirements of

       not only Article 15, but also with Article 14. Specifically, Hess maintained that

       Apex had the burden to show how the WECS project is compatible with

       surrounding land use, and that Apex’s petition should be denied based on “not

       meeting the ordinance requirements in article 14.” Id.


[15]   The Plan Commission discussed the reciprocal setback rule, recognizing that it

       impacts safety concerns by preventing people from building too close to a wind

       turbine, while also impacting property concerns because it limits “people’s

       rights to use their property.” Id. at 294. The PC Director asked for input from

       the members of the Plan Commission. “Many of the board members stated

       that they felt the petition meets the ordinance but it is unpopular with the

       majority of citizens, who they want to support.” Id. A few members were still

       unsure on what they thought, and one board member expressed that he thought

       the petition did not comply with Article 14. Id.


[16]   The Plan Commission discussed the height restriction for A-1 zoning, which

       was followed by “comments on if the turbines were harmonious and

       compatible with the surrounding area.” Id. Jim Berger, a Plan Commission

       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015   Page 10 of 26
       member, made a motion to deny Apex’s Development Plan due to the fact that

       Section 14-05(1), (2), and (3) were not met; those requirements required that:

       (1) Development Plan be compatible with surrounding land uses; (2)

       Development Plan be sited, oriented, and landscaped to produce harmonious

       relationship to adjacent buildings and properties; and (3) land uses between

       structures allow a total visual impression consistent with the neighborhood. Id.

       at 479. Berger’s motion to deny the Development Plan did not pass. Id. at 295.

       A vote regarding whether to approve Apex’s Development Plan was tabled

       until a future meeting.


[17]   A large crowd appeared for the Plan Commission’s meeting in July 2013.

       Concerned that the open door law would be violated if the crowd could not

       hear or see the proceedings due to the small venue, the Plan Commission

       continued the meeting to a later date. Id. at 307. Apex’s WECS project was

       next discussed at a meeting in August 2013. Plan Commission member Berger

       again “restated some of his comments from the June [] 2013 meeting[,] . . .

       [and] asked the board to review certain areas of the ordinance . . . .” Appellants’

       App. at 314. Becoming more specific, “[h]e stated that [Apex] is responsible for

       following other articles in the ordinance not just the WECS ordinance [Article

       15] because it is a development plan also.” Id. Berger again argued that Apex

       failed to meet the requirements of article 14-05(1), (2), and (3). At the close of

       the meeting, the Plan Commission voted six to three to approve Apex’s

       Development Plan. Id. at 315. The Plan Commission set forth its written

       findings and rulings in the Zoning Decision. Id. at 324-34.


       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015   Page 11 of 26
                                                           Appeal

[18]   Landowners filed a petition in the Wells Superior Court on January 31, 2014,7

       naming the Plan Commission and Apex as Respondents. Appellants’ App. at

       235. In Count I, Landowners sought judicial review of the Zoning Decision on

       the basis that it was not supported by substantial evidence, stating, “[T]he Plan

       Commission erred in approving the Development Plan because . . . [it] did not

       satisfy all of the necessary requirements for development plan approval under

       the terms of the Zoning Ordinance.” Id. at 245.


[19]   Landowners noted that the Development Plan failed: to comply with

       floodplain management (Section 14-05(7)(A)); to present a traffic management

       plan (Section 14-05(4)); to enter into contracts with utilities or political entities

       to install or extend necessary services (Section 14-05(6)); and to comply with

       performance standards of air, water, waste matter, and fire protection (Sections

       12-07, 12-09, 12-10, and 12-11 respectively). Id. at 246, 248-50. Additionally,

       they argued that the Plan Commission made no findings regarding whether the

       WECS project was compatible with surrounding land use, harmonious with

       adjacent buildings and properties, and visually consistent with the environment

       of the neighborhood as required by section 14-05(1), (2), and (3), respectively.

       Id. at 247-48.




       7
           The January 2014 petition was in fact an amended petition to their initial September 2013 petition.


       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                            Page 12 of 26
[20]   In Count II, Landowners sought declaratory judgment that the reciprocal

       setback provision in Article 15 of the Zoning Ordinance was invalid and should

       be stricken from the Zoning Ordinance because it constituted a taking of private

       property without just compensation. Id. at 251. Landowners argued that, once

       the reciprocal setback provision was invalidated, the Plan Commission’s

       approval of Apex’s petition for the WECS project under that Article, would be

       void. Id. at 252.


[21]   The Plan Commission and Apex (together, “Respondents”) filed separate

       answers to the petition for judicial review. As part of their answer, the Plan

       Commission denied Landowners’ allegations that Apex failed to meet the

       requirements pertaining to air quality, water quality, waste matter, and fire

       protection. Id. at 249, 349. Thereafter, Respondents filed a joint motion for

       partial summary judgment, contending that, as a matter of law, Landowners

       lacked standing as to Count I because they “failed to specifically allege facts

       that are sufficient to show that they are ‘aggrieved’ by the Plan Commission’s

       ministerial act of approving Apex’s Development Plan.” 8 Id. at 27-28. The trial

       court held a hearing on Respondents’ motion for partial summary judgment

       and concluded that it had jurisdiction over both the parties and the subject

       matter. Following the hearing, the trial court granted Respondents’ motion for




       8
         Pursuant to Indiana Code section 36-7-4-1602, a person is entitled to judicial review of a final zoning
       decision if that person has standing pursuant to section 1603, has exhausted all administrative remedies
       pursuant to section 1604, has filed a petition for review pursuant to section 1605, and has timely filed the
       record required for review pursuant to section 1613. Apex contends that Landowners did not have standing
       to appeal; however, no claim is made regarding a deficiency regarding the other requirements.

       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                          Page 13 of 26
       partial summary judgment only as to Count I, thus effectively upholding the

       Plan Commission’s approval of Apex’s Development Plan. Id. at 19. In

       reaching its decision, the trial court observed that Landowners have the burden

       of proving both that they are “‘aggrieved parties’ under I.C. § 36-7-4-1603,” and

       “have been prejudiced by an illegal zoning decision under I.C. § 36-7-4-

       1614(d).” Id. Additionally, Landowners have the burden of proving that the

       Plan Commission’s decision is arbitrary, capricious, an abuse of discretion, not

       in accordance with law, unconstitutional, or not supported by substantial

       evidence. Appellants’ App. at 19 (citing I.C. § 36-7-4-1614(d)(1)-(5)).


[22]   The trial court observed that Landowners’ claim of being aggrieved and

       prejudiced arose from the Plan Commission’s act of approving the

       Development Plan because that approval resulted in turbines being in close

       proximity to Landowners’ homes, a decrease in property value, homeowners

       being subjected to shadow flicker and noise from the wind turbines, and a loss

       of use and enjoyment of land. Noting that a WECS is a permitted use on land

       zoned A-1 and that Apex’s Development Plan met or exceeded the WECS

       development requirements about which Landowners complained, the trial court

       determined that Landowners were neither aggrieved nor prejudiced by the

       approval of Development Plan. Landowners now appeal.




       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015    Page 14 of 26
                                       Discussion and Decision
                                              Standard of Review

[23]   Landowners contend that the trial court erred when it granted summary

       judgment in favor of Respondents as to Count I by finding that Landowners

       were not aggrieved and not prejudiced by the Plan Commission’s approval of

       Apex’s Development Plan in Wells County. When reviewing a grant or denial

       of summary judgment, the standard of review is the same as the standard

       governing summary judgment in the trial court: whether there is a genuine

       issue of material fact, and whether the moving party is entitled to judgment as a

       matter of law. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006).

       We liberally construe pleadings, affidavits, testimony, and other evidence in a

       light most favorable to the non-moving party. Id. Questions of law we review

       de novo, and the party appealing the grant of summary judgment has the

       burden of persuading this court that the trial court’s ruling was improper. Floyd

       Cnty. v. City of New Albany, 1 N.E.3d 207, 213 (Ind. Ct. App. 2014), trans. denied;

       Bd. of Comm’rs of Hendricks Cnty. v. Town of Plainfield, 909 N.E.2d 480, 485-86

       (Ind. Ct. App. 2009). We will affirm the trial court’s grant of summary

       judgment if it is sustainable on any theory or basis in the record. Floyd Cnty., 1

       N.E.3d at 213; Beck v. City of Evansville, 842 N.E.2d 856, 860 (Ind. Ct. App.

       2006), trans. denied.




       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015   Page 15 of 26
                                   Judicial Review of Zoning Decisions

[24]   Indiana Code sections 36-7-4-1600 through -1616 (“the 1600 Series”)

       “establish[] the exclusive means for judicial review of zoning decisions[.]”9 Ind.

       Code § 36-7-4-1601(a). The 1600 Series sets forth the procedure that a

       petitioner must follow. Section 1602 entitles a petitioner to judicial review

       upon a showing that the petitioner qualifies under: (1) Section 1603 concerning

       standing; (2) Section 1604 concerning exhaustion of administrative remedies;

       (3) Section 1605 concerning the time for filing a petition for review; and (4)

       Section 1613 concerning the time for filing the board record for review. See

       Town of Pittsboro Advisory Plan Comm’n v. Ark Park, LLC, 26 N.E.3d 110, 117

       (Ind. Ct. App. 2015). Section 1614 allows a trial court to grant relief from the

       zoning decision only if the court determines that the petitioner has been

       prejudiced by a zoning decision that is: (1) arbitrary, capricious, an abuse of

       discretion, or otherwise not in accordance with law; (2) contrary to

       constitutional right, power, privilege, or immunity; (3) in excess of statutory

       jurisdiction, authority, or limitations, or short of statutory right; (4) without

       observance of procedure required by law; or (5) unsupported by substantial

       evidence. Relevant to this appeal, the petitioners must set forth specific facts in

       their petition to demonstrate that they (1) are entitled to obtain judicial review



       9
        When the General Assembly amended the Zoning Enabling Act in 2011, it brought the judicial review
       concepts from the Administrative Orders and Procedures Act (“AOPA”) into the zoning arena. Howard v.
       Allen Cnty. Bd. of Zoning Appeals, 991 N.E.2d 128, 130 (Ind. Ct. App. 2013) (citing Habig v. Bruning, 613
       N.E.2d 61, 64 (Ind. Ct. App. 1993), trans. denied). Accordingly, the judicial review provisions of the 1600
       Series of the Zoning Enabling Act are interpreted in the same manner as the relevant provisions of the AOPA
       and rely on case law established under the AOPA. Id.

       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                        Page 16 of 26
       under Section 1602 and (2) have been prejudiced by one or more of the grounds

       in section 1614. I.C. § 36-7-4-1607(b)(5), (6).


[25]   The trial court reviewed copious quantities of designated evidence before

       distilling those documents into the following “undisputed facts”:

               21. Petitioners alleged in the Amended Petition that they were
               “aggrieved and prejudiced” by the Plan Commission’s decision to
               approve the WECS Development because of the close proximity of the
               wind turbines to their homes and property.
               22. Petitioners alleged that the Plan Commission’s approval of the
               WECS Development Plan would decrease their property values.
               23. Petitioners claimed that they would suffer noise because of the
               wind turbines.
               24. Petitioners alleged that they would incur shadow flicker from the
               wind turbines.
               25. Petitioners alleged in their Amended Petition that they would
               suffer a loss of enjoyment caused by the wind turbine setbacks in the
               Zoning Ordinance.
               ....
               32. All of the wind turbines in the WECS Development exceed the
               Zoning Ordinance’s setback of 1000 feet and are further away from the
               Petitioners’ dwellings than the required 1000-foot setback.
               33. Apex’s WECS Development Plan meets the Zoning Ordinance
               requirements regarding sound. The Zoning Ordinance requires that a
               WECS produce no more than 50 decibels of sound, and Apex’s WECS
               Development Plan will produce no more than 48 decibels of sound.
               34. Apex’s WECS Development Plan meets the Zoning Ordinance
               requirements regarding shadow flicker. Apex agreed to minimize
               shadow flicker to no more than thirty (30) hours per year.
               35. Article 15 of the Zoning Ordinance does not permit the Plan
               Commission to weigh the issues of property value or loss of enjoyment
               when making its ministerial decision to approve a WECS
               Development Plan.

       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015          Page 17 of 26
                36. Petitioners agree that Apex’s WECS Development Plan satisfied
                the Zoning Ordinance’s development requirements in Article 15
                regarding proximity, noise, and shadow flicker.
       Appellants’ App. at 17-18 (internal citations omitted).


[26]   From these facts, the trial court determined, and the parties do not dispute, that

       it had jurisdiction over the parties and the subject matter of the cause of action.

       The trial court also noted that, in order to prevail, Landowners “have the

       burden of proving that they are ‘aggrieved parties’ under I.C. § 36-7-4-1603, and

       that they have been prejudiced by an illegal zoning decision under I.C. § 36-7-4-

       1614(d). See I.C. §36-7-4-1614(a) (stating that the burden of demonstrating the

       invalidity of a zoning decision is on the party asserting the invalidity).” Id. at

       19. In other words, Landowners have the burden of proving both that they

       have standing and also that they were prejudiced by a Planning Commission

       zoning decision that was arbitrary, capricious, an abuse of discretion, or not in

       accordance with law; unconstitutional; in excess of statutory jurisdiction,

       authority, or limitation, without observance of procedure; or not supported by

       substantial evidence. I.C. § 36-7-4-1614(d)(1)-(5).


                                              Zoning Enabling Act

[27]   Prior to reaching its legal conclusions, the trial court explained the context in

       which its decision was being made. Highlighting the impact of Indiana Code

       sections 36-7-4-1401 through 1406 (“the Zoning Enabling Act”), the trial court

       noted:

                39. Here, the Plan Commission’s zoning decision to approve Apex’s
                WECS Development Plan was a ministerial decision to approve a

       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015       Page 18 of 26
               development plan for a permitted use under [the Zoning Enabling
               Act]. The Plan Commission is required to review a development plan
               to determine if the development plan satisfies the concrete
               development requirements specified in the Zoning Ordinance.
       Appellants’ App. at 19.


[28]   The Zoning Enabling Act “specifies the requirements by which a local

       government may designate zoning districts in their jurisdiction.” The Kroger Co.

       v. Plan Comm’n of Town of Plainfield, 953 N.E.2d 536, 540 (Ind. Ct. App. 2011),

       trans. denied; Hendricks Cnty. Bd. of Comm’rs v. Rieth-Riley Constr. Co., 868 N.E.2d

       844, 849 (Ind. Ct. App. 2007). Through the Zoning Enabling Act, the General

       Assembly has “permit[ted] local legislative bodies to divide their jurisdiction

       into zoning districts and mandates property owners to submit a development

       plan before engaging in a project in the particular zoning district.” Id. at 849-50

       (citing I.C. § 36-7-4-1401.5). To establish these zoning districts, the Zoning

       Enabling Act requires the legislative body, here, the local legislative bodies of

       Wells County—“to enact a local ordinance that ‘must specify’ the ‘[d]evelopment

       requirements that must be satisfied before the plan commission may approve a

       development plan.’” Id. at 850 (quoting I.C. § 36-7-4-1402(b)(1) (emphasis

       added)). “The Zoning Enabling Act itself provides a non-exclusive

       enumeration of the type of development requirements that “must be specified

       under section 1402(b)(1).” Id. (citing I.C. § 36-7-4-1403(a)).


[29]   The Zoning Enabling Act also mandates, “If a zoning district is designated . . .,

       the plan commission must approve or disapprove a development plan under

       this series for real property within the zoning district.” I.C. § 36-7-4-1401.5(b).

       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015    Page 19 of 26
       The General Assembly has determined, “The plan commission has exclusive

       authority to approve or disapprove a development plan for real property located

       within the plan commission’s jurisdiction.” I.C. § 36-7-4-1401(b).


[30]   In this context and based upon the undisputed facts, the trial court concluded:

               40. Petitioners claim that they are aggrieved under I.C. § 36-7-4-1603
               and prejudiced under I.C. § 36-7-4-1614(d) by the Plan Commission’s
               decision . . . . Petitioners’ claims . . . are based on the proximity of the
               turbines to their respective residences; on an alleged, prospective
               decrease in property values; on shadow flicker and noise from the
               wind turbines; and on an alleged loss of use and enjoyment of their
               real estate.
               41. There is substantial evidence in the record that demonstrates that
               Apex’s WECS Development Plan meets or exceeds Section 15-05’s
               development requirements concerning (a) setbacks and proximity
               requirements of the wind turbines to existing dwellings; (b) shadow
               flicker; and (c) noise requirements.
               42. A WECS is a permitted use in an agricultural zoning district and
               property values and loss of use and enjoyment are not discretionary
               factors considered by the Plan Commission under the Zoning
               Ordinance when making its ministerial decision to approve a WECS
               Development Plan.
               43. Petitioners are not aggrieved under I.C. § 36-7-4-1603 by the Plan
               Commission’s ministerial decision to approve Apex’s WECS
               Development Plan.
               44. Petitioners have failed to allege specific facts, as required by I.C. §
               36-7-4-1607(b)(6), in their Amended Petition demonstrating that they
               are prejudiced by Plan Commission’s ministerial decision to approve
               Apex’s WECS Development Plan.
       Appellants’ App. at 19-20.




       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015            Page 20 of 26
                                                      Standing

[31]   On appeal, Landowners primarily focus on the issue of standing, contending

       that summary judgment in favor of Respondents was inappropriate because the

       trial court erred in determining that they lacked standing. We note, however,

       that the trial court’s grant of summary judgment in favor of Respondents also

       rested upon a finding that Landowners have not demonstrated that they were

       prejudiced by the Zoning Decision. Error, if any, in finding that petitioner

       lacked standing to petition for review of the Zoning Decision is harmless where,

       like here, the trial court, in effect, afforded standing by addressing on the merits

       the very issues that petitioners were said to lack standing to raise. Boffo v. Boone

       Cnty. Bd. of Zoning Appeals, 421 N.E.2d 1119, 1132 (Ind. Ct. App. 1981).

       Furthermore, even if we were to conclude that the trial court erred in finding

       that Landowners lacked standing, our remedy would be to remand this case to

       the trial court for further findings regarding whether Landowners were

       prejudiced by the Zoning Decision. The trial court, however, has already made

       this determination. Given that the trial court’s decision effectively afforded

       standing to Landowners, and in the interest of judicial efficiency, we will not

       address the merits of Landowners’ claim on the trial court’s determination

       regarding standing. Accordingly, we proceed, assuming, without deciding, that

       the trial court erred in finding no standing.


                      Landowners were not Prejudiced by the Zoning Decision

[32]   Relief is available to Landowners only if they can prove that they were

       prejudiced by the Plan Commission’s approval of the Zoning Decision. I.C. §

       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015    Page 21 of 26
       36-7-4-1614(d). Pursuant to powers bestowed upon local legislative bodies by

       the Zoning Enabling Act, the Wells County legislative body established the

       Zoning Ordinance. I.C. § 36-7-4-1401.5, -1403. In Article 9 of the Zoning

       Ordinance, the legislative body created zoning districts and set forth the specific

       permitted uses within those districts. WECS projects were specifically included

       as a permitted use on land in Wells County zoned as A-1. Appellants’ App. at

       463. Landowners live on land zoned as A-1. Through Article 14 of the Zoning

       Ordinance, the Wells County legislative body established the general

       requirements to obtain approval from the Plan Commission for a WECS

       development plan. Thereafter, in 2009, the legislative body added the WECS

       ordinance as Article 15. Appellants’ App. at 425.


[33]   Landowners maintain that they were prejudiced by the Zoning Ordinance

       because wind turbines will be in close proximity to their homes and they will

       suffer additional noise and shadow flicker. In Article 15, the Wells County

       legislative body established specific requirements that must be met in order for a

       WECS Development Plan to be approved by the Plan Commission. Included

       in that list were requirements regarding turbines having a 1000-foot setback

       from a dwelling; the color and finish for each turbine; safety design and

       installation standards, including, braking systems, climb prevention measures,

       blade clearance, compliance with Federal Aviation Administration rules for

       height and lighting, and proof of approvals of other local, state, and federal

       agencies; hazard signage; and electrical components. Appellants’ App. at 486-

       87. Section 15-05(4), in part, provided that each WECS project: shall not make


       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015   Page 22 of 26
       noise exceeding fifty decibels on the “DBA scale as measured at the nearest

       existing residential dwelling”; and “shall be designed to minimize shadow

       flicker on an existing residential dwelling.” Id. at 487.


[34]   Landowners also contend that the Plan Commission failed to consider the

       proximity of turbines on the value of their properties. The stated purpose of

       Article 15 is to “facilitate the development and growth of WECS Projects and

       Communications Towers while preserving public health, welfare, and safety for

       all real estate owners and occupants.” Id. at 481. While Article 2 of the Zoning

       Ordinance sets forth the legislative body’s general purpose to, in part, “conserve

       the value of land and of the buildings and improvements upon the land,” Id. at

       438 (citing Section 2-01(2) of the Zoning Ordinance), that goal is conspicuously

       absent from the above-stated purpose of Article 15—the Article that specifically

       applies to WECS projects.


[35]   The General Assembly has decided that “the plan commission has exclusive

       authority to approve or disapprove a development plan for real property located

       within the plan commission’s jurisdiction.” I.C. § 36-7-4-1401.5(b). The

       manner in which the Plan Commission undergoes this approval is to review the

       development plan to see if it is consistent with the comprehensive plan and

       satisfies the development requirements specified in the zoning ordinance. I.C.

       36-7-4-1405(a). The legislative body of Wells County consciously elected to

       allow WECS projects in land zoned as A-1, as long as those projects complied




       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015   Page 23 of 26
       with specific requirements set forth in the Zoning Ordinance. 10 The legislative

       body did not include preservation of land value as one of the purposes of Article

       15. It did, however, determine that a turbine must have a setback from a

       property line of 1.1 times the length of the highest point of the blade, must have

       a setback from a residential dwelling of 1000 feet, must have a noise level

       outside a nonparticipating dwelling of no greater than 50 decibels, and must

       produce a minimal amount of shadow flicker—here that amount was

       determined to be thirty hours per year. Appellants’ App. at 483, 487.


[36]   The circumstances about which Landowners contend they have been

       prejudiced, their proximity to the wind turbines and its resultant noise and

       shadow flicker plus a decrease in the value of their land, were circumstances

       created not by the Plan Commission’s approval of Apex’s Development Plan,

       but instead, by the legislative body’s enactment of Article 15. By reaching this

       conclusion, we are not diminishing the concerns of Landowners regarding the

       placement of wind turbines in their community. Instead, we are recognizing

       the power our legislature has given to the Wells County legislative body to



       10
          Landowners contend that the Plan Commission failed to consider whether the Development Plan
       complied with Sections 14-05(1), (2), and (3), i.e., that the Development Plan was compatible with
       surrounding land use, was sited, oriented, and landscaped to be harmonious with adjacent land and
       buildings, and was consistent with the environment of the neighborhood. Assuming without deciding that it
       was error for the Plan Commission to not specifically address these provisions, that error was harmless. Our
       court has noted, “The inclusion of the particular use in the ordinance as one which is permitted under certain
       conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the
       other uses permitted in the district.” Boffo v. Boone Cnty. Bd. of Zoning Appeals, 421 N.E.2d 1119, 1124 (Ind.
       Ct. App. 1981) (quoting 3 A. H. Rathkopf, The Law of Zoning and Planning, § 41.10 (1980)). Following the
       same reasoning, we believe that a legislative body’s inclusion of a permitted use under certain circumstances
       also suggests that the use is compatible with the surrounding environment and consistent with the
       environment of the neighborhood.

       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                           Page 24 of 26
       determine the uses that will be permitted in various zones of the county. The

       trial court did not err in granting summary judgment as to Count I upon a

       finding that Landowners were not prejudiced by the Zoning Decision.


[37]   Here, the Wells Superior Court granted summary judgment only as to Count I;

       however, the court also granted Landowners’ petition for declaratory judgment

       as to Count II and ordered that “the Reciprocal Setback provision in Article 15

       of the Zoning Ordinance is declared invalid and should be stricken from the

       Zoning Ordinance.” Appellants’ App. at 22. Additionally, the trial court ordered

       “that the Development Plan submitted by Wells County Wind II is hereby

       remanded to the Plan Commission with instructions that the Plan Commission

       review the Development Plan and its record of proceedings leading up to its

       decision on August 14, 2013, to determine if the Development Plan satisfies or

       fails to satisfy the requirements of Article 15 of the Zoning Ordinance and any

       additional requirements incorporated into these Articles by reference.” Id. at

       23. The parties do not appeal the trial court’s conclusions on these two issues.11

       Therefore, while we affirm the trial court’s grant of partial summary judgment

       upon a finding that Landowners were not aggrieved or prejudiced by the Plan




       11
          In their brief, Respondents note that, although they believe that the trial court was incorrect in finding that
       the reciprocal setback violated the constitution, that finding is ultimately irrelevant for the purposes of Apex’s
       WECS Development Plan and whether the Remonstrators had standing under the 1600 Series. Appellees’ Br.
       at 3 n.2. Respondents offer that, to the extent this court wishes to review the trial court’s constitutional ruling
       on the reciprocal setback sua sponte, they rely on their arguments to the trial court on that issue. Id. (citing
       Appellants’ App. at 1288-94. See Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992) (constitutionality of a statute
       may be reviewed sua sponte by appellate court). Because Landowners feel harmed by the reciprocal setback
       and Remonstrators have failed to make a specific argument on appeal, we do not address this issue.

       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015                               Page 25 of 26
       Commission’s approval of Apex’s Development Plan, consistent with the trial

       court’s decision, we also remand this action to the trial court with instructions

       to remand the Apex Development Plan to the Plan Commission. The Plan

       Commission, in turn, must follow the instructions set forth in the trial court

       decision to strike the Reciprocal Setback provision in Article 15 of the Zoning

       Ordinance, and review Apex’s Development Plan and the Plan Commission’s

       record of proceedings leading up to its decision on August 14, 2013, to

       determine if the Development Plan “satisfies or fails to satisfy the requirements

       of Article 15 of the Zoning Ordinance and any additional requirements

       incorporated into these Articles by reference.” Appellants’ App. at 23.


[38]   Affirmed and remanded with instructions.


       Friedlander, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 90A02-1407-MI-460 | May 12, 2015    Page 26 of 26
