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In two separate but related cases, the Court of Appeals of Indiana has upheld economic incentives for the development of solar facilities in Pulaski County.
Judge Melissa May wrote for the COA in both opinions, starting with Connie Ehrlich, et al. v. Starke Solar LLC d/b/a Mammoth Solar and the Pulaski County Council, 22A-PL-1738.
In that case, Mammoth Solar sought a tax abatement to develop a commercial solar power facility by seeking to have about 9,205 acres in Pulaski County designated as an Economic Revitalization Area.
The Pulaski County Council held a public meeting to consider Mammoth’s request. The council ultimately passed and adopted a resolution establishing the property as an ERA for 40 years.
Connie Ehrlich and other plaintiffs, referred to as remonstrators, submitted written objections and remonstrances. They also received draft copies of reports regarding the impact of the solar project.
A public hearing scheduled for December was continued into January, and the council allowed individuals to submit additional commentary and evidence. The remonstrators presented supplemental objections.
The council held the public meeting on Jan. 10, 2022, when it confirmed the resolution and approved the tax abatement.
Shortly thereafter, the remonstrators filed a petition with Pulaski Superior Court challenging the confirmed resolution.
The following June, the trial court issued an order confirming the council’s designation and approval of a tax abatement.
The remonstrators then appealed, arguing whether, as a matter of law, farmland on which drainage tiling and irrigation systems have been installed qualifies as land that has been “developed” and “improved” for purposes of the statutory definition of an ERA.
Affirming, May wrote, “Based on these authorities, we cannot read ‘development’ or ‘improvement’ in the ERA definition to include drainage tiling or watering systems. Because the Property at issue was ‘undesirable for, or impossible of, normal development and occupancy because of a lack of development,’ Ind. Code § 6-1.1-12.1-1(1) (2013), the Council committed no error of law when it declared the Property an ERA and approved the tax abatement.”
On cross-appeal, Mammoth Solar and the Pulaski County Council argued the remonstrators lacked standing to appeal the council’s decision.
But the COA disagreed with that argument, holding, “Remonstrators had standing to appeal the Council’s declaration of an ERA and grant of a tax abatement because the only development permitted in the ERA zone was the Solar Project, which undisputed evidence indicated would decrease Remonstrators’ property values.”
In the second case — Connie Ehrlich, et al. v. Moss Creek Solar, LLC, and the Pulaski County Council, 22A-PL-1732 — the COA likewise found the remonstrators’ legal arguments failed even though they had standing.
In that case, Moss Creek Solar LLC sought to develop a commercial solar power facility near high-tension electrical lines. It leased land from various property owners that had been used for crops and had tiling and irrigation systems.
Moss Creek applied and obtained a special exception from the Pulaski County Board of Zoning Appeals for the construction of the facility. Also, it sought to have the land designated as an ERA so it could receive tax abatement for the facility’s development.
In October 2021, the council enacted a preliminary resolution establishing the land as an ERA.
The remonstrators attended public hearings and filed written remonstrances. At the end of the January 2022 public hearing, the council approved the resolution.
The remonstrators then filed their petition challenging the resolution. The Pulaski Superior Court held oral arguments in June 2022 and denied the petition later that month.
On appeal in the second case, the remonstrators again challenged whether productive farmland improved with tiling and irrigation systems can qualify as an ERA, and whether the Legislature’s recent amendment of the statute defining an ERA creates a presumption that farmland was not permitted to be declared an ERA under the version of the statute in effect when the council created the ERA.
“We in no way underestimate the value and importance of farming as a hobby, profession, or even sacred calling because it produces food required to sustain human life on this planet,” May wrote. “Nevertheless, in the context of real property, derivations of the terms ‘develop’ and ‘improve’ consistently refer to the addition of buildings or structures to land.”
The issue of standing once again was raised on cross-appeal, and the COA once again ruled for the remonstrators on that issue.
“Both this Confirmatory Resolution by the Council and a grant of a special exception by the BZA make possible the development of the Facility on the Land,” May wrote. “Accordingly, we hold Remonstrators have standing to appeal the Council’s Confirmatory Resolution.”
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