Sugar Creek Wind actively concealed work to build a wind farm in northern Montgomery County without a permit, the county asserts in court documents filed Friday.
The allegations were made in response to a federal lawsuit filed last month accusing the county and the board of commissioners of attempting to kill the 250-megawatt project after local opposition mounted against wind farms.
Sugar Creek Wind claims the county breached a 2013 economic development agreement when it changed the wind farm ordinance, revoked the project’s tax abatement and fast-tracked a zoning ordinance restricting the development of wind energy systems.
In a response filed in U.S. District Court for the Southern District of Indiana in Indianapolis, the county said the “Commissioners recently discovered evidence” that Sugar Creek Wind has been in violation of the agreement since 2016.
“Construction activity has been observed,” the county stated in the court documents, despite Sugar Creek Wind never having applied for a permit.
For months, the county added, the developer’s website indicated the project was “in construction” and photos showed earth movement and other work underway. The project’s Web page has since been taken down.
“The commencement of construction is prohibited without a [wind energy conversion system] permit, constitutes illegal work, and amounts to a material breach of the parties’ agreements,” the county stated. “[Sugar Creek Wind] actively concealed this work from the Commissioners.”
Sugar Creek Wind maintains it was acting under both the agreement and the county’s 2009 wind farm ordinance when it began developing the project. The company said it spent millions to lease land, complete environmental studies and reports, negotiate supply, operation and maintenance agreements and initiate financing.
In the suit, the developer seeks a court order for the county to meet its obligations under the agreement in addition to monetary relief.
The two-phase project, which the company planned to build on more than 7,700 acres of land in Madison and Sugar Creek townships, was expected to bring in $4.9 million annually for the state and local economy and employ 27 operation and maintenance workers, the company said.
Parent company Akuo Energy USA has built two other wind farms in Texas and New Mexico, according to the company’s website.
In the court documents, the county noted that changes to the wind farm ordinance — which require lower decibel levels for turbines — apply only to future projects. And Sugar Creek Wind is subject to the zoning ordinance because it never applied for a permit, the county added.
The council has sole authority over tax abatements, and the commissioners “played no role in and could not have prevented” the abatement from being pulled. Sugar Creek Wind had agreed to pay the county nearly $3.2 million per 100 megawatts in exchange for the abatement, which was revoked in February 2019.
Both parties have asked the judge for an August 2021 trial.
The case is Sugar Creek Wind, LLC v. Montgomery County, Indiana, Montgomery County Board of Commissioners, James Fulwider, Daniel Guard and John Frey.
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