Effort to stop solar project in Porter County over after application rejection by planning department
Arvid Merkner has spent the past several months submitting public records requests to Porter County government officials in a quest to learn more about NextEra Energy and its proposed solar project in Morgan Township, Malden Solar.
As planned, the project, on private farmland, would be directly across from his home on County Road 150 East, replacing his view of cornfields from his driveway with hundreds of solar array panels.
In all, Merkner has amassed, by his count, 72,743 emails that he and other members of Citizens Against Malden Solar say show county officials worked in concert with NextEra Energy to draft an ordinance that would be favorable to the Florida-based green energy firm while keeping the public in the dark about those plans.
“We have 10 families — 20 people total — and we’re playing catch-up. It’s a David and Goliath thing,” Merkner said, adding he wanted to be able to look his wife in the eye and said they did everything they could to fight the proposal.
“There’s our side and their side and somewhere in the middle is the truth,” he said. “I don’t know where that is.”
He and other opponents of the proposal plan to attend Monday evening’s Board of Commissioners meeting, where Merkner will present a binder with a fraction of the emails he has that he said outline his concerns.
That effort now appears moot. On Thursday, Robert Thompson, director of the county’s Department of Development and Storm Water Management, sent a seven-page letter to one of the officials with NextEra saying his department had rejected their application.
“The Department has made the official determination that Malden Solar’s application is not complete and fails to contain all of the information required” by a now-repealed ordinance and the county’s Unified Development Ordinance, according to the letter, which Commissioner Laura Blaney, D-South, provided to the Post-Tribune Friday.
Thompson is expected to give an update on the proposal at Monday’s meeting. He declined to comment for this story because at the time, NextEra Energy’s application was still pending.
The Malden Solar application arrived in the planning department on April 4, on the cusp of the county’s solar ordinance, passed in the early days of the COVID-19 pandemic, being repealed.
The Malden Solar application, had it not been denied, would have been grandfathered in under the old ordinance. County officials have yet to draft a new ordinance but Blaney confirmed that, if NextEra were to try again, the company would have to start the application process from the start under the standards of whatever a new ordinance might be.
The document quest
In a series of phone, in-person and email conversations, Merkner said he purchased his property in the 200 block of County Road 150 East in May of 2006 and spent 10 years building his home paycheck to paycheck.
Now, that county road and others in the area are dotted with clusters of signs against Malden Solar. The red and white signs read “No solar on prime farmland” and “Stop!! The Malden Solar Farm.”
He and his wife Lori lived in Portage but after she suffered a serious work-related injury, she required a wheelchair to get around and he wanted a place that would be accessible for her and paid for in full in case something happened to him.
Merkner, a retired certified public accountant who worked in health care, first found out about Malden Solar in late February, when a neighbor called and asked him if he knew a solar farm was going in across the road from his home. Neighbors found out after spotting land surveyors on their property and asking why they were there.
The next day, Merkner put together a petition against the project and took copies to a commissioners meeting that night at the Expo Center that was focused on the proposal. He and other opponents gathered 274 signatures that night,
Merkner also started reading meeting minutes online for commissioner and plan commission meetings in March and April 2020, when the solar ordinance was first passed by the two bodies. His first document request under Indiana’s Access to Public Records Act was for a staff report referenced in plan commission minutes with no additional details.
The staff report was about a solar ordinance being brought before the plan commission in late February of 2020. From there, Merkner went on to file multiple records requests, the first focusing on Thompson, the county’s development director, and the plan commission.
The binder
Armed with his binder, Merkner went over the timeline he put together about how the ordinance passed among what he and other opponents say were closed doors with little chance for public input. Emails between county and NextEra officials, he said, show that they had a relationship that led to a draft solar ordinance that would benefit NextEra and the farm families who were interested in leasing their land for the project.
Natalie Morris-Cole is one of the residents concerned about the project. Morris-Cole, a retired postal carrier, and her husband, a retired welder, bought a 3-acre property just north of Merkner’s three years ago and moved from the north side of Valparaiso.
“We fell in love with it. The ag community here, it’s a nice small community. It’s beautiful here,” she said, adding her property draws deer, wild turkeys and other wildlife. “It’s like a Disney movie. That’s what it’s like looking at the backyard.”
Malden Solar’s plans threaten that atmosphere.
“At first the concern was about the environment. What’s it going to do to the water runoff from the panels?” she said, adding she also wondered about the constant hum of the panels and glare from them as they rotate to capture the sun’s rays.
She has seen NextEra’s project in Jasper County, outside of Wheatfield, and said she noticed razor wire fencing and weeds.
“That’s not what we want here,” she said. “If that’s the type of landscaping they’re doing, I’m not interested.”
Morris-Cole said she’s “not totally against solar” but thinks it’s better suited for an industrial area than an agricultural one. And like Merkner, she pointed to the perceived lack of transparency over Malden Solar’s proposal.
“Was it illegal? Maybe not,” she said. “Was it unethical? I believe so.”
Scott Lunt also is a Morgan Township landowner who opposes Malden Solar. He lives near Wrigley Field in Chicago but after 35 years living in the city, wanted a different pace and environment. He purchased his property here almost a year ago and is renting it out and working on it, with plans to move with his wife two years from now.
“We like being away but there are neighbors and they’re all friendly,” he said.
While Lunt, who created a Facebook page opposing the project, isn’t surprised that NextEra and the planning department were in communication before the ordinance was drafted, which he said isn’t unusual in the business world, there are other aspects that trouble him.
That includes the process by which the ordinance was passed, including a look at the ordinance in Jasper County, which Lunt termed “a friendly ordinance” for solar, and going through the plan commission instead of the board of zoning appeals.
“I disagree with them about the use of the land,” he said. “I’m most angry with the county changing the rules in the dark of night” to allow farmers to use their land for solar panels.
Companies interested in investing in projects in Porter County often reach out to county officials first, Blaney said, so NextEra’s contact before the ordinance was crafted wasn’t unusual.
That includes subdivision developers and a proposal several years ago by Great Lakes Basin Transportation for a high-speed freight train line that would have sliced through South County, a project that never came to fruition.
“I think this scenario is a little different because it has residents on both sides of the issue,” said Blaney, who was one of many people opposed to the freight train line, which had little if any support. “It’s not some outsider coming in with no benefit to the community like the train was.”
Local farmers, including those who have spoken to the Post-Tribune, have agreed to lease their property for the solar array panels and NextEra has said that Malden Solar would have resulted in $35 million in tax revenue going back to the county.
“Why would a company put in the effort of putting forth an application without any knowledge? That’s just not how it works,” Blaney said. “Does that mean they’re going to get what they want because we worked with them ahead of time? No.”
The emails, Merkner said, also showed that Commissioner Jim Biggs, R-North, who is now president of the board, was left out of the conversation.
“Through all these emails, all of them, Jim Biggs is not on one email, not one, even after this was passed,” Merkner said.
Merkner confirmed that he did not include Biggs’ name in his records request. He said he didn’t need to because once he went through the first batch of emails he received, “I already knew who was involved and who was not, and Mr. Biggs was not.”
Though Blaney couldn’t speak to all of the emails Merkner amassed, she could speak for her own and who was or wasn’t included on them.
“I don’t think there are any emails initiated by me that he’s not on,” she said.
The ordinance and the rejection
Merkner and others against the proposal also question why the ordinance went before the plan commission instead of the county’s board of zoning appeals, which would have required notification of nearby property owners as well as a public hearing.
Blaney, who was on the plan commission for several years and was on the board when it approved the solar ordinance, said the matter went before that board instead of the BZA because the BZA considers variances for projects.
“It was an ordinance. It wasn’t a particular project that needed some sort of approval,” she said.
The plan commission amended the county’s Unified Development Ordinance to allow for solar on an 8-0 vote in late February of 2020 after a brief public hearing in which no one spoke for or against the measure.
Commissioners gave the ordinance a first reading and public hearing on March 17, 2020. According to the meeting minutes, no one spoke in favor of or against the ordinance, which commissioners, including Biggs, approved 3-0.
Video of the March 17, 2020 meeting, Merkner said, shows the commissioners chambers were empty.
“Even if it is legit, the building is shut down and COVID is raging,” Merkner said. “Why aren’t they saying this isn’t urgent business?”
In fact, the building was still open to the public at the time of the meeting. The county building shut down at noon that day, after the meeting, in response to the COVID-19 pandemic, according to minutes from a meeting 10 days later for commissioners to approve a declaration of emergency response to the pandemic.
The meeting was held in person, Blaney said, and the county hadn’t shut down its buildings yet because of the pandemic.
“Everything was noticed properly” about the meetings, she added.
Commissioners approved the ordinance on second and final reading on April 14, 2020, in a meeting held online because of the pandemic. There was no hearing, Blaney said, because one isn’t required unless there’s been a significant change in an ordinance between readings, “which there was not.”
As far as the timing to pass the ordinance, the state was considering a bill for solar arrays at the time and county officials wanted to get theirs in place first so Porter County could be grandfathered in.
“From what we are hearing, ours would offer more protection to our residents,” Blaney said, adding that the state’s bill proposal died in 2021.
After a standing-room-only crowd filled the Expo Center to mostly voice their opinion against Malden Solar during a meeting in late February, commissioners voted in April to repeal and eventually replace the county’s solar ordinance.
Because Malden Solar’s application was already in hand, Scott McClure, the county attorney, said at the time that it would be grandfathered in under the previous ordinance, even though it had been repealed.
According to Thompson’s recent letter to NextEra, the application was rejected on several fronts, including a lack of several required signatures for, among other things, the development plan and the landscaping plan, and for not addressing several matters, such as site boundaries and a deficient stormwater review by the county engineer.
The proposal also lacked “commitment letters from power utility companies committing to the purchase of electricity generated from the proposed site.”
Thompson ends the letter asking for NextEra to retrieve a “hand-delivered check for $1 million to my office for a proposed roadway agreement” with the county commissioners.
“Given the incomplete application filed by Malden Solar and the fact that there is no road use agreement in place with the County Commissioners, the check is being rejected and the Department will be returning this check to NextEra,” Thompson wrote. “Given the sum of the check, a representative from Malden Solar should pick up the check at its earliest convenience.”
Now that the planning department has denied NextEra’s application for Malden Solar, the company would have to go back to square one if they still want to pursue a project here.
“They would have to start over under the new ordinance,” once it is in place, Blaney said.
