Huntingburg board denies AES appeal over expired development plan

The Huntingburg Board of Zoning Appeals unanimously denied Crossvine Solar One LLC’s appeal of the city’s determination that its commercial solar development plan had expired, following a lengthy hearing on March 11, 2026.

The board affirmed Planning and Zoning Administrator Paul Lake’s December decision that Crossvine’s development plan was void for failing to obtain all applicable permits and to commence construction within two years of approval, as required by the city’s Unified Development Ordinance.

Crossvine’s development plan was approved on August 7, 2023, giving the company until August 7, 2025, to meet the requirements. The project covers land within Huntingburg’s extraterritorial zoning jurisdiction.

Douglas Everette, attorney for Crossvine, argued the company had commenced construction through off-site activities including procurement, manufacturing and assembly of solar panels and other equipment. He said the company spent more than $75 million on off-site construction activities by the August deadline.

“Construction can occur off-site,” Everette said. “We don’t want a crew here for four years putting in bolts to make each panel. It’s just disruptive to the public. It creates a lot of noise, dust, traffic.”

Jose De Sousa, Senior Project Manager of Renewables at AES Indiana, which acquired the project, testified that the company met federal requirements to commence construction by paying 5% of the total project investment, which exceeds $300 million. He said this occurred on July 16, 2025, before the deadline.

However, Joshua Claybourn, representing the city due to City Attorney Phil Schneider having a potential conflict of interest since he had represented some of the property owners in the development leases, argued that the ordinance requires on-site construction, not off-site activities. He said Crossvine’s evidence consisted of “off-site engineering, procurement also off-site, manufacturing off-site and assembly also off-site, including bills of lading” for shipments to a Utah facility.

“That is supply chain activity and warehousing, it’s not permit authorized on-site construction on the parcel,” Claybourn said.

Huntingburg Planning Director Paul Lake testified that he visited the project site and observed no construction activity. Several residents also testified they had seen no construction in the area over the past two years.

“I have actively stared out my front door at that field for the past 10 years. And within the past two years, within the timeline, I have seen absolutely zero construction,” said Korinne Whitehead, who lives across from the proposed project site.

The city also argued that Crossvine failed to obtain all applicable permits, specifically an Improvement Location Permit (ILP) required under the commercial solar permitting scheme. Lake testified that as of December 2, 2025, Crossvine had not obtained an ILP.

Everette countered that the ordinance doesn’t specifically require an ILP to commence construction, arguing that the language refers to “applicable permits” needed to start construction activities.

During cross-examination, Lake acknowledged the ordinance doesn’t specifically mention ILPs but said he believed standard practice requires them for construction initiation.

“I don’t think I’ve made up anything. I think standard practice in the industry, if you look at what some of the state statutes say regarding the initiation of construction or redevelopment, make it that I’m not making anything up,” Lake said.

The board also considered the city’s moratorium on commercial solar development plans. The Common Council enacted the moratorium on November 25, 2025, directing the administrator not to consider any new, revised or resubmitted development plans for commercial solar energy systems.

Everette argued the moratorium was unlawfully enacted because it wasn’t adopted through proper ordinance procedures requiring Plan Commission review and public input. He said the moratorium was created by motion rather than following statutory requirements.

“A moratorium is a quintessential zoning act,” Everette said. “When you create a moratorium, which is a zoning change, you have to go through the rules to adopt a valid ordinance.”

Claybourn responded that the board’s role was not to determine the constitutionality of the moratorium but to determine whether the administrator properly implemented the council’s directive.

“It’s to decide whether the administrator followed the code and the directives that were given to him,” Claybourn said. “As an administrative matter, it is on the books. It is something that the city council has passed, adopted, and the administrator has properly complied with, which provides an independent and alternative basis to affirm this decision.”

Crossvine also claimed vested rights under Indiana statute, arguing that filing a complete development plan application creates vested rights regardless of construction activity. However, the city countered that vested rights don’t eliminate express expiration conditions in ordinances.

After deliberation, the board voted unanimously to affirm Lake’s determination regarding both the development plan’s expiration and the moratorium’s implementation. Everette objected that the vote occurred without any deliberation or discussion of the facts or findings.

The decision means Crossvine’s development plan remains void, and the company cannot resubmit plans while the moratorium remains in effect.

The board’s decision can be appealed to the circuit court within 30 days.