Court reverses COA decision in zoning issue

Jennifer Nelson
January 1, 2007
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The Indiana Supreme Court affirmed that both the Board of Zoning Appeals of Evansville-Vanderburgh County and trial court were correct in denying the construction of a cellular tower that would be located too close to a residence under a county zoning code.

In St. Charles Tower, Inc. v. Board of Zoning Appeals of Evansville-Vanderburgh County, 82S01-0702-CV-69, the state's highest court yesterday overturned the Court of Appeals ruling that found the BZA's decision to deny St. Charles the special-use permit was not supported by substantial evidence.

St. Charles Tower, which constructs and installs cellular tower structures, wanted to build a tower in Vanderburgh County, where the county zoning code required St. Charles to get a special-use permit and variance from a setback requirement in the zoning ordinance. The BZA voted to deny St. Charles' application for the permit, and the company withdrew its application for the variance.

After the denial by the BZA, St. Charles filed a petition for writ of certiorari, judicial review, and declaratory judgment to overturn BZA's decision. In March 2006, the trial court affirmed BZA's decision. The Court of Appeals reversed the ruling, citing the denial by BZA was not supported by substantial evidence and remanded for a hearing as to whether St. Charles was entitled to the variance.

St. Charles argued that "substantial evidence" in this case is different from that usually employed in Indiana zoning cases because this case is subject to the Federal Telecommunications Act of 1996. The TCA states any decision by a state or local government to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence.

Justice Frank Sullivan wrote in the Supreme Court opinion that the substantial evidence definition in the TCA is the same under Indiana law. Although the court agreed with the Court of Appeals in its analysis of the legal effect of the TCA substantial evidence test on this case, the Supreme Court found that the test was not met here and there is substantial evidence in the record to support BZA's denial of St. Charles' application.

Even though the area where the cell tower was to be erected was zoned agricultural, it was still near residences in the area. The setback requirement in a subsection of the county zoning code applies to all zoning districts where cell towers are permitted, not just residential zones. Also, the BZA requires any applicant seeking a special-use permit for a cell tower has to show the tower will be at least 300 feet from the nearest residence or two feet for each foot of height for the tower, whichever is greater.

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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...