ILNews

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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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