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Circuit Court rules on first impression issue

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The 7th Circuit Court of Appeals resolved an issue of first impression today: what is needed to be deemed "adequate writing" under the Telecommunications Act of 1996.

The issue arose in Dan Helcher, et al. v. Dearborn County, Ind. Board of Zoning Appeals, No. 07-3949, in which Cincinnati Bell Wireless appealed the grant of summary judgment in favor of the Dearborn County Board of Zoning Appeals in its suit filed after the BZA refused to grant a conditional use permit to build a cell phone tower on the Helchers' land, which was zoned agricultural.

Bell believed the BZA violated the Telecommunications Act of 1996, claiming the BZA's decision wasn't based on substantial evidence contained in a written record; the approved minutes didn't constitute a sufficient written decision; the BZA's decision unreasonably discriminated against Bell; and the decision had the effect of denying the provision of wireless communications services. Bell prepared reports, photos and other studies to convince the BZA to allow it to build the cell phone tower on the Helchers' land. A number of landowners opposed the tower because of its visual impact and fear it would decrease property values.

The BZA voted in March 2006 to deny Bell's application for a special-use permit. Several months after the meeting, the BZA approved its revised minutes from the March meeting.

First, the Circuit Court had to decide whether the BZA's decision complied with the act's requirement that the decision must be "in writing," an issue not yet ruled on by the 7th Circuit. The appellate judges joined the decisions of the 1st, 6th, and 9th circuits, which ruled the "in writing" requirement is met so long as the written decision contains a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons, wrote Judge Ilana Diamond Rovner.

After examining the BZA's minutes, the Circuit Court found they provided an adequate basis for judicial review and met the "in writing" requirement. The Circuit judges also affirmed the BZA's finding that Bell's application didn't satisfy Article 3, Sections 315(b) and (d), and Article 15, Section 1514(5) of the county's zoning ordinance. The photographic representations of the tower as viewed from the Helchers' neighbors' property, along with the objections of many residents who purchased land and built homes in this area specifically because of the natural views, provided the BZA with substantial evidence to reject the permit as nonconforming with Section 315(b), wrote the judge.

Bell also didn't investigate placing the tower on property zoned for manufacturing, highway interchange, general business, or restricted business. The company only determined it couldn't perform co-location with existing towers. In addition, Bell's arguments that the BZA's rejection of its application effectively prohibits the company from providing wireless communication services and the denial unreasonably discriminates between wireless providers have no merit, the Circuit Court concluded. It affirmed summary judgment for the BZA.

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  1. 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.

  2. 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?

  3. 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

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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