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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. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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