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COA: variance for residential wind turbine allowed

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The Court of Appeals today affirmed a decision from the Warrick Superior Court that found the Board of Zoning Appeals of the Area Plan Commission of Warrick County was right in allowing a 20-foot variance for the construction of a residential wind turbine.

In Timothy Hamby, et al. v. Board of Zoning Appeals of the Area Plan Commission of Warrick County and the Board of Commissioners of Warrrick County No. 87A04-0912-CV-700, Timothy Hamby and 13 other homeowners raised the issue of whether the Superior Court erred in denying their claim for declaratory relief.

David Johnson and Phyllis Stilwell, through their contractor Morton Energy, had applied for a zoning variance “to allow an Improvement Location Permit to be issued for a wind turbine exceeding the maximum height requirement in an R-2 Multiple Family Zoning District…,” according to the opinion.

They asked for a 20-foot zoning variance to install the wind turbine to have an alternative energy source as a way to save money and to reduce greenhouse gases. After a hearing Sept. 24, 2008, the Board of Zoning Appeals allowed their request for the variance Oct. 22, 2008.

In November 2008, the homeowners filed their claim at the trial court level against the BZA’s decision on the issue claiming, among other things, that the use of a wind turbine for a residential property is not “customary” according to the Comprehensive Ordinance, Article X, Section 1 regarding use regulations for R-2 districts.

The Warrick Superior Court ultimately found in favor of the BZA in November 2009, and today the Court of Appeals affirmed that decision regarding the definition of customary.

“We do not believe that the ‘customary in connection with’ requirement for an accessory use structure should be construed so as to prevent the implementation of new technologies in residential districts,” Judge Elaine Brown wrote. “Indeed, if, as Homeowners contend, the definition requires that the intended use be demonstrated as a ‘habitual practice,’ this would preclude improvements in the standard of living since innovations in the production of energy and other technologies could not have been ‘established by custom; usual or habitual’ at the time of the adoption of the Comprehensive Ordinance. Such a requirement would be contrary to public policy.

“We also note that Homeowners do not specify whether a ‘habitual practice’ be confined to that by the Applicants’ neighbors, to that within Warrick County more generally, or whether we should take a broader view. Moreover, Homeowners, as plaintiffs and appellants, have the burden of proof, and they do not include any evidence in the record to demonstrate that residential wind turbines are uncommon (or not customary) in Warrick County.”

Judge Brown went on to write about federal incentives for having alternative energy sources and that state governments and the federal government have made it a priority to have more sources of alternative energy.

“Because we construe a zoning ordinance to favor the free use of land and will not extend restrictions by implication, see Saurer, 629 N.E.2d at 898, and because the Comprehensive Ordinance under R-2 permits accessory use structures, we conclude that a residential wind turbine that meets all of the other requirements of the Comprehensive Ordinance is a permitted use in the R-2 zoning district,” Judge Brown wrote. “…Homeowners have not met their burden of proving that the trial court erred in denying their claim for declaratory relief.”
 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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