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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. 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

  5. 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

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