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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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