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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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