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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. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

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  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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