ILNews

Court reverses COA decision in zoning issue

Jennifer Nelson
January 1, 2007
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The Indiana Supreme Court affirmed that both the Board of Zoning Appeals of Evansville-Vanderburgh County and trial court were correct in denying the construction of a cellular tower that would be located too close to a residence under a county zoning code.

In St. Charles Tower, Inc. v. Board of Zoning Appeals of Evansville-Vanderburgh County, 82S01-0702-CV-69, the state's highest court yesterday overturned the Court of Appeals ruling that found the BZA's decision to deny St. Charles the special-use permit was not supported by substantial evidence.

St. Charles Tower, which constructs and installs cellular tower structures, wanted to build a tower in Vanderburgh County, where the county zoning code required St. Charles to get a special-use permit and variance from a setback requirement in the zoning ordinance. The BZA voted to deny St. Charles' application for the permit, and the company withdrew its application for the variance.

After the denial by the BZA, St. Charles filed a petition for writ of certiorari, judicial review, and declaratory judgment to overturn BZA's decision. In March 2006, the trial court affirmed BZA's decision. The Court of Appeals reversed the ruling, citing the denial by BZA was not supported by substantial evidence and remanded for a hearing as to whether St. Charles was entitled to the variance.

St. Charles argued that "substantial evidence" in this case is different from that usually employed in Indiana zoning cases because this case is subject to the Federal Telecommunications Act of 1996. The TCA states any decision by a state or local government to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence.

Justice Frank Sullivan wrote in the Supreme Court opinion that the substantial evidence definition in the TCA is the same under Indiana law. Although the court agreed with the Court of Appeals in its analysis of the legal effect of the TCA substantial evidence test on this case, the Supreme Court found that the test was not met here and there is substantial evidence in the record to support BZA's denial of St. Charles' application.

Even though the area where the cell tower was to be erected was zoned agricultural, it was still near residences in the area. The setback requirement in a subsection of the county zoning code applies to all zoning districts where cell towers are permitted, not just residential zones. Also, the BZA requires any applicant seeking a special-use permit for a cell tower has to show the tower will be at least 300 feet from the nearest residence or two feet for each foot of height for the tower, whichever is greater.
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  1. 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.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. 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!

  4. 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.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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