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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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