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Friday, October 20, 2006

Ind. Gov't. - More on cell towers in the news

This September 07, 2006 ILB entry referenced both the St. Charles Tower, Inc. v. Bd. of Zoning Appeals of Evansville appeal, and the pending request by Chicago Public Radio/WBEZ for a use variance to erect a 499-foot FM radio transmission tower at the southwest quadrant of Indiana 49 and U.S. 20.

The Court of Appeals has since ruled on the Evansville case - see Oct. 11th entry here, and the Chesterton Tribune today has two reports on the WBEZ request, both written by Paulene Poparad. The Porter BZA denied the WBEZ request on Sept. 20th. This story from yesterday, Oct. 26th, headlined "Porter BZA defends WBEZ tower decision", reports:

The Porter Board of Zoning Appeals emphasized Wednesday that if it would have allowed a 499-foot FM radio transmission tower along what is viewed by the town as the “gateway” to the dunes, that would have been in serious conflict with the town’s Comprehensive Plan.

The board also noted that it felt “uncomfortable” having thousands of dollars of free wireless Internet equipment, technical support and other considerations offered to the town even if they were not specifically part of the tower petition.

Both observations were contained in a two-page findings of fact the BZA approved last night to support its Sept. 20 denial of Chicago Public Radio station WBEZ’s petition to allow the tower as a use variance at the southwest quadrant of U.S. 20 and Indiana 49.

The 10-acre parcel is zoned residential and two cellular towers about 200 feet tall each are on the wooded site, which is 80 percent wetlands. WBEZ also proposed having a 12-foot by 20-foot equipment building 10 feet tall in addition to the tower.

The land is owned by and the new tower would be erected and owned by Tom Tittle’s Aqua-Land Communications Inc. WBEZ would lease the tower, on which other providers could co-locate. WBEZ officials said a higher tower would allow it to upgrade its programming and signal for Chesterton-based sister station WBEW.

Vote to adopt the findings was 3-1 with members Greg Stinson, Henry Huyser and President Bruce Snyder in favor; Bill Donley was opposed. That mirrored the Sept. 20 vote to deny the petition.

The fifth BZA member, Lorain Bell, has recused himself and did so again Wednesday because he previously was contacted by WBEZ representatives about placing the tower on land he owns.

The findings, required by state law for all cases heard by a BZA, were prepared by town attorney Patrick Lyp. Some BZA members had not received them so they were given time to review the findings prior to the vote; no discussion occurred. Lyp said given the magnitude of the discussion Sept. 20, which followed a four-hour public hearing Sept. 5, he wasn’t able to prepare the findings until now.

In order to have the use variance eligible for approval, WBEZ would have had to satisfy five statutory standards. The findings show none of them were met, and that the BZA adopts the concerns raised by its own members and town staff.

The story then proceeds to go through each of the findings in detail. The second story yesterday, headed "Appeal challenges radio tower rejection," reports:
This morning The WBEZ Alliance, Inc. doing business as Chicago Public Radio and Aqua-Land Communications Inc. filed a lawsuit asking a court to overturn the Porter Board of Zoning Appeals’ Sept. 20 denial of a use variance, and to require the town to issue a building permit for a FM radio transmission tower on Aqua-Land’s property.

According to the office of local attorney Michael Harris, whose firm filed the appeal, the BZA has been given until Nov. 10 by Porter Superior Court Judge Roger Bradford to respond.

The appeal cites the fact that the BZA failed to adopt findings of fact related to the petition within five days from the Sept. 20 decision as required by law and therefore there was no legal basis on which the board made its decision. Those findings were adopted last night.

The appeal also alleges that the board “considered improper material and matters outside the record and the evidence presented at the hearing.” In addition, WBEZ and Aqua-Land alleged that BZA President Bruce Snyder should have recused himself from the case but instead did hold “himself out as an expert witness to his other board members, free from challenge or rebuttal by the applicant.”

Snyder is a certified land appraiser, and the lack of his disclosure regarding his affiliation with Fairhaven Church also was questioned in the appeal because it states 22 of 24 individuals signing a petition against the 499-foot radio tower reside in the Fairhaven complex on property owned by Fairhaven.

Furthermore, according to the lawsuit, citing extended remarks by Snyder prior to the vote, “All of the Chairman’s rationales were clearly outside the evidence presented and in fact had no relationship to the evidence presented.”

The petitioners presented convincing evidence why their variance should have been granted, according to the lawsuit, and WBEZ and Aqua-Land had obtained necessary federal permits to construct the tower.

A second count in the lawsuit alleges the petitioners have suffered economic losses and as such are entitled to have their damages assessed and a judgment entered in their favor and against the town and the BZA.

Posted by Marcia Oddi on October 20, 2006 08:25 AM
Posted to Indiana Government