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Tuesday, September 18, 2007

Ind. Decisions - Supreme Court decides Vanderburgh County cell tower case

In St. Charles Tower, Inc. v. Board of Zoning Appeals of Evansville-Vanderburgh County, a 9-page, 5-0 opinion, Justice Sullivan writes:

The Vanderburgh County Zoning Code requires cellular telephone towers to be located a distance of two feet for each foot of height of the tower or 300 feet, whichever is greater, from any residence. St. Charles Tower, Inc., proposed to erect a 185-foot cell tower within 370 feet of three residences, one of which was within 168 feet of the tower’s proposed location. The Board of Zoning Appeals of Evansville-Vanderburgh County properly rejected an application to erect the cell tower based on these facts. * * *

Although we agree with the Court of Appeals in its analysis of the legal effect of the TCA substantial evidence test on this case, we part company from our colleagues in their conclusion that the test was not met here. We find that there is substantial evidence in the record to support the BZA’s denial of St. Charles’s application for a special use permit to erect the cell tower. * * *

[T]he Court of Appeals was of the view that (1) the question of whether the proposed location of St. Charles’s cell tower complied with the setback requirement was ir-relevant to the determination of its entitlement to a special use permit and (2) because St. Charles’s special use permit should have been approved, it was entitled to a new proceeding as to whether it was entitled to a variance. Judge Bailey dissented from the majority opinion, on these points and we agree with his dissent. * * *

Conclusion The decision of the trial court and that of the BZA is affirmed.

Here is a list of earlier ILB entries on this case.

Posted by Marcia Oddi on September 18, 2007 03:12 PM
Posted to Ind. Sup.Ct. Decisions