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Monday, November 08, 2010

Ind. Decisions - "How one court ruling in Indiana defined 'accessory' versus 'principal' could set a national precedent"

That quote is a line from this lengthy story published in the Nov. 7, 2010 Nazareth Pennsylvania Morning Call, referencing the Indiana COA decision in Timothy Hamby, et al. v. Board of Zoning Appeals, an August 31, 2010 opinion.

(See the ILB summary of the opinion here; see also this Sept. 7th entry quoting an Evansville Courier & Press story headed "Court backs wind turbine: Case could set precedent in state, nation.")

A quote from Sunday's story, reported by Arlene Martínez:

Whether a solar energy is a "principal" or an "accessory" use is at the heart of a debate that could reach Pennsylvania's higher courts in coming years as municipalities grapple with alternative energy systems, whether it's solar, wind turbines, geothermal systems or whatever else comes along.

The question is, said Phil Ehlinger, executive director of the Pennsylvania Association of Zoning Officials, is a solar energy system a "customary and incidental" as the zoning law defines an accessory use? Customary implies longevity, but alternative energies are a recent technology, which complicates the issue, Ehlinger said.

"If it's new, how can it be customary?" he said. "Whether or not it's incidental is in the eye of the beholder."

That question is popping up all over the country, as school districts, corporations and residences rush to claim millions of dollars in grants and rebates the federal government earmarked for alternative energy projects.

How one court ruling in Indiana defined "accessory" versus "principal" could set a national precedent.

In September, the Indiana Court of Appeals court ruled against neighbors objecting to a wind turbine in Warrick County and determined the project was indeed an accessory. Prohibiting its construction, the court said, would discourage the development of alternative energy.

"We're just seeing the beginning of this," Ehlinger said.

Posted by Marcia Oddi on November 8, 2010 08:34 AM
Posted to Ind. App.Ct. Decisions