HomeMy WebLinkAboutCorrespondence
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UNITED STATES D'STRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION 0 I
j}l(I'
(D
SPRINT SPECTRUM. L.P., )
)
Plaintiff. .,
)
vs. )
) .
THE. CITY OF CARMEL, INDIANA, )
THE BOARD OF ZONING APPEALS FOR )
THE CITY OF CARMEL AND CLAY )
TOWNSHIP. and )
MICHAEL P. HOLLIBAUGH, in his capacity )
as Director of the Department of )
Community Services. Carmel, Indiana )
)
Oe~ndan~, )
and )
)
RICHARD DEER, )
)
Intervenor. )
)
ENTRY ON DEFENDANTS AND INTERVENOR'S MOnONS TO DISMISS'
1 :02-cv-01133-JDT-TAB
~
. RECFIVED
APR 28 2GfJ3
DOCS
This case arises out of Sprint SpectrLlm, L.P. ("Sprint")'s efforts to install a
personal communications service ("PCS") antenna and equipment shelter. Defendants
City of Carmel, Indiana, Board of Zoning Appeals for the City of Carmel and Clay
'Township, and Michael P. Hollibaugh (collectively, "Defendants") and Intervenor
Richard Deer move the Court to dismiss the complaint for lack of subject matter
1This Entry is a matter of public record and is being made available to the public
on the court's web site, but it is not intended fer commercial publication either
electronically or in paper form. Although' the ruling or rulings in this Entry will govern the
case presently before this court, this court does not consider the discussion in this Entry
to be sufficiently novel or instructive to justify commercial publication or the subsequent
citation of it in other proceedings.
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jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Intervenor Deer
additionally moves to dismiss for failure to state a claim. Fed. R. Civ. P. 12(b)(6): The
court now rules on both motions.
I. Background Facts2
Sprint and its affiliates are in the business of providing wireless communications
services, involving the construction and operation of a nationwide pes network. Sprint
currently holds a PCS wireless broadcast license for the Indianapolis Majer Trading
Area that is valid until June 23, 2005. The network consists of a system of adjacent cell
sites centered around mounted antennae that enable service within a set geographical
area. On May 14, 2001, Sprint entered into a lease sgreementwith Dr. Edwin Zamber
in order to collocate an antenna onto a pre-existing tower on Dr. Zamber's property
previously used for "ham" radio communications. Sprint also planned to build an
equipment shelter adjacent to the tower. The Zamber site is located in a distrid zoned
"5_1 Residence District" pursuant to section 5.1 of the Carmel/Clay Zoning Ordinance.
Sprint filed an application for an improvement location permit, along with building
plans, with the Department of Community Services (the BDepartment") on May 7, 2001.
On or about June 15, 2001, the Department issued the permit. . On or about August 15,
2001, Mr. Deer. an lnvervenor in this suit whose property abuts the Zamber site,
appealed the issuance of the permit with the Carmel/Clay Board of Zoning Appeals
2This. section summarizes the allegations of the complaint. which must be taken
as true for the purposes of Sprinfs motion to dismiss. .
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("SZAP) on the grounds that the antenna did not constitute a permitted use under the
Zoning Ordinance (the "Zoning Appeal") governing residential districts. A couple of
weeks later. shortly after Sprint had begun building on the site, tne Carmel Building
Commissioner issued a stop work order on the project, and on August 24, 2001,
Michael P. Hollibaugh, the Department Director and a Defendant in this case in his
official capacity, sent a letter to Sprint revoking the improvement location permit. It
gave as sole reason for the revocation the need to subdivide the Zamber site into two
smaller parcels, necessitating subdivisi"on plat approval by another agency, the Plan
Commission. Sprint appealed the revocation of the improvement location permit to the
BZA (the .Subdivision AppeaJD).
After some wrangling in which the BZA's decision to dismiss Sprint's Subdivision
Appeal as untimely was reversed by a state court, the BZA eventually heard both the
Subdivision Appeal and the Zoning Appeal on the merits. On June 24, 2002, the BZA
unanimously upheld Mr. Deer's Zoning Appeal and found that the improvement location
" "
application was wrongly approved. It issued findings of fact stating that the .use for
which"the ~mprovement location permit] was granted (a commercial antenna and
unstaffed, unoccupied commercial radio equipment shelter)" is not a Permitted Use
under the 5.1 Residential District and related sections of the Carmel/Clay Zoning
Ordinance." (Comp!., Ex. F.) Thus, Sprint must seek a special use permit, or variance.
in order to complete the equipment sheltsr and collocate the antenna onto the Bxisting
tower. Similarly. on July 22. 2002. the BZA rejected Sprint's Subdivision Appeal for the
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reason stated in the August 24,2001 revocation letter, namely, that Sprint needed to
seek subdivision plat approval prior to completing its construction on the Zamber site.
On July 23, 2002, Sprint filed this action, alleging several violations of the
Telecommunications Act of 1996, a takings and due process claim under the Fifth and
Fourteenth Amendments, a takings claim u~der the Indiana C.onstitution. requests for a
.writ of certiorari under Indiana law to review the BZA's June 24 and July 22 decisions,
and a final claim for declaratory Judgment.
II. Standard of Review
When considering a motion to dismiss for subject matter jurisdiction under Rule
12(b)(1). a court must accept as true all well-pleaded allegations and draw all
reasonable inferences in favor of the non-movant. Alicia-Hemandez v. Catholic Bishop
of Chicago. No. 02-2289~ 2003 WL 373349. at -2 (7111 eif. Feb. 21. 2003) (citation
omitted).. Where a dispute exists as to jurisdictional facts. a court may look beyond the
allegations to any evidence submitte~ on the issue, ;d., however, the disagreement In
this case concerns the Significance of uncontroverted facts.
III. Discussion
A. TCA Claims
Sprint brought suit under the Telecommunications Act of 1996 (''TeA"). codified
in scattered sections of Trtle 47. United States Code. The TC~ grants state and local
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governments the authority to regulate the placement of wireless telecommunications
structures, but as the Seventh Circuit has noted, "their authority is not unfettered."
Aegerter v, City of Delafield, Wis., 174 F.3d 886, B88 (7th Cir. 1999). Specifically, "they
must now support any decision to deny certain requests for those facilities with. a written
opinion that is based on substantial evidence in a written ~CDrdl and they may not
unreasonabty discriminate among providers of functionally equivalent services. II Id.
(citing 47 U.S.C. is 332(c)(7)(B)(iii), (8)(1)(1)) (internal quotation marks omitted). The
statute also allows an action to be brought in "any court of competent jurisdiction" by
"any person adversely affected by any final action or failure to act by a State or local
government or any instrumentality thereof that Is inconsistent with [I 332(c)(7}].p 47
U.S.C. S 332(c)(7)(B)(v). This case revolves around whether either the decisions by the
BZA with- resped to either of the alA decisions constitutes a 'final action" within the
meaning of that provision.
The partieS agree an a couple of important matters. First, the BZA is the highest
administrative authority empowered under Indiana law to hear appeals of administrative
deci~ions under the local zoning ordinance. See Ind. Code S 36.7-4-918.1 (defining
appellate jurisdiction of state boards of zoning appeals). Sprint therefore cannot take
any further administrative appeal of the two adverse BZA decisions. Indiana Jaw does
proyide for review of board of zoning appeals decisions through the issuance of a writ of
certiorari by the circuit or superior court of the county in which the affected premises are
located, Ind. Code 36-7-4-1003, but Sprint does not claim to have availed itself af that
. mechanism .prior to initiating this action. However, neither the Defendants -nOf the
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Intervenor contend that Sprint was required to exhaust its state judicial remedies in
order to bring an action under the T.CA. Such an argument CQuld welt face an uphill
battle, as several courts have invoked the legislative history of the TeA to refrain from
imposing an exhaustion of state court remedies requirement on parties seeking redress
under that statute. See, e.g., AT & T Wireless pes, Inc. v. Town of Porte" 203 F.
SUppa 2d 985. 989 (N.D. Ind. 2002) ("the term 'final action' means final administrative
action at the State or local government level so that a party can commence action
under the subparagraph rather than waiting for the exhaustion of any independent State
court remedy otherwise required.") (quoting H.R. Conf. No. 1~58, 10411I Cong., 2d
Sess. 208 (1996), reprinted in 1996 U.S.S.C.A.N. 124.223); Laurence Wolf Capital
. .
Mgmt. Trust v. City of Femda/e, 176 F. Supp. 2d 725, 727 (E.D. Mich. 2000). But the
court need not fully address this issue, as the Defendants do not press the argument
and resolution of the jurisdictional issue rests on other considerations.
Second. the parties agree, or at least Sprint does not deny, that its ultimate goal.
of establishing wireless telecommunications facilities at the Zamber site has not been
foreclosed by the BZA decisions. As the Defendants emphasize, those decisions
establish the procedural route Sprint must take at this juncture in order to proceed with
its project: it must submit a subdivision plat to the Plan Commission and apply for a
special use permit It is reasonably clear that were the BZA to make a subsequent
ruling which would have the effect of definitively blocking Sprint's attempt to build its
facilities-for instance, by denying Sprint a variance-ttle final action requirement would
.
be met. The question now before the court is whether, .at this stag~ in the. process
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where Sprint still has administrative avenues opentD it. either the Zoning or Subdivision
decision by the BZA qualifies as a final action.
Neither the statute itself nor the case law interpreting It proviae much guidance.
The TCA does not define "final action," and the legislative history, even if credited,
offers no clues. The Defendants and the Intervenor rely on two district court cases,
Cox Commications pes, L.P. v. City of San Marcos, 204 F. Supp~ 2d 1272 (S.D. Cal. .
2002); Jndiana Bell Tel. Co., Inc. v. Smithville Tel. Co., Inc. 31 F. Supp. 2d 628 (S.D.
Ind. 1998), the latter of which is readily distinguishable. Indiana Bell involved a suit by a
telecommunications company invoking a provision of the TeA to force arbitration of
. interconnection agreements it had entered into with rural telephone local exchange
carriers. These agreements were possibly subject to modification as a consequence of
the passage of the TeA in 1996. The Indiana Utility Regulatory Commission (-lURe")
dismissed the plaintiff's petition for arbitration, which the court held was not a final
action pursuant to 47 U.s..C. ~ 252(e)(6) because the lURe had not denied the request
on the merits but rather consolidated it with an on-going factual investigation in
furtherance of its policy-making duties under the TeA. Id. at 637. In this case, by
contrast, the effect of the BZA decisions was not postponement of the issues pending
further factual findings. but, instead, a definitive ruling as lei those matters (the need for
submission of a subdivision plat and special use permit application).
Cox Communications bears closer resemblance to the esse at hand, but still
does not answer the statutory question posed harein. In Cox, the plaintiff (also Sprint)
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informed the City defendant that it wished to use the City's public rights of way to install
wireless telecommunications facilities. The City notified the plaintiff It would have to
follow the procedures for obtaining a Conditional Use Permit ("CUP"). The plaintiff
believed this requirement to be in violation of its state and federal rights, and sued ttte
City under the TeA. The court found that, at a minimum. the term "final actionP entails
a decision by the appropriate local authority. and "because the defendants have not
rejected Sprint's application for an excavation permit or a CUP. . . . no decision or final
action has been made on Sprint's request." .Id. at 1277 (emphasis in original). Sprint
correctly notes that the plaintiff In Cox Communications filed in federal court without
contesting the Cltys instructions in any higher administrative forum. It is true that. as
e"idenced by the above quotation, the court seemed to think that the "final action"
requirement of ~ 332(c)(7)(B)(v) called for an ultimate determination as to the
company's ability to place Its facillties. That result wDuld favor the Defendants and
l.ntelVenor. But the rationale given by the court-lack at decision-only supports the
weaker conclusion that the City's opinion with respect tethe procurement of a CUP did
not constitute a final administrative decision. Of importance to this case, the court did
not explain why a final determination by a municipal authority on a procedural .
matter-also a. decision-would not satisfy the statute. This gap in the reasoning limits
the usefulness of Cox Communications to the Defendants and InteNsnor's cause.
Sprint, for its part. cites Indiana state court decisions holding that a plaintiff
bringing an as-applied constitutional challenge to a zoning ordinance does not have to
first apply for a variance before seeking relief in Indiana courts. See Bd. of Zoning
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Appeals of the City of New Albany v. Koehler, 194 N.E.2d 49 (Ind, 1963): Church of
Christ in Indianapolis v. Metro. Bd. of Zoning Appeals of Marion County, 371 N.E.2d
1331 (Ind. Ct. App. 1918.). Thereravance of this line of cases for the construction of a
term in a federal enactment is not evident. If Sprint 1s only trying to show that Indiana
law permits appeals to the proper state court from any decision of a board of zoning
appeals, even on a penultimate or procedural issue, that much is clear from the
certiorari statute, "Each decision of. , . . the board of zoning appeals is subject to
review by certiorari," Ind. Code 536-7-4-1003. But plainly a state may want to entrust.
Its own courts with closer scrutiny over the administration and interpretation of local
zoning laws than Congress would have wished to commit to the federal courts over
. .
such laws;
In fact, it is precisery because a contrary construction would Involve the federal
courts in zoning disputes before the ultimate question of the plaintiffS ability to develop
his.property has besn sattled that the court believes the term "final action" in S
332(c)(7)(B)(v) should be reserved to include solely those administrative decisions
which fully dispose of a party's attempt to place, construct or modify personal wireless
service facilities. This is how the Supreme Court has applied the concept of finality to
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zoning cases in the takings context, and the court sees no reason to diverge from that
understanding here. See Williamson County Regional Planning Comm'n v. Hamilton
Sank of Johnson City, 473 U.S. 172, 1B6-94 (1985) (takings claim not ripe because,
inter alia, respondents failure-to petition board of zoning appeals for variance meant
that no final administrative decision had been taken with respect to respondent's ability
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to develop its land). This interpretation, which would defer access to federal court until
all rea~onably available administrative paths have been exhausted, has the meritof
preserving the autonomy of local authorities to administer and interpret their own zoning
laws, in accord with the Seventh Circuit's statement of Congress' purpose in passing
the TeA:
Some may disagree with Congress' decision to leave so much authority in
the hands of state and local governments to affect the placement of the
physical infrastructure of an important part of the nations
. telecommunications network. But that is what it did when it passed the
Telecommunications Act of 1996. and it is not our job to second..guess
that political decision.
Aegetfer. 174 F .3d at 892. So. for example, were the BZA to subsequently grant Sprint
the special use permit, it would moot the need for federal court intervention.
. .
Conversely, a denial by the BZA would constitute a "final action- and the issue would be
ripe for adjUdication. As the Court in Williamson County noted, Ilresortto the procedure
Sprint replies that this interpretation cannot be right because it would anow
boards of zoning appeals to evade the statute by erecting an endless series of
. procedural obstacles in the way of a wireless service provider. The court notes. first,
that the allegations do net indicate such a scenario has occurred in this case, nor that it
would be Mile for Sprint to pursue its remaining administrative options. And second,
were a local authority to react in such a manner, an aggrieved party woUld not be
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without recourse, because the TeA also creates a right of action for a person adversely
affected by a hfailure to act" on the part of a state or local government. 47 U.S.C. ~
332(c)(7)(B)(v);see also S 332(c)(7)(B)(ii). Thus, an administrative entity which
needlessly multiplied the. hurdles to obtaining a final disposition of a service provider's
proposal could be found liable under the TeA for failure to aeL "As the [rCA] itself
recognizes. inaction Can take not only the form of complete inactivity, but also the.
absence of any meaningful consideration of an application. Otherwise, a local zoning
authority could Indefinitely delay an application by a flurry of he~rings. reque~. and
counter.submissions ~hat effectively mask a denial." Hextel Partners of Upstate New
York, Inc. v. Town o/Canaan. 62 F. Supp. 2d 691. 694 (N.D. NeWVYork, 1999)
(rejecting argument that ''failure to act" claim under TCA not ripe because application
still in information-gathering stage).
Finally, lack of a final action is not simply a failure of an element of the claim but
divestS the court of jurisdiction over the matter. Both parties h~ve proceeded on that
assumption, and as the statute makes a court's authority to hear a case under the TeA
dependent an the entry of a final action, see 47 U.S.C. 5 332(c)(7)(B)(v), It appears to
be correct Sse Indiana Bell Tel., 31 F. Supp. 2d at 643-44 (laCk of reviewable agency
decision deprived district ccurt of jurisdiction ever TeA claims).
B. Takings Claim
Based on.the revocation of the improvement location permit. Sprint has also
brought a federal takings claim, which the Defendants and Intervenor argue fails to
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satisfy ripeness standards for takings claims. Sprint responds by citing an Indiana case
holding that a plaintiff does not have to exhaust its administrative remedies before a
board of zoning appeals to raise a temporary takings claim in state court. Ses Area
Plan Corom'n of Evansville v. Major, 720 N.E. 2d 391 (Ind. Ct. App. 1999). However,
the proper source of authority for evaluating the ripeness of takings claims in federal
court is federal law. The Suprema Court in Williamson County Regional Planning
Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) has delineated the
ripeness requirements imposed on Takings Clause litigants. First, there must be a
'"final decision- on the part Of the governmental entity charged with implementing the
relevant regulaticns-here, as the~. the zoning board. Id. at 186. Sse also Daniels v.
Al'8s Plsn Comm'n of Allen County, 306 F.3d 445. 454 (71h eir. 2002). In Williamson
County, the respondent had submitted a proposed plat for development of its property,
and the local pla-:,ning commission ruled that several aspects of the plat violated the
zoning .ordinance and subdivision regulations. Id. at 187. The respondent did not,apply
to the board of zoning appeals far variances that would have permitted the proposed
development, but instead filed a takings claim in federal court. Id. at 188. Overturning
a jury verdict in favor of the. respondent. the Court held that its complaint was
premature, because the government entity affected with the implementation of the land-
use regulations had not been presented with a request for variances, and, thus, issued
no conclusive ruling on whether the zoning ordinance would apply to deprive the owner
of all the economic benefit of the property. Id. at 194. Because Sprint has failed to
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seek a special use permit or subdivision plat approval, similar to the respondent in .
Williamson County, the same result holds here.3
It IS even mors clear that Sprint has not satisfied the second Williamson County
ripeness requirement, the exhaustion of all state procedures for obtaining
compensation before filing in federal court. 11[I)f a State provides an adequate
procedure for seeking just compensation, the property owner cannet claim a violation of
the Just Compensation Clause until It has used the procedure and been denied just
compensation. II The Court In Williamson County held that the respondent had not
exhausted state remedies because of the availability of a state inverse condemnation
right at action to obtain just compensation, which the respondent had neither utilized
nor otherwise shown to be inadequate. Id. at 196-97. The Indiana Code likewise
contains an inverse condemnation prevision. see Ind. Code ~ 32-24-1-16, however, the
complaint does nOt indicate any attempt to Invoke that procedure or otherwise
demonstrElte its tnadequacy.4 The court thus condudes that Sprint has not exhausted
3Sprint distinguishes Wil/;a~on County an the grounds that in this esse US print
has challenged the administrative procedures that the Defendants argue Sprint has
failed to exhaust as not required by the Zoning Ordinance." (Oefs. Resp. Sr. at 11.)
But Sprint's disagreement with the BZA's interpretation of the Zoning Ordinance cannot
ripen w"at would otherwise be a premature takings claim. At best. and although Sprint
does not make this clear. Sprint's Objection could be construed as an assertion that the
procedural steps themselves effect a temporary taking of property. In that event, even
if it may be said that the BZA decisions are final decisions of the appropriate
governm.ent authority as to the necessity of those procedures (but not the ultimate
question of the use of the property). Sprint would still fail the second part of the
Williamsen Counrytest for ripeness of takings daims, the exhaustion of state
procedures for obtaining just compensation. as discussed below.
4Such an attempt would likely not fare well. as Sprint alleges sustaining actual
{continued...} .
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the state procedures available to provide compensation for takings of property. See
Forseth v. Village of Sussex, 199 F .3d 363, 373 (7'h Cir. 2000) (takings claim premature
because, intfiJr alia. plaintiffs not bring state inverse condemnation suit). Sprint's failure
to exhaust its state remedies strips the court of jUrisdiction to entertain the takings
claim. See Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 733 n. 7 (1997).
4(...continued)
harm and seeks monetary damages (Compl. , 72) (thus distinguishing this case fram
Daniels v. Ami Plan COmmission. 306 F.3d 445 (7\n Cir. 2002)) and the Indiana inverse
condemnation statute may be used as a vehicle to bring a temporary takings suit based
on revocation of an Improvement location permit, see Area Plan Comm'n of Evansville
v. Major, 720 N.E.2d 391 (Ind. Ct. App. 2000).
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IV. Conclusion
As discussed above. the court lacks jurisdidion over Sprinfs TeA and takings
claims. and since Sprint has pled no other causes involving a federal question on which
to hang supplemental jurisdidion,& this CDurt has no power to hear the remaining state
claims. Th.e Defendants' and Intervenor's motions to dismiss for lack of subject matter
jurisdiction is thus GRANTED, alleviating the need to consider the Intervenor's motion
to dismiss for failure to state a claim.
ALL OF WHICH IS ORDERED this 281t1 day of March 2003.
~
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JOhA Oanl I Tinder. Judge .
un~~s District Court
SSprint's Complaint lists a Fourteenth Amendment due process claim arising out
of the revocation of the building permit which neither party alludes to In the briefs. (See
CampI. ~ 70-71.) The court notes that this claim also requires a showing of the
. inadequacy of state law remedies, see Doherty v. City arCh/cage. 75 F.3d 318, 326 (7'"
Cir. 1996). and so Jurisdiction over it would be lacking for thB reasons expressed in the
discussion of the takings claim.
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Copies to:
John R. Molitor
Judy G. Hester
MOlitor Grisham & Hester PA
94~5 Counselor's Row, Suite 200
IndIanapolis. IN 46240
Cathy Elliott
Bose McKinney & Evan LLP
2700 First Indiana Plaza
135 North Pennsylvania
Indianapolis. IN 4B2D4
Thomas F. Bedsole
. Daniel P. King .
Locke Reynolds llP
201 North Illinois Street
SLlite 1000
IndianapoUs, IN 46244
Richard S. Nikchevich
W.Scott Porterfield
Steven J. YaM"
Barack Ferrazzano Kil'$chbaum Perlman &
Nagslberg .
333 WeSt Wacker Drive
Suite 2700
Chicago. IL 60606
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CROOKED STICK HOMEOWNER'S ASSOCIA liON
1489 Preston Trail
Carmel, In 46032
3171574-9697
March 13, 2003
Mr. Michael Mohr
Board of Zoning Appeals
City Building, One Civic Square
Carmel, IN 46032
Dear Mr. Mohr:
Crooked Stick Homeowner's Association is opposed to the proposed Sprint Cell
Tower on the Zamber property. We are not pleased with the appearance of the
amateur radio currently existing. We have been told it is "grandfathered" and not
subject to current S-l zoning until zamber moves.
It is our understanding that if Sprint were to co-locate on the amateur
radio tower it would become a permanent structure and would remain regardless of
the property owner. We are most definitely against this. Not only would this eye
sore become permanent, it would be larger than it is now, and may not comply with
the non-conforming use as it is currently written.
It would appear that the compromise is to locate a separate permanent
structure for Sprint on the west side of Zamber's property. This location will
adversely affect Crooked Stick as well as Queen's Way and the independent
homeowners on Ditch Road. This location is directly across from the Crooked Stick
entrance and would immediately impact those homeowners located on Ditch Road, and
which may violate current zoning regulations regarding set-back.
We believe there ought to be an alternative location within a reasonable
radius of this location. There are several schools, such as Towne-Meadow
Elementary and university High School along with several Carmel-Clay Parks
Department parks which have a large amount of common area to locate this
facility. I am sure the school department or the parks department could use the
additional revenue generated from this tower. As you are also aware, Crooked
Stic~ Country Club is currently in negotiations for a multi-use tower on their
~r~pcr~y. :~ ~~~l~ ~a~e sense fer s~rint to join on their tower rather than erect
a new structure.
Thank you for your consideration in this matter.
l)c~r.'/iJ~
ttfr. Duke
President
JRD:vl
Cc: Mayor James Brainard
Ms. Pat Rice
Ms. Darlene Plavchak
Mr. Leo Dierckman
Mr. Charles Weinkauf
Ms. Judy Hester
Mr. Mike P. Hollibaugh
Jon R. Duke
Crooked Stick Homeowner's Assoc.
1489 Preston Trail
Carmel, IN 46032
Ms. Judy Hester
Board of Zoning Appeals
City Building, One Civic Square
Carmel, IN 46032
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Page 1 of 1
Lillig, Laurence M
From: John Molitor Umolitor@prodigy.net]
Sent: Monday, February 24,200310:45 AM
To: 'Tingley, Connie 5'; 'Joh
Cc: 'Lillig, Laurence M'; 'J
Subject: RE: BZA meeting
Mr. Flanigan:
While the item is still listed on the
The Court instructed the BZA's attorn k was the Board's final opportunity to approve the proposed
settlement. Thus, when the BZA failed to pa a motion to approve the settlement, that inaction amounted to a
rejection.
The BZA's attorneys are proceeding to defend its side in the litigation.
John Molitor
-----Original Message-----
From: Tingley, Connie 5 [mailto:cringley@ci.carmel.in.us]
Sent: February 24, 2003 10:30 AM
To: 'John Flanigan'
Cc: Lillig, Laurence M; John Molitor (E-mail); Judy Hester (E-mail); Hollibaugh, Mike P
Subject: RE: BZA meeting
It is listed on the agenda. However, I can not tell you if it will be open for discussion.
-----Original Message-----
From: John Flanigan [mailto:flanigan@in.net]
Sent: Monday, February 24, 2003 10:21 AM
To: Carmel - Connie Tingley
Subject: BZA meeting
I would like to come to the BZA meeting tonight IF the 5prinUZamber cell tower matter is on the
agenda. Can you tell me if it is? Thank you.
2/24/2003
()
Q
BARRINGTON INVESTMENT COMPANY
9247 North Meridian Street
Suite 100
Indianapolis, Indiana 46260-1813
(317) 581-0300
FAX: (317) 581-0900
February 17, 2003
Sent via email and facsimile
ctingley@ci.carmel.in.us
Mr. Michael Mohr
President
Carmel board of Zoning Appeals
One Civic Square
Carmel, Indiana 46032
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Re: Docket A-97-01
Proposed Sprint Cellular Tower;
Zamber Property
Dear Mr. Mohr:
I am the owner of a single family home located at 11271 Crooked Stick Lane in Carmel. My
property is located at the Southwest comer of Crooked Stick Lane and Ditch Road.
I have been recently advised that the Board of Zoning Appeals is considering granting the
permission for the relocation and reconstruction of a private amateur radio tower located at the
above captioned Zamber property to another area of that real estate and further considering
permitting the private tower to be reconstructed under more significant commercial
specifications so as to permit not only the private usage ofthe tower but also to permit the
commercial usage as well by Sprint and perhaps even by other companies and lor commercial
uses.
Firstly, I was unaware and not advised of the pending settlement of this issue, nor was my
neighbor, Mickey Powell, who resides on the Northwest comer of Crooked Stick Lane and Ditch
Road.
Secondly, I am vehemently opposed to this introduction of a commercial usage into a clearly
residential district. The private tower, as I understand it, is permitted in the residential district as
a non-conforming use.
I submit that alteration, relocation or reconstruction of the tower (particularly to commercial
specifications) may be a violation of the non-conforming use. Further, certainly the introduction
of a commercial usage into an established residential district should be construed as a violation
C:\Docurnents and Settings\ctingley\Local Settings\Ternporary Internet Files\OLK85\Letter to MichaelMohr 021 703 ,doc
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of your zoning ordinance, and in no way should be considered to be acceptable by you or the
surrounding residents which will be adversely affected.
Further, and perhaps more salient, is the proposed relocation of the tower. After speaking with
Mr. Laurence Lilling, Planning Administrator for the City of Carmel, I was informed that such a
tower is, by your ordinance, required to be located beyond a certain minimal distance from
surrounding residences. He was not certain, but believed that the proposed tower would not be
located in compliance with the ordinance and therefore, may be a violation. If that is the case, it
should not be permitted at that location. I find it confusing and disturbing that the proposed
tower relocation would only serve for the betterment of some residences, while severely
impacting others and further creating a potential zoning violation.
We as residents rely on you as our public officials to represent our interests and to properly
administer the zoning ordinance and to preserve the safety and integrity of those you represent
and the property in which they own and reside. Surely, other more appropriate locations should
be pursued before consideration of the introduction of such a contradictory usage at this location.
I might suggest as an alternative, the new park located on 1 16th near Towne Road, the fire station
at 106th and Shelborne or 116th and Towne Road. The city or County could then be the
beneficiary of some badly needed revenue while responsibly regulating the location of these
towers.
Therefore, I respectfully request that time be provided, and adequate evidence be presented to the
public relative to the proposed reconsideration of the Board's position concerning this tower.
Finally, please be advised that in the event such adequate time is not provided for consideration
of the matter and its compromises, it is my intent and that of some affected neighbors in the
Crooked Stick subdivision to consider implementing the legal means necessary to intervene until
the matter can be resolved in an educated and acceptable manner.
I appreciate your understanding of my concerns.
Respectfully,
Richard P. Roethke
President
cc: James Brainard - Mayor, City of Carmel
ibrainard@ci.carme1.in.us
Laurence M. Lillig, Jr. - Planning Administrator
llillig@ci.carme1.in.us
Walter E. Wolf, Jr.
wwolf@dannpecar.com
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pONALP A. sfl'(.JEL
1806 B~O TIme. LANE
cARMJ!.L. IN 46031.
Fe'orUatY 1.9, 2003
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FIBtCFIVED
19 20l}3
DOCS
FuNumber: 317-571-2426
Board of Zoning Appeals
A.TTN~ coNNIE TINGLEY
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rp~.~;}.'tng1ey:
. . .. .:t ~1ike to.....1lIY """""'" about a aeighbor at tho"""'" or erooked Stick
,.. .. :Lanii~DiIch p.oed in QueeD" MallO' suiJdivision ",ho is ~to piaoe s
. ilii&ii COlDinorcla1 c:elluIsr _ a<<08s tiOIn tho eoIf8llCO or erooked Slid< Lane at
. .,P,itc.b Road.
.... .......,
. . .
'i~ _ a,..;dont ortbis ~ for 14 yes<' and dO not feel a.,.nular
. . """'" iocared in a residential cIisIric.t is appeollD8 to SIlyone. 1 sppreeiate your
consideration in this matter.
S~
Donald A. Shuel
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Queen's Manor Neighborhood Assoc.
11100 Queen's Way Circle
Carmel, IN 46032
317-848-2064 (H)
846-6222 (W) 846-6250 (Fax)
flanigan@in.net
~
RECFIVED
FES 17 2003
DOCS
February 17,2003
Mr. Michael Mohr
Board of Zoning Appeals
City Building, One Civic Square
Carmel, IN 46032
Dear Mr. Mohr:
I reviewed the recent developments with several neighbors and we want you to know that we
appreciate the Board's consideration of the Sprint/Zamber matter. However, we believe more
constraints on Sprint are appropriate, especially the height. The Board is requiring better suitability
for a residential area; this most important restriction will be conveyed to our other members. Some
still don't understand/accept why any tower is allowed.
We are suspicious of why Sprint proposed such a large tower (four foot base and higher than the
100-foot radio tower mounting level). We wonder whether they will argue next year that, say, an
"engineering breakthrough," allows them to house more antennas and/or to add to the height
because of the large base to get more revenue. They have already, via the consent decree, advanced
their position from having only expense to getting substantial rental revenue from another cell
carrier. The "pine tree" camouflaged tower will cost somewhat more, but this pales relative to the
rental revenue they will receive for many years (est. $250,000 over 10 years only).
We understand the consent decree precludes expanding the number of carriers and request that you
study this provision again with our concern noted above in mind. Also, we would like a copy.
I've seen pictures of "pine tree" towers. and while none are attractive. some look much better than
others by blending tree lines. We'd like to comment on the design submission. Lastly, we
encourage you to insist on what you would want in your neighborhood. Thank you.
CJ~
o 1. Flanigan, President
een's Manor Neighborhood Association
cc: Ms. Pat Rice
Ms. Earlene Plavchak
Mr. Leo Dierckman
Mr. Charles Weinkauf
Ms. Judy Hester
Mr. Mike P. Hollibaugh
o
Date:
February 18,2003
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RECFIVED
FEB 18 2003
DOCS
To:
Board of Zoning Appeals
From: John Flanigan - Queen's Manor Neighborhood Assoc.
Subject: MonoPine Design if"" ~
Following is information on design from Penn Summit of West Hazleton, PA 18202.
Paul J. Ford (PJF) engineering company of Columbus, Ohio referred PennSummit.
(http://www.pennsummit.com/products.html#monopine )
I spoke to Joe Tomsho of Summit and the following are his comments on the MonoPine
for a typical installation:
. The lightning rod attaches to the pole cap - extends higher.
. For a three-carrier pole, the diameter at the top ranges from 19" to 26."
. Three four-foot branches are placed at 75 degrees at the top.
. The branches are closer at the top, about 6" and then are spaced more
approaching the bottom.
. The branch lengths increase from the four feet at the top to ten feet where
branches stop.
. There are three densities offered: light, medium and heavy.
PJF also referred Sterling Towers, but I was unable to contact them. Thank you.
~
MonoPine ™
View photo gallery
. MonoPine TM Heights available to 200 ft
. Design allows up to 7 carriers
. Branches are RF-Friendly and contain no metal or other reflective
materials
. Branch sizes: 4 ft, 6 ft, 8 ft, and 10ft
. Light, medium, and heavy Branch Densities available
. Base pole is galvanized and clad with bark, camouflaged paint, standard
paint, or partial bark and paint
. Customize your antenna mounts - Various T -arm mounts and other
mounts available-
. Meets or exceeds TINEIA-222 latest version wind load requirements
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.!:!!!!i, Laurence M
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From:
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Subject:
Hollibaugh, Mike P
Tuesday, February 11, 2003 5:17 PM ~
'jhester@indy.rr.com' ..l~ RF''C'I\/r-D
Lillig, La.urence M; Dobosiewicz, Jon C; Headlee, ~cott C Ffi\J13 ' ~~,~
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hi Judy, thanks for the note
i (we) will start working on getting examples of tower alternatives....however, i will not
be able to meet with you until friday, best case, tomorrow and thursday are already
overbooked...alos, i will be out most of monday, home with kids who are out of school, but
will be in later in afternoon, say around 4:00, or, i could meet first thing (8:00ish,
since they probably won't be out of bed until 10:00 or so)
what sounds good?
mike
-----Original Message-----
From: Judy Hester [mailto:jhester@indy.rr.com]
Sent: Tuesday, February 11, 2003 4:30 PM
To: Mike Hollibaugh
Cc: John Molitor; Doug Haney
Subject: Sprint
Importance: High
Mike:
I just finished my telephone conference with the Judge Baker (the one you
worked with), Bedsole and Elliott. Bedsole told the judge that Sprint
rejected the BZA's condition because it is so open ended. I made an
impassioned plea that we had all worked so hard and were 98% of the way to
resolution, despite all of our doubts at the outset of this journey. I also
volunteered that I was to blame for the open-endedness of the condition. It
was my language because we were trying to give the cell experts, Sprint, the
drivers seat, but if Sprint desired, we could give them options. The Judge
was helpful to us and pushed Sprint to give the options consideration. The
Judge added that the new options might be more expensive, but that the
outcome of the litigation was an unknown for all parties. I added that it
would be helpful for the BZA to understand why some options may work and why
some may not, but we were not asking Sprint to incur additional engineering
fees (They probably will, but I thought it was helpful to say it.)
We have 1 week (7 days) to go to Sprint with acceptable options. We need to
work out the logistics of doing this. I know that you can find the pictures
of possible options in your journals, which you were going to do anyway. Do
we then notice an executive session/special meeting to review the options?
1
What is your
suggestions.
~
suggestion? ~ copy of the email
Since Monday is President's Day,
John, we ~ed his
is that day out for meetings?
to
Please respond. Should we meet on Wednesday or Thursday? Thanks. Judy
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CITY eiF CARMEL, INDIANA
,
Request For Records Pursuant To Indiana Access To Public Records Act
(I:C;. 5-14-$-L,et sea., os amended)
Daniel P. King, attorney'
L for Sprint Spectrum, It.P.
[nome optional]
Indiana, the right to inspect and co~y the following records:
, I'
, hereby request of the City of c;ormef,
The audio recordings of the Boarr of Zoning Appeals for th~ City of r.~rmp', r.'~y
Township special meeting on Febrbary 10, 2003.
:
. :
Dated this ~lday of
February:
,
,2001-.
The City may provide me with its re~ponseto this request:
o By telephone at ,
o By facsimile transmission at !
o By mail at !
X Other Pick up when' copies of audio tapes are ready..
Re~eived by: 017 "i"'. ~ /eJ..,. at c:<,'~ S f2.. m. on ~ - /.;< . 200..3.-.
/J ~~i:,
,Signature: ( ~ !
Printed Name and City Departmen~: 'l]ni'e U l}3/e(
Sent to Legal Department for response oh: by
: 0 L-l 2 - 0 3 PO 2: 1 4
Received by Legai Department on:~2-1:l~bY ~
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Request For Records Pursuant To Indiana Access To Public Records Act
(I:C. 5-14-3-1, ~ seo., os amended)
, '.
Daniel P. King, Attorney for
Le', Sprint Spectrum L.P. -,
[nome optional}
Indiana, the right to inspect and co~y the following records:
. ~
, hereby request of the City of Garmef,
Audio recordings of the January ~7~ 2003, hearing of the Board of Zoning ADneals
for the City of.'Carmel and Clay Township.
:
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Dated this ~hday of January ~
, 2001....
The City may provide me with its re~ponse to this request:
o By felephone at :.
o By facsimile transmission ot '
o By moil at !
~ Other Provide at time of request.
Received by.
t /0 -';;(.5 d. m. on /-;2 9,2003 .
Signature:
.Printed Name and City Department: n n ; e:- (J P1j ( 1
Sent to Legal Department for respqnse on: 0 1- Jay. 05 A I I : U 5
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Received by Legol Department on~ ~
by
fP-
Exhibit A
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Queen's Manor Neighborhood Assoc.
11100 Queen's Way Circle
Carmel, IN 46032
317-848-2064 (H)
846-6222 (W) 846-6250 (Fax)
flanigan@in.net
February 10, 2003
Mr. Michael Mohr
Board of Zoning Appeals
City Building, One Civic Square
Carmel, IN 46032
Dear Mr. Mohr:
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We thank you for your diligent consideration of the Sprint/Zamber issue. We had the
impression that Sprint's federal court action and the discussed consent decree made the matter
mostly done. The tabling at the January 27 meeting says otherwise.
We are against any cell tower in or near the entrance to our neighborhood. Our reasons are:
. The amateur radio tower was there when most of us built our homes. Our homes are
significant investments with high property taxes. The amateur radio tower is a
neighbor's hobby, not a commercial activity. We accepted this with our home purchase.
. The amateur radio tower is temporary because it is unlikely that a purchaser of the home
will keep the tower. Because of Mr. Zamber's age and that he lives in a large home by
himself, we expect this is not long term.
. The proposed commercial use is not permitted in S-I/Residence; Mr. Zamber is
attempting to use his property as a business.
After the January 27 meeting, I called Michael Browning of Crooked Stick Golf Club. He
informed me they have contacted Mr. Hollibaugh with a plan for three cell providers, they have
several sites under consideration, and they would welcome Sprint as a customer.
I have reviewed your June 6 and 24, 2002, minutes. It seems this has evolved from a temporary
amateur radio hobby tower, to Sprint's request to hang an antenna on the amateur radio hobby
tower, to a large commercial cell tower for multiple users. We are fearful that any approval
facilitates other cell companies to locate in this S-1 area. The effect of approving even a
hanging antenna is to make what is a temporary tower into a permanent commercial structure.
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We respect the attempt to settle the issue with a consent decree, but the proposal is
disappointing because:
1. The proposed tower is 35 feet taller than necessary. Note that the proposed antenna on
the amateur radio tower attached at 100 feet.
2. No consideration was given to appearance. The pole tower is large and metallic in
appearance. Towers can be disguised like a tree, or a telephone pole similar to those
already on Ditch Road - see attached photo of Meridan Hills Country Club tower - not
visible spring through fall. The proposed tower cannot be disguised, as there are no
natural shields for such a large tower.
3. The proposal to resell antenna services is doubly insulting - first Zamber trying to
engage in a commercial use, and now a proposed resale to another carrier. Sprint should
not be able to offset its Zamber costs by reselling capacity. Surely, S-l zoning protects
this gross extension of commercialism.
In rough terms, the alternatives are:
. If the City wins the federal case, Sprint might continue seeking BZA approvals to
change the use of the existing tower or might use another site.
. If the City loses the federal case, Sprint could hang an antenna on the existing tower
and remove some of the wings as they have stated.
. If the consent decree is approved as proposed, we have a visually obvious permanent
commercial cell tower near our entrance.
We encourage trying to win the federal court case. If it is lost, we know you did what was
possible to keep this intrusion from our neighborhood. We realize that the estimated litigation
cost of$50,000 is expensive, but it is recovered from taxes over time. For perspective, please
note that it is about 2% of the Queen's Manor (only) estimated $2.5M of property taxes paid
over ten years. Lowering our property values, which we believe a commercial cell tower does,
will eventually lower taxes collected, also a cost to the city. Thank you for your consideration.
gards,
.FIJ~~
's Manor Neighborhood Association
cc: Mayor James Brainard
Ms. PatRice
Ms. Earlene Plavchak
Mr. Leo Dierckman
Mr. Charles Weinkauf
Ms. Judy Hester
Mr. Mike P. Hollibaugh
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CITY OF CARMEL
Department of Community Services
One Civic Square
Carmel, IN 4&l32
(317) 571-2417
Fax: (317) 571-2426
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Page 1 of 1
LiIIig, Laurence M
From: Hollibaugh, Mike P /~DJt'l) I
Sent: Friday, February 07,2003,2:17 PM "'0,
To: 'John Flanigan'/-' ~CI ~"<:"
Cc: Lillig, Laurence M; Tingl~y: corf[js flit/) ,
Subject: RE: zamberlsprint /)/1/1(1 <'tt.;J
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Mr. Flanigan:
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one thing i did not share with you today that 'yollshould 'know al:)
afternoon (feb. 10) in executive session to discuss the sprint settlement. normally our executive sessions are for
board members, legal counsel and staff. the meeting monday will also involve the attorneys for sprint and richard
deer, who will address the board. i spoke briefly yesterday with nancy irsay, inviting her to sit in as well. i wish to
extend that same invitation to you as representative of the queens manor homeowners...
if you are able to attend, the meeting will begin at 1 :00 pm in the caucus room, 2nd floor, carmel city hall.
hope you are able to attend
mike
-----Original Message-----
From: John Flanigan [mailto:f1anigan@in.net]
sent: Friday, February 07,2003 1:07 PM
To: Carmel - Mike Hollibaugh
Subject: zamberfsprint
Mike, thank you for the time today to discuss the ZamberlSprint. Your information was helpful. I will visit
with neighbors this weekend and advise you if we have more questions.
I check email every day in case you have other info that might help. And voicemail too.
\\ 2/7/2003
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Molitor" Grisham & Hester" P.A.
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Attorneys Not In Partnership
DATE:
JANUARY 21, 2002
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Judy G. Hester
Licensed in Indiana and Illinois
TO:
BZA MEMBERS
FROM:
JUDY HESTER
JOHN MOLITOR
RE:
PROPOSAL FOR SETTLEMENT OF SPRINT LAWSUIT
Attached is the summary of the legal report on the Sprint lawsuit and the proposed
settlement, as well as the supporting documentation for the settlement. The proposal is on
the January 27, 2003 agenda, with an executive session scheduled at 6:00 p.m. The Board
will be able to ask questions of the Sprint representatives and take public input at the
meeting. It will need to vote at the conclusion of its public deliberations on whether or not to
execute the Consent Judgment that terminates the litigation.
The options and their likely consequences are as follows:
I) Settle the matter through the proposal.
The HAM Radio Tower would be removed and the low-profile, monopole tower with flush
mount antennas would be constructed on the west side of the home with landscaping to
camouflage the tower and equipment shelter.
2) Proceed to trial.
a) The City is successful at trial.
The HAM Radio Tower would remain, and if Sprint desires to proceed with using
the structure as a cell tower, it would need to apply for a use variance and special
exception for the BZA to determine if Sprint could convert the tower from a
HAM Radio tower to a cell tower. Sprint could also appeal the federal court's
decision. The HAM Radio Tower would remain on the property as long as
someone at the property maintains a HAM Radio license.
b) Sprint is successful at trial.
The HAM Radio Tower would remain in its current location and Sprint would be
allowed to convert it into a cell tower. The antennas that would be attached to the
current HAM Radio tower are not flush mount. The City or the Intervenor could
appeal the federal court's decision.
We look forward to talking with you on January 2ih. You may contact us with any
questions in the interim at 843-5511.
cc:
Mayor Brainard
Doug Haney
Mike Hollibaugh
9465 Counselors Row, Suite 200 . Indianapolis, IN 46240
(317) 843-5511 . Fax (317) 846-2621
hester4586@ao1.com
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IN THE BOARD OF ZONING APPEALS S/ ~ 4>tCf:
CITY OF CARMEL, CLAY TOWNSIDP, INDIANA -:1 ?lj <,/yt/)
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LEGAL REPORT:
PROPOSAL TO RESOLVE PENDING LITIGATION
Litilfation Backlfround and Overview of Proposal to Resolve the Litilfation:
On July 23, 2002, Sprint Spectrum LP ("Sprint") filed a lawsuit in the United States
District Court for the Southern District of Indiana against the Board of Zoning Appeals ("BZA"),
the Director, and the City of Carmel, Case No. IP 02-1133 C TIK ("Sprint Lawsuit"). Sprint
asked the federal court to affirm its right under Section 5.1 of the Zoning Ordinance to co-locate
its personal communications service ("PCS") antenna on the existing one hundred thirty-five
(135) foot tall HAM Radio tower located on residential property owned by Dr. Zamber (the
"Zamber Tower") at 1388 Queens Way, Carmel, Indiana ("Zamber Site") as it now stands and
complete the equipment shelter at its current location on the east side of the Zamber Site and in
accordance with the plans Sprint previously submitted to the BZA. The adjacent landowner to
the east, Richard Deer, intervened in the Sprint Lawsuit. In order to resolve the Sprint Lawsuit,
Sprint and its attorneys, the Director and the attorneys for all of the City Defendants, Mr. Deer
and his attorneys, have negotiated and drafted a settlement proposal in a document called the
Consent Judgment.
The Proposal is now presented to the BZA to determine if its members agree to the terms
of the proposed settlement and will execute the Consent Judgment. The Proposal includes the
removal of the Zamber Tower on the east side of the Zamber Site, to be replaced on the west side
of the Zamber Site by construction of a new low-profile monopole-style, antenna support
structure, without guyed wires or antenna arms (the "Replacement Tower") and the construction
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of an equipment shelter in the same style and appearance of the existing pool house and
residence. The Replacement Tower, equipment shelter, service drive, and landscaping are
collectively referred to as the "Replacement Facility." The objective in locating the Replacement
Facility on the west side of the Zamber Site is to place it in a much less conspicuous area for the
surrounding homeowners.
The terms of this proposed resolution have been memorialized in a Consent Judgment,
which is attached hereto as Exhibit 1 together with the following attachments:
1) legal description of the Zamber Site (See Exhibit A to Exhibit 1),
2) an Application for Improvement Location Permit with accompanying plans and
drawings for the Replacement Facility (See Exhibit B to Exhibit 1)
("Application"), and
3) a Memorandum of Consent Judgment to be executed by Dr. Zamber and recorded
in the Hamilton County Recorder's Office so as to bind all future owners to the
terms of the Proposal (See Exhibit C to Exhibit 1) ("Memorandum").
The purpose of holding a public hearing on the Proposal is to provide an opportunity for
public input and allow the BZA to decide in a public meeting whether to agree to settle the
pending Sprint Lawsuit by entering into the Consent Judgment. If the BZA executes the Consent
Judgment, the litigation will be terminated and the dispute surrounding the existing Zamber
Tower will be resolved.
Factual BackJ!round:
The Zamber Site is zoned as a S-l Residential District. Sprint entered into a lease with
Dr. Zamber on May 14, 2001which gives Sprint unlimited access to the entire Zamber Site
twenty-four (24) hours a day, seven (7) days a week for the purpose of locating or co-locating a
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cell tower on the Zamber Site. The original Building Permit, No. 627.01b, was issued by the
Director on June 15,2001 for the collocation by Sprint of an antenna on the Zamber Tower. The
Zamber Tower was erected in 1987 on the east side of the Zamber Site and is a legal non-
conforming use in the 8-1 Residential District. The Zamber Tower has three lateral antennas that
extend approximately twenty-two (22) feet from either side of the Zamber Tower. The Zamber
Tower is also supported by several guyed wires, which extend from the Zamber Tower to the
ground.
The Director revoked the Building Permit on August 23, 2001. Deer had previously
appealed the issuance of the Building Permit and Sprint subsequently appealed the revocation of
the Permit. Sprint initiated the litigation on July 23, 2002 and the parties engaged in negotiations
to resolve the dispute.
Details of the Proposal:
The Zamber Tower is a legal non-conforming use in the S-l Residential District. Section
25.13.4 of the Zoning Ordinance, entitled "Non-Conforming Use," authorizes the "owner of a
tower or antenna to construct a new tower or antenna on the same premises at a height not to
exceed the existing tower or antenna if the use of premises is not substantially altered and the
existing tower or antenna is removed immediately upon completion of the new tower or
antenna. "
In accordance with Section 25.13.4, and after completion of the Replacement Facility on
the Zamber Site, Sprint is willing to remove the Zamber Tower from its current location on the
same premises. First, Sprint would construct the Replacement Facility on the west side of the
Zamber Site, including a new low-profile monopole-style, antenna support structure without
guyed wires and antenna arms (the "Pole"), an equipment shelter, a paved service drive, and
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landscaping, as more specifically set forth in the Application. After Sprint receives a Certificate
of Occupancy for the Replacement Facility, it will have thirty (30) days to remove all
components of the Zamber Tower, including the tower itself, the guyed wires and anchors, the
partially constructed building (equipment shelter), and the current access drive, all of which are
centrally located on the east side of theZamber Site and in the direct view of Mr. Deer's
property.
The Replacement Tower will have a maximum height of one hundred twenty-seven (127)
feet above ground level (as measured from the top of the Pole), with lightning protection rod(s)
extending up to eight (8) feet above the top of the Pole, with a Pole diameter at the base not to
exceed four (4) feet and a diameter at the top not to exceed two (2) feet, in a galvanized gray
color, and all telecommunications antenna attached to the Pole (not to the lightning rod) shall be
restricted to no more than two (2) sets of "flush mounted" antenna as that term is more
particularly defined and described in the Application, including all attachments (see Exhibit A to
Exhibit 1), to be utilized by not more than two (2) communication companies for
communications purposes and which also may be used by Zamber for HAM radio purposes, all
in conformity with the Application.
Access to the Replacement Facility from the public street will be from the preexisting,
exclusive private driveway on the Zamber Site, which is located approximately one hundred
(100) feet east of Ditch Road on Queens Way, and approximately four hundred (400) feet from
the Deer property to the East. There are currently no curbs or sidewalks in the area surrounding
the Zamber Site. No additional curb cuts or road improvements are suggested in order to
maintain the residential character of the property and surrounding neighborhood. Access to the
Replacement Facility from the preexisting, exclusive driveway will be provided by a paved
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service as required by the Zoning Ordinance, which will be approximately twelve (12) feet by
one hundred twenty (120) feet, with one (1) additional parking space that will also serve as a
turnaround.
Included in the plans attached to the Application are landscaping details requiring Sprint
to partially camouflage the Replacement Facility. Sprint will screen the pole with seven (7)
mature Norway Spruces that are at least ten (10) feet in height and 3 Sugar Maples. Also
camouflaging the Replacement Facility will be the six (6) existing fully-grown trees.
Lel!al Analysis Rel!ardinl! Compliance with Zoninl! Ordinance:
Under Section 25.13.4, the Zamber Tower has been grandfathered as a legal non-
conforming use. As such, the Zoning Ordinance allows for the construction of a new tower on
the same premises "at a height not to exceed the existing tower or antenna if the use of premises
is not substantially altered and the existing tower or antenna is removed immediately upon
completion of the new tower or antenna." In compliance with the first requirement of Section
25.13.4, the overall height of the Replacement Tower will not exceed the height of the Zamber
Tower. Second, the Zamber Tower will be removed immediately upon completion of the
Replacement Facility, which has been specified in the Consent Judgment as within thirty (30)
days of issuance of a Certificate of Occupancy.
The final detern1ination is whether the use of the premises is not substantially altered.
The BZA may find in various ways. It may find the use has substantially altered, which would
mean the Consent Judgment should not be executed and the litigation will continue. It may find
the use has altered, but not substantially, or that the user has changed, but not the use. Both of
these findings mean the Consent Judgment should be executed. Finally, the BZA may decide
that it is should enter the Consent Judgment because a special use would be appropriate.
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Although a special use permit is not required here where the BZA is evaluating whether
to execute the Consent Judgment in order to resolve litigation, and there is no application
pending for a special use, the relevant factors listed under Section 21.3 of the Zoning Ordinance
for proposed special uses indicate that a special use would proper. Specifically,
a.
Zoning on Site. The Zamber Site, including the Zamber Tower, is located
in the S-l Residential District;
Surrounding zoning and land use. The Zamber Site is surrounded by
similar large lot properties in the same S-l Residential District;
Streets, curbs and gutters and sidewalks. There are currently no curbs or
sidewalks in the area surrounding the Zamber Site. No additional curb
cuts or road improvements are recommended in order to maintain the
resid'ential character of the property and surrounding neighborhood;
Access to public streets, Driveway and curb cut locations in relations to
other sites, Parking location and arrangement, Internal site circulation and
Alleys, service areas, and loading bays. Access to the Replacement
Facility from the preexisting, exclusive driveway will be provided by a
paved service as required by the Zoning Ordinance, which will be
approximately twelve (12) feet by one hundred twenty (120) feet, with one
(1) additional parking space that will also serve as a turnaround;
General vehicular and pedestrian traffic. The Replacement Facility would
be serviced on the average one time a month;
Trash and material storage. An equipment shelter is needed to house the
equipment related to the cell tower. In order to maintain the residential
character of the Zamber Site, the shelter will be constructed of brick to
match the color, style, and architecture of the home and existing pool
house on the Zamber Site and made to house the requisite equipment for
two (2) communications companies for communications purposes;
Special and general easements for public or private use. Sprint entered into
a lease with Dr. Zamber dated May 14, 2001 that gives Sprint unlimited
access to the entire Zamber Site 24 hours a day, 7 days a week with the
purpose oflocating or co-locating a cell tower on the Zamber Site;
Landscaping and tree masses and Necessary screening and buffering.
Sprint will screen the Replacement Tower with six (6) mature Norway
Spruces that are at least ten (10) feet in height and 3 Sugar Maples and
will camouflage the Replacement Facility with six (6) existing fully grown
trees;
Necessary fencing, Necessary exterior lighting, and Proposed signage.
There will be no signage, no additional lighting, and no required fencing;
Protective restrictions and/or covenants. Dr. Zamber shall execute a
document titled "Memorandum of Consent Judgment," confirming his
agreement to allow certain rest.ri.ctions to be imposed against tlle Zamber
b.
c.
d.
e.
f.
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h.
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Site that will limit and restrict the development and use of the Zamber Site
such that the Zamber Site and the Zamber Tower shall be used consistent
with . the terms stated in the Consent Judgment, and that no use or
development shall be permitted on the Zamber Site that would otherwise
constitute a Material Change as the term is described above and in Section
3 of the Zoning Ordinance ("Restrictions"). Dr. Zamber agrees that the
Restrictions shall run with the land and be binding on Dr. Zarnber and the
respective heirs, successors and assigns of Dr. Zamber and each other
person acquiring an interest in the Zarnber Site. Upon execution of the
Memorandum, the Memorandum shall be recorded in the Hamilton
County Recorder's Office;
Building height and bulk. The Replacement Tower will have a maximum
height of one hundred twenty-seven (127) feet above ground level (as
measured from the top of the Pole), with lightning protection rod(s)
extending up to eight (8) feet above the top of the Pole, with a Pole
diameter at the base not to exceed four (4) feet and a diameter at the top
not to exceed two (2) feet, in a galvanized gray color, and all
telecommunications antenna attached to the Pole (not to the lightning rod)
shall be restricted to no more than two (2) sets of "flush mounted" antenna
as that term is more particularly defined and described in the Application,
to be utilized by not more than two (2) communication companies for
communications purposes and which also may be used by Zamber for
HAM radio purposes, all in conformity with the Application. The brick
equipment shelter is more particularly described in the Application;
Setbacks. Section 25.13.1 of the Zoning Ordinance requires a setback of
two hundred twenty-seven (227) feet, which would place the Replacement
Facility directly inside the swimming pool on the Zamber Site. Although
a variance is not required for the Board to enter into the Consent Judgment
and no variance has been applied for, the facts meet the variance standards
under Section 30.4 of the Zoning Ordinance. Specifically:
1) The Replacement Facility will not be injurious to the public health,
safety, or the general welfare of the community in that the Replacement
Facility will be located in an isolated corner of the Zamber Site, as
contrasted to the central location of the existing Zamber Tower that is
plainly in the view of adjacent property owners and their guests, and
within a group of fully grown existing and additional trees. The proposed
Replacement Facility will still be constructed in line with the Carmel Clay
Twenty- Year Thoroughfare Plan. The Thoroughfare Plan contemplates a
forty (40) foot right-of-way on the Zamber Site along the entire Ditch
Road frontage. Although there is not currently a forty (40) foot right-of-
way, Sprint and Dr. Zamber agree to locate the Replacement Facility
outside the contemplated right-of-way and more than forty (40) feet
from Ditch Road;
2) The use and value of the area adjacent to the Zamber Site will not
be affected in a substantially adverse manner by the reduced setbacks.
The placement of the low-profile Replacement Facility with reduced
k.
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setbacks allows the Zamber Tower, which includes large anns and guyed
wires centrally located on the Zamber Site and in the direct view of the
Deer property, to be completely removed. The location of the new low
profile Replacement Tower will be located closer to Ditch Road than to
the adjacent properties and in the corner of an isolated area. This new
location should improve the use, value and character of the adjacent
properties; and
3) The strict application of the Zoning Ordinance and the 227 foot
setback would result in practical difficulties in the use of the property
because the Replacement Facility would be located in the swimming pool.
Conclusion:
The Proposal seeks to balance the interests of the surrounding property owners in the
Carmel/Clay community, the City, and cellular service providers. The Consent Decree is the
vehicle by which the current HAM Radio Tower can be removed, which has been described as
an eyesore for the neighbors, and a low-profile antennae can be erected in a less conspicuous
area on the same premises that will still serve the cellular service provider, all in compliance
with the Zoning Ordinance. The BZA's consent to the terms of the Proposal is necessary for the
litigation to be resolved in the manner described in the Consent Judgment and for the HAM
Radio Tower to be removed. The BZA now has have the opportunity to deliberate publicly on
the matter, to ask questions of the Sprint representatives that will be available at the public
meeting, and to take public input on the issues. After this process, the BZA must then determine
whether or not to agree to the Proposal and execute the Consent Judgment.
DAT.
8
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01/17/03 FRr 14:34 FAX 3172373900
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NOTICE OF PUBUC SEAJUNG BEFORE THE
C.ARMELlCLAY BOARD OF ZONING APPEALS
Docket No. A-Ill-ot
Notice is hereby given that the Carmel/Clay Board of Zoning Appeals meeting ou the 27th day of January, 2003 at
7:00 pm in the City Council Cham:ber. 2nd floor of City Hall, One (1) Civic Square,'tcannel, Indiana 46032 will hold a Public
Hearing upon a proposed resolution of a lawsuit involving an APJ:Ieal of a detisiou rendered by the Director of the Department of
Community Services to revoke an improvement location permit for the co-ioeatioD of.a Personal Communication Se.rvice antexu1a
on a HAM radio tower md constnlction. of an ac~essory building and access drive on the property being known as 1388 Queens
Way. Carmel, Indiana. The application is Identified as Docket No. A.Ill-ol and may be examined at the Board of Zoning
Appeals' office located at the Department of Community Serv~ces, Division of Plannin8 &; Zoning, Carmel City Hall, 3nl Floor.
CamleI.lN 46032. .
The real estate affected. by said application is described as follows:
(See Attached Exhibit A) .
AU interested persons desiring to present their Views on the above appRcation, either in writing or vernally, will be glv~ an
o~ to be heard at the abovc-mentioued time and p~. Written comments may be sent to Caune1lClay Board of ZODiag
Appeals, Cannel City Hall, One Civic Square. Carmel. nJ 46032.
ester
OR, SHAM & HESTER, P.A.
9 Counselors Row. Suite 200
Indianapolis, IN 46240 .
592132.1
01117/03 FRI...1~: 35 FAX 3172373900
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EXHIBIT A
Legal Description
A PART OF THE NORTl;iWEST QUARTER OF SECTION 3, TOWNSHIP 17l'10RTH OF
RANGE 3 EAST IN HAMIL TON COUNTY, INDIANA, BEING MORE P ARTICULARL Y
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WEST LINE OF SAID QUARTER SECTION WHICH
BEARS NORTH 00 DEGREES 09 MINUTES 5S SECTIONS EAST (ASSUMED BEARING)
470.0'0 FEET FROM THE SOUTHWEST CORNER OF SAID QUARTER "SECTION,
THENCE NORlH 00 D:EGREES 90 !\1INUTES 35 SECONnS 'EAST UPON AND ALONG
SAID WEST LINE 509.93 FEET TO A POINT wHICH BEARS soum 00 DEGREES 09
MINUTES 55 SECONDS WEST 1605 FEET FROM THE NORTHWEST QUARTER OF
SAID QUARlER SECTION, THENCE SOU'IH 89 DEGREES 50 MINUTE~ 05 SECONDS
EAST 520.38 FEET. nmNCE soum 00 DEGREES 09 MINUTES 55 SECONDS "WEsT
509.93 FEET, THENCE NORTH 89 DEGREES SO MINUTES 05 SECONDS WEST 520.38
FEET TO THE PLACB OF BEGINNING, CONTAINING 6.09 ACRES, MORE OR LESS
(5.57 ACRES NET OF RIOH! OF WAY)
"
F NOTICE OF PUBLIC HE.( ~\,NG
AY BOARD OF ZONING APMLS
I (WE)
DO HEREBY CERTIFY THAT A LEGAL NOTICE OF
rtment of Community Servi es)
G BEFORE THE CARMEL/CLAY BOARD OF ZO
S CONSIDERING THE PROPOSED
RESOLUTION OF LITIGATION CONCERNING DOCKET
CASE NO. IP 02-1133 C T/K" WAS
GIVEN AT LEAST TWENTY -FIVE (25) DAYS PRIOR TO THE DATE OF THE PUBLIC HEARING TO THE BELOW LIST
OF ADJOINING AND ABUTTING PROPERTY OWNERS:
OWNER
ADDRESS
Todd M. & Sevra M. Goldstein
1395 Queens Way
Carmel, IN 46032
1303 116th Street West
Carmel, IN 46032
1332 Queens Way Circle
Carmel, IN 46032
11030 Queens Way Circle
Carmel, IN 46032
11284 Crooked Stick Lane
Carmel, IN 46032
11271 Crooked Stick Lane
Carmel, IN 46032
11178 Ditch Road
Carmel, IN 46032
Nancy Irsay
Richard A. & Donna L. Deer
George & Merritt Grkinich
Michael L. & Diana L. Powell
Richard P. & Karen S. Roethke
Brent K. Jr. & Sally 1. Tracy
STATE OF INDIANA
SS:
The undersigned, swear that the above info
belief.
County of f-I-cY-l?7ll..f--v /,
(County in which notarization takes place)
for -1/4 m / 116 VI
(Notary Public's county of residence)
AlII chae/ !l. J/ 6/ (,Ixu/~h
(Property Owner, Attorney, or Power of Atto y)
/7# day of ..Januay ,2003
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My commission expires: 7 / ;<,5& '/4b'~ - ~./-- '-:;
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'. Before me the undersigned, a Notary Public
County, State ofIndiana, personally appeared
and acknowledge the execution of the foregoing instrument this
(SEAL)
592983_1
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CITY OF ,CARMEL '
, Department of Community"Services ,
. .
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One Civic Square
Carmel, IN 46032
(317) 571-2417
Fax: (317) 571-2426
Frum, M ( k e 1-1-- 0 ) II b 6L U 5 k
Pages: dZ / n c / C D l/ e_ f-
Date: I( (7/ 0 3
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Fax: ,^31 -- .3 C; 60
Phone:
Re:
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John R. Molitor DOhnrmOIitOr@prO,9i;~~'~tj:_1 _L:'-l(;~~~. :
T.h~rsday, September ~7, 2001 ~~';f8 PM 1. '\>
LI"I~, ~aurence M; Hollibaugh, ~I~e P ~tC[j1lJ '\~\ \
RE. Q Serve Appeal I'-'-::j 1i1J;) 20 cO r::...l -l \ \....0
\-=\ /1 lO(Jl ': -^, I A
Oh d' d t 1 . th t th t' \6)\t OC~ th "f-;.
my. I 1 no rea lze a ey are rYlng/'o appea~ e ~C~Slon.
Would you please fax to me a copy of their "a'pp~al" docume3-t4~'
I'll call you this afternoon to discuss this. ~ ~~
John Molitor ~
(317) 843-5511
Fax (317) 843-5514
From:
Sent:
To:
Subject:
-----Original Message-----
From: Lillig, Laurence M [mailto:LLillig@ci.carmel.in.usJ
Sent: September 27, 2001 9:49 AM
To: Hollibaugh, Mike Pi John R. Molitor (E-mail)
Subject: Q-Serve Appeal
John & Mike,
We need to make a decision regarding the Q-Serve appeal on the Zamber
subdivision determination. Day 30 was Saturday, September 22, nad the
Appeal was filed Monday, September 24. The language regarding filing an
appeal states that it "...shall be filed with the Director within thirty
(30) days of the action to be appealed." [Section 30.1J A strict
interpretation of Sec.30.1 would be that "...within thirty (30) days..."
means "30 days or earlier," rather than "thirty+ if Day 30 happens to fall
on a weekend."
We need to get back to them soon with either a Docket No. or a refusal of
the petition.
Laurence M. Lillig, Jr.
Planning & Zoning Administrator
Department of Community Services
City of Carmel
One Civic Square
Carmel, IN 46032
Phone: 317.571.2417
Fax: 317.571.2426
llillig@ci.carmel.in.us
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CITY OF
CARMEL
DEPARTMENT OF COMMUNITY SERVICES
Division of Planning & Zoning
LET T E R of G RAN T
\\ 2,~3: J' 1 2002
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Jay Lemmon .. -l I 23 2002 \=
Qserve Commumcations \0i\ JUL L,
451.5 Sou~ High School R~~ OOCS l~
IndIanapolIs, IN 46241 \~~ /;:--'
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Re: Sprint Spectrum Antenna Appeal (A-iii-Oi)
Via U.S. Mail
Dear Mr. Lemmon,
At the meeting held Monday, July 22, 2002, the Carmel/Clay Board of Zoning Appeals took
the following action regarding the Appeal filed by you regarding the Sprint Spectrum Antenna
located on the Edwin C. Zamberproperty at 1388 Queen's Way:
DENIED: Docket No. A-HI-OI, an Appeal of the decision of the Director regarding the
revocation of Improvement Location Permit No. 627.01b for a wireless telecommunications
antenna on an existing private radio tower. The Board voted zero (0) in favor, five (5) opposed,
thereby upholding the decision of the Director.
If! can be of any further assistance, please do not hesitate to contact me at 317/571-2417.
Sincerely,. .... /7
/cf~tI!:! r'
4 ( aure ce M. Lillig, Jr.
PI 'ng & Zoning Administrator
Department of Community Services
ONE CIVIC SQUARE
CARMEL, INDIANA 46032
317/571-2417
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Page 2
Docket No. A-11l-01
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Cc: Connie Tingley, BZA Secretary
Michael P. Hollibaugh, Director, DOCS
Jeff Kendall, Building Commissioner, DOCS
John R. Molitor, BZA Attorney, Department of Law
Sprint Spectrum LP, 9801 W. Higgins Rd., Suite 220, Rosemont, IL 60018
Thomas F. Bedsole, Locke Reynolds LLP, 201 N. Illinois St., Suite 1000, P.O. Box 44961, Indianapolis, IN
46244
Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLC, 333 W. Wacker Dr., Suite 2700, Chicago, IL
60606
Edwin C. Zamber, 1388 Queen's Way, Carmel, IN 46032
\ ~ ~,
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ONE CIVIC SQUARE
CARMEL, INDIANA 46032
317/571-2417
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City of Carmel
Department of Community Services
One Civic Square
Carmel, IN 46032
317-571-2417
Fax: 317-471-2426
FACSIMILE TELECOPY COVER LETTER
DATE: July 18, 2002
TO: Tom Bedsole
FAX: 237-3900
FROM: Connie
Attached hereto are 6 pages, including this cover letter, for facsimile transmission.
Should you experience any problem in the receipt of these pages, please call 317/571/2419
and ask for Connie.
NOTES:
Attached are copies of the Agenda & Department Report for the July 22, 2002 BZA
meeting.
Please call if you have any questions.
CONFIDENTIALITY NOTICE: The materials enclosed with this facsimile transmission are private and confidential
and are the property of the sender. The information contained in the material is privileged and is intended only for
the use of the individual(s) or entity(ies) named above. If you are not the intended recipient, be advised that any
unauthorized disclosure, copying, distribution or the taking of any action in reliance on the contents of this telecopied
information is strictly prohibited. If you have received this facsimile transmission in error, please immediately notify
us by telephone to arrange for retum of the forwarded documents to us.
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~, Laurence M
From:
Sent:
To:
Subject:
We entered the permit into the review system on 6/7/01. It was released and issued on 6/15/01.
Was the movie any good????
Sarah
-----Original Message-----
From: Lillig, Laurence M
Sent: Friday, May 17, 2002 1:28 PM
To: Lillard, Sarah N
Subject: Permit No. 627.018
Sarah,
Could you please tell me the date that Permit No. 627.018 was originally issued? It was for the Sprint collocate at
1388 Queen's Way.
Thanks,
Laurence M. Lillig, Jr.
Planning & Zoning Administrator
Division of Planning & Zoning
Department of Community Services
City of Carmel
One Civic Square
Carmel, IN 46032
317/571-2417
fax: 317/571-2426
llillig@ci.carmeLin.us
1
.!:!!!!i. Laurence M
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From:
Sent:
To:
Cc:
Subject:
Lillig, Laurence M
Wednesday, January 02,2002 10:47 AM
John R. Molitor (E-mail)
Hollibaugh, Mike P; Hancock, Ramona B; Haney, Douglas C
Sprint Spectrum WTF (A-111-01)
John,
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We received copies of a pro hac vice petition filed with the Hamilton County Court Clerk by Thomas F. Bedsole of Locke
Reynolds on behalf of Rick Nikchevich, W. Scott Porterfield, and Steven J. Yatvin of Barack Ferrazzano Kirschbaum
Perlman & Nagelberg, a Chicago Law Firm. I have forwarded a copy to Doug Haney in the Department of Law, and Sue
Ellen is mailing a copy of the documents to your office. I have also made a copy for the file (Docket No. A-111-01), and
the originals will be left with Ramona.
Laurence M. Lillig, Jr.
Planning & Zoning Administrator
Department of Community Services
City of Carmel
One Civic Square
Carmel, IN 46032
Phone: 317.571.2417
Fax: 317.571.2426
llillig@ci.carmel.in.us
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Counsellors at Law
/-;-0 i 11-'-';;:;>' Locke Reynolds LLP
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LOCKE REYNOLDS
Thomas F. Bedsole
Indianapolis Office
317-237-3842
tbedsole@locke.com
December 28, 2001
CERTIFIED MAIL - RETURN RECEIPT
Hamilton County Court Clerk
Government and Judicial Center
One Hamilton County Square, # 106
Noblesville, IN 46060
Re: Sprint Spectrum L.P. v. Board of Zoning Appeals for the City of Carmel
and Clay Township
Our File: 7967/7
Cause No. 29COI-0112-CP-1202
Dear Clerk:
Enclosed for filing are petitioner's verified petitions for admission to practice, motion to
appear pro hac vice and proposed order. Please see that these are filed with the Court and return
a file-stamped copy in the enclosed addressed and stamped envelope.
Please note that these pleadings are being filed by certified mail, return receipt requested,
pursuant to Indiana Trial Rule 5(E)(3) and as such, the file stamp should indicate the date of
mailing as the time of filing.
Thank you for your assistance.
Very truly yours,
LOCKE REYNOLDS LLP
~7&M~
Thomas F. Bedsole
TFB/krn
Enclosures
488151_1
www.locke.com
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HAMIL TON COUNTY CIRCUIT/SUPERIOR COURT
) CAUSE NO. 29COI-0112-CP-1202
)
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SPRINT SPECTRUM, L.P "
Plaintiff,
v.
CARMEL/CLAY BOARD OF ZONING
APPEALS,
Defendant.
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MOTION FOR LEAVE TO APPEAR PRO HAC VICE
Thomas F. Bedsole of the law firm of Locke Reynolds LLP moves the Court to grant
leave for Rick Nikchevich, W. Scott Porterfield and Steven J. Yatvin of the law firm of-Barack
Ferrazzano Kirschbaum Perlman & Nagelberg to appear pro hac vice in this matter on behalf of
Sprint Spectrum, L.P, In support of this Motion, the undersigned shows the Court:
I, Attached hereto as Exhibit A are the Verified Petitions of Rick Nikchevich, W. Scott
Porterfield and Steven J, Yatvin submitted pursuant to Rule 3 of the Indiana Rules for Admission
to the Bar and the Discipline of Attorneys demonstrating compliance with the conditions set
forth in Rule 3.
2. The undersigned counsel is a member of the bar of the State of Indiana, and has
previously entered his Appearance in this matter and agreed to act as co-counsel with Rick
Nikchevich, W. Scott Porterfield and Steven J. Yatvin.
o
o
WHEREFORE, Thomas F. Bedsole of the law firm of Locke Reynolds LLP moves the
Court to grant Rick Nikchevich, W. Scott Porterfield and Steven J. Yatvin leave to appear pro
hac vice in this matter, and for all other relief just and proper in the premises.
LOCKE REYNOLDS LLP
By:
~:r~mv
Thomas F. Bedsole, #15980-49
Attorneys for Plaintiff
LOCKE REYNOLDS LLP
201 N. Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
(317) 237-3800
542707_1
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
upon the parties listed below by first-class United States mail, postage prepaid, this 28th day of
December, 2001.
Ramona Hancock
Secretary, The Carmel/Clay Board of Zoning Appeals
Department of Community Services
One Civic Square
Carmel, IN 46032
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Thomas F. Bedsole
542707_1
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HAMILTON COUNTY CIRUCIT COURT
SPRINT SPECTRUM L.P.,
Petitioner,
v.
CARMEL/CLAY BOARD OF ZONING
APPEALS,
Respondent.
) CAUSE NO.
)
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VERIFIED PETITION FOR ADMISSION TO PRACTICE UNDER
RULE 3. SECTION 2 (A)(3) OF THE INDIANA RULES FOR
ADMISSION TO THE BAR
Richard S. Nikchevich applicant herein, respectfully represents the following:
1. My residential address is:
3917 Grove Avenue
Western Springs, IL 60558
I am a member of the firm of Barack Ferrazzano Kirschbaum Perlman & Nagelberg. The
firm's address, which is also my business address, is:
333 West Wacker Drive, Suite 2700
Chicago, IL 60606
Telephone: 312-629-7344
Fax: 312-984-3220
2. I am licensed to practice law in:
Illinois:
Registration No.: 237656
Year of Admission: 1987
3. I am currently a member in good standing ofthe Illinois bar.
4. I have never been suspended, disbarred, nor have I resigned as a result of a
disciplinary charge, investigation, or proceeding from the practice of law in any jurisdiction.
5. No disciplinary proceeding is presently pending against me in any jurisdiction.
108459_1 ,DOC
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6. I have not appeared in any cases in the state or federal courts located in the State
of Indiana in the last five years. Other attorneys from my firm have appeared in the following
matters:
ATTORNEY
CASE NAME AND NUMrnER
COURT
Wendi Sloane
David E. Gordon
Premier Graphics, Inc. v.
First Industrial Indianapolis, L.P.
49 D 129909 CP 001385
Marion County
Superior Court
7. Good cause exists for my appearance in this case. I have represented petitioner
Sprint Spectrum L.P. and its predecessor and successor firms on a regular basis since 1998. I
concentrate my practice in telecommunications and real estate, including the complex issues that
this case appears to involve.
8. I have read and will be bound by the Rules of Professional Conduct adopted by
the Indiana Supreme Court and I consent to the jurisdiction ofthe State ofIndiana, the Indiana
Supreme Court, and the Indiana Supreme Court Disciplinary Commission to Resolve any
disciplinary matter that might arise as a result of the representation.
9. I will file a Notice of Pro Hac Vice Admission with the clerk of the Indiana
Supreme Court in compliance with Admission and Discipline Rule 3, Section 2(b) within thirty
(30) days after the Court grants permission to appear in the proceeding.
Sworn to before me this
'lith day of J1'ihnber , 20~.
--d~ <0- fryoU/VL..-
Notary Public
OFFICIAL SEAL
THERESA J. BROWN
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 4-2-2005
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HAMILTON COUNTY CIRUCIT COURT
Respondent.
) CAUSE NO.
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SPRINT SPECTRUM LP,
Petitioner,
v.
CARMEL/CLAY BOARD OF ZONING
APPEALS,
VERIFIED PETITION FOR ADMISSION TO PRACTICE UNDER
RULE 3. SECTION 2 (A)(3) OF THE INDIANA RULES FOR
ADMISSION TO THE .BAR
Steven J. Yatvin, applicant herein, respectfully represents the following:
1. My residential address is:
161 West Harrison Street, # 902
Chicago, Illinois 60605
Telephone: 312-786-9118
I am a member of the firm of Barack Ferrazzano Kirschbaum Perlman & Nagelberg. The
firm's address, which is also my business address, is:
333 West Wacker Drive, Suite 2700
Chicago, IL 60606
Telephone: 312-984-5192
Fax: 312-984-3220
2. I am licensed to practice law in:
Illinois:
Registration No. 6270856
Year of Admission: 1999
3. I am currently a member in good standing of the Illinois bar.
4. I have never been suspended, disbarred, nor have I resigned as a result of a
disciplinary charge, investigation, or proceeding from the practice of law in any jurisdiction.
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5. No disciplinary proceeding is presently pending against me in any jurisdiction.
6. I have not appeared in any cases in the state or federal courts located in the State
of Indiana in the last five years. Other attorneys from my firm have appeared in the following
matters:
ATTORNEY
CASE NAME AND NUMBER
COURT
Wendi Sloane
David E. Gordon
Premier Graphics, Inc. v.
First Industrial Indianapolis, L.P.
49 D 129909 CP 001385
Marion County
Superior Court
7. Good cause exists for my appearance in this cas~-.- -My firm has represented
petitioner Sprint Spectrum, LLP and its predecessor and successor firms on a regular basis since
February 1998. I have personally represented petitioner in other litigation matters in
Minneapolis, Minnesota and St. Louis, Missouri. I concentrate my practice in Commercial
Litigation including the complex issues which this case appears to involve.
8. I have read and will be bound by the Rules of Professional Conduct adopted by
the Indiana Supreme Court and I consent to the jurisdiction of the State ofIndiana, the Indiana
Supreme Court, and the Indiana Supreme Court Disciplinary Commission to Resolve any
disciplinary matter that might arise as a result of the representation.
9. I will file a Notice of Pro Hac Vice Admission with the clerk of the Indiana
Supreme Court in compliance with Admission and Discipline Rule 3, Section 2(b) within thirty
(30) days after the Court grants permission to appear i
.&w~m to before me this
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OFFICIAL SEAL
PATRICIA M. SMITH
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 4.2.2005
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HAMILTON COUNTY CIRUCIT COURT
SPRINT SPECTRUM LP,
) CAUSE NO /,-;e;-~~~
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Petitioner,
v.
CARMEL/CLAY BOARD OF ZONING
APPEALS,
Respondent.
VERIFIED PETITION FOR ADMISSION TO PRACTICE UNDER
RULE 3. SECTION 2 (A)(3) OF THE INDIANA RULES FOR
ADMISSION TO THE BAR
W. Scott Porterfield applicant herein, respectfully represents the following:
1. My residential address is:
1643 W. Wolfram Street
Chicago, lllinois 60657
I am a member of the firm of Barack Ferrazzano Kirschbaum Perlman & Nagelberg. The
firm's address, which is also my business address, is:
333 West Wacker Drive, Suite 2700
Chicago,IL 60606
Telephone: 312-984-5192
Fax: 312-984-3220
2. I am licensed to practice law in:
lllinois:
Registration No. 03125110
Year of Admission: 1979
3. I am currently a member in good standing ofthe Illinois bar.
4. I have never been suspended, disbarred, nor have I resigned as a result of a
disciplinary charge, investigation, or proceeding from the practice of law in any jurisdiction.
5. No disciplinary proceeding is presently pending against me in any jurisdiction.
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6. I have not appeared in any cases in the state or federal courts located in the State
of Indiana in the last five years. Other attorneys from my firm have appeared in the following
matters:
CASE NAME AND NUMBER
COURT
ATTORNEY
Wendi Sloane
David E. Gordon
Premier Graphics, Inc. v.
First Industrial Indianapolis, L.P.
49 D 129909 CP 001385
Marion County
Superior Court
7. Good cause exists for my appearance in this case. My firm has represented
petitioner Sprint Spectrum, LLP and its predecessor and successor firms on a regular basis since
February 1998. I have personally represented petitioner in other litigation matters in Chicago,
Illinois. I concentrate my practice in Commercial Litigation including the complex issues that
this case appears to involve.
8. I have read and will be bound by the Rules of Professional Conduct adopted by
the Indiana Supreme Court and I consent to the jurisdiction of the State of Indiana, the Indiana
Supreme Court, and the Indiana Supreme Court Disciplinary Commission to Resolve any
disciplinary matter that might arise as a result of the representation.
9. I will file a Notice of Pro Hac Vice Admission with the clerk of the Indiana
Supreme Court in compliance with Admission and Discipline Rule 3, Section 2(b) within thirty
(30) days after the Court grants permission to apnear in the proc~
fJM~ .
W. Scott Porterfield
Sworn to before me this
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HAMIL TON COUNTY CIRCUIT/SUPERIOR COURT
) CAUSE NO. 29COI-0112-CP-1202
)
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SPRINT SPECTRUM, L.P.,
Plaintiff,
v.
CARMEL/CLAY BOARD OF ZONING
APPEALS,
Defendant.
CCSENTRY
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The activity ofthe Court should be summarized as follows on the Chronological Case Summary (CCS):
Motion for Admission Pro Hac Vice, Verified Petitions and proposed Order
Submitted By:
Thomas F. Bedsole, #15980-49
LOCKE REYNOLDS LLP
201 N. Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
(317) 237-3800
Attorneys for Petition
Opposing Counsel:
N/A
*************************************************************************************
(TO BE DESIGNATED BY COURT)
This CCS Entry Form shall be:
[ ] Placed in case file
[ ] Discarded after entry on the CCS
[ ] Mailed to all counsel by: _ Counsel_ Clerk _ Court
[ ] There is no attached order; or
The attached order shall be placed in the RJO Yes [ ] No [ ]
DATE
APPROVED
Judge
543899_1
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Counsellors at Law
-~
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Docs
Locke Reynolds LLP
201 North lliinois Street, Suite 1000
P.O. Box 44961
Indiana po lis, IN 46244-0961
Overnigltl deliveries use zip code 46204
,
LOCKE REYNOLDS
Thomas F. Bedsole
Indianapolis Office
317-237-3842
tbedsole@locke.com
317-237-3800
Fax 317-237-3900
Locke Reynolds Galvin
5231 Hohman Avenue
Hammond, IN 46230-1741
\,.,"
219-933-0380
Fax 219-933-0471
December 28, 2001
CERTIFIED MAIL - RETURN RECEIPT
Hamilton County Court Clerk
Government and Judicial Center
One Hamilton County Square, # 106
Noblesville, IN 46060
Re: Sprint Spectrum L.P. v. Board a/Zoning Appeals for the City of Carmel
and Clay Township
Our File: 7967/7
Cause No. 29COI-0112-CP-1202
Dear Clerk:
Enclosed for filing are petitioner's verified petitions for admission to practice, motion to
appear pro hac vice and proposed order. Please see that these are filed with the Court and return
a file-stamped copy in the enclosed addressed and stamped envelope.
Please note that these pleadings are being filed by certified mail, return receipt requested,
pursuant to Indiana Trial Rule 5(E)(3) and as such, the file stamp should indicate the date of
mailing as the time of filing.
Thank you for your assistance.
Very truly yours,
LOCKE REYNOLDS LLP
~ 7&M;J~
Thomas F. Bedsole
TFB/km
Enclosures
48815U
1JI1JlU)./OCKe.com
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CITY OF CARMEL
DEPARTMENT OF COMMUNITY SERVICES
Division of Planning & Zoning
LET T E R of G RAN T
27 November 2001
Thomas F. Bedsole
Locke Reynolds LLP
201 North lllinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
Re: Sprint Spectrum WTF at 1388 Queen's Way
Appeal (A-1l1-01)
Via US Mail &fax (317/237-3900)
Dear Mr. Bedsole,
At the meeting held Monday, November 26, 2001, the Carmel/Clay Board of Zoning
Appeals took the following action regarding the Appeal filed by yourself on behalf of Sprint
Spectrum:
DISMISSED: Docket No. A-I11-01, an appeal of the Director's Determination regarding Section
3.7: Definitions: SUBDIVISION of the Zoning Ordinance. The Board moved to dismiss the appeal
as not timely filed as required per Section 30.1: Appeals to the Board. The Board voted five (5) in
favor, zero (0) opposed, thereby dismissing the petition.
If! can be of any further assistance, please do not hesitate to contact me at 317.571.2417.
Sincerely,
rlFf,Jir ,~.
V '~ce M. Lillig, Jr.
Planning & Zoning Administrator
Department of Community Services
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IN THE BOARD OF ZONING APPEALS
CITY OF CARMEL, INDIANA
Appellant,
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SPRINT SPECTRUM L.P.
Re: Revocation of Building Permit
Number 2001.0627.B by MICHAEL P.
HOLLIBAUGH, in his Capacity as ,
DIRECTOR OF THE DEPARTMENT,
OF COMMUNITY SERVICES,
CARMEL, INDIANA,
SPRINT'S OBJECTION TO RICHARD DEER'S MOTION TO DISMISS
Appellant, Sprint Spectrum L.P., (hereinafter "Sprint"), by counsel, hereby objects to
Richard Deer's Motion to Dismiss Sprint's appeal of the revocation of its location permit by
Michael P. Hollibaugh, in his capacity as Director ("Director") of the Department of Community
Services, Carmel, Indiana, and in support thereof states:
1. The Director revoked the improvement location permit at issue (the "Permit") for
property located at 1388 Queens Way, Carmel, Indiana, on Thursday, August 23, 2001. The
Director notified Sprint of his decision by a letter sent by regular mail on Thursday, August 23,
200 I. Sprint received the letter of revocation on Friday, August 24, 200 I.
2. Section 30.1 of the Carmel/Clay Zoning Ordinance provides that "all appeals shall
be filed with the Director within thirty (30) days of the action to be appealed." The Director's
decision to revoke the Permit on Thursday, August 23, 200 I, is the "action" being appealed by
Sprint in this case.
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3. The Department of Community Services is the entity responsible for the
acceptance of Appeals to the Board of Zoning Appeals. Its office is not open for business on
Saturdays or Sundays, and therefore, no Appeals can be filed on those days.
4. The thirty (30) day period, as provided by Section 30.1 of the Carmel/Clay
Zoning Ordinance, commenced at the earliest on Friday, August 24, 2001, which was the first
full day after the Director's decision to revoke the Building Permit.!
5. The thirtieth day fell upon a Saturday, and Sprint could not file on Saturday.
Sprint timely filed its appeal on the very next day the Department of Community Development
was open for business, which was Monday, September 24,2001.
6. Under Indiana law, where a statutory period mandates that an appeal must be
taken within thirty (30) days, that period commences on the first full day after notice is received
of the initiating event and expires thirty (30) days thereafter. Most notably, the Indiana Supreme
Court held that "every conceivable element of fair play, common sense and logic mandates that
the [appellant] be afforded the full thirty days to complete his appeal." Ball Stores. Inc. v. State
Board of Tax Commissioners, 316 N .E.2d 674 (Ind. 1974).
7. This principle is embodied in Indiana Trial Rule 6(A), which in pertinent part
provides:
In computing any period of time prescribed or allowed by these
rules, by order of the court or by any applicable statute, the day of
the act, event, or default from which the designated period of time
begins to run shall not be included. The last day of the period so
computed is to be included unless it is: (1) a Saturday. (2) a
Sunday. (3) a legal holiday. ., (emphasis added)
I Sprint did not receive notice of the revocation until August 24, 2001 by regular mail. To allow Sprint the full
thirty days, the first day of the period should be Saturday, August 25th. Computation of the period in this manner
would make the thirtieth day fall on Sunday, September 23'd, with the appeal still due on Monday the 24th.
Therefore, this objection treats the date of issuance at the trigger date. Both the Indiana Trial Rules and the Federa[
Ru[es of Civil Procedure. the principles of which are applicable by analogy as discussed below, provide that three
additional days are to be added to any time period when notice of the triggering act is provided by regular mail. [n
this case, addition of three days for service by mail makes Monday, September 24'h the twenty-ninth day.
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8. The principle embodied in T.R. 6(A) applies whenever the applicable statute is
silent as to the method of computing time. Here, Section 30.1 of the Carmel/Clay Zoning
Ordinance does not provide for a method of computing the thirty (30) day limit, and therefore,
T.R. 6(A) applies by default.
9. Trial Rule 6(A)'s method of computing time limits was properly used by the
Indiana Public Service Commission when neither the applicable statutes nor rules of the Public
Service Commission specifically prescribed a manner for computing the thirty (30) day time
period. City of South Bend v. Users of Sewage Disposal, 402 N.E.2d 1267 (Ind.App. 1980).
Similarly, where the statute of limitations on a personal injury action was silent as to how the
time limitation therein was to be computed, T.R. 6(A) was also applicable. Jenkins v. Yoder,
324 N.E.2d 520 (Ind.App. 1975).
10. In the context of an appeal from a property tax assessment, our Supreme Court
held that when the receipt of an appeal is impossible (e.g., because of the closing of its offices
and/or the non-delivery of the United States mails on Sundays and holidays), receipt on the next
business day is a timely receipt of notice-particularly when the taxpayer's inability to make
delivery of such notice is beyond his control. Ball Stores, Inc. v. State Board of Tax
Commissioners, 316 N.E.2d 674 (Ind. 1974). Here, the Department of Community Services'
office was closed both Saturday, September 22 and Sunday, September 23, 2001- thus filing its
Appeal on those days was impossible and beyond Sprint's control.
11. This method of computation has also been adopted in the Rules of Appellate
Procedure. Specifically, Indiana Appellate Rule 9(A) provides that a Notice of Appeal must be
filed within thirty (30) days. In Board of Commissioners of Lake Countv v. Foster, the Court of
Appeals determined that under Indiana Appellate Rule 2(A), Rule 9(A)'s predecessor, if the time
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period expires on a Saturday, the appellant has until the next Monday to file a timely praecipe.
614 N.E.2d 949 (Ind.App. 3 Dist. 1993). Similar to T.R. 6(A), Indiana Appellate Rule 25(B)
provides:
In computing any period of time prescribed or allowed by these
Rules, by order of court, or by any applicable statute, the day of the
act, event, or default from which the designated period of time
begins to run shall not be included. The last day of the period so
computed is to be included unless it is a non-business day. . . .
12. As indicated by the Indiana Supreme Court, "every conceivable element of fair
play, common sense, and logic mandates that [Sprint] be afforded the full thirty days" to
complete the appeal. In accordance with both Indiana law and Section 30.1 of the Carmel/Clay
Zoning Ordinance, Sprint timely filed its appeal on the next possible day of business, which was
Monday, September 24, 2001.
WHEREFORE, Sprint respectfully requests that the Board of Zoning Appeals deny Mr.
Deer's Motion to Dismiss.
Respectfully submitted,
LOCKEREYNOLDSLLP
~
By.
. Tho edsole, #15980-49
Attorney for Appellant,
Sprint Spectrum L.P.
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, Indiana 46244-0961
Phone: (317) 237-3800
Fax: (317) 237-3900
538986_1
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BOSE
McKINNEY
&EVANSLLP
ATTORNEYS AT LAW
November 15,2001
J. Taggart Birge
North Office
Direct Dial (317) 574-3732
E-Mail: TBirge@boselaw.com
Re: Sprint PCS Site located at 1388 Queens Way Drive
Via Hand Delivery
Mr. Michael P. Hollibaugh
City Hall Council
One Civic Square
Carmel, Indiana
Dear Mike:
It is my belief that Sprint Spectrum L.P.'s appeal to the BZA under case no. A-
111-01 should be dismissed for failure to timely file the appeal. Enclosed are ten copies
of my Motion To Dismiss which set out the legal and factual basis for my argument.
Prior to the November 26,2001, hearing on case no. A-III-OI, I would appreciate it if
your office could distribute this Motion To Dismiss to the respective members of the
Board of Zoning Appeals. Upon receipt of the documents, please call me at my direct
dial listed above to discuss if you have any questions.
Sincerely,
~ e"1t
J. Taggart Birge
cc: Tom Bedsol
Downtown . 2700 First Indiana Plaza . 135 North Pennsylvania Street . Indianapolis, Indiana 46204 . (317) 684-5000 . FAX (317) 684-5173
North Office . 600 East 96th Street . Suite 500 . Indianapolis, Indiana 46240 . (317) 574-3700 . FAX (317) 574-3716
www.boselaw.com
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IN THE BOARD OF ZONING APPEALS
CITY OF CARMEL, INDIANA
SPRINT SPECTRUM L.P.
Appellant,
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Docket No. A-III-0l
Re: Revocation of Building Permit,
Number 2001.0627.B by MICHAEL P.
HOLLIBAUGH, in his Capacity as
DIRECTOR OF THE DEPARTMENT
OF COMMUNITY SERVICES,
CARMEL, INDIANA,
MOTION TO DISMISS
Richard Deer, an adjacent property owner to the site commonly known as 1388 Queens
Way, Cannel, Indiana (the "Site") respectfully requests that pursuant to Section 30.1 of the
Zoning Ordinance, Ordinance NO. Z-160, as amended, of the City of Cannel and Clay
Township, Hamilton County, Indiana (hereinafter, "Section 30.1 of the Cannel Code") this
Board of Zoning Appeals dismiss this appeal and would show as follows:
1. Michael P. Hollibaugh (the "Director"), in his capacity as Director of the
Department of Community Services (the "Department"), Carmel, Indiana revoked the issuance
of the improvement location permit (the "ILP") on August 23, 2001
2. Sprint Spectrum L.P. (the "Appellant") filed its appeal on September 24,2001
(the "Appeal") thirty-three (33) days after the revocation of the ILP.
3. The Appeal was not timely filed.
4. Pursuant to Section 30.1 of the Carmel Code, Appellant has to and including
September 21,2001 in which to file its Appeal.
5. Section 30.1 of the Carmel Code states "All appeals shall be filed with the
Director within thirty (30) days of the action to be appealed." The action which is the subject
of Appellant's appeal is the revocation ofthe ILP. The last date which is within thirty (30) days
of the revocation of the ILP is Friday, September 21, 2001. The Board of Zoning Appeals must
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administer the ordinance in accordance with its stated terms. T.W. Thorn Const., Inc. v. City of
Jeffersonville, 721 N.E.2d 319 (Ind. Ct. App. 1999). If the Board of Zoning Appeals had
intended that the Appellant should have thirty (30) days after the date of the decision to revoke
the ILP to appeal, Section 30.1 ofthe Carmel Code should have been drafted in accordance with
IC 36-7-4-1003 which states:
The person shall present the petition to the court
within thirty (30) days after the date of that decision
of the board of appeals.
As drafted, IC 36-7-4-1003 clearly provides for thirty (30) days after the date of a decision by
the Board of Zoning Appeals to present an appeal to the trial court whereas Section 30.1 of the
Carmel Code only allows for an appeal to be filed within thirty (30) days of the date of the action
to be appealed. Any interpretation of Section 30.1 of the Carmel Code to the contrary violates
Indiana law as an ordinance must be given its plain, ordinary and usual meaning. Johnson Oil
Co. v. Area Planning Com'n of Evansville and Vanderburgh County, 715 N.E. 2d 1011, 1015
(Ind. Ct. App. 1999). Failure to comply with the stated time limitations is fatal to the appellant's
claim. Biggs v. Board of Zoning Appeals of City of Wabash, 448 N.E.2d 693,694 (Ind. Ct. App.
1983).
6. Assuming for the sake of argument that Appellant's argument that the thirtieth
(30) day fell on September 22,2001 is correct, there is still no basis in the Carmel Code for the
Appellant to have until September 24,2001 to file the appeal. In certain situations, Indiana Rule
of Trial Procedure 6(A) extends a deadline that would otherwise fall on a Saturday, Sunday, or
legal holiday if the statute is silent as to the method of computing time. However, according to
the text of Trial Rule 6(A), it only applies to the trial rules, orders of the court, or any applicable
statute. Because the issue in front of the Board of Zoning appeals has to do with the
interpretation of Section 30.1 of the Carmel Code rather than a trial rule, court order or statute,
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the Board of Zoning Appeals is not required to extend the time limit if the last day to file the
appeal falls on a Saturday, Sunday or legal holiday. Under Indiana law, "because a zoning board
is a body usually composed of persons without legal training, courts are reluctant to impose rigid
technical requirements upon their procedure as long as they are orderly, impartial, judicious and
fundamentally fair." quoting McBride v. Board of Zoning Appeals of Evansville-Vander burgh
Area Plan Com'n, 579 N.E.2d 1312, 1315 (Ind. Ct. App. 1999). Thus, unless the procedures
used by the Board of Zoning Appeals to determine whether the Appellants' case should be heard
are not orderly, impartial and fundamentally fair, they will not be held as contrary to law. Id. at
1315.
WHEREFORE, Richard Deer, an adult resident of Indiana, respectfully requests that the
Board of Zoning Appeals dismiss this appeal because it is untimely under Section 30.1 of the
Carmel Code.
Respectfully submitted,
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J. Tagg. ge (Atty No.2 9-49)
BOSE McKINNEY & EVANS LLP
600 East 96th Street
Suite 500
Indianapolis, IN 46240
(317) 574-3732
Attorney for Richard Deer,
an adult resident of Indiana
44148
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From:
Sent:
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Morrissey, Phyllis G
Monday, October 08, 2001 4:33 PM
Lillig, Laurence M
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Tag called (574-3732) and he wants to know the date the appeal was filed on the Sprint Tower by Queens Manor. Jon
looked in your office but couldn't find the file.
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Edwin C. Zamber
1388 Queens Way
Carmel, IN 46032
City of Carmel
Department of Community Services
1 Civic Square
Carmel, IN 46032
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October 2,2001
To Whom It May Concern:
This letter will serve as my authorization for Sprint Spectrum L.P. (including Qserve
Communications, Jay Lemmon, Locke Reynolds LLP and their successors, designees, assigns
and representatives) to pursue any and all actions that they deem necessary or appropriate in
connection with the location of Sprint Spectrum L.P.'s facilities and equipment at 1388 Queens
Way, Carmel, Indiana. This authorization includes but is not limited to the October 1,2001
filing of the Application For Board of Zoning Appeals Action Appeal Request of the Director's
decision to revoke building permit no. 2001.067.B.
Very truly yours,
~c.~
Edwin C. Zamber
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Johnson, Sue E
From:
Sent:
To:
Cc:
Subject:
Lillig, Laurence M
Tuesday, October 02, 2001 4:58 PM
Johnson, Sue E; Morrissey, Phyllis G; Tingley, Connie S; pattyn, Dawn E
Hollibaugh, Mike P; Hahn, Kelli A; Dobosiewicz, Jon C
WTF - Sprint Spectrum (A-111-01)
Docket No. A-111-01 has been assigned to the Appeal filed by Thomas F. Bedsole of Locke Reynolds LLP on behalf of
Qserve Communications & Sprint Spectrum LP for property located at 1388 Queen's Way and owned by Edwin C.
Zamber.
There is no Filing Fee associated with this petition.
This Item will not appear on an agenda of the Technical Advisory Committee (TAC).
This Item will appear on the Monday, November 26, 2001, agenda of the Board of Zoning Appeals under Public
Hearings. Ten (10) informational packets will need to be delivered to BZA Secretary Ramona Hancock no later than
noon, Friday, November 16,2001. Mailed and published Public Notice will need to be accomplished no later than
Thursday, November 1, 2001.
Sue Ellen, please contact Mr. Bedsole at (317) 237-3800 with this information.
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Laurence M. Lillig, Jr.
Planning & Zoning Administrator
Department of Community Services
City of Cannel
One Civic Square
Cannel, IN 46032
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Phone: 317.571.2417
Fax:: 317.571.2426
llilliG@ci.cannel.in.us
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CITY OF CARMEL
Department of Community Services
One Civic Square
Cannel, IN 4En32
(317) 571-2417
Fax: (317) 571-2426
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CITY OF CARMEL
DEPARTMENT OF COMMUNITY SERVICES
Division of Planning & Zoning
TRANSMITTAL
Date: 27 September 2001
To: John R. Molitor of Molitor Grisham & Hester
fax: (317) 843-5514
From: Laurence M. Lillig, Jr.
Planning & Zoning Administrator
Department of Community Services
One Civic Square
Carmel, IN 46032
ph. 317.571.2417
fax. 317.571.2426
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DOCs ~
Re: Q-Serve Communications Appeal
. The material you requested
D For review and comment
D For your information
D For approval
John,
I have attached Exhibit B from the Q-Serve Appeal application. It is 10 pages in itself. Once
you have had time to review it, we should set a time to meet with Mike so you can review the
rest of the filing (it is fairly substantial), and a determination can be made re: the timeliness of
the appeal.
If I can be of any further assistance, please do not hesitate to contact me at 317.571.2417.
ad}"
Laurence M. Lillig, Jr.
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City of Carmel
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DEPARTMENT OF COMMUNITY SERVICES
Michael P. Hollibaugh
Director
August 23, 2001
Mr. Jay Lemmon
Q Serve Communications
4515 South High School Road
Indianapolis, IN 46241
RE: Revocation of Permit No.627.01
Dear Mr. Lemmon:
Pursuant to the authority vested in me by the general ordinances of the jurisdictional area
of the City of Carmel, Indiana, under whose jurisdiction all improvement location permits
..-----15uilding peDfiits)arei-s-suedibrihat-eity-and for-elay-l'ownship,--Indiana.;Thereby--------- ------- --_..
revoke the above referenced permit.
This office has determined that, prior to the issuance of a permit for the proposed
"Equipment Shelter" on the ''Lease Area" (as described in your Application for
Improvement Location Permit), the ''Parent Tract" should have been divided into two (2)
or more smaller parcels. Under Chapter 3 of the Carmel Clay Zoning Ordinance, this
constitutes the subdivision ofland requiring plat approval by the Plan Commission.
Should you desire to submit an application for plat approval, you may contact Jon
Dobosiewicz of this Department to discuss the necessary process.
Sincerely,
C:XHdUgh
Director
Department of Community Services
CC: James A. L. Buddenbaum, Attorney for Sprint Spectrum, LP
ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571~2417
Q
Q
John J. Flanigan
11100 Queen's Way Circle
Carmel, IN 46032
317 -848-2064 (H)
846-6222 (W) 846-6250 (Fax)
flamgan@in.net
August 15,2001
Mr. Michael Hollibaugh
Planning Director
Department of Community Services
One Civic Square
Carmel, IN 46032
Dear Mr. Hollibaugh:
This letter is to object to the construction in progress at 1338 Queen's Way, the corner of
Ditch and Queen's Way.
It is unsightly and inappropriate for our neighborhood. More importantly, I wonder about the
safety of such a tower because of its height and whether the construction standards are
adequate for what appears to be a commercial height tower. Lastly, I am concerned about the
requirements for maintenance of such a tower. The current owner doesn't even cut his lawn
regularly, which suggests that future maintenance on the tower may be suspect.
I would appreciate your considering these questions. Thank you.
J
JJF/ekb
cc: Mr. James Brainard
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RICHARD & DONNA DEER
1332 Queens Way, Carmel, Indiana 46032
August 13,2001
Subject:
Location:
Microwave Tower under Construction
1338 Queensway - Comer of Ditch and Queensway
Dear Neighbor:
rhe owner of 1338 Queensway is currently in the process of constructing a commercial
microwave tower, of which will stand approximately 150 feet high. He is building this
on his residential property, the same property that is neglected and projects an already
unsightly seen for all of us.
Not only does he not have enough respect to keep his property presentable, he now
attempts to subject us to a more distracting and horrible sight. Since he will be receiving
a handsome montl:>Jy profit from this microwave tower, this makes it a commercial
venture on residential property.
This tower presents more problems than just an unpleasant site. Microwave towers are
highly dangerous in that they pose a tremendous health hazard. I have enclosed more
information on the dangerous effects microwave towers and the radiation emitted can
have on humans.
I am sure that none of you could ever imagine your "neighbor" doing such a selfish act.
If we allow the building of this tower to continue, we will be faced with loss of property
value in our beloved neighborhood, the hideous site of a 150-foot tower and subjecting
our families to the devastating health problems caused by microwave towers.
Please call the zoning Board and your councilman in Cannel to voice your disapproval in
the construction of the microwave tower on 1338 Queensway. If you have any questions,
please contact e 28-0000.
RECEIVI;'
AUG 1 4 2001
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Rich
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