HomeMy WebLinkAboutIP 02-1133 C T/K
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IN THE BOARD OF ZONING APPEALS
CITY OF CARMEL, CLAY TOWNSHIP, INDIAN
LEGAL REPORT:
PROPOSAL TO RESOLVE PENDING LITIGATION
Litif!ation Backf!round and Overview of Proposal to Resolve the Litif!ation:
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
tenus 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 Backf(round:
The Zamber Site is zoned as a S-l Residential District. Sprint entered into a lease with
Dr. Zamber on May 14, 2001 which 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 S-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-1 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 the Zamber 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 growld level (as measured from the top of the Pole), with lightning protection rode 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 I), 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.
Lef{al Analysis Ref{ardinf{ Compliance witlt Zoninf{ 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 determination 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 sanle 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
residential 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 of locating 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 restrictions to be imposed against the Zamber
b.
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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. Zamber and the
respective heirs, successors and assigns of Dr. Zamber and each other
person acquiring an interest in the Zamber 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 grOlmd 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- Y ear 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
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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 comer 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.
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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) Case No. IP 02-1133 C TIK
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THE CITY OF CARMEL, INDIANA, )
THE BOARD OF ZONING APPEALS )
FOR THE CITY OF CARMEL AND )
CLAY TOWNSHIP, and )
MICHAEL P. HOLLffiAUGH, )
in his Capacity as )
Director of the Department of Community)
Services, Carmel, Indiana, )
)
)
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Plaintiff,
VI.
Defendants.
ORDER GRANTING
SPRINT SPECTRUM L.P.'S MOTION TO SUBSTITUTE EXHIBIT
Plaintiff Sprint Spectrum L.P., having filed its Motion to Substitute Exhibit, and the
Court being duly advised in the premises now finds that said Motion shall be GRANTED.
IT IS NOW THEREFORE ORDERED that Exhibit E attached to Sprint Spectrum L.P.'s
Motion to Substitute Exhibit is hereby deemed substituted for the Exhibit E originally attached to
the Complaint for Injunctive, Declaratory, Mandamus and Other Relief for all purposes in this
case as if the substituted Exhibit E had been properly filed with the Complaint in this case.
Dated: <if Ii' /5 z...
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JUDGE, United States District Court
Southern District of Indiana
Indianapolis Division
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Distribution to:
Thomas F. Bedsole
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
Board of Zoning Appeals for the City
of Carmel and Clay Township
c/o Connie Tingley, Secretary
One Civic Square
Carmel, IN 46032
Michael P. Hollibaugh, in his Capacity
as Director of the Department of Community
Services, Carmel, Indiana
3002 Warren Way
Carmel, IN 46033-3667
City of Carmel, Indiana
c/o Mayor James Brainard
One Civic Square
Carmel, IN 46032
573833_1
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THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIAN~
INDIANAPOLIS DIVISION
SPRINT SPECTRUM L.P., )
a Delaware limited partnership, )
)
Plaintiff, ) Case No. IP 02-1133 C T/K
)
v. )
)
THE CITY OF CARMEL, INDIANA, )
THE BOARD OF ZONING APPEALS )
FOR THE CITY OF CARMEL AND )
CLAY TOWNSIDP, and )
MICHAEL P. HOLLIBAUGH, )
in his Capacity as )
Director of the Department of Community)
Services, Carmel, Indiana, )
)
Defendants. )
SPRINT SPECTRUM L.P.'S MOTION TO SUBSTITUTE EXHIBIT
Plaintiff Sprint Spectrum L.P. ("Sprint"), by counsel, respectfully requests the Court to
allow it to substitute the new Exhibit E attached to this Motion for the Exhibit E originally
attached to its Complaint for Injunctive, Declaratory, Mandamus and Other Relief (hereinafter
"Complaint"), and in support thereof states:
1. Sprint filed its Complaint for Injunctive, Declaratory, Mandamus and Other Relief
on July 23, 2002.
2. In the Complaint, Sprint makes reference to Exhibit E in paragraph 40 of its
Complaint, which states "the Department Staff introduced a report concurring with Sprint
Spectrum's position. A copy of the Department's Staff report is attached hereto as Exhibit K"
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3. Sprint erroneously attached the March 20, 2002 Department's Staff report as
Exhibit E instead of the May 22, 2002 Staff report referenced in paragraph 40 of Sprint's
Complaint.
4. Substitution of the May 22,2002 Staff report as Exhibit E to the Complaint at this
time will simplify the issues as no responsive pleadings have yet been filed, and will not result in
prejudice to any party to this lawsuit.
WHEREFORE, Sprint Spectrum L.P. requests that the Court enter an order substituting
Exhibit E attached hereto for the previous Exhibit E to Sprint's Complaint for Injunctive,
Declaratory, Mandamus and Other Relief, and that the substituted Exhibit E attached hereto be
deemed filed as of July 23,2002, the filing date of the original Complaint for Injunctive,
Declaratory, Mandamus and Other Relief.
Respectfully submitted,
LOCKE REYNOLDS L.P.
By:
Thorn edsole #15980-49
Attorney for Petitioner
Sprint Spectrum L.P.
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CERTIFICATE OF SERVICE
Service of the foregoing was made by placing a copy of the same into the United States
Mail, first class postage prepaid, this 7th day of August, 2002, addressed to:
Board of Zoning Appeals for the City
of Carmel and Clay Township
c/o Connie Tingley, Secretary
One Civic Square
Carmel, IN 46032
Michael P. Hollibaugh, in his Capacity
as Director of the Department of Community
Services, Carmel, Indiana
3002 Warren Way
Carmel, IN _46033-3667
City of Carmel, Indiana
c/o Mayor James Brainard
One Civic Square
Carmel, IN 46032
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LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, Indiana 46244-0961
(317) 237-3800
573833_1
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City of Carmel
DEP ARTIvfENT OF COMMUNITY SERVICES
Division of Planning & Zoning
May 22, 2002
Department Report
To: . Board of Zoning Appeals Members
From: Department of Community Services
Re: Projects scheduled to be heard Tuesday, May 28,2002
J. Public Hearing:
Ij. WTF - Sprint Spectrum (A-97-01)
Appellant (an Interested Party) wishes to appeal the decision of the Director regarding the
collocation of a WTF antenna on an existing private radio tower.
The site is located at 1388 Queen's Way. The site is zoned S-l/Residence - Very Low
Density. .
On June 15,2001. the Department of Community Services issued Permit No. 627.01B for
the collocation of an antenna on an existing ham radio tower at 1388 Queen's Way. The
Department issued the permit per Section 5.1: Permitted Uses of the S-l/ResidenceDistrict
Ordinance, which lists. "Antenna.. if collocated on an existing or previously approved tower" as a
permitted use. The term TOWER is defined in the Zoning Ordinance as:
A ground or roof-mounted pole, spire, structure, or combination thereof taller than
fifteen (15) feet, including supporting lines, cables, wires, braces, and masts,
intended primarily for the purpose of mounting an antenna, a meteorological
device, or other similar apparatus above grade. The term dos not include a water
tower that is owned by public utility or municipally owned utility.
. The term ANTENNA is defined as:
A structure or device that is used for the purpose of collecting or transmitting
signals, images, sounds, or information of any nature by wire, radio, visual, or
electromagnetic waves, including but not limited to directional or omni-
directional antennas, panels, and microwave or satellite dishes. The term does not
. include an amateur radio station antenna.
Both definitions were adopted per Ordinance No. Z-320. more commonly lmown as the
"Tower Ordinance" or "Wireless Telecommunications Ordinance."
EXHIBIT
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Page 1
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Department Report
, ' Board of Zoning Appeals
May 28, 2002
Page 2 of27
_.
It is the Department's position that because the tower located at 1388 Queen's Way was
erected in 1987 prior to the adoption of Ordinance No. Z-320 (July 7. 1997), it does not require
Special Exception approval prior to the collocation of an antenna.
The final sentence of the definition of ANTENNA. "The term does not include an
amateur radio station antenna," is not meant to preclude the collocation of antennas on amateur
radio station towers, but to differentiate between hobbyists and those commercial operations.that
must gO through Special Exception approval in order to locate in the S-l or other Residential
Districts.
On August 23. 2001, the Director issued a letter revoking the building permit (Permit No.
627.01B) for the antenna on this site for reasons unrelated to this Appeal.
The Department recommends that the Board uphold the Director's initial determination
regarding the issuance of the permit.
Page 2
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
)
)
)
)
)
)
)
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, )
)
)
Plaintiff,
v.
Defendants.
ORDER
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Case No. IP 02-1133 C T/K
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ENTERED
.l\UG 5 2002
U.S. CLERK'S OFFICE
INDIAf'JAPOi./S, INDIANA
Plaintiff, Sprint Spectrum, L.P., by counsel, has filed its Motion for Leave for W. Scott
Porterfield to Appear Pro Hac Vice. The Court, being duly advised in the premises, now
GRANTS said Motion.
IT IS HEREBY ORDERED AND ADJUDGED that W. Scott Porterfield is granted
permission to appear in this Court in this particular proceeding for plaintiff, Sprint Spectrum,
L.P.
Date:
g I"LID 1.
Distribution Attached:
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Judge, United States District Court
Southern District of Indiana
Indianapolis Division
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Distribution to:
Thomas F. Bedsole
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
Board of Zoning Appeals for the City
of Carmel and Clay Township
c/o Connie Tingley, Secretary
One Civic Square
Carmel, IN 46032
Michael P. Hollibaugh, in his Capacity
as Director of the Department of Community
Services, Carmel, Indiana
3002 Warren Way
Carmel, IN 46033-3667
City of Carmel, Indiana
c/o Mayor James Brainard
One Civic Square
Carmel, IN 46032
573966_1
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
)
)
)
)
)
)
)
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, )
)
)
Plaintiff,
v.
Defendants.
ORDER
Case No. IP 02-1133 C TIK
ENTERED
AUG 5 2002
U.S. CLERK'S OFFICE
INDiANAPOLIS, INDIANA
f
RECEIVED
AilS 7 2002
DOCS
Plaintiff, Sprint Spectrum, L.P., by counsel, has filed its Motion for Leave for StevenJ.
Yatvinto Appear Pro Hac Vice. The Court, being duly advised in the premises, now GRANTS
said Motion.
IT IS HEREBY ORDERED AND ADmDGED that StevenJ. Yatvinis granted
permission to appear in this Court in this particular proceeding for plaintiff, Sprint Spectrum,
L.P.
Date: g / 'LID 1..-
.
Distribution Attached:
L:'
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Judge, United States District Court
Southern District of Indiana
Indianapolis Division
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Distribution to:
Thomas F. Bedsole
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
Board of Zoning Appeals for the City
of Carmel and Clay Township
c/o Connie Tingley, Secretary
One Civic Square
Carmel, IN 46032
Michael P. Hollibaugh, in his Capacity
as Director of the Department of Community
Services, Carmel, Indiana
3002 Warren Way
Carmel, IN 46033-3667
City of Carmel, Indiana
c/o Mayor James Brainard
One Civic Square
Carmel, IN 46032
573965_1
o
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
AU6 "I.";" ",
t. 0&'2
DOCS
SPRINT SPECTRUM L.P., )
a Delaware limited partnership, )
)
Plaintiff, ) Case No. IP 02-1133 C T/K
)
v. )
)
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, )
)
Defendants. )
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CERTIFICATE OF SERVICE
Service of the Motion for Leave for Steven J. Yatvin to Appear Pro Hac Vice was made
by placing a copy of the same into the United States Mail, this 31 st day of July, 2002, addressed
to:
Board of Zoning Appeals for the City
of Carmel and Clay Township
c/o Connie Tingley, Secretary
One Civic Square
Carmel, IN 46032
Michael P. Hollibaugh, in his Capacity
as Director of the Department of Community
Services, Carmel, Indiana
3002 Warren Way
Carmel, IN 46033-3667
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City of Carmel, Indiana
c/o Mayor James Brainard
One Civic Square
Carmel, IN 46032
LOCKE REYNOLDS LLP
201 N. Illinois Street, Suite 1000
P. O. Box 44961
Indianapolis, IN 46244-0961
317-237-3800
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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SPRINT SPECTRUM L.P., )
a Delaware limited partnership, )
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Plaintiff, ) Case No. IP 02-1133 C T/K
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v. )
)
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, )
)
Derendants. )
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CERTIFICATE OF SERVICE
Service of the Motion for Leave for W. Scott Porterfield to Appear Pro Hac Vice was
made by placing a copy of the same into the United States Mail, this 31 st day of July, 2002,
addressed to:
Board of Zoning Appeals for the City
of Carmel and Clay Township
c/o Connie Tingley, Secretary
One Civic Square
Carmel, IN 46032
Michael P. Hollibaugh, in his Capacity
as Director of the Department of Community
Services, Carmel, Indiana
3002 Warren Way
Carmel, IN 46033-3667
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City of Carmel, Indiana
c/o Mayor James Brainard
One Civic Square
Carmel, IN 46032
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LOCKE REYNOLDS LLP
201 N. Illinois Street, Suite 1000
P. O. Box 44961
Indianapolis, IN 46244-0961
317-237-3800
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IN THE UNITED STATES DISTRlCT COURT
FOR THE SOUTHERN DISTRlCT OF INDIANA c
INDIANAPOLIS DIVISION
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SPRINT SPECTRUM L.P., )
a Delaware limited partnership, )
)
Plaintiff, ) Case No. IP 02-1133 C TIK
)
v. )
)
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, )
)
Defendants. )
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MOTION FOR LEAVE TO APPEAR PRO HAC VICE
Pursuant to Local Rule 83.5(c) of the Rules of the United States District Court for the
Southern District of Indiana, Plaintiff moves this Court to grant leave for Steven J. Yatvin to appear
pro hac vice in this action, and asserts the following:
1. Steven J. Yatvin is a member of the firm Barack Ferrazzano Kirschbaum Perlman &
Nagelberg LLC, 333 West Wacker Drive, Suite 2700, Chicago, IL 60606.
2. Steven J. Yatvin received a J.D. degree from the University oflllinois College of
Law in 1999 and was admitted to the Bar of the State oflllinois on November 4, 1999.
3. Steven J. Yatvin is a member in good standing of the illinois bar.
4. No disciplinary proceedings have been filed or are pending against Steven J. Yatvin,
and he has never bee~ suspended, disbarred or resigned as a result of a disciplinary charge,
investigation or proceeding from the practice of law in any jurisdiction.
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5. The undersigned is tendering the required filing fee with this Motion.
6. Locke Reynolds LLP will continue to act as local counsel in this matter.
WHEREFORE, Plaintiff respectfully requests this Court to grant Steven 1. Yatvin limited
admission to appear in this Court in this particular proceeding for plaintiff Sprint Spectrum L.P.
Respectfully submitted,
LOCKE REYNOLDS LLP
BY.:/~
Thorn . ed,ole, - - - -49
Daniel P. King, #23025-49
Attorneys for Plaintiff
Sprint Spectrum L.P.
LOCKE REYNOLDS LLP
201 N. lllinois Street, Suite 1000
P. O. Box 44961
Indianapolis, IN 46244-0961
Phone: (317) 237-3800
Fax: (317) 237-3900
572451_1
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IN THE UNITED STATES DISTRICT COURT ",'
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DNISION
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THE CITY OF CARMEL, INDIANA, )
THE BOARD OF ZONING APPEALS )
FOR THE CITY OF CARMEL AND )
CLAY TOWNSHIP, and )
MICHAEL P. HOLLffiAUGH, )
in his Capacity as )
Director of the Department of Community )
Services, Cannel, Indiana, )
)
)
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Plaintiff,
v.
Defendants.
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RECEIVED
AilS 1 -2002
DOCS
Case No. IP 02-1133 C T/K
/
MOTION FOR LEAVE TO APPEAR PRO HAC VICE
Pursuant to Local Rule 83.5(c) of the Rules of the United States District Court for the
Southern District of Indiana, Plaintiff moves this Court to grant leave for W. Scott Porterfield to
appear pro hac vice in this action, and asserts the following:
1. W. Scott Porterfield is a member of the firm Barack Ferrazzano Kirschbaum
Perlman & Nagelberg LLC, 333 West Wacker Drive, Suite 2700, Chicago, IL 60606.
2. W. Scott Porterfield received a J.D. degree from the Northwestern University School
- of Law in 1979 and was achnitted to the Bar of the State oflllinois on November 5, 1979.
3. W. Scott Porterfield is a member in good standing of the lllinois bar.
4. No disciplinary proceedings have been filed or are pending against W. Scott
Porterfield, and he has never been suspended, disbarred or resigned as a result of a disciplinary
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charge, investigation or proceeding from the practice oflaw in any jurisdiction, except for the one
matter discussed on the Supplement attached hereto.
5. The undersigned is tendering the required filing fee with this Motion.
6. Locke Reynolds LLP will continue to act as local counsel in this matter.
WHEREFORE, Plaintiff respectfully requests this Court to grant W. Scott Porterfield
limited admission to appear in this Court in this particular proceeding for plaintiff Sprint Spectrum
L.P.
Respectfully submitted,
LOCKE REYNOLDS LLP
BY:~
Thomas . edsole, #15 0-49
Daniel P. King, #23025-49
Attorneys for Plaintiff
Sprint Spectrum L.P.
LOCKE REYNOLDS LLP
201 N. lllinois Street, Suite 1000
. P. O. Box 44961
Indianapolis, IN 46244-0961
Phone: (317) 237-3800
Fax: (317) 237-3900
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Supplement to Motion for Leave to Appeal Pro Hac Vice ofW. Scott Porterfield
W. Scott Porterfield submits the following clarification to his Motion for Leave to
Appear Pro Hac Vice.
Mr. Porterfield received a letter dated May 17, 2001, from Wendy Muchman, Senior
Counsel to the Attorney Registration & Disciplinary Commission of the Supreme Court of
Illinois ("ARDC"), regarding concern over the impact of a judgment rendered in a case entitled
Roxanne Rochester v. Gerald Fishman, et at. (No. 95 C 3896). A copy of Ms. Muchman's letter
dated May'17, 2001 is attached hereto.
Mr. Porterfield submitted a letter dated June 12,2001, to the ARDC. In that letter, Mr.
Porterfield advised the ARDC that he was not named in the complaint filed by Ms. Rochester
against Mr. Fishman and the other defendants in the suit. Mr. Porterfield also advised the ARDC
that he had never discriminated against Ms. Rochester. He further advised the ARDC that the
particular rule of professional conduct that was apparently raised by Ms. Rochester (Rule
8.4(a)(9)(A) ofthe Illinois Rules of Professional Conduct) was not in effect at the time Mr.
Porterfield worked for the Fishman Merrick law firm. A copy of Mr. Porterfield's letter dated
June 12, 2001, to the ARDC is attached hereto.
By letter dated August 20,2001, from Ms. Duncan of the ARDC, Mr. Porterfield was
advised that the ARDC was closing its files on the investigation. The ARDC did not initiate any
action or charges against Mr. Porterfield. A copy of Ms. Duncan's letter is attached hereto.
573104_1
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ATTORNEY REGISTRATION AND DISCIPLINARY.COMMISSION
of the
SUPREME COURT OF ILLINOIS
One Prudential Plaza
130 East .Randolph Drive
Chicago 6061H-6219
(312) 565-2600 (BOO) 826-8625
Fax (312) 565-2320
Hilton Offices
700 East Adams Street .
Springfield 62701-1625
(217) 522-6838 (800) 252-8048
Fax (217) 522-2417
William Scott Porterfield
Barack Ferrazzano Kirschbaum & Perlman
333 West Wacker Drive, Suite 2700
Chj.cago, II, 60606
Chicago
May17,200l
. Re: William Scott Porterfield
in relation to
. the Administrator
No. 01 CI2076
Dear Mr. Porterfield:
It has come to our attention that a judgment was entered against your former lawfirm,
Fishman and Merrick in the matter of Roxanne Rochester v. Gerald Fishman and Fishman and
Merrick, 95 C 3896, and that the judgment is :final and all avenues of judicial review have been
exhausted. In as much as the action was brought pursuant to Title VII of the Civil Rights Act of
1964 and the evidence included information regarding alleged illegal discrimination by members
of the :firm, the Administrator is concerned that your conduct may violate the illinois Rules of
Professional Conduct, including Rule 8.4(a)(9)(A). -
In order to determine whether additional investigation is vv:arranted, within fourteen days,"
please send us a letter in duplicate and any documents which you believe are necessary to
explain and or refute the allegations that your treatment of Ms. Rochester somehow created a
hostile work environment. Our initial investigations are not intended to lend credence to any of
the allegations involved.
If you have any questions, please feel free to contact me.
Verytrul~YO~ .
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Wndy J. ~~an
Senior cP:k.~
WJM:srh
::ODMA \PCD()(3\MAINIlB\75396\1
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BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG
333 WEST WACKER DRIVE, SUITE 2700
CIDCAGO, ~OIS 60606
W. Scott Porterfield
(312) 984-3202
Voice Mall Ext 4202
scottporterlield@bfkpn.com
Telephone (312) 984-3100
Facsinnle (312) 984-3220
June 12, 2001
VIA MESSENGER DELIVERY and U.S. MAIL
Wendy J. Muchman, Esq.
Senior Counsel
Attorney Registration and Disciplinary Commission
One Prudential Plaza
130 E. Randolph Drive
Chicago, illinois 60601-6219
Re: William Scott Porterfield in relation to the Administrator, No. 01 CI2076
Dear Ms. Muchman:
This letter is my response to your letter dated May 17, 2001, and the complaint made by
Roxanne Rochester stemming from the judgment entered against the firm of Fishman & Merrick,
P.e. in the matter of Roxanne Rochester v. Gerald Fishman and Fishman & Merrick, P.e. (No. .
95 C 3896).
INTRODUCTION
Ms. Rochester has apparently complained to the ARDC that; as a result of the judgment
entered against Fishman & Merrick, P.C. under Title vn of the Civil Rights Act of 1964, I have
violated the_ plinois Rules of Professional Conduct, including Rule ~.4(a)(9)(A). It is my
understanding from your letter that Ms. Rochester's complaint -against me is solely derivative'
from the judgment against the law firm and that she has not made direct charges that my personal
behavior in relation to her was in ~y way inappropriate. If Ms: Rochester has made such
charges, I vigorously deny them. I always treated Ms. Rochester with professional respect and
courtesy. I never discriminated against Ms. Rochester and my reviews of her work while I was
at Fishman & Merrick, P.C. reflect that I enjoyed working with her and believed she was a
valued member of the firm. '
To the extent that Ms. Rochester's complaint is based solely on the fact that I am a
. former shareholder in the firm of Fishman & Merrick, P. C., my interest in that firm ended in
August 1991 when I resigned from the:firm. Rule 8.4(a)(9)(A) was not in effect on that date and
did not become effective for another two years thereafter. Accordingly, I do not believe that
Rule 8.4(a)(9)(A) should be applied retroactively against me. In addition, Rule 8.4(a)(9)(B)
states. that no complaint may be made against a lawyer unless "the lawyer" .has engaged in an
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BARACKFERMZZANO KIRsCHBAUM PERLMAN & NAGELBERG
Wendy J. Mucbman, Esq.
Page 2
June 12,2001
unlawful. discriminatory act. In other words, that rule provides that there must be a finging
against the lawyer and not simply against a :firm of which he is a member. There was no
allegation against me in Ms. Rochester's complaint filed in court and the jury verdict that was
entered in the case made no finding against me. Accordingly, -I believe that Ms. Rochester's
complaint to the ARDC with respect to my violation of the illinois Rules of Professional
Conduct is baseless and deficient as a matter of law.
BACKGROUND FACTS
I was admitted to the Bar of the State of Illinois in November 1979. I have been a
member in good standing c.ontinuously since that date and, until Ms. Rochester's complaint,
there have never been any complaints made to the ARnC against me. _
After graduating from Northwestern School of Law in May 1979, I joined the firm of
Karon Morrison & Savikas, Ltd. I worked as an associate for that firm from May 1979 until
approximately February 1981. . ,
In March 1981, I joined the firm of Fishman Merrick Perlman & Nagelberg, P.C. I was
an associate from March 1981 until approximately -February 1985 when I was made a
shareholder of the firm. I was a shareholder in the firm from that date until.I resigned in August
1991. Although the name of the law firm changed over the course of years, I will refer to the
firm as Fishman & Merrick, P.C. (the "Fishman Firin").
Ms. Rochester joined the Fishman Firm in November 1989 and was an associate at the
firm through the. date that I left the Fishman Firm. Over the approximate year and one-half that
Ms. Rochester and I worked together, she and I both handled commercial litigation. Although
Ms. Rochester worked with a number of other Fishman & Merrick lawyers, I believe that she
worked, with me more than any other litigator in the firm. -
Over the time that we worked together, I found Ms. Rochester to be hard working and a
diligent attorney. During the annual reviews of the associates, I gave her good reviews and
.indicated that I believed that she was on track to become a shareholder in the firm. During that
time, .I always treated her professionally and with respect. I never made any inappropriate
commentS or took any inappropriate actions toward her. To my knowledge, Ms. Rochester never
complained about anything- that I said or did with respect to our work.
In late 1990 or early 1991, Ms. Rochester came into my office and asked if she could
speak to me in confidence. I told her she could. Ms. Rochester then complained about certain
comments and behavior of .Mr. Fishman that she believed were inappropriate. She generally
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BARACKFERRAZZANO KIRsCHBAUM PERLMAN & NAGELBERG
Wendy J. Muchman, Esq.
Page 3
June 12,2001
described that Mr. Fishman made phone calls to her home and tried to strike up a personal
relationship. Ms. Rochester also told me that Mr. Fishman walked into her office from time to
time, closed the door and came up from behind her and tried to touch her. Ms. Rochester told me
she believed these comments and actions were inappropriate.
I told Ms. Rochester that I would talk to Mr. Fishman about his conduct. Ms. Rochester
told me that she would prefer to talk to him directly and that she would ask him to stop. Ms.
Rochester specifically asked me to keep the conversation confidential and asked me not to talk to
any other members .ofthe firin about it.
On July 10, 1991, Ms. Rochester came into my office and again asked to speak: to me in
confidence. She told me that, over the Fourth of July holiday weekend, she had been in the
office and she and Mr. Fishman were the only two people present. She then told me ~at Mr.
, Fishman had sexucilly assaulted her.
I advised Ms. Rochester that this was extremely serious and that someone needed to talk
to Mr. Fishman immediately to make sure this activity ceased. I also advised Ms. Rochester that
she should consider calling ~e police and talking to the other members of the firm. Ms.
Rochester again requested that J keep the discussion confidential and she asked that I not discuss
it with other members of the firm. Ms. Rochesfer stated that she did not want other members of
the firm to know about this because it may taint the way in which she was perceived in the firm.
Ms. Rochester also stated that she would talk to Mr. Fishman about this inappropriate action and
she asked me not to discuss ~t with him directly.
Because 'ofthe seriousness of the allegations, I advised Ms. Rochester that I required her
to give me a memorandum memorializing 'any conversation she had with Mr. Fishman. I also
again asked her to reconsider whether she needed to report this matter to the police or any other
people. .
. On or about July 11, 1991, Ms. Rochester came into my office and gave me a
memorandum. A copy of that memorandum is attached hereto as Exhibit A. Ms. Rochester told
me tha;' she had spoken to Mr.. Fishman, that he. acknowledged that the actions were
inappropriate and that he promised never to do them again. When Ms. Rochester gave me this
memorandum, she again requested that I not mention the activity to Mr. Fishman or anyone else
in the Fishman Firm.
For unrelated reasons, I resigned from the Fishman Firm in August 1991 and joined
Barack Ferrazzano Kirschbaum & Perlman (now Barack Ferrazzano Kirschbaum Perlman &
Nagelberg) effective September 1, 1991. When I left the Fishman Firm, I gave a copy of Ms.
Rochester's memorandum to ,Gerald Miller, the administrative shareholder of the Fishman Finn.
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BARACKFERRAZZANO KIRsCHBAUM PERLMAN & NAGELBERG
Wendy 1. Muchman, Esq.
Page 4
JUne 12,2001
It is my understanding that Ms. Rochester remained an associate at the Fishman Firm
until sometime 1n February 1994. Ms. Rochester then filed suit against Gerald Fishman and the
Fishman Firm in 1995. A copy of Ms. Rochester's complaint is attached hereto as Exhibit B.
, In that complaint, Ms. Rochester does not allege any inappropriate ~omments or activity
by me. The complaint also sought no relief against me. The basis of the allegations in the
, complaint relate to the sexual assault made by Gerald Fishman and the activities of the Fishman
Firm and its shareholders after Ms. Rochester complained about the activity. Ms. Rochester
essentially alleges that, after she complained about Mr. Fishman's activity (which occurred after
I left the Fishman Firm), the other shareholders of the Fishman Firm stopped working with her
and effectively froze her out of the law finn.
The jury returned a verdict in favor' of Ms. Rochester on certain of her allegations in
September 1998. There were no findings or verdicts entered against me.,
RESPONSE TO ALLEGATION OF DISCRIMINATION
A. I never discriminated against Ms. Rochester.
'c,
In the time that I worked with Ms. Rochester, I never discriminated againSt her or created
a, hostile work environment for her. I always treated her with the utmost respect and
professionalism. I never made~ and I am unaware of any charges of, any inappropriate comments
or behavior with respect to Ms. Rochester.
, My reviews of Ms. Rochester's work reflect that I viewed her as a valuable employee and
that I would continue to work with her. My reviews also'reflect that I believed she was on track
to become a shareholder in the Fishman Firm.
I never refused to give work to Ms. Rochester. In fact, I believe that, over the period of
time we worked together, I gave her more work than any other lawyer in the finn.
. Finally, Ms. Rochester's federal court complaint does not allege any inappropriate
comments or activity on my part and the jury verdict does not contain make any findings against
me.
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BARACK FERRAZZANO KIRsCHBAUM PERLMAN & NAGELBERG
Wendy 1. Muchman, Esq.
Page 5
June 12, 2001
B. . Rule 8.4(a)(9)(A) was not in effect at the pertinent time.
Your letter of May 17, 2001, references that my conduct may have violated illinois Rules
of Professional Conduct, specifically including Rule 8.4(a)(9)(A). However, that specific rule
did not become effective until October 15, 1993, over two years after my employment with the
Fishman Firm and work with Ms. Rochester ended. Thus, while I never discriminated against
Ms. Rochester, the operative rule was not in effect at the time that Ms: Rochester and I worked
together and while I was a shareholder in the Fishman Firm. Even assuming that Ms. Rochester
specifically alleged discriminatory conduct by meat the time that we worked together in 1991
(which she did not do in the complaint she filed in federal district court; I am unaware of the
specific allegations made to the ARDC), Rule 8.4(a)(9)(A) should not be applied retroactively.
C. Even if Rule 8.4(a)(9)(A) applies. there is no finding of discrimination against
me.
Even if Rule 8.4(a)(9)(A) applies to this situation, Ms. Rochester has not satisfied the'
requirements of Rule 8.4(a)(9)(B). Rille 8.4(a)(9)(B) states:
No complaint of professional mise-onduct based on an unlawfully
discriminatory act, pursuant to paragraph (9)(A) of this Rule,. may be
brought until a court or administrative agency of competent jurisdiction
has found that the lawyer has engaged in an unlawfully discriminatory act,
and that the detennination of the court or administrative agency has
become final and enforceable and the right of judicial review of the
determination has been exhausted.
RPC Rule 8.4(a)(9)(B) (Emphasis added). In other words, a finding of discrimination must be
made against the individual lawyer whose fitness is questioned. It is clear that there has been no
finding'against me. Ms. Rochester made no such allegations against me personally and no jury
verdict was entered against me personally.
I,am not aware of any case law or rule interpretation in Illinois in which a jury verdict
entered' against a law :firm was the basis for a finding of a rule violation against a former partner
or shareholder who left the :firm before the suit was brought. Accordingly, there is no basis for
finding any violation of the Rilles of Professional Conduct against me.
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BARACK FERRAZZANO KIRsCHBAUM PERLMAN & NAGELBERG
Wendy J. Mucbman, Esq.
Page 6
June 12, 2001
CONCLUSION
For the foregoing reasons, I respectfully request that the ARDC dismiss any and all
complaints by Ms. Rochester 'against me and find that I have violated no Rules of Professional
Conduct. Please call or write me if yoti have any questions or need any additional information.
Sincerely,
WSPIlmx
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BARACKFERRAZZ.ANO KIRsCHBAUM PERLMAN & NAGELBERG
Wendy J. Muehman, Esq.
Page 7
June 12, 2001
bee: DavidR. Selmer, Esq.
82442_1.DOC
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HEMOAAUDUM
DATZ: July 11, 1991
TO: W. Scott Portetield .
FROM: . 11,oxAnne t.'ROCh~r'
R!:: . :Conference of July 10,,' 1991 re: GLF
--
ASi07e di&CJllssed in Ol1r Conversation yesterday, I have spaken
to GLF toi~for~ him that the verb~l ~ex~al innuendo and his
physical seXual advances to~ard me ~reinappropriate and
.of,f'Qi'-$ivlil.. . I told him that in the .future, if be ro.lloW':s II
si~i1.a~ course r \Jill (::ontact the polico dnd/or .file e civil
complaint. .
. GLFadvised mQ that .he ~as fully aware that the events of
Friday, July 5, 1991 and preceding e"ents W'e:t'a\l{ilolly
inappropriate. GLF promised that there will be no sexual
cv.artures in t.he future. I advised GLF t.hat' 1 had corltemplated
leaving' the firm if3Y presen~Q made hi~ unc~mfo~~able. He'
re~inde~ ~Q that I had made this s~9gestion before .and th~t he
do~s not w~~t ~e to leavi the firm. GLF !ndicatea that he will
treAt JIIe in an appropriC)."te' profesaional manner fr0J11 this day
tontard.. '1\.ltho.ugn he ad1n1tted .that he has made this prcmisQ
. before, and ~at he wouldntt blame me for not p~acin9 ~uch stoc~
in his ~ord, .he hoped :r \{culd trust him once .more.
'AS J: 1ndicated to you,. I wil.l cautio\J.sly "take GLF at his
word and trust that nothing of this sort will trAns?i~e again in
the future. '}1ean'-'hile,:: ask that this matter not be spread of
pUl:llic: record aJllohq tba other t.ltnublilrs or the [ir)l1. It 15 my hope
that cooler haadsprevail and the seernln9ly harsh recourse ot
contacting' polical .filing a civil Buit 'and/or involving o'ther
lnem.bers of ,the :flrm can be avoided. Also, a.s I have stated all
throughout. I. all! mindful Qf the school o( tholight that 'Would'
wonder lrW'hatdid she do 'to ~ntice him?" Wanting despera~c"'ly to
avoid any cynical ~usinq r Would appreciate ~our t~Qating this
~atter in confidence. .
Thank you fO.t' your cent" ide~!::e and assis"Cance in this mat.tor.
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JUL 11S!5 FILED - EOZ
fN THE UNITED STATED DISTRlCT COURT IN ILLINOIS:~5 ~'_:~ -~ p 2: nLJ
NORTHERN OISTRlCT, EASTERN OrVISION _. __.
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U:S. DISTRICT COURT
TP:jp 9506299414J9
RoxAnne L. Rochester,
Plaintiff:
fJ.@[;S@~ ~
No.
v.
Gerard L.Fishman and Fishman and Merrick, P.C., an
.Hlinois professional corporation, ..
Defendants.
~GE MANNING
..
COMPLAINf
MAGlSTRATE JUDGE:; ;A.SHMAN.
RoxA.nne L. Rochester comp-lains as follows:
FACTS C0M1v10N TO ALL COUNTS
.;
1. N A TIJRE OF THE ACTIONS
. ~. .
1. RoxAnne L. Rochester, referred to hereafter as Rochester, brings this civil action, for
violations under Ti~e VII of the Civi.l Rights Act of 1964,41 U.S.C. 910OOe, et seq. as amended by
the eiyil Rights Act of 1991 against Gerald L Fishman, referred to hereafter as Fi~ and F15hman
. '. . . .
and Merrick, P.e. an Illinois professional corporation, ~erred to hereafter as F&M..
1. Rochester is a former employee ofF&M. Throughout Rochester's employment at
. F&M, Fishman, with the knowledge, consent and approval ofF~ :ddiberaIdy, maliciously and
repeated1y}exually harassed Rochester. F&M and f15hman also engaged inillegal discrimination
against Rochester because of and due .to her gender.-
3. As a direct result of Rochester's rdUsal to submit to FlShman's sexual harassment,
F&M constructively discharged Rochester on Febi-uary 9, 1994.
4. This action also contains pendent state law daims of intentional infliction of emotional
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distress and tortious interference with a contractual relationship against Fishman.
II. JURlSDICTION
5. This action arises under Title vn of the Civil Rights Act of 1964, 42 U. S. C. 92000e,
e/ seq. as amended by the Civil Rights Act of 1991.
6. Jurisdiction is invoked pursuant to 28 U.S.c. g134~(4) and 42 U.S.c. g2000e-5(f),
and the Equal Employment Opportunity Commission ("EEOCW) Right to Sue Letter issued on Apn1
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6, 1995, based upon a charge affidavit timely filed by Rochester with both the EEOe md the Illinois
Department of Human Rights. True and accurate copies of Rochester's charge affidavit and the
EEOC's Right to Sue Letter are attached hereto and are in~rporated herein as group exhibit one..
Ill. VENUE
7. This action properly lies in the Northern District oflIIinois, Eastern Division, pursuant
to 42 u.s.e. g2000e-5(f)(J), because the unlawful employment practices and tortious conduct were
commined in this judicial district. . Venue is further proper in this distriCt Wl~er 28 U.S.C. 1391(b),
because all of the acts giving ri~ to these claims occurTed in this judicial district.
IV. PARTIES
8. Rochester, a fem31e. is a citizCfl and resident of the United States and Cook County,
Illinois. Rochester was a dedicated and loyal employee of F&M from November 13. 1989 to
February 9, 1 994. F &M construCtively discharged Rochester on F ebru.ary 9, 1994;
9., F&M is a professional corporation organized under the laws of Illinois. . F&M's
. principal business is the practice of law.
10. Fishman, a male, is a citizen and resident of the United States and Cook County.
IIIinois. Ftshman is., on information and belief, the senior principal member or principal shareholder
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of F&M. Fishman is empowered to and dOe3make decisions regarding most aspects of F&M
business, including employment.
V. CAUSES OF ACTION
COUNT I
QUID PRO QUO SEXUAL HARASSMENT
1 - 10. As and for paragraphs one through 10 of Count L Rochester reaUege3 and
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incorporates' paragraphs one through 10 of the Facts Common to All Counts as iffully set forth
herein.
11. From late October or early November of 1990unnl July 8, 1991Fis~ made
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repeated sexual innuendos and, advances to Rochester. He exhibited lewd behavior to Rochester.
Fishman committed assaults and batteries against her.
12. F &M was aware of Fishman's abusive and illegal conduct but failed, to take any
corrective action.
13. , The defendants' continual and repeated acts of sexual harassment indud~ but i5 not
limited to, the following conduct:
A In late October or early November of 1990 Fishman began dropping by Rochester's
office to ,It see how her work was going." He suddenly became inquisitive about Rochestcr',s personal
life, i.e. inquiring into her farmly structure; rdigious background, marital relationships, etc. He began
making flirtatious remarks, commenting on Rochester's clothing. speculating as to how she might
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look with her hair down, etc. Rochester ignored his flirtations and would focus attention back on
,work. This behavior began shortly after F1Shman's p~er Karen ~ the only other female
attorney at tile firm, left.
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B. In mid-November of 1990 Rochester was working late when Fishman corn~ her
in the hallway, put his anns up against the wall on either side of her head arid kissed her on the lips.
Rochester pushed him away and ducked under his arm.. While getting away from him, Rochester told
him to never do that ever again. Later, Rochester once again told FIShman'that his behavior was
inappropriate and told him to never do that again. For a couple of days, Fishman's ffirtarions stopped
and he behaved appropriatdy.
C. Shortly after Fishman's flirtatious attention began, he entered Rochester's office to
take a telephone call, dosing the door as he did so. \lIh.ile he was on the phone he pushed his hand
down the front of Rochester' s blouse and fondled her breast. Rochester left her desk and protested
to Fishman that his behavi.or was inappropriate and unwdcome. He left the office promising not to
do anything like that again.
D. . On November 28, 1990 FlShman insisted upon giving Rochester a ride home from the
office, ostens1bly to talk to her about her work. \Vhen reaching her home, Fishman asked to be invited
urto her. home, Rochester refused and tried to get out of the car. FIShman jumped on top of her arid
began kissing her. Rochester struggled to avoid his kisses. to escape his clutches and to get out of
.the car. She was unable to open the door. It was locked and Fishman was on top of her. While
searching for the button to unlock the door Fishman continued trying to kiss Rochester and he began
groping at her breasts. Rochester pleaded with him to stop and asked him to unlock the doors. When.
he refused; Rochester looked at him and discovered that Fishman had unzipped his trousers during
the struggle, exposed his penis and was vigorously fondling himself. He ejaculated onto his suit. He
requested to be allowed into Rochester's apartment to use the shower. Rochester ~ed to get
the car door open and fled the vehicle. The next day Rochc:ster avoided the office and sPent the day
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in the Cook County Law Library. That evening. befure going home:, Rochester returned to the office.
She saw Fishman and . confronted him about his inappropriate hehavior. She offc::rcd. to resign if
Fishman was unable to work with her in a strictly professional capacity. He assured her that he and
thetinn valued her work. did not want her to leave and that he would not repeat the events of the
. night before.
E. The next day, November 30, 1990, Fishman, once again under the guise oftalcing a
tdephorie ca1~ dosed the door, kissed Rochester and pushed his hand inside her blouse winle on. the
phone. She fled from the office after she demanded that he stop his advances.
F. On December 5, 1990, Mr. rlShman called Rochester to his office to discuss a case
she was working on for a mend of his, Mr. Richard Mortell. At the conclusion of the discussion, he
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offered Rochester a ride home. She refUsed and again explained to him that his ove:rrures were
inappropriate and unwelcome.
G. 011 December 11, 1990 while she was Speaking on the telephone with a client Fishman
carne into Rochester's office. He threw a dnld's toy across the desk and onto the floor next to .
Rochester. He came around her desk, picked the toy up and while he rose to a standing position he
reached up under Ro chest cr' s skirt and fondlc:rl hcr leg. Rochestcr kicked him aside. Rochester
rcnind~ him of his promise no to do things like that again.. Rochester avoided r~ speaking
to him oniy in hallways and when it was necessary to report something about a case she was working
on.
H. In mid-December of 1990 at F&M's holiday party, Fishman stood behind his vrife
winking at Rochester while she was greeting Mrs.. Fishman.
t. On December 16, 1990 ~g it was her sister, Rochester inadvertCItfy admitted
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Fishman to her condominiwn. Rochester was woken from a sound sleep by the doorbell. Rochester
released the door thinking it was' her sister. Instead it was Fishman who entered her apartment and
asked for coffee. Rochester went to her bedroom to finish dressing. Fishman followed and stood
with his anns across the door jam. He pushed Rochester onto the bed, pinned her down ,and, began
kissing her. \Vhiie Rochester struggled to get out from under ~ the telephone rang. Rochester
~ed ,to ge,t off of the bed and answer the ph,one. It was Rochester's sister telling her she was on
her way over. Rochester told Fishman that her 'Sister was on her way over and to get out of her
apartment,
J. ' On the following Monday, Rochester spoke to Scott Porterfield, a member 'of the
F&M law finn, about the problems she was having with Fishman. Rochester explained FIShman was
making unacceptable ove~. Porterfield started to explain that FlShman was paternalistic, had
touchy ways and that he was like that with even the male attorneys. Rochester then explained in
detaIl the behavior and abuse that she suffered at FIShman's hands. She explained that she was Unable
to deal with it on her own since FIShman ignored her entreaties..
K. After the incident at her home F1Shrnan curtailed his 0vertUI"eS. He continued to work
with Rochester, but did not make any suggestive remarks or try anything inappropriate. ArOund the
~ holidays he went to Disney World with his family. While he was away he called Rochester
on the private line in her office. Rochester asked what the purpose of the call was. He said he just
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wanted -to see how she was doing. Fishman indieued there was no business related need for the calL
L. After the holidays Fishman left occasional messages on Rochester's, home answering
machine, purportedly calling to see how she was doing. RochesteT ~ed the calls and did not
speak to him.
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M. Around March I, 1991, Fishman advised Rochester they were going to met;t with a
client to review documents. Instead, Fishman drove Rochester to a condominium building in
Chicago. The client who they were supposed to meet was not presem.. The dient. in fact, had been
in a conference at another place all the time the meeting was to have taken place and was not even .
aware that a document review session was scheduled. While d.riviI1g then: and back ~. FIShman
~t into e!ab~rate detaIl about his car telephone. _how Secure it was.. bow any messageS Rochester
would care to leave him could not be retrieved by anyone except himsdf. Ro~ester advised Fishman
that she saw no reason to call him in his car and leave messages on his answering device.
N. On April 25, 199 I Rochester moved her residence. Later that week Fishman asked
for her new telephone number. Rochester explained that she had not hooked up a phone arid did not
expect to do so. Flshrnan then asked when he would be invited to her new home and Rochester told
him just as was true of her old home. he would not be wdcome in her Dew home. Meanwhile. Gail
Werner, FiShman's office manager asked for Rochester's new address and telephone. Rochester only
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gave it reluctantly and after Werner promised to Dot divulge it. Rochester had told Werner, without
identifying Flshman, that she was having trouble with someone at the firm. A couple of weeks later
Werner .came into Rochester's office and asked Rochester ifEshman was behaving himself.
O. Then, on May 13, 1991 Ftshman came into Rochester's office and asked. again. when
. he could corne to her home. She. told him, "in a word. 'never'" and changed the subject.
P. After moving. changing her Office hours so that she came in earlier and would not be
on the premises after 5:00 p.m. when others were not around to avoid Fishman. his hara~~inl3
behavior stopped. From April through July there.were no mare assaults, no more ovemtreS, no more
comments, no more telephone calls and no more flirtarions. Rochester wo~ed on assignments and
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cases for Fishman and c::ornmunicarion about the work was strictly professional Rochester beiicved
Fishman had finally tired of harassing her and had finally stopped his antics.
Q.. On July 5, 1991, while the office was dosed for the Iodependence Day holiday, .
FIShman closed the door to his office while Rochester was in there.. When Rochestl:f reminded him
that she did not like dosed doors and asked why he did it he told her .rn show you." He then
p.ushed Rochester down onto hi5 couch, jumped on top of her and began kissing her. Rochester
.struggled to push him off and turned ~l:f head to avoid his kisses. She began pleading With him to
. "stop it" and "you promised not to do this" and "you don't want to do this... FIShman then pulled at.
Rochester's pants, forced his hand into her underwear and forcibly stude his finger in her vagina.
Rochester struggled free and fled the office.
R. The following Monday Rochester went to see Scott Porterfield again. She told him
what happened. Porterfield advised Rochester to sit FlS..JUnan down one more time and tell him, again,
that his overtures are completdy unacceptable. and that if he tries anything ever again she ~ould call
. .the police and file criminal and civ11 lawsuits. Scott suggested that Rochester memorialize her
conversation with Fishman in writing and give Fishman a copy or Porterfield a copy. Portcrfidd
promised to keep the discussion confidential.in light of Rochester's concerns over what other
pannCfS"panicu1ariy David Genelly and Steve Merrick, might say and in light ofthc anger it might
incite 1n Fishman to know that she had spoken to others about his ~
s: On Wednesday, July 10, 1991, Rochester spoke with F1Shman. She discussed with
him at length how angry and upset she was about what be did on Friday. She reminded him that this
was not the first time they were having this conversation. Rochester told him that she expected to
be ~ed asa professional and be)udgcd in the firm solely on the bW ofbc-lawyering skills.. She
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offered to resign immediately if Fishman could not comport himself professionally.
T. After the conversation, FIShman assured Rochester thaI he was sincerdy repentant and
he would be true to his promise to stop. Ho~ever, toward the end of the day while Rochester
worked in the library, F1Shman c:ame in and with a smirk on his fuce said, 'Well. ifit's any consolation,
you were the best I ever had." Rochester shot back, "Thars just it Fishm~ you never 'bad' me," and
~hed out of the library. Rochester returned to her office,' memorialized the earlier conversation in
. the form of a memo and gave Porterfield a copy of it. Rochester also gave a copy to Gail Werner
asking her to place it in her personnel file. yYemcr agreed to keep the merno confidentiaL
U. Within a couple of weeks of Rochester's second complaint to Porterfield,. he
announced his departure from the firm. After Porterneld left. RocheSter went on trial for two weeks.
When she returned from trial to the office full time, nobody was . speaking to her~ None of the
partners would say as much as "good morning." Most notably, Fishman would neither greet nor
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speak to her.
V. For the next five months none of the partners spoke to Rochester, other than to give
herassignmems or inquire into the status of cases she was w9rking.. Frqm August. 1991 to the day
her employment was terminated in February, 1994, Rochesterncver again received an assignment
from Fis~ or had any professional contaCt.with him. In addition to cutting Rochester off from
assignments and projeCts that would allow professional growth. Fishman and F&M orchestrated a
~ campaign of retaliation against her. Secretarial, c!erk and paralegal services were withheld from
Rochester. She was not allowed to incur ordiriary and customary expenses ,on maner.s.. She was
forced to do her own filing and typing. Her access to theresoUI'CeS available to the male attorneys
at the firm was e!imi~ted.
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w. As the senior most m~ber in the finn. FlShman brought in the most business and had
the greatest say in the management of the atfairs of the firm. F15hman was in a position to affect the
careers of associates and partners at the fimi by virtue of the types of assignments he would make and
the degree ofindep~dence he granted with dients and their problems. Betw~ January of 1992 and
January of 1994, Rochester made l'UlIIlerous efforts with .partners at the firm to try and put F1Shman's
harassment aside, remedy the adverse repercussions, FIShman's refusal to assign her work and foCus
on her career. She made repeated efforts to work with FIShman. Despite her efforts, Fishman would
have nothing to do with her whatsoever. Rochester was professionally ostracized by Fishman and
other partners who worked closely with Fishman. Fish~ and the employees acting in concert with
him ignored Rochester and behaved as if she did not exist.
X. In January of 1992 Rochester had a meeting with another partner in the firm, one
Stephen Merrick, about ~e retaliati(~m she was experiencing. Menic:k advised her that F15hman' s
pride was hurt, that Fishman was insulted that she had rebuffed his advances ~d overtures. Fishman
. was also upset that she had publicized her complaints about Fishman to others in the finn and that
o Rochester had to give him time to heal. Menick assured her that over time, Fishman would once
again establish a working rel~onship with her. Merrick told her tha! he would ilssist her in
reconcili.ng with Fishman .and would act on het behalf provided she would refrain from filing any
charges or complaints with the Illinois Department of Human Rights or the Equal Employment
OpportUnity Commission.
Y. Rochester also approached another partner, David Gendly, about the ostra.cism and
re't::!Jj~tion. Gendlyassured her that he would intercede on her behalf and that she should be patient.
Rochester had periodic meetings and conferences with Merrick and Gendly about the continuing .
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retaliation until November of 1993. In November of 1993, after yet another request of assistance.
Genelly finally told Rochester that he would not ask Fishman to work with Rochester ~ He
stated ..that would be asking too much of Gerry FIShman and I won't ask it of him. " In the meantime,
the acts of retaliation and discrimination against Rochester continued.
Z. In addition to the specific retaliatory and discriminatory acts against Rochester, the
.~eraI environment at F &M 'WaS hostIle and discrimin3.tory to:wazUs WOmen. Rochester s complaints
led to. more intense discrimination against her because of her gender. Other women were
discriminated against by F &M solely based on their gender.
A.A.. Early in her term at F&M, Rochester would be pre,se:nt and hear jokes about Karen .
. Karasik. Fishman's partners Bart. Springer, Gerry Miller and David Genelly would often ridicule
Karasik. They would openly muse in ~ochester' s presence about what Karasik <had dc;me' to
Fishman in order to make partner. They would wonder out loud what she continued to do to
Fishman to earn .his loyalty.
BB. Springer and Gendly would joke that Charlie Janda and Joe Nicholas, two senior
associates in line for part:nc:rship, "would have to go .down on Kan::n while she was on the rag" bc:forc
they would ever realize their aspirations. The sexual and gender based joking was .so pervasive that
even the, support staff would make comments about how Karasik needed a vibrator to cure her .
moodiness and attitude.
CC. Several female attorneys who had worked for F&M and who Rochester first met after
becoming employed there told Rochester that she'W'aS in a female hating snake pit and thaI they pitied
her. Joanne Hershkowitz., a former associate of F&M, extended. condolences when she first met
Rochester at a bar associarion function after learning she was employed at F&1\-i Hershkowitz went
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',ori to explain that F &M partners were hostile towards women.
DD. Susan O'Connd, an associate at the finn, had asked Fishman and Springer to adopt
a furn;al anti-harassment and anti-discrimination policy. This was prompted by an incident where an
employee was given a pair of 'thong' panties at F&M's holiday party. They refused..
EE. O'Conne!. who rCccved sca!hing perfonnance evaluations prior to her dcparture, was
~sed by Fishman's partner Ken Berg, that 'women have to work twice as hard as men to get ahead
at this firm.' O'Connel was also belittled publicly by F&M partnm.
FF. Carolyn Perry, a paralegal at F~, dated a client ofStcve Merrick's while employed
at the firm. She was, regularly criticized by David GenelIy. Genelly would threaten to fire Perry.
Steve Menick stepped in and reso.lved the disputes. After Perry stopped dating Menick's dient.
, !Vferrlck no longer protected her and she was fired..
GG. At the 1989 holiday party, jokes laden with sexual innuendo were made' in a skit
modeled after a television program routine. One such joke was "wh2t does Joe Nicholas have to do
to get a client? Eat a lot ofCoolcie(s)." Nicholas had a client named Cookie.
HH. At the 1991 holiday party, Steve Merrick was give:n a calc:nder decorated 'With women
wearing scanty thong bikinis. Merrick and other male attorneys made a point of pubIidy ogling and
salivati~g over the women on the calender in front of F &M employees who were at the party.
II. At the 1992 party, Sharon Hinton was given a pair of red lace thong panties.
Preceding the opening of her gift. Rcnan Sugarman, an associate, recited a poem filled with saual
innuendos, including a, reference to Hinton's briefs and . not the ones she types~ ·
11. F15hrnan would openly and lasciviously stare at Lisa Hajduch' s bosom. This happened
. often enough that Hajduch complained to FlShman's partner Scott Portcrlidd about Fishman's
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behavior.
- KK. In July of 1992, Renan Sugarman gave Rochester a 'Sex Club card that entitled her .
to one free orgasm.' Sugarman was like a son to F'lShman. He had married the best friend of one of
FIShman's daughters. Rochester was concerned that Sugarman knew what Fishman had done to .her
and that he presumed upon it.
LL. Rochester went to see Merrick and showed him the card. explained the circumstance
surrounding her possession of it and exp~ her concerns about her reputation, standing in the firm
and fears about what the partners or Fi~man had told associates and staff. Merrick reassured
Rochester that she waS a valued employee. He gave her no reason to believe that he was not working
o? her behalf to intercede with Fishman, ashe had promised. He reassured her and gave her every.
reason to believe that he could restore her to the same .position and privileges she had enjoyed before
refusing Fishman's advances and then complaining about it when they. did not cease.. .
M1vf. . Rochester first: learned in November of1993 that F&M and Genelly had done nothing
to stop the retaliation, the discimination and to work for or to intercede .on her behalf: Geneily told
her for the first time that it was Fishman's position that she had made it all up and Genelly didn't
. know who to believe. He told her that he did nothing for het' after Fishman claimed she fubriC3!ed
the story.
NN. After her meeting with GendIy, Rochester confronted Merrick with GeneIly's
statements. Merrick said again that he would talk to F'lShman. After several weeks passed. in
January. of 1994, RocheSter asked Merrick ifhe had talked to Fishman. He said yes. Merrick advfsc.d
her for the first time that Fishman would not work with her. Fishman would never work with
Rochester again. Merrick. despite saying he would talk to FlShman. had known about FlShman' s
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decision for months, if not two years, and only fu'st cormnunicated it to Rochester in Jamwy of 1994.
00. Rochester told Merrick that Fishman's decision had made her position untenable.
Rochester would be up for pa.rmer review as early as November of 1994. That because ofFishmari
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she had no future at the firm. Merrick told her to be patient. He told her that theba1ance of power
was shifting to other pa.nncrs.. He told her that given time, Fishman would no longer be in a position
to affect her carcersince his influence will have waned.. Merrick said he would no longer make any
further attempts to dissuade Fishman from his course of retaliation. Merrick was otherwise non-
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committal concerning Rochester's career and future.
PP. On February 4, 1994, Rochester went to the illinois Department of Human Rights and
filed a charge of discrimination and harassment. On February 7, 1994, Rochester had an interview
at the illinois Department of Human Rights and signed the charge set out in group exhibit one.
QQ. On February 8, 1994 Rochester advised Genelly that she had filed complaints with the
Illinois Human Rights Commission and the Equal Employment OpportUnity Commission.. Gene1ly
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ccploded with anger and began screaming at her how she was ruining peoples lives. t.ba:t Rochester
was ungrateful for what she had at the finn and that she failed to put the incidents behind her.
R.R. The next day, Gene11y entered Rochester's office and resumed his tirade. After an
hour, Rochester was summoned to Merrick's office. Merrick also became enraged.' He launched into.
. a tirade and started screaming at her. Rochester left his office when he would not stop.
58. Rochester returned to her office and tried to resume working. An.associ3!e came into
her nffice and explained that Menick had sent him. He advised Rochester that Merrick want ('.d her
. to handle this 'in-house' and would she be ~Ie to dismissing or withdrawing her charges.
Rochester refused, she advised the associate that she had nied to handle it 'in-house' for two and
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one-half years and it only reSulted in retaliation and discrimination. She packed her personal
belongings and left F&M.
14. Rochester found each and every one of Fishman's actions to be offensive and
unwelcome.
15. Rochester made known her strong objections to Fishman's offensive conduct on
numerous occasions. Rochester told Fishman that his propositions and advances were unwelcome
and offenSIve to her. Fishman ignored Rochester's pleas to stop.
16. F&M, its management and employees, knew that Fishman was engaged in a course
ofirnpermissible conduct, illegal harassment and subsequent retaliation toward Rochester, but F&M
failed to take any corrective aerion and in fact participated in and facilitated .retaliation after she
complained about Fishman.
17. Fishman's course of conduct and harassment of Rochester was based on the fact that
Rochester was a female.
18. . To the best of Rochest~s knowledge, none of the male 'employees at F &M were
subjeaed to Fishman's sexual harassm~ .'
19. As a result of Rochester's objections to Fishman's offensive conduct and Rochester's
refusa.I to assent to Fishman's advances and complaining to his partn~ Fishman punished Rochester.
. FIShman umlaterally changed Rochest~s terms, conditions and privileges of employmentaI F &M as
punishment for her rejections of Fishman and in retaliation fur her lodging complaints about him.
F&M ratified Fishman's decision to punish Rochester and actively participated in it.
20. Without any legitimate cause or business,purpose, but in an effort to gain the goal of
FIShman's sexual harassment., FIShman SL~~pdi Rochester of the responsibilities and duties RoChester
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customarily exercised:
21. Flshman banished Rochester and influenced other F&M partners and employees to not
talk with Rochester except as absolutely necessary.
22. On February 9, 1994, as a direct result of Rochestcr's rcfusaJ to assent to FIShman's
sexual advances, F&M and FlShman constructively discharged Rochester.
WHEREFORE Rochester prays for judgment against Gerald L. F1.shman and Fuhman and
Menick, P.C., and each of them, as fonows:
A. Ajudgement for an appropriate amount of back pay,
B. " A judgment for a reasonable amount affront pay,
C. A judgment "for the reasonable value of her costs and expenses,
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D. A judgment for punitive damages in a multiple of the compensatory damages or a
percentage of the net worth of the defendants up to the amount authorized by law,
E. A judgment for reasonable attorney's fees in the bringirig and prosecution of this
action,
" F. A judgment for interest that would have been "earned on the amounts of compensatory
damages awarded for damages arising iri the past,
G. A judgm~ for such other or further relief as the court deems necessary and equitable.
Rochester demands trial by jury.
COUNT II
HOSTILE WORKING ENV1RONMENT - SEXUAL HARASSMENT
1 - 22. As and for paragraphs one - 22 of Count II, Rochester rcalleges and incorporates
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paragraphs one -II of the Facts Common to all Counts and paragraphs 12-22 of Count I as if~ly
.set forth herein.
23. Fishman's repeated sexual advances, battery, criminal sexual assault and lewd
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comments commined on and communicated to Rochester, created an intimidating.' offensive and
hostile working environment for Rochester contrary to the laws of this country.
24. . Under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act
of 1991, Fishman had a duty torcfrain from creating or maintaining an offi:nsive and hostile working .
environment for Rochester by his persistent sexual advances .~d lewd comments,
25. Under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act
. of 1991, F &M had a duty to refrain from creating a hostile and offensive working environment for
Rochester. F&:M also had a duty to investigate and correct FIShman's se:maI harassment and to stop
his retaliation when Rochester complained about him to his partners.
26. Fishman's continual and persistent sexual harassment af Rochester and Fishman's
. illegal assaults andbaneries were pan of an intentional pattern of conduct that was persistent and
continuous and designed to sexually harass Rochester and cause Rochester harm.
27. At no time did Rochester ever permit or consent to FIShman's assaults and batteries
. of Rochester.
28. As a direct and proximate result of Defendant Fishman's offensive course of conduct,
sexual harassment and disparaging remarks, Rochester suffered and endured severe anxiety and
physical and emotional distress while working at F &M and which continued thereafter.
WHEREFORE. RoxAnne L. Rochester prAys for judgment :!gi'm..r Gerald L FlShtnan and
Fishman and Merrick., P.C., and each of them, as fonows:
17
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A. A judgment for an appropriate amount of back pay,
B. A judgment for a reasonable amount ,of front pa.y;
C. A judgment for the reasonable value of her costs aDd ~enses,
D. A judgment for punitive damages in a multiple of the compensatory damages or a
percentage of the net worth of the defendants up to the amount authorized by law"
E. A judg~ent for reasonable attorney' s f~ in the bringing and prosecution of this
action,
F. A judgment for interest that would have been earned on the amounts of compensatory
damages awarded for damages arising in the past,
G. A judgment for damages for her emotional distress,
H. Ajudgment for such other or further refiefas the court deems n~sary and equitable.
Rochester demands trial by jury.
COUNT III
,DISCRIMINATION.
1 .. 18. As and for paragraphs one - 28 of Count III, Rochester realleges and incorporates
paragraphs one -11 of the FactS Common to aD Counts" paragraphs 12-22 of Count I and paragraphs
23 - 28 of Count II as if fully sd forth herein.
29. Fishman's and F&M's retaliation, withholding ofservio:s and res<:lurces, refusal to give
her assigriments and projects., interl"eren~ with her professional relationships at her finn and trea.!ing
. '
her differently than male employe::s solely because of her sex is contrary'to the laws of this country.
30. Under Trtle VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act
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of 1991, Fishman andF&M had a duty to refrain'from treating Rochester diffc:rently soldy on the
basis of her sex..
31. Fishman's and F&M's continual and persistent special ticannc::nt of Rochester after
July of 1991 was part of an intentional pattern of conduct that was p~ent and contirmow and .
designed to and did discrimin'ate against Rochester soldy because of her gender.
WHEREFORE, RoxAnne L Rochester prays for judgment against Gerald L FIShman and.
Fishman and MerricJc. P.C., and each of them, as fonows:
A. A judgment for an appropriate amount of back pay,
B. Ajudgment for a. reasonable amount of front pay,
C. Ajudgment for the reasonable value of her costs. and expenses,
D. Ajudgment for punitive damages in a multiple of the compensatory damages: or a
percentage of the net worth of the defendants up to the amount authorized by law,
E. A judgment for reasonable attorney's fees in the bringing and prosecution of this
action,
F. A judgment for interest that would have been earned on the amounts of compc:nsaiory
damages awarded for' damages arising' in the past,
G. A judgment for damages for her emotional distress,
H. Ajudgment for such other orfunher refiefas the court deems ~ry and equitable.
Rochester demands trial by jury.
COUNT IV
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
For Count N of her Complaint, Rochester complains against Defendant Fishman as fonows:
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I - 3 l. As and for paragraphs one - 31 of Count rv, Rochester realleges and incorponttes
paragraphs one - II of the Facts Common to all Counts and paragraphs 12-21 of Count 1, paragraphs
23 - 28 of Count II and paragraphs 29 -3 1 of Count III as if fully set forth herein.
32. Fishman intentionally abused his position and power over Rochester by using the
authority available to the senior member ofF&M to intimidate and threaten Rochester into having
a sexual relationship with him. .
33. Fishman wiIlfuHy and wantonly harassed Rochester by his extreme and outrageous
conduct and physical and verbal abuse, which substantially interfered with Rochester's employment
and created an intimidating, hostile and offensive work environment.
34. Fishman intended to cause Rochester severe emotional ~ or FlShman acted with .
reckless disregard of the high probability of causing Rochester severe emotional distress.
35. FIShman had a duty to not abuse his position of authority and to refrain from making
seXual assaults, ha.rass{nent and sexual overtures to Rochester as well as retaliating against her when
she complained to other partners and people in F &M' s management.
36. As a result of Defendant Fishman's e::cri1:me .and outrageous conduct.; Rochester
suffered and continues to suffer severe emotional distress and mental anguish for which she was
forced t~ seek attention and counseling and continues to rea:ive medical attention and counseling.
37. As a direct and proximate result of Defendant Fishman's extreme and outrageous
conduc.t. Rochester has been damaged in an amount in excess ofS 2,000.00 in a.ctu.al out ofpodcet
expenses and has been further damaged physically, emotionaIIyand mentally.
I
'NHEREFORE, Rox.A.nne L. Rochester prays for judgment against Gerald L FIShman in.a
sum exceeding fifty thousand dollars., the jurisdictional limits of this court., as compensation for her
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damages and a like or greater sum as exemplary damages to punish the intentional conduct of the
defendant and that she.be awarded her costs and the expenses of this action.
Rochester demands trial by jury.
COUNT V
TORTIOUS INTERFERENCE WITH CONTRACTIJAL RF.T.A TTONSHIP
I - 37. As and for paragraphs one - 34 of Count IV. Rochester realIeges and incorporates
paragraphs one - 11 of the Facts Common to an Counts and paragraphs 12-22 of Count L paragraphs
23 - 28 of Count II. paragraphs 29 - J 1 of Count In and para.g:raphs 32 - 37 of Count IV as iffully
set forth herein.
38. On November 13. 1989 Rochester entered into an at-will employment agreement with
F&M as an anorney associate.
39. RocheSter accepted F&Ms offer of employment by commencing worle immediately
and continued to work diligently for F&M until the Defendants F&M and FIShman coIlStrUctivdy
discharged her on February 9. 1994.
40. At. all material times., Rochester was ready. Willing and able to perform her duties and
obligatio~s under the employment agreement.
41. As a senior member ofF&M. F1Shman had complete knowledge of the employment
relationsr-tip between F &M and RocheSter.
42. As a direct result of Rochester's refusal to submit to FIShman's sexual hanssment,
FIShman intentionally interfered with Rochcsters employment 'Nith F&M by ignoring her. ostracizing
her and engaging other paI1neT3 to treat her the same way knoWing that depriving Rochester of
21
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professional exposure would destroy her career.
43. Fishman caused F&M to alter Rochester's terms, conditions .and privileges of
employment and to strip Rochester of the duties and responsibilities she customarily exercised at
F&M.
44. As a direct result of Fishman's intentional imerfcn:nce with Rochester and F&M's
~ployment agreement., F&M constructively discharged Rochester on February 9. 1994.
45. Fishman willfully and wantonly interfered with Rochester and F&M's employment
agreement. which caused F&M to co~ctively discharge Rochester on February 9. 1994.
46. Rochester has been damaged in an amount in excess of S 50,000.00 by FlShman's
tortious interference with Rochester's employment a~ent with F&M.
WHEREFORE., RoxAnne L. Rochester prays for judgment against Gerald L Fishman and
F1Shrnan and Merrick., P.C. ina sum exceeding fifty thousand dollars, thejurisdictional limits of this
. .
court, and that she be, awarded her costs and expenses of this action.
Rochester demands trial by jury.
RoxAnne L Rochester
, " I)
By: f"o:j ~,~
On ofhcr anbrneys ,
, '
Craig D. Tobin
Tomas Petkus
Attorneys for plaintiff
Three rlI'St National Plaza., Suite 535
, "Chicago, DIinoL, 60602-4205
Office (312) 641-1321
Facsimile (312) 641-5220
\\diaulo -t - ~~..,.1airyoid
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ATTORN~.LtEGISTRATION AND DISCIPLINARY u1MMISSION
of the
SUPREME COURT OF ILLINOIS
";A t'
One Prudential Plaza
130 East Randolph Drive
Oricago 60601-6219
(312) 565"26()0 (800) 826-8625
Fax (312) 565-2320
Hilton Offices
700 Ease Adams Saeer
. Springfidd 62701-1625
(217) 522-6838 (800) 252-8048
Fax (217) 522-2417
William Scott Porterfield
Attorney at Law
333 West Wacker Drive, Suite 2700
Chicago, II.. 60606-1227
Chicago
August 20,2001
Re: William S. Porterfield
in relati on to
the Administrator
No. 01 CI 2076
Dear Mr. Porterfield:
The above-captioned matter was recently transferred to me. Please be advised, however, that
we have decided to close it at this time.
In concluding this matter, I call your attention to Commission Rule 54 which provides, in
relevant part, as follows:
Closure by the Administrator (ofan investigation) shall not bar the
Administrator from resuming the investigation if circumstances
warrant.
As you may know, Commission investigations are private and confidential pursuant to
Supreme Court Rule 766.
Thank you for your cooperation.
'-
Alici . Duncan
sel
AFD:mer
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIAN~2 JUL 23 p,'l Ll: E:r.:-
INDIANAPOLIS DIVISION . . v-..I
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NOTICE OF FILING A WRIT OF CERTIORARI TO REVIEW A DECISION
OF THE BOARD OF ZONING APPEALS FOR THE CITY OF CARMEL
AND CLAY TOWNSHW AMII::; UNTY INDIANA
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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, )
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)
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Plaintiff,
v.
Defendants.
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Case No.
IP 0 2 G 1 1 33
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To: nnie Tingley
Secretary, The CanneVClay Board of Zoning Appeals
Department of Community Services
One Civic Square
Cannel, IN 46032
You ar
at print Spectrum L.P. in the above entitled action, has filed
its Verified Petition for Writ of Certiorari within thirty (30) days of and from the date of the
entry of the decision and order by the Board of Zoning Appeals for the City of Cannel and Clay
Township, Hamilton County, Indiana ("Board"), in Docket No. A-lll-Ol, said decision being
dated July 22,2002, and affecting the property located at 1388 Queens Way, Cannel, Indiana.
The Board's decision denied Sprint Spectrum L.P.'s Appeal ofa decision rendered by the
Director of the Department of Community Services to revoke an improvement location permit
for the co-location of a Personal Communication Service antenna on an existing tower and
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construction of an accessory building on said property. Such Verified Petition for Writ of
Certiorari has been filed in the United States District Court for the Southern District of Indiana
under the cause number and style as set out above and Sprint Spectrum L.P. prays that an Order
be issued for the Board to show cause why a Writ of Certiorari should not be issued herein and
further prays the decision ofthe Board be declared illegal and without force and effect.
You are further notified that the Board is ordered pursuant to the Order of the Court
concurrently issued with the filing of this Petition to show cause, if any, within twenty (20) days
from the date ofthis Notice, why a Writ of Certiorari to review said decision of the Board should
not be issued.
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DATED this 23 dayof '-.J .
,2002.
LOCKE REYNOLDS LLP
By:
T . Bedsole, #15980-49
Attorney for Petitioner
TO THE SHERIFF OF HAMIL TON COUNTY
PLEASE SERVE:
Connie Tingley
Secretary, Carmel/Clay Board of Zoning Appeals
Department of Community Services
One Civic Square
Carmel, IN 46032
Thomas F. Bedsole, #15980-49
LOCKE REYNOLDS LLP
201 North illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
573148_1
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IN THE UNITED STATES DISTRICT C~~lJJ :IS Q'~'. c.
FOR THE SOUTHERN DISTRICT OF INDIAN-A 1_.J I j I 4' ,,'d
INDIANAPOLIS DIVISION
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NOTICE OF FILING A WRIT OF CERTIORARI TO REVIEW A DECISION----
OF THE BOARD OF ZONING APPEALS FOR THE CITY OF CARMEL
AND CLAY TOWNSHIP. HAMILTON COUNTY. INDIANA
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Plaintiff,
v.
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,
Case No.
IP 0 2 - 1 1 3 3
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To: Connie Tingley
Secretary, The Carmel/Clay Board of Zoning Appeals
Department of Community Services
One Civic Square
Carmel, IN 46032
You are hereby notified that Sprint Spectrum L.P. in the above entitled action, has filed
its Verified Petition for Writ of Certiorari within thirty (30) days of and from the date of the
entry of the decision and order by the Board of Zoning Appeals for the City of Carmel and Clay
Township, Hamilton County, Indiana ("Board"), in Docket No. A-97-01, said decision being
dated June 24,2002, and affecting the property located at 1388 Queens Way, Carmel, Indiana.
The Board's decision granted Mr. Richard Deer's Appeal of the decision of the Director of the
Department of Community Services to issue an improvement location permit for the co-location
of a Personal Communication Service antenna on an existing tower and construction of an
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accessory building on said property. Such Verified Petition for Writ of Certiorari has been filed
in the United States District Court for the Southern District of Indiana under the cause number
and style as set out above and Sprint Spectrum L.P. prays that an Order be issued for The Board
to show cause why a Writ of Certiorari should not be issued herein and further prays the decision
of The Board be declared illegal and without force and effect.
You are further notified that The Board is ordered pursuant to the Order of the Court
concurrently issued with the filing of this Petition to show cause, if any, within twenty (20) days
from the date of this Notice, why a Writ of Certiorari to review said decision of The Board
should not be issued.
td- .-- 4:
DATED !his 2-3 day of <-.J
,2002.
LOCKE REYNOLDS LLP
By:
Tho . e sole, #15980-49
Attorney for Petitioner
TO THE SHERIFF OF HAMIL TON COUNTY
PLEASE SERVE:
Connie Tingley
Secretary, Carmel/Clay Board of Zoning Appeals
Department of Community Services
One Civic Square
Carmel, IN 46032
Thomas F. Bedsole, #15980-49
LOCKE REYNOLDS LLP
201 North lllinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
573148_1
2
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
)
)
)
)
)
)
)
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, Cannel, Indiana, )
)
)
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Plaintiff,
v.
Defendants.
Case No.
I~ 0 2.. 1 1 3 3
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ORDER TO THE BOARD OF ZONING APPEALS FOR THE CITY OF CARMEL
AND CLAY TOWNSIDP. HAMILTON COUNTY. INDIANA. TO SHOW
CAUSE WHY A WRIT OF CERTIORARI SHOULD NOT BE ISSUED
Sprint Spectrum, L.P., by counsel, having filed its Verified Petition for Writ of Certiorari
in its seventh claim for relief in the above-captioned cause to appeal the June 24, 2002 decision
of the Board of Zoning Appeals for the City of Cannel and Clay Township, Hamilton County,
Indiana granting Mr. Richard Deer's Zoning Appeal. The Court having examined the same.and
being du1y advised in the premises fmds that an Order shall be issued in accordance with Ind.
,. Code ~ 36-7-4-1006.
IT IS THEREFORE ORDERED by the Court that the Board of Zoning Appeals for the
City of Cannel and Clay Township, Hamilton County, Indiana, within twenty (20) days within
the date of this Order show cause, if any, why Writ of Certiorari should not be issued as
. _ _: ii
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prayed for by Sprint Spectrum L.P.
DATED this 1/1 ~ day of j \.) ~
,2002.
ITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Connie Tingley
Secretary, Carmel/Clay Board of Zoning Appeals
Department of Community Services
One Civic Square
Carmel, IN 46032
Copy to:
Thomas F. Bedsole, #15980-49
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
573164_1
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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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, Cannel, Indiana, )
)
)
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Plaintiff,
Case No.
IP 0 2 - 1 1 3 3
c
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v.
Defendants.
ORDER TO THE BOARD OF ZONING APPEALS FOR THE CITY OF
CARMEL AND CLAY TOWNSHIP. HAMILTON COUNTY. INDIANA. TO
SHOW CAUSE WHY A WRIT OF CERTIORARI SHOULD NOT BE ISSUED
Sprint Spectrum, L.P " by counsel, having filed its Verified Petition for Writ of
Certiorari in its eighth claim for relief in the above-captioned cause to appeal the July 22,
2002 decision of the Board of Zoning Appeals for the City of Cannel and Clay
Township, Hamilton County, Indiana denying Sprint Spectrum L.P.'s Subdivision
Appeal. The Court having examined the same and being duly advised in the premises
fmds that an Order shall be issued in accordance with Ind. Code ~ 36-7-4-1006.
IT IS THEREFORE ORDERED by the Court that the Board of Zoning Appeals
for the City of Cannel and Clay Township, Hamilton County, Indiana, within twenty (20)
days within the date of this Order show cause, if any, why Writ of Certiorari should not
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be issued as prayed for by Sprint Spectrum L.P.
DATED this
~J-
d--. day of J V~
(,)
, 2002.
ITED STATES DISTRICT COURT
OUTHERN DISTRICT OF INDIANA
Connie Tingley
Secretary, . Cannel/Clay Board of Zoning Appeals-
Department of Community Services
One Civic Square
Cannel, IN 46032
Copy to:
Thomas F. Bedsole, #15980-49
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961 \
573172_1
U~ED STATES DISTRICT COURT Q
SOUTHERN DISTRICT OF INDIANA
) NOTICE, CONSENT, AND ORDER OF
) REFERENCE - EXERCISE OF JURISDICTION
) BY A UNITED STATES MAGISTAATE-{ilJO"~E~"
l Cause No. ~fY~EctVED<q\~\
) !"=-1. JUL' 31 200" .;:.':~'1
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Defendant. l IP 0 2 -1 1 3 3 ~,(!:J~
NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE '<.LUJz:.-y
TO EXERCISE JURISDICTION
Plaintiff,
vs.
In accordance with the provisions of 28 U.S.C. ~ 636(c), and FED. R. Civ. P. 73, you are hereby notified
that a United States magistrate judge of this district court is available to conduct any or all proceedings in this case
including a jury or nonjury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a
magistrate judge is, however, permitted only if all parties voluntarily consent.
You may, without adverse substantive consequences, withhold your consent, but this will prevent the
court's jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the
parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge
to whom the case has been assigned.
An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court
of appeals for this Judicial circuit in the same manner as an appeal from 'any other judgment of a district court.
- .
CONSENT TO THE EXERCISE OF JURISDICTION
BY A UNITED STATES MAGISTRATE JUDGE
In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby
voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case,
including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings.
Signature(s)
Date
Party Represented
ORDER OF REFERENCE
IT IS HEREBY ORDERED that this case be referred to , United States
Magistrate Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. ~ 636(c),
FED. R. C1V. P. 73 and the foregoing consent of the parties.
Date
United States District Judge
NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF IT IS SIGNED. AN ORDER OF REFERENCE
WILL BE ISSUED ONLY IF ALL PARTIES CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED
STATES MAGISTRATE JUDGE.
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
)
)
)
)
)
)
)
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, )
)
)
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Plaintiff,
v.
Defendants.
Case No.
It"' 0 2 - 1 1 3 3
C T / K
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Board of Zoning Appeals for the City of Carmel and Clay Township
C/o Connie Tingley, Secretary
One Civic Square
Carmel, IN 46032
TO DEFENDANT:
YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon PLAINTIFF'S
ATTORNEY, .
Thomas F. Bedsole
Daniel P. King
LOCKE REYNOLDS LLP
20 1 N. Illinois Street, Suite 1000
P. O. Box 44961
Indianapolis, IN 46244-0961
An answer to the complaint which is herewith served upon you, within twenty (20) days after service of this summons upon you,
exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the
complaint. ~:~~
~3/@-- ClERK (So.!)
Oak }y ~7~ / oterI, derJ
(The following manner of Service of Summons is hereby designated.)
_XX_Registered or Certified Mail
Service at place of employment, to-wit:
Service on individual- (Personal or copy) at above address.
Service on agent. (Specify)
Other service. (Specify)
Dated:
573137_1
JS44
u
o
(Rev. 12196)
The JS-44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pleadings or other papers as reqljired. by .Iaw, except as provided by local rules of
court This fonn, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Courts for the purPosE! of:initiating the civil docket sheet. (SEE
INSTRUCTIONS ON THE REVERSE OF THE FORM.) I
I (a) PLAINTIFFS
Sprint Spectrum L.P., a Delaware limited partnership,
CIVIL COVER SHEET
(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF State of Delaware
(EXCEPT IN U.S. PLAINTIFF CASES)
DEFENDANTS
The City of Carmel, Indiana, The Board of Zoning Appeals for the city of Carmel and
Clay Township, and Michael P. ~olli,~a,ug~ iI), his,C;~pacity a,s,pirector ofthe
Department of Community serv!ee,~:~~rrjl:l;)lne'ar~ L!; 5 ~
COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT Hamilton County, IN
NOTE: IN LAND Cd~~~~N~~o%Tl:~!t~~f~~t~kf5~{;FTrnE
TRACT OF LAND INVOLVED 1j I' i ,"i D 1 t, ("" t\
ATTORNEYS (IF KNOWN) t t\ U ::;3. j\. rc I G G S
W02-,'3
(e) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)
Thomas F. Bedsole and Daniel P. King
LOCKE REYNOLDS LLP
201 North Illinois Street, Suije 1000
P.O. Box 44961
Indianapolis, Indiana 46244-01961
317-237-3800
II. BASIS OF JURISDICTION (PLACEANXINONEBOXONLY)
III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN X IN ONE BOX FOR PLAINTIFF
(For Diversity Cases Only) AND ONE BOX FOR DEFENDANT
PTF DEF PTF DEF
Citizen of This State 0 1 0 1 Incorporated or Principal Place 0 4 0 4
of Business in This State
Citizen of Another State 0 2 0 2 Incorpdrated and Principal Place 0 5 0 5
of Business in Another State
Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 0 6
Foreign Country
o 1 U.S. Government 181 3 Federal Question
Plaintiff (U.S. Government Not a Party)
o 2 U.S. Government 0 4 Diversijy
Defendant (Indicates Cijizenship of Parties in Item III)
IV. NATURE OF SUIT (PLACE AN "X"'N ONE BOX ONL Y)
CONTRACT TORTS
Insurance PERSONAL INJURY PERSONAL INJURY
Marine 310 Airplane 362 Personal Injury _
Miller Act 0 315 Airplane Product Med. Malpractice
Negotiable Instrument Liabilijy 365 Personal Injury-
Recovery of Overpayment Assault, Libel & Product Liability
& Enforcement of Slander 368 Asbestos Personal
Judgment 330 Federal Employe~s Injury Product
o 151 Medicare Act Liability Liability
o 152 Recovery of Defauijed 340 Marine
Student Loans 345 Marine Product
(Excl. Veterans) Liability
o 153 Recovery of Overpayment Motor Vehicle
of Veteran's Benefits Motor Vehicle
Stockholders Suijs Product Liability
Other Contract Other Personal
Contract Product Liabilijy Injury
REAL PROPERTY
Other Fraud
Truth in Lending
Other Personal
Property Damage
Property Damage
Product Liability
FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
0610 Agricufture 422 Appeal 400 State Reapportionment
620 Other Food & Drug 28 USC 158 o 410 Antitrust
625 Drug Related Seizure of o 423 Wrthdrawal o 430 Banks and Banking
Property 21 USC 881 28 USC 157 o 450 Commerce/ICC Rates/etc.
Liquor Laws o 460 Deportation
RR & Truck 470 Racketeer Influenced and
Airline Regs. D 820 Copyrights Corrupt Organizations
Occupational o 810 Selective Service
SafetylHealth o 830 Patent o 850 Securijies/Commodities/
690 Other o 840 Trademarks Exchange
875 Customer Challenge
LABOR SOCIAL SECURITY 12 USC 3410
Agricultural Acts
Fair Labor Standards o 861 HIA (1395ff) Economic Stabilization
Act o 862 Black Lung (923) Act
720 LaborlMgmt. o 863 DIWCIDIWW Environmental Matters
Relations (405(g)) Energy Allocation Act
730 LaborlMgmt. B64 SSID Title XVI Freedom of
Reporting & o 865 Rsi (405(g)) Information Act
Disclosure Act 900 Appeal of Fee Determination
740 Railway Labor FEDERAL TAX SUITS Under Equal Access to
Act Justice
790 Other Labor 870 Taxes (U.S. Plaintiff 950 Constitutionality of
Litigation or Defendant) State Statutes
791 Empl. Ret. Inc. 871 IRS-Third Party 181 890 Other Statutory
Security Act 26 USC 7609 Actions
0110
0120
0130
0140
0150
CIVIL RIGHTS
PERSONAL PROPERTY
0160
0190
0195
o 210 Land Condemnation
o 220 Foreclosure
o 230 Rent Lease & Ejectment
o 240 Torts to Land
o 245 Tort Product Liabilijy
o 290 All Other Real Property
441 Voting
442 Employment
443 Housing!
Accommodations
444 Welfare
440 Other Civil Rights
510 .Motion to Vacate
Sentence
Habeas Corpus:
General
Death Penalty
Mandamus & Other
Civil Rights
Prison Condition
V. ORIGIN
530
0535
540
550
0555
(PLACE AN X IN ONE BOX ONLY)
181 1 Original
Proceeding
o 2 Removed from
State Court
o 3 Remanded from. 0 4 Reinstated or
Appellate Court Reopened
o 5 Transferred from 0 6 Multidistrict
another district (specify) Lijigation
o 7 Appeal to District Judge from
Magistrate Judgment
VI. CAUSE OF ACTION (CITE THE U.S. CNIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF THE CAUSE
DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)) 47 U.S.C. !l151, et seq.. Claim for relief under the Telecommunications Act of 1996, the Unijed States and Indiana Constfutions, and
Indiana staMory and common law for the improper denial and revocation of Sprint's Improvement Location Permij.
VII. REQUESTED IN
COMPLAINT: 0 UNDER F.RC.P. 23
VIII. RELATED CASE(S) (See instructions):
IF ANY
DATE I
'1 2..
FOR OFFICE USE ONLY
CHECK IF THIS IS A CLASS ACTION DEMAND $ No amount specified
Check YES only if demanded in complaint
JURY DEMAND: 0 YES [gj NO
o'l..-
JUDGE
Y OF RECORD
DOCKET NUMBER
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
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UNITED STATES DISTRICT COURT
o
o
INSTRUCTIONS FOR AITORNEYS COMPLETING CML COVER SHEET FORM JS-44
Authority For Civil Cover Sheet
The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading
or other papers as required by law,. except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in
September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently a civil cover sheet is
submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I. (a) Plaintiffs - Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the
official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed p]aintiffresides at the time
of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE:ln land condemnation
cases, the county of residence of the "defendant" is the location of the tract of land involved).
(c) Attorneys. Enter firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this
section "(see attachment)".
n. Jurisdiction. The basis of the jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X" in
one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (]) Jurisdiction is based on 28 U.S.C 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the
Constitution, an act of Congress or a treaty of the United States. In cases where the U.S: is a party, the U.S. plaintiff or defendant code takes precedence,
and box] or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship
of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
m. Residence (citizenship) of Principal Parties. This section of the JS-44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
VI. Origin. Place an "X" in one of the seven boxes.
Original Proceedings. (I) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in ~tate courts may be removed to the district courts under Title 28 U.S.C., Section ]441. When the
petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C Section 1404(a). Do nQt use this for within district transfers or
multi district litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C- Section 1407. When
this box is checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate's decision.
V. Nature of Suit. Place an "X" in the appropriate box. lithe nature of suit cannot be determined, be sure the cause of action, in Section IV above, is
sufficient to enable the deputy clerk' or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one
nature of suit, select the most definitive.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the Cause.
VIT. Requested in Complaint. Class Action, Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not ajury is being demanded.
VIll. Related Cases. This section of the JS-44 is used to reference relating pending cases ifany. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
UNITED STATES DISTRICT COURT
o
o
IN THE UNITED STATES DISTRICT COURT,
FOR THE SOUTHERN DISTRICT OF INDIANA .
INDIANAPOLIS DIVISION
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
)
)
)
)
)
)
)
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, )
)
)
Plaintiff,
v.
Defendants.
ti 23 FJ"lL1:55
~J' UTi j; DiSTRICT
() F : f-5 D i :\ ~f'.J /:J,
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Case No.
lP 0 2 .. 1 1 3 3
c
T/K
SPRINT SPECTRUML.P.'S CORPORATE DISCLOSURE STATEMENT
Plaintiff, Sprint Spectrum L.P., by counsel, submits its corporate disclosure statement
pursuant to Rule 81.2 of the Local Rules of the United States District Court for the Southern
District oflndiana. Sprint Spectrum L.P. is principally owned and controlled (indirectly) by
Sprint Corporation, a publicly traded corporation whose shares trade on the New York Stock
Exchange under the symbols "PCS" and "FON".
LOCKE REYNOLDS LLP
201 N. Illinois Street, Suite 1000
P. O. Box 44961
Indianapolis, IN 46244-0961
Phone: (317) 237-3800
Fax: (317) 237-3900
573038_1
LOCKE REYNOLDS LLP
-~
By' 1-
Thomas . edso1e, #1598 -
Daniel P. King, #23025-49
Attorneys for Plaintiff Sprint Spectrum L.P.
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IN THE UNITED STATES DISTRICT COPR.-T ",' . c: (~
FOR THE SOUTHERN DISTRICT OF INllilAWA t.. i i t,. ,,I d
INDIANAPOLIS DIVISIO~ D U -r hEr: _ D 1ST ;::; \ C T
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SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Plaintiff,
v.
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,
Defendants.
)
)
)
)
)
'11>02-1133
)
)
)
)
)
)
)
)
)
)
Case No.
c
TI K
APPEARANCE
LOCKE REYNOLDS LLP, by Thomas F. Bedsole and Daniel P. King, hereby enters its
Appearance on behalf of the plaintiff, Sprint Spectrum L.P., in the above-captioned cause.
LOCKE REYNOLDS LLP
201 N. Illinois Street, Suite 1000
P. O. Box 44961
Indianapolis, IN 46244-0961
Phone: (317) 237-3800
Fax: (317) 237-3900
573105_1
LOCKE REYNOLDS LLP
By: .-~~
Thoma . edsole, #15980-49~
Daniel P. King, #23025-49
Attorneys for plaintiff
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Electronic Case Filing (ECF)
Congratulations! This case has been selected for Electronic Case Filing (ECF)
and is now part of a new and exciting electronic case filing project. The electronic filing
system provides access over the Internet to up-to-the-minute docket sheets, as well as
to most case documents. With ECF, documents may also be filed electronically over
the Internet. Everyone using ECF must be trained in the system's proper use and
procedures. Upon receiving this announcement, please contact Mike Kittell at
(317) 229-3718, to schedule training.
What Equipment Do I Need?
.
a personal computer
Internet connection
Netscape Navigator (4.06, 4.07, or 4.08) or Internet Explorer 5.5
Adobe Acrobat 3.0/Adobe Writer or WordPerfect 9.0
Scanner ~
PACER Account
· PACER Service Center
P.O. Box 780549
San Antonio, TX 78278-0549
(800) 676-6856
PACER@psc.uscourts.gov
.
.
.
.
.
How Do I Get Trained On The System?
· ECF Training every Tuesday and Thursday (Starting late August)
· Times: 10 a.m. - 12 p.m. or 2 p.m. - 4 p.m.
· Location: U.S. District Court's Training Room - 356
· Contact Mike Kittell at (317) 229-3718 to schedule training
Questions concerning electronic case filing may be directed to the following
people.
· Mike Kittell, CM/ECF Project Manager - (317) 229-3718
I .
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UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF INDIANA
ELECTRONIC CASE FILES
Attorney Registration Form
LIVE SYSTEM
This fonn shall be used to register for an account on the Court's Electronic Case Files (ECF) system. Registered
attorneys and other participants will have privileges both to electronically submit documents, and to view and
retrieve electronic docket sheets and documents for all cases assigned to the Electronic Case Files system. The
following infonnation is required for registration:
FirstlMiddle/Last Name
Last four digits of Social Security Nmnber
Indiana Bar ill #
Finn Name
Finn Address
Voice Phone Nwnber
FAX Phone Nwnber
Internet & Mail Address
By submitting this registration form, the undersigned agrees to abide by all Court rules, orders and
poUeies and procedures governing the use of the electronic filing system. The undersigned also
consents to receiving notice of filings pursuant to Fed. R. Civ. P. 5(b) and 77(d) via the Court's
electronic filing system.
1. This system is for use only in cases pennitted by the U.S. District Court for the Southern District of
Indiana. It may be used to file and view electronic documents, docket sheets, and notices. Please contact
Mike Kittell at (317) 229-3718, to schedule training.
2. Pursuant to Federal Rule of Civil Procedure 11, every pleading, motion, and other paper (~cept list,
schedules, statements or amendments thereto) shall be signed by at least one attorney of record or, if the
party is not represented by an attorney, all papers shall be signed by the party. An attorney'slparticipant's
password issued by the court combined with the user's identification, serves as and constitutes the
attorney'slparticipant's signature. Therefore, an attorney/participant must protect and secure the password
issued by the court. If there is any reason to suspect the password has been compromised in any way, it is
ECF Registration Form (APRIL 2002) Page 1 U.S. District Court for the Southern District of Indiana
o
o
ii,
the duty and responsibility of the attorney/participant to immediately notify the court. This should include the
resignation or reassignment of the person with authority to use the password. The Court will immediately
delete that password from the electronic filing system and issue a new password.
<.
3. An attomey'slparticipant's registration will not waive conventional service. of a summons and complaint,
subpoena, or other judicial process; submit the client to the jurisdiction of the Court; or operate as a consent
to accept service of pleadings, documents, and orders in actions in which such attorney/participant has not
entered an appearance. An attomey'slparticipant's registration will constitute a waiver in law only of
conventional service of other non-process pleadings, documents, and orders in the case. The
attorney/participant agrees to accept, on behalf of the client, service of notice of the electronic filing by band,
facsimile or authorized e-mail.
4. Attorneys must be active members of the bar of this Court to file pleadings electronically.
Please return this form to:
U.S. District Court for the Southern District of Indiana
Attn: Attorney Admissions
46 East Ohio Street, Room 105
Indianapolis, IN 46204
Applicant's Signature
Initial of
First Name
Full Last Name
Last 4 Digits SS#
ECF Registration Form (APRIL 2002)
Page 2 U.S. District Court for the Southern District of Indiana
r
United States District Court
for the
Southern District of Indiana
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RECEIVED
JUL 252002
DOCS
1* ,
. ,
"
.
Electronic Case Filing (ECF)
Congratulations! This case has been selected for Electronic Case Filing (ECF)
and is now part of a new and exciting electronic case filing project. The electronic filing
system provides access over the Internet to up-to-the-minute docket sheets, as well as
to most case documents. With ECF, documents may also be filed electronically over
the Internet. Everyone using ECF must be trained in the system's proper use and
procedures. Upon receiving this announcement, please contact Mike Kittell at
(317) 229-3718, to schedule training.
What Equipment Do I Need?
· a personal computer
· Internet connection
· Netscape Navigator (4.06, 4.07, or 4.08) or Internet Explorer 5.5
· Adolle Acrot?at 3.0/Adobe Writer or WordPerfect 9.0
· Scanner
· PACER Account
· PACER Service Center
P.O. Box 780549
San Antonio, TX 78278-0549
(800) 676-6856
PACER@psc.uscourts.gov
How Do I Get Trained On The System?
· ECF Training every Tuesday and Thursday (Starting late August)
· Times: 10 a.m. - 12 p.m. or 2 p.m. - 4 p.m.
· Location: u.S. District Court's Training Room - 356
· Contact Mike Kittell at (317) 229-3718 to schedule training
Questions concerning electronic case filing may be directed to the following
people.
· Mike Kittell, CM/ECF Project Manager - (317) 229-3718
I ,1
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UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF INDIANA
ELECTRONIC CASE Fll..ES
Attorney Registration Form
LIVE SYSTEM
This form shall be used to register for an account on the Court's Electronic Case Files (ECF) system. Registered
attorneys and other participants will have privileges both to electronically submit docwnents, and to view and
retrieve electronic docket sheets and documents for all cases assigned to the Electronic Case Files system. The
following infonnation is required for registration:
FirstlMiddlelLast Name
Last four digits of Social Security Nmnber
Indiana Bar ID #
Finn Name
Finn Address
Voice Phone Nmnber
FAX Phone Nmnber
Intemet E-Mail Address
By submitting this registration form, the undersigned agrees to abide by all Court rules, orders and
poUdes and procedures governing the use of the electronic tlling system. The undersigned also
consents to receiving notice of fiHngs pursuant to Fed. R. Civ. P. S(b) and 77(d) via the Court's
electronic filing system.
1. This system is for use only in cases pemritted by the u.s. District Court for the Southern District of
Indiana. It may be used to file and view electronic documents, docket sheets, and notices. Please contact
Mike Kittell at (317) 229-3718, to schedule training.
2. Pursuant to Federal Rule of Civil Procedure 11, every pleading, motion, and other paper (except list,
schedules, statements or amendments thereto) shall be signed by at least one attorney of record or, if the
party is not represented by an attorney, all papers shall be signed by the party. An attorney'slparticipant's
password issued by the court combined with the user's identification, serves as and constitutes the
attorney'slparticipant's signature. Therefore, an attorney/participant must protect and secure the password
issued the court. If there is any reason to ect the assword has been com romised in an wa, it is
ECF Registration Form (APRIL 2002) Page 1 U.S. District Court for the Southern District of Indiana
o
Q
, ~
the duty and responsibility of the attorney/participant to immediately notify the court. This should include the
resignation or reassignment of the person with authority to use the password The Court will immediately
delete that password from the electronic filing system and issue a new password.
~.
3. An attorney's/participant's registration will not waive conventional service of a summons and complaint,
subpoena, or other judicial process; submit the client to the jurisdiction of the Court; or operate as a consent
to accept service of pleadings, documents, and orders in actions in which such attorney/participant has not
entered an appearance. An attorney's/participant's registration will constitute a waiver in law only of
conventional service of other non-process pleadings, documents, and orders in the case. The
attorney/participant agrees to accept, on behalf of the client, service of notice of the electronic filing by hand,
facsimile or authorized e-mail
4. Attorneys must be active members of the bar of this Court to file pleadings electronically.
Please return this form to:
U.S. District Court for the Southern District of Indiana
Attn: Attorney Admissions
46 East Ohio Street, Room 105
Indianapolis, IN 46204
Applicant's Signature
Initial of
First Name
Full Last Name
Last 4 Digits SS#
ECF Registration Form (APRIL 2002)
Page 2 U.S. District Court for the Southern District of Indiana
i, ~~ r. -
t.. ~" U U'
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA!
\ ,..'
INDIANAPOLIS DIVISION
)
)
)
)
)
THE CITY 0;. CARMEL , INDIANA, ., 0 2.. 11 3 3
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, )
)
)
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Plaintiff;
Case No.
Defendants.
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COMPLAINT FOR INJUNCTIVE. DECLARATORY. MANDAMUS
AND OTHER RELIEF
Plaintiff, Sprint Spectrum L.P. ("Sprint Spectrum" or "Sprint"), by its attorneys,
complains against defendants, the City of Carmel, Indiana (the "City"), The Board of Zoning
Appeals for the City of Carmel and Clay Township (the "Board"), and Michael P. Hollibaugh, in
his capacity as Director of the Department of Community Services, Carmel, Indiana (hereinafter
"Director") as follows:
NATURE OF THE ACTION
1. This action arises out of the Director's purported termination of an improvement
location permit (the "Building Permit") to collocate a wireless communications antenna facility
, "
(the "Sprint Antenna") on a pre-existing ham radio antenna tower (the "Existing Tower") located
573171JDOC
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at 1388 Queens Way, Carmel, Indiana (the "Zamber Site"), and the affirmation of that action by
the Board under two separate appeals filed with the Board. The Sprint Antenna is necessary to
provide wireless. telephone (i.e., cellular telephone) and other communications services to
individuals living or working in, or traveling through, the Indianapolis metropolitan area. In
revoking the Building Permit, the City violated the Federal Telecommunications Act of 1996,47
U.S.C. S 151, et. seq. (the "TCA"), the Constitutions of the United States and the State ofIndiana
and other applicable State law. The City's actions entitle Sprint Spectrum to, inter alia,
injunctive, declaratory and mandamus relief ordering the Defendants to allow the construction
and operation of the Sprint Antenna.
PARTIES
2. Sprint Spectrum is a limited partnership organized and existing under the laws of
the State of Delaware, with its principal place of business in Westwood, Kansas. Sprint
Spectrum and its affiliates, doing business as Sprint PCS, are building and operating a
nationwide Personal Communications Services ("PCS") network across the United States.
3. The City is incorporated under the laws of the State of Indiana. The City acts on
land use matters relating to the Sprint Antenna through the Director and the Board.
4. The Director is a resident of the State of Indiana and is the Director of the
Department of Commuriity Services, Carmel, Indiana (the "Department"), a position existing
under the laws of the State of Indiana.
5. The Board is the board of zoning appeals for the City of Carmel and Clay
Township, Indiana, and is organized and existing under the laws of the State of Indiana.
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JURISDICTION. VENUE AND EXPEDITED PROCEEDINGS
6. This action arises under the telecommunications laws of the United States, Title
47 U.S.C. ~~ 151, et. seq. (including the TCA), the United States Constitution and the
Declaratory Judgment Act, 28 U.S.C. ~~2201, et. seq.
7. The Court has jurisdiction of this action by virtue of28 U.S.C. ~ 1331.
8. This Court, has supplemental jurisdiction over the Indiana state law claims
pursuant to 28 U.S.C. ~1367.
9. Venue properly lies in the Southern District ofIndiana (the "District") because the
claims arose in this District and the defendants reside in this District. 28 V.S.C. ~ 1391(b).
10.. Sprint Spectrum is entitled to have its Complaint heard and decided on an
expedited basis pursuant to 47 V.S.C. ~ 332(c)(7)(B)(v).
BACKGROUND FACTS
A. . Sprint Spectrum's PCS Network
11. Sprint Spectrum, along with its affiliates, is a communications venture committed
to providing a single integrated offering of Wireless telephone and other communications services
by building a national wireless network using PCS technology - - a new generation of wireless
service that uses digital transmission to improve available telecommunications services. This
network competes with traditional "land line".telephone service, and provides a vital alternative
communications system for business, personal and other uses, including the handling of "911"-
type emergency communication~.
12. On or about June 23,1995, Sprint Spectrum, through a partnership, was the
successful bidder at the auction held by the FCC for PCS wireless broadcast licenses in the
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Indianapolis Major Trading Area ("MT A"), which includes the City of Cannel. The license
granted to Sprint Spectrum expires June 23, 2005.
13. In order to meet its continuing obligations under its licenses from the Federal
Communications Commission ("FCC") and to serve its customer base, Sprint Spectrum must
develop and maintain a system of "cell sites" to serve portable wireless telephone and other
communication handsets. These "cell sites" consist of antennae mounted on a pole, building or
other structure; connected to small equipment located near the antennae. Each cell site handles
wireless communications within the surrounding geographic area or "cell."
14. To maintain effective, continuous, uninterrupted service to a PCS telephone user
traveling in a given area, there must be a continuous interconnected series of cells, which overlap
in a grid pattern approximating a honeycomb. Additionally, each cell site must be located within
a very limited area (both in terms of its height and in terms of its geographic placement) so that it
can properly ,interact with the surrounding cell sites and thereby provide seamless, reliable
, -
coverage. Each antenna 'facility has a limited maximum coverage area; the extent of which varies
, -
depending upon several factors including its height, the local topography and the heights of the
'adjoining antennae, structures and tree cover.
B. The Site And Application Process
15. The Zamber Site is critical to the overall engineering and technical plan of Sprint
Spectrum's network in the Indianapolis,MTA. The Zamber Site is designed to remedy the gap in
Sprint Spectrum's coverage, which gap results in Sprint Spectrum's customers experiencing
"blocked" calls (i.e., calls that cannot be sent or received) and "dropped" calls (i.e., calls that are
involuntarily disconnected). Without the Zamber Site, Sprint Spectrum is unable to provide
seamless, reliable PCS service to a portion of the City, including the area roughly bounded by
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126th Street on the north, bySpring Mill Road on the east, by 106th Street on the south and by
Town Road on the west.
16. Sprint Spectrum carefully selected the Zamber Site as an appropriate location for
the Sprint Antenna only after considering other alternatives, none of which was viable for a
variety of reasons, including, without limitation, technical, zoning, lease availability and
compatibility with existing land uses. Perhaps most notably, the Zamber Site not only met
exacting engineering requirements, but was already improved with the Existing Tower, thereby
having the benefits' of (i) the avoidance of construction of a new tower in an area comprised
primarily of single family homes and (ii) conformity with the City's zoning ordinance (the
"Zoning Ordinance") as a "permitted use" thereunder. Sprint Spectrum determined that, if it had
not been able to collocate on the Existing Tower, no other suitable existing towers or structures
were available within its requisite search area, and Sprint Spectrum therefore would have had to
build its own tower support structure to meet its coverage requirements.
17. On or about May 14,2001, Sprint Spectrum entered into a lease agreement with
the owner of the Zamber Site and the Existing Tower thereon, Dr. Edwin Zamber ("Dr.
Zamber"), pursuant to which Sprint Spectrum leased space in order to collocate the Sprint
Antenna.to the Existing Tower.
18. The Existing Tower was constructed over ten years ago by Dr. Zamber and is
utilized by him for "ham" radio communications purposes. The Existing Tower is approximately
135 feet tall and has three sets of "side-arm" antenna (each approximately 44 feet in total length,
i.e., approximately 22 feet oil each side of the tower) that are mounted horizontally on the
Existing Tower. As contemplated by the Building Permit; Sprint Spectrum proposed to utilize
special low-profile ("flush mounted") antennae at the Zamber Site and to. mount the same on the
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Existing Tower at an elevation of approximately 100 feet above grade level. Flush-mounted
antennae are utilized in very few cell sites and reduce the general visibility of an antenna
installation. A photo simulation depicting the Existing Tower (including the existing side arm
ham radio antennae), and the proposed flush-mounting of the Sprint Antenna thereon, is attached
to this complaint as Exhibit A.
19. The Zamber Site is zoned "S-1 Residence District." Section 10-30 of the Zoning
I
Ordinance provides that the ?ollocation of an antenna facility on an existing tower facility is a
"permitted use." Section 1O-30(b) provides, in relevant part, as follows:
(b) Permitted Uses:
Antenna, if collocated on an existing or previously approved tower
20. On or about February 22, 2001, a contractor for Sprint Spectrum contacted the
Department to discuss the Sprint Antenna. In connection with those discussions, the Department
staff acknowledged that the Sprint Antenna was a permitted use, and requested that Sprint
Spectrum house its ground level equipment in a brick clad equipment shelter (the "Shelter").
The Shelter's architecture and style duplicates the design and character of Dr. Zamber's existing
home and pool house, and it meets all applicable zoning requirements, including height and
setback. As a part of the approved plans and specifications- for the Sprint Antenna, Sprint
Spectrum agreed to landscape the area surrounding the Shelter.
21. On or about April 17, 2001, Sprint Spectrum, through a contractor, attempted to
file an application for an improvement location permit and building plans with the Department.
On or about May 7, 2001, Sprint Spectrum submitted a new application and revised plans with
the Department.,
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22. On or about June IS, 2001, the Department issued the Building Permit for the
Sprint Antenna. The Building Permit bears identification number 2001.0627.B, an4 a copy of
the same is attached to this complaint as Exhibit B.
23.' On or about July 9, 2001, Sprint Spectrum engaged Q Serve Communications ("Q
Serve") as the general contractor for the installation of the Sprint Antenna.
24. On or about August 6, 2001, Q Serve, pursuant to the Building Permit, began
construction of the Shelter. The Shelter's foundation and all four block walls have been
constructed. The brick veneer of the Shelter is partially complete and other necessary building
materials have been delivered to the Zamber Site.
c. The Department Revokes Sprint Spectrum's Building Permit.
25. On or about August 15, 2001, Richard Deer ("Mr. Deer"), an owner of property
adjacent to the Zamber Site, filed an application for an appeals action with the Board objecting to
the issuance of the Building Permit on the grounds that the Sprint Antenna allegedly did not
constitute a permitted use under the City's zoning ordinance (the "Deer's Zoning Appeal").
26. On or about August 15, 2001, Jeff Kendall, Building Commissioner for Cannel,
issued a stop work order on the project.
27. Without notice or hearing, by letter dated August 23,2001 and delivered to Sprint
Spectrum's contractor on August 24, 2001, the Director purported to revoke Sprint Spectrum's
. .
Building Permit (the "Revocation Letter"). The Revocation Letter sets forth but one basis for
the purported revocation:
. 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 [Building Permit]), the "Parent
Tract" should have been divided into two (2) or smaller parcels.
Under Chapter 3 of the Cannel Clay Zoning Ordinance, this
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constitutes the subdivision of land requiring plat approval by the
Plan Commission.
At no time prior to its receipt of the Revocation Letter had Sprint Spectrum been informed of any
alleged need for plat approval by the Plan Commission.
28. Sprint Spectrum incurred substantial site development expenses through the date
of receipt of the Revocation Letter, and cannot utilize the Zamber Site for communications
purposes due to the City's actions.
29. On information and belief, Sprint Spectrum and other cellular telephone service
providers have obtained building permits from the City for installation of antennae and
equipment shelters without having to subdivide the relevant property or obtain any subdivision
plat approval, and without having to obtain any variance, special use or similar zoning approval
to collocate on an existing antenna tower.
D.. Sprint Spectrum Appeals The Revocation Letter And Deer's Zoning Appeal Is Put
"On Hold."
30. Sprint Spectrum filed an appeal of the revocation of its Building Permit with the
Board on Monday, September 24,2001, seeking a reversal of the Director's purported revocation
of the Building Permit on subdivision control grounds (the "Sprint's Subdivision Appeal").
31. Around that time, the Board indefinitely deferred its hearing of Mr. Deer's Zoning
Appeal, apparently due to the issuance of the Revocation Letter and/or the filing of Sprint's
Subdivision Appeal.
32. On November 15,2001, Mr. Deer filed a motion to dismiss Sprint's Subdivision
Appeal on grounds that the appeal was not timely filed under Section 10-131 (a/k:/a Section 30.1)
of the Zoning Ordinance.
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33. In his motion to dismiss, Mr. Deer argued that Sprint Spectrum failed to file its
appeal in a timely manner and that the method of computing time set^forth in Trial Rule 6(A) did
not apply to the 30-day provision of Section 30.1. According to Mr. Deer, Sprint Spectrum's 30
days to appeal began running on the date of the RevocationLetter - - August 23,2001 - - rather
. .
than the date the letter was received or the day after that date. Mr. Deer also argued that, even if
the last day for Sprint Spectrum to file its appeal was Saturday, September 22, 2001 and City
offices were closed, Sprint Spectrum did not have until the following Monday (September 24,
2001) to file Sprint's Subdivision Appeal.
34. After hearing argument on November 26, 2001, the Board granted Mr. Deer's
motion to dismiss Sprint's Subdivision Appeal as untimely. The Board did not hear or rule on
the merits of Sprint's Subdivision Appeal.
35. On December 21,2001, Sprint Spectrum appealed the Board's denial of Sprint's
Subdivision Appeal to the Hamilton County Circuit Court, in cause number 29C211 0112CP
1202 (the "State Court Case").
36. On June 18, 2002, the Hamilton County Circuit Court ruled in the State CoUrt.
Case that the Board had improperly denied Sprint's Subdivision Appeal and remanded Sprint's
Subdivision Appeal to the Board for further hearing. A copy 6fthe Court's opinion in the State
Court Case is attached as Exhibit C.
37. On July 22, 2002, the Board finally heard Sprint's Subdivision Appeal. No
substailtial evidence was submitted at the hearing in support of the revocation of the Building
Permit on subdivision grounds; yet Sprint Spectrum introduced substantial evidence that
^ supported its appeal.
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38. At the July 22, 2002 hearing, the Board voted to deny Sprint's Subdivision
Appeal. In doing so, the Board found that the Building Permit was improperly issued for the
reason (failure to obtain subdivision approval) set ~orth in the Revocation Letter. A copy of the
Board's findings of fact denying Sprint's Subdivision Appeal is attached hereto as Exhibit D.
E. The Board Hears Deer's Zoning Appeal
39. Following the Hamilton County Circuit Court's ruling in the State Court Case, the
Board heard Deer's Zoning Appeal. The Board first heard Deer's Zoning Appeal on June 6,
2002, at which time the three Board members present voted 2-1 to grant Deer's Zoning Appeal.
However, under local procedures, three affirmative votes were required to approve an appeal and
the matter was continued to the Board's hearing on June 24, 2002.
40. At the June 24, 2002 meeting of the Board, five members were present. No
substantial evidence was submi,tted at the hearings in support of Deer's Zoning Appeal, yet
Sprint Spectrum introduced substantial evidence that supported its position. Moreover, the
Department Staffintroduced a report concurring with Sprint Spectrum's position. A copy of the
Department's Staff report is attached hereto as Exhibit E.
41. At the June 24, 2002 hearing, the Board unanimously voted to approve Deer's
Zoning Appeal. A copy of the Board's findings of facts granting Deer's Zoning Appeal is
attached hereto as Exhibit F. .
F. Ripeness And Irreparable lIarm
42. Sprint Spectrum now seeks review of the Director's revocation of the Building
Permit, as affirmed by the Board in its grant of Deer's Zoning Appeal and as affirmed by the
Board in its denial of Sprint's Subdivision Appeal. Said rulings of the Board constitute final
actions ana are ripe for determination by the Court.
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43. The revocation of the Building Permit prohibits Sprint Spectrum from siting a
facility necessary to its provision of continuous and uninterrupted service and, therefore, Sprint
Spectrum cannot carry out its federally-imposed obligation to provide wireless
telecornrilunications service to the MT A under its license. The FCC granted Sprint Spectrum its
license to provide PCS service intending and requiring that such service would be. in place as
soon as possible. The permit denial has adversely impacted Sprint Spectrum's ability to fulfill
this federal goal and caused Sprint Spectrum to suffer a loss of consumer goodwill and critical
market share. The TCA was enacted precisely to prevent such unfair situations and to facilitate
the rapid deployment of valuable advanced technologies.
44. The FCC license purchased by Sprint Spectrum is an asset with a limited life.
Therefore, each day of delay irrevocably deprives Sprint Spectrum of a portion of the value of
the MTA license.
45. As a result of the City's violation of Sprint Spectrum's federal statutory rights,
Sprint Spectrum has suffered and will continue to suffer irreparable harm. If Sprint Spectrum is
unable to place a facility at the Zamber Site, there will be gaps in coverage in its network. Public
safety may be impaired as a result of such gaps, as motorists and citizens who use the Sprint
Spectrum service for 911 emergency services will not have effective communications in these
gap areas. Any impairment in its wireless service network resulting from the revocation of the
Building Permit will irreparably harm Sprint Spectrum's ability to service the health and safety
needs of the community. Moreover, it will prohibit Sprint Spectrum from competing for
customers in a growing market. Thus, Sprint Spectrum will lose the opportunity to attract
customers while its competitors may be allowed to expand in this burgeoning market.
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FIRST CLAIM FOR RELIEF
VIOLATION OF FEDERAL TELECOMMUNICATIONS ACT OF 1996
(47 U.S.C. ~ 332(c)(7)(B)(iii))
46. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 45 of this Complaint.
47. On February 8, 1996, the TCA went into effect. The TCA comprehensively
addresses telecommunications policy and the development of facilities to provide
teleco~unications services throughout the Vnited States.
48. The stated purpose of the TCA is to "promote competition and reduce regulation
in order to secure lower prices and higher quality services for American telecommunications
consumers and encourage ,the rapid deployment of new telecommunications technologies."
(Preamble to the TCA).
49. The TCA provides, in pertinent part:
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 this subparagraph may, within 30 days after such action
or failure to act, commence an action in any court of competent
jurisdiction.
47 V.S.C. ~ 332(c)(7)(B)(v).
50. The TCA further provides that any person adversely affected by a State or local
government's action, or failure to act, that is inconsistent with Section 332(c)(7) may seek
expedited review in the federal courts. 47 V.S.C. ~ 332(c)(7)(B)(v).
51. . The TCA has been interpreted to vest courts of competent jurisdiction with
authority to grant, inter alia, injunctive relief directing the issuance of all necessary permits for a
Sprint Antenna when a local governmental entity fails to comply with the TCA's requirements.
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52. The TCA further provides, in pertinent part:
Any decision by a State or local government or instrumentality thereof to
deny a request to place, construct or modify personal wireless service
facilities shall be in writing and supported by substantial evidence
contained in a written record.
47 V.S.C. 9 332(c)(7)(B)(iii).
53. The. Board's denial of Sprint's Subdivision Appeal is not supported by any
substantial evidence from the written record established before the Board.
54. By denying Sprint's Subdivision Appeal without substantial evidence in a written
. record supporting denial, the Board violated 47 V.S.C. 9332(c)(7)(B)(iii).
SECOND CLAIM FOR RELIEF
VIOLATION OF FEDERAL TELECOMMUNICATIONS ACT OF 1996
(47 U.S.C & 332(c)(7)(B)(i)(I))
55. Sprint Spectrum'hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 54 of this Complaint.
56. The Board's grant of Deer's Zoning Appeal is not supported by any substantial
evidence from the written record established before the Board.
57. By granting Deer's Zoning Appeal without substantial evidence in a written
record supporting the revocation of the Building Permit, the Board violated 47 V.S.C. 9
3 32( c )(7)(B)(iii).
THIRD CLAIM FOR RELIEF
VIOLATION OF FEDERAL TELECOMMUNICATIONS ACT OF 1996
(47 U.S.c. & 332 (c)(7)(B)(i)(I))
58. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 57 of this Complaint.
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59. The TCA further provides, in pertinent part, that the regulation of the placement,
construction, and modification of personal wireless service facilities by any State or local
government or instrumentality thereof "shall not unreasonably discriminate among providers of
functionally equivalent services." 47 V.S.C. ~ 332(c)(7)(B)(i)(I).
60. On information and belief, other communication providers have obtained
improvement location permits from the City for the installation of antennae and equipment
shelters without having to subdivide the host parcel of land or obtain any subdivision plat
approval.
61. On information and belief, other communication providers have obtained
improvement location permits from the City for the collocation of antennae and equipment
shelters without having to obtain a special use permit, variance or other similar zoning relief.
62. By revoking the Building Permit in connection with Deer's Zoning Appeal and
Sprint's Subdivision Appeal, and by not imposing similar requirements on Sprint Spectrum's
competitors, the Board violated 47 V.S.C. ~. 332(c)(7)(B)(i)(I) by unreasonably discriminating
against Sprint Spectrum.
FOURTH CLAIM FOR RELIEF
VIOLATION OF FEDERAL TELECOMMUNICATIONS ACT OF 1996
(47 U.S.C. ~ 332(c)(7)(B)(i)al))
63. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 62 of this Complaint.
64. The TeA also provides, in part, that the regulation of the placement, construction,
and modification of personal wireless facilities by any State or local government or
instrumentality thereof "shall not prohibit or have the effect of prohibiting the provision of
per~onal wireless services." 47 V.S.C. ~332(c)(7)(B)(i)(II).
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65. The City's revocation of the Building Permit prohibits Sprint Spectrum from
entering the telecommunications marketplace in the MT A by preventing it from implementing
the necessary infrastructure and constructing the Sprint Antenna at theZamber Site.
66. By denying Sprint Spectrum's Variance Application in connection with its Sprint
Antenna, the Board violated 47 U.S.C. 9332(c)(7)(B)(i)(II).
FIFTH CLAIM FOR RELIEF
VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION
67. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 66 of this Complaint.
68. Under the law of the State of Indiana, the Building Permit vests property rights in
Sprint Spectrum. Sprint Spectrum is the owner of said private property rights.
69. The Fifth Amendment to the United States Constitution provides that private
property rights shall not be taken for public use without just compensation, nor shall any person
be deprived of such rights without due process oflaw.
. 70. Sprint Spectrum's rights in the Building Permit are further guaranteed and
protected under the Fourteenth Amendment to the United States Constitution.
71. The Defendants' actions described in. paragraphs 1 through 45 have deprived
Sprint Spectrum of the use and enjoyment of its vested property rights without just compensation
and without due process oflaw.
72. As a result of the Defendants' violations, Sprint Spectrum has sustained actual
damages in an amount to be proven at trial.
73.
Additional damages continue to accrue in a substantial amount.
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SIXTH CLAIM FOR RELIEF
VIOLATION OF ARTICLE I, SECTION 21 OF THE
CONSTITUTION OF THE STATE OF INDIANA
74. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 73 of this Complaint.
75. Under the law of the State ofIndiana, the Building Permit vests property rights in
Sprint Spectrum. Sprint Spectrum is the owner of said private property rights.
76. Article I, Section 21 of the Constitution of the State of Indiana provides that
private property rights shall not be taken without just compensation, nor shall any person be
deprived of such rights without due process of law.
77. The Defendants' actions described in paragraphs 1 through 43 above have
deprived Sprint Spectrum of the use and enjoyment of its vested property rights without just
compensation and without due process of law.
78. As a result of the Defendants' violations, Sprint Spectrum has sustained actual
damages in an amount to be proven at trial.
79. Additional damages continue to accrue in a substantial amount.
SEVENTH CLAIM FOR RELIEF
REQUEST TO REVIEW BOARD'S
DECISION OF JUNE 24, 2002
(Ind. Code ~36-7-4-1003)
80. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 79 of this Complaint.
81. The Board is the entity created by ~JO-130 of the Zoning Ordinance as authorized
by Ind. Code ~36-7-4-901.
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82. Pursuant to Ind. Code ~36-7-4-1003, a person aggrieved by a Board decision shall
have the right to appeal the decision by petition for writ of certiorari.
83. The Board's decision to approve Deer's Zoning Appeal is illegal because
collocation of an antenna on an existing tower is a Permitted Use under Section 10-30 (alk/a
Section 5.1.1) of the Zoning Ordimmce and, therefore, Sprint is entitled by law to collocate the
Sprint Antenna to the Existing Tower.
84. Sprint has been aggrieved by the Board's decision to approve Deer's Zoning
Appeal.
85. As a person aggrieved by the Board's decision to grant Deer's Zoning Appeal,
Sprint has the right to have that decision reviewed pursuant to Ind. Code ~36-7-4-1003 by this
Court under its supplemental jurisdiction pursuantto 28 U.S.C. ~1367.
86. Sprint Spectrum requests that this court issue writ of certiorari, reverse the June
24, 2002 decision of the Board to approve Deer's Zoning Appeal as illegal, and remand the June
24, 2002 decision to the Board with directions to deny Deer's Zoning Appeal.
EIGHTH CLAIM FOR RELIEF
REQUEST TO REVIEW BOARD'S
DECISION OFJU~Y/22, 2002
Undo Code &36-7-4-1003)
87. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 86 of this Complaint.
88. The Board is the entity created by ~10-130 of the Zoning Ordinance as authorized
by Ind. Code ~36-7-4-901.
89. Pursuant to Ind. Code ~36-7-4-1003, a person aggrieved by a Board decision shall
have the right to appeal the decision by petition for writ of certiorari.
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90. The Board's decision to deny Sprint's Subdivision Appeal of the Director's
revocation of the Building Permit is illegal because no subdivision of land has occurred under
applicable Indiana statute or the City's Zoning Ordinance and, therefore, the subdivision control
provisions of the Zoning Ordinance are not applicable. As such, the basis of the revocation of
the Building Permit is unlawful.
91. Sprint has been aggrieved by the Board's decision to deny Sprint's Subdivision
Appeal of the revocation of the Building Permit.
92. As a person aggrieved by the Board's decision. to deny Sprint's Subdivision
Appeal, Sprint has the right to have th~t decision reviewed pursuant to Ind. Code 936-7-4-1003
by this Court under its supplemental jurisdiction pursuant to 28 V.S.C. 91367.
93. Sprint Spectrum requests that this Court issue writ of certiorari, reverse the July
22, 2002 decision of the Board to deny Sprint's Subdivision Appeal as illegal, and remand the
July 22, 2002 decision to the Board with directions to grant Sprint's Subdivision Appeal.
NINTH CLAIM FOR RELIEF
DECLARATORY JUDGMENT
(28 V.S.C. ~ 2201)
94. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth. in paragraphs 1 tbfough 93 of this Complaint.
95. In this Count, Sprint Spectrum seeks declaratory relief pursuant to the Declaratory
Judgment Act, 28 V.S.C. 99 2201, et. seq.
96. _A real~ immediate and substantiat continuing controversy exists between Sprint
Spectrum, on the one hand, and the City, on the other hand.
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97. There is a bona fide, actual, present and practical need for a declaration of Sprint
Spectrum's right to construct the Sprint Antenna on the Zamber Site.
98. Sprint Spectrum's interest in the requested declaration is actual, present, adverse
and antagonistic to that of the City. There is an actual and justifiable controversy existing
, .
between Sprint Spectrum and the City, and all conditions precedent to declaratory relief have
been performed or have occurred.
99. Sprint Spectrum is entitled to a declaration that the revocation of the Building
Permit violated Sprint Spectrum's statutory rights under the TCA and applicable State law, and
that the issuance of the Building Permit should be affirmed.
PRAYER FOR RELIEF
WHEREFORE, Sprint Spectrum prays that this Court enter judgment in its favor and
against the Defendants for the following:
A.
A permanent injunction prohibiting the Defendants from interfering with the
construction and operation of the Sprint Antenna under the First, Second, Third,
Fourth, Fifth, Sixth, Seventh, Eighth and/or Ninth Claims for Relief;
B.
A writ of mandamus and permanent injunction ordering the Defendants to honor
the Building Permit and to issue any and all other necessaty approvals for the .
Sprint Antenna under the First, Second, Third, Fourth, Fifth, Sixth, Seventh,
Eighth and/or Ninth Claims for Relief;
.C.
A judgment declaring that the Board violated the TCA and State law by revoking
the Building Permit and ordering that the Building Permit be honored under the
First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and/or Ninth Claims for
Relief;
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D. A judgment for damages in an amount to be proven at trial, plus damages incurred
for each day until such time as the Defendants conform their conduct to applicable
restrictions thereon and to Sprint Spectrum's rights, under the Fifth and/or Sixth
Claims for Relief; and
E. Such other and further relief as this Court deems just and proper under each
Claim.
I AFFIRM UNDER THE PENALTIES FOR PERJURY THAT THE FOREGOING
REPRESENTATIONS ARE TRUE.
Dated: July 23, 2002
Respectfully submitted,
LOCKE REYNOLDS L.P.
By:
T as F edsole - #15980-49
Attorney for Petitioner
Sprint Spectrum L.P.
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EXHIBIT
I
A
· I. Existing 135' Guide Tower
· 2. Existing Side Arm Apertures
· A. Proposed Flush Mount Sprint pes Antenna
· B. Proposed Access Road, Equipment Shelter & Landscaping.
:$ .
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CITY OF CARMEUCLA Y TOWNSHIP
BUILDING PERMIT
LOT NO.
T~eMCo~mon:OTHER
Type of Improvement: CELL TOW
APPROVAL STAMP
RELEASED FOR CONSlRUCflON subject
to compnance wi!tl aD Regulo1lons of
State and Locol Codes DEPT OF
COMMUNlIY SERVICES CIIV OF
CARMEL I CAY TOWNSHIP INDIANA
..
,.
~
PERMIT NO. 2001.0627.B
DATE: 06115/2001 .
CONTRACl'OR :JAY LEMMON, Q SERVE COMMUNICATIONS
TENANT:
OWNER: EDWIN C & DONNA B ZAMBER
SITE ADDRESS: 1388 QUEENS WY
SUBDIVISION:
ZONING: -
POST: lVIUST BE VISIBLE FROM STREET
This Building Permit must be posted with this side visible from the street prior to
inspections and must stay posted until ALL inspections have been approved. ANY
. FAILURE TO COl\1PL Y WILL RESULT IN A REFUSAL OF INSPECTION.
NOTICE
THIS CONSTRUCTION
The Carmel \ Clay Zoning Ordinance provides for a penalty
any construction is continued witlout having any one of the
following inspections scheduled, performed, and approved.
IS NOT APPROVED
FOR OCCUPANCY
This penalty will be based on the fee structure in Ordinance
Z-289,1993. -
This DCnal1V also anpIies to any construction that is found to
be occupied before a Certificate of Occunancv is issued.
This is to certify that a buDding permit has been issUed on this project \building in accordance with the Ordinances of
the Qty of Carmel\Oay ToWllship. '
DEPARTMENT OF COMl\iIUNITY SERVICES
- BUILDING PERMITS DIVISION
1 Civic Square
Carmel, IN 46032
31 571-2444
EXHIBIT
I
B
...
~un 15 01 01:09p
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3170 8224
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o ALL PERMITS ISSUED WILL REOfllRE ONE OR MORE OF THE INSPECTIONS SHOH-'!V
BELOW:
o To schedule, calI 571-2444 or 2475; footings and underslab call 571-2449
Cl Refer to inspection procedure sheet for details on scheduling
Date FOOTINGS
o Approved 0 Not Approved
.. .
'.-
Date UNDERSLAB '~.,
(lnmection is fOT enemv & pre-oour preparation)
o Approved 0 Not Approved
Date ROUGH-IN
o Approved 0 Not Approved
o Approved 0 Not Approved
o Approved 0 Not Approved
Date BONDING & GROUNDING
o Approved 0 N~t Approv~d
- -
-.
Date METER BASE
o Approved 0 Not Approved
Date FINAL
(Furniture or product constitutes occupied. See warning below)
o Approved 0 Not Approved
~ o APlJOved 0 Not Approved
o Approved 0 Not Approved
o Temporary C/O
Date FIRE DEPT. INSPECTION (571-2600}
(Commercial only) ..
: DApproved 0 Not Approved
t.
WARNING
No building/structure or portion thereof shall be used or occupied until ALL provisions of the codes have been complied with
and the structure has been approved fOT occupancy. Occupancy prior to issuance of the Certificate of Occupancy is prohibited
per section 29.4.3 of the Carmel/Clay Zoning Ordinance, Carmel City Code, Chapter 7-20; Section 307 of the General
Administrative Rules of the Indiana Fire Prevention and Building Safety Commission, and Section 308 of the Uniform
Building Code"
DEPAR'Th1ENT OF CO:MMUNITY SERVICES
()np. rhrif' ~1111!:tTP r!:trmp,1 TN .:1"h01?
. . Ji.m 1501 01:09p
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317 Q 8224
p.4
INSPECTION PROCEDURES
-'
All con.si:iuction must follow FEDERAL, STATE, and LOCAL CODES. which include:
1. Indiana Building Code - 1998
2. Indiana One & Two Family Dwelling Code -1997
3. Indiana Plumbing Code 1991
4. Indiana Mechanical Code 1998
5. Indiana Electric Code - 1997
6. Carmel/ Oay Zorring Ordinances -1980
7. Indiana Swimming Pool Code - 1989
8. Indiana Energy Conservation Code -1993
A MINIMlJM OF 24-HOUR. NOTICE IS REQUIRED IN SCHEDULINO AiL INSPEcnqNS EXCEPT
FOOTINGS AND UNDERSLAB. Far footing or unde:rslab, ClZZZ 571.2~ between 8:00 a.m. and 9:00 a.m. fOT same
day inspecti011.. Pool bu:t.1ders may also use the 'tooting line" to schedule bonding inspections. .ALL OmER
inspections must be scMdukd 24 hours in advance: 571-2444. . ~~
'. .
The owner or their representative, in the case of additions, remodels, etc., must provide entry.
The following inspections are required with vom Building Permit
FOOTINGS: Same day scheduling..~(57i-2449). This must be done between 8:00 a.m. and 9:00 a.m. Have
ready: Permit number and.the time you need the inspection!
A Inspection is to be made before you pour. .
B. Grade stakes are required to be installed.
C. All water pumped out and scraped clean to solid ground..
D. Double check yom site distance requirements & setbacks to property lines.
E. Make sure you are behind the btrllding line.
-
UNDERSLAB: "Slabs on Grade". Same day scheduling...571-2449 between 8:00 a.m. and 9:00 a.m.; again, have
pennit: number and the time you need the inspecti.onready! (INSPECTION IS TO BE MADE BEFORE YOU POUR!)
A At this time the insulation shall be installed :in any approved configuration for a total combined length of
48". For details, refer to the Indiana-Energy Conservation Code 1993. . -'
B. The "Vapor BarrierD must also be :installed at this time.
C. Pea gra7JeZ should be in place.
ROUGH~IN: 24-hoUI notice is required on all inspections beginning at this stage of construction: 571-2444.
A DO NOT INSULATE BEFORE ROUGH-IN'
B. The Building Permit shall be located in a front window, with lot number facing the street In the case of
Dorch and additions, remodels, etc.. permit should be placed where it can be easilv reached
C. BUTI..DIN"G PEIDvnTS MUST BE POSTED OR lEE INSPECTION WILL NOT BE PERFORMED, AND A
RE-INSPECTION FEE WILL BE CHARGED. '
D. Rough-In of electrical wiring, plumbing, and HV AC required at this point
E. Structure is to be weather tight..windows and doors in, roofing shingles on.-9
F. All dra:fI: stops & mebIocking to be installed.
PLEASE NOTE: A Do Not Occupy sticker will be posted at the time of the rough-in inspection. This must not be
removed until a Certificate of Occupancy has been issued fr-om the Dept of Community Services. Carmel. IN". This
notice does not indicate a problem with construction, only that a Cj 0 has not yet been issued, therefore, it cannot
be occupied
MElbl{ BASE:
A. Grounding is required for customers service 6:J.trance equipment Grounding shall be in accordance}'Vith.
the provisions of the National Electrical Code. .
B. A ground connection for custOmers se..'"Vice equipment shall not be made in or on the meter mounting
device for Public Service Indiana.
C Conduit to meter base m~ be 2" rigid steel, or Schedule 80 PVC and must extend 18" minimum below
grade. Schedule 40 is NOT permitted.
D. When this inspection has been approved. a green meter tag, marked approved bv our inspector, will be
placed inside the meter itself; at that time, the appropriate Utility can be scheduled.
~
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317 0 8224
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'FINAL RESIDENTT..AL: PERMIT MUST REMAIN POSTED OR THIS INSPECTION CANNOT BE PERFORjVIED.,
A. All electrical, plumbing, and medumica1 work, as well as any items that axe detemUned to be in the inteIest of
public safety and welfare shall be 100% complete prior to approval of final inspection or issu.ance of a CertifiCate
of Occupancy.
B. Final gradin~ reat and side swales shall be completed prior to finaL Rweather permitting. II
C. After final inspection is perlomed; a minimum of 24 hours is required before a Certificate of Occupancv will be '
issued..
FINAL COMMERCIAL i) pn ,J -re c.J) 1'l~ S COt!- 73re.w qJ ~r s; 1- <l ; Yl f!:.?zGb I
Must first contact the Ffi ~ ~ gHke {S71-i:666J-aIld schedule a final Insl'ecti~ lJ A..-=ter we have the Fire ~
Inspectors approval that aTIfire and safety codes are in compliance, then the Contractor needs to contact D.O.C.S. (.,;
to sched~e a site inspection to ensure an plans were fallowed per Plan COIIIII1ission approval, weather ~g. ~
A~ that time the Building Inspector shall conduct a Final inspection, and if approved, a Certificate of OCCU~
isSued PRIOR to any occupancy of the structure or any Tenant Space. .
AN ADDmONAL FEE WILL BE CHARGED FOR. ANY INSPECTION THAT REQUIRES MORE THAN ONE TRIP FROM
THE BUILDING INSPECTOR. $50.00 FOR RESIDENTIAL $90.00 FOR COMMERCIAL PAYABLE BEFORE FURTHER
INSPEC110NS WILL BE SCHEDULED. '
NOTICE
The Carmel Zoning Ordinance provides for a penalty if any construction is continued without having anyone of
the above inspections scheduled, performed, and approved. This 1'enalty wzll be based an the LATE FEES established
with the fee structure: established in OrdinanceZ-289, Section 29.6.8, "Late Fees O,t Inspections". This 11enalty also armlies to I
any construction that is found to be occupied before a Certificate of Occu1'ancy is issued.
.
CARMEL ZONING ORDINANCE, SECl10N29.4.3(1): No land shall be occupied or used and no building hereafter
erected, reco1'lStructed or strudura1Iy altered shall be occupied or used,. in whole or in part, for any purpose whatsoever,
until a Certificate of Occupancy shall have been issued by the Building Commissioner (Dept. of Community Services
Director) stating that the building and use comply with all of the provisions of this Ordinance applicable to the building,
premises or the use in the district in which it is to be located. '
~4A4A~A~A4~4.~4A~AA~4Aj~~AAA~A~A4AAAA~AA4AAAAA4AA~AAA4AA4AAAA41AAAAAAAL4!A~A4AAAAAA4LAAAAAA4AA.4AAAAAAAAAAAAAAAA4;AAAAAALL~AAi~~A;A..A~A
CITY ENGINEER. POLICY SUMP PUMP WATER DISCHARGE OUl1.ETS
It shall be the responsibility of the builder to provide fox an adequate discharge outlet for a sump pump.
* If a subsurface storm water drainage system is available (adjacent) to the building site, the sump pump shall
discharge via a pipe to this system. This must be shown on the submitted site plans in detail and the Carmel Oty
Engineer must inspect the connections.
* If a flowing stream is available (adjacent) to the building site, the sump pump shall discharge directly to this
stream. This must be shown on the site plan in detail
* If no other way exists for discharge, the sump pump pipe outlet shall be located in an.al'ea between the back wall
of the house and the middle of the rear yard. In no circumstance shall the sump pump outlet be closer than
twenty-five feet, zero inches (25'0") to the easement of the storm water swale or to the prqpertv line. 'This location
. shall be shown on the site plan in detail. ,"
PER THE CITY UTILITIES, GEOTIIERMAL HEAT PUMP WATER DISCHARGE OUTLET
1. The Oty Utilities MUST be notified of any type of well.
2. Internal back flow devices are required on all wells.
It shall be the responsibility of the builder or property owner to provide for an adequate discharge outlet
for geothermal heat pumps.
* It is highly recommended that a closed loop sy~ for a geothermal heat pump be used in Carmel and Oay
Township. . _'
* Injection wells ate not recommended for use in Cannell Oay Township. Special pennission from the City of .
Cannel must be obtained if this is the only system that can be us'ed. Contact the Water Department (571-2442) for
additional infucnation. '
* If a water discharge outlet is proposed for the' geothermal heat pump system, it must outlet directly by pipe into
either a flowing stream, storm water syStem or a subsurface storm drainage tile systeIIt: The connection must be
inspected by the Carmel Oty Engineer and must be shown in detail on the site or plot plan. If the sump pump or
,geothermal heat PumP is to discI:targ:e into a Co~ty regulated dIainageway, it will need to tie directly into a
.
~un 15 01 01:10p
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. CarmeJ-C1ay
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31708224
Application for
Improvement Location Permit
Pe::mit No.
Date
Roll File
p.S
("'t (\ \
../!..}, i ,..J 1
NAME
PHONS
FAX
BUILDER
Jay T~, Q Serve C'hm1Jmi~t:ioos
(317) 856-1694
(317) 856-0198
TENANT NAME
(if liable)
STRSEr .. ary
~1'1E~Scbcol ~, ~hn~lis,
r
Sprint Speet:ri:m, IP, d/b/a sprint: PeS
. STATE
IN
ZIP
46241
..
\.
OWNER
NAMS PHONE FA"
E::hdn C. Zanbe'r (317) 848-9739
6-
STREEl' CTY STATE
1388 QtEens Way, ('~l
LOT stilwlVlSION scenOIt
.See attAt".nM. tion.
.... ..-
LOCATION
ADDRESS OF CONSTRUcnON
138B QtEens Way, ~1, Imiana
A. TYPE OF CONSTRUCTION Do plans include a porch? F. TYPE OF J::MfROVEMENT
1. 0 Single Family 0 Yes 0 No L 0 New Structure
2. CI Two Family 2. D. Addition: Porch_Room_
3. [J Multi-Family Type of Foundation 3. 0 Remodel 0 Commercial Tenant Space
4. [J Commercial I Industrial OCrawlspace 4. 0 Foundation Only
5. KI OTHER' UDStaffe:i DBaseinent ~ :\\ 5. D Demolition
(Specify) ~W raMoXJSla~\\,~;.~l' 6. Xl Accessory Building: .
equtpxent: sheltar,/ ~ u} 7. 0 Gara.J;l ~~~ Attached
B. SEWER: IDDIl! '-: "'-15"\ 'r\'-' ." t\C:~ X
1. CJ Public (Name of System ): G.....~m GQi'C ",,11 ~egti,a: YES _ NO__
~ 'r'ull ',nc:.\\ --.--
2. CJ Private (Septic Tank, etc.) ~~ e ~St:.~ ",~~~:Nil~ CC'~S. ~c~S _ NO_
C. WATER: \' r.\~:;;.~. cmf,\t'SumD~ -F:,I\~' NO X
mIlB ,. .,.,.".r:l '1.0 ."" anI:! - ~t:.. \ :;----
1. CJ Public (Name of System y ~:..,~....... c~ S'...~-';;..V,[~'.,e~ T~~ -. _' ...~ NO~
2. 0 Private (Well . ) P.l-:T (",c O..it-J~ . I, C~'( , oc;trS
D. ZONING: S-2 ~".f.;::.'i'" ... ~~A~tractor
E. ESTIMATED COST OF CONSTRUcrIO*~ < _ J::J!.-n Qf i,.- !~..9... .' . ,
(Excluding Land Value) "'!:"" :' ~..~ - Plumbip.g License # D UPC or 0 CABO
...........******..*.****......********.*****.*****.**.*..**.****..*****.***...**...*****....**.............
.The undersigned agrees that any constrUction, reconsmzcOon, enl3ii~cnt, relocation, or alteration of structure, or any change in the ~ of land or strUCtUre
requested by this application will comply witli, and conform to, all applicable. laws oCthe Slate of Indiana, and the4"Zoning Ordinance of.Carmel Indiilna - 1993
(Z-289) and amendments. adopted under authority one. 36-7'er seq, General Assembly of the State of Indima, and all Acts amendatci~ thereto. I furthe
certift that only kitchen, bath, and floor drains are connected to the sanitary sewer. I further c:ertUY that the coDStntctlon will not be used 'or OttDpied unti
a CertijiCllte DJ Occupancy has been issued by the Dep:u1ment of Community Services, Carmel. IndiaDa.' .
Ii. /'./.'7 -? ~ ..... . INSPECTIONS ~EDED: : . "
j . '7 . h'7' . _::.:-~., .~ r:'G #" ;:':;llglUnder SJa~' ~:ug':.91' .... ~;~.~~e. . . (~
n Ignature of Owner or Authorized Agent . ;., \___.r /-.' '::-=__--. .......;. . i
f ~GmeS A.L. ~~n""t'm, At:t:.orney for Spri.nt .r""" Sitej ,i/.'/ Final.../ . -:::"S~"" ~ ~
Sj;:ect:rull. IP (see att~rNrl lease ag:raBIImlt:). . ~1A!.ir~;::',~ c:r"r:;.)' <';-7"<..
Pemut (Square F oota !/ ./' ./, . ~ ~_' _' - ..J. .
(p. . (ph Numbe) ,i ~. ~t ..")
rmt) one r . ~"; I ~~. . -:-
. (317) 269-2500 ...../ I " .'
'Inspection Fees:
......
~.-.,.n]' ..~
i-" --
",,r,.:..i ~;,:.-'
~ i ~-
PlU.F.: f
TOTAL: . ~ _ ..,.r'! e:':/ :~.:
~ !] 1'--.. ._,'""" ,
,,--;.., I "'J r i-:'!.; II.f i /'l.f"-7
. '''".1 ."\ : "y-. t.~
c~)
J I ) L-.n J
Sewer Capaci~ Allotted
Plan Comz$sionJB~Docket #:.
i/~-' ./i'-J/~rfr~: / /.,....>~,..-...
~~./ .I,.,t .",,;~7~.L.~~~~""."
Certificate of Occupancy:
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It-
IN THE HAMILTON COUNTY CIRCUIT COURT
SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Petitioner,
)
)
)
)
)
) ,
)
)
)
)
)
)
Cause No. 29COll 0112CP 1202
v.
Respondent.
FILED
"
JUN 18 2002
~~:;;K~~
HAMILTON CIRCUIT COURT
THE BOARD OF ZONING APPEALS
FOR THE CITY OF CARMEL AND
CLAY TOWNSHIP,
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This cause having come before the Court for hearing on the Board of Zoning Appeals for
the City of Carmel and Clay Township's (the "BZA") Motion for Partial Suminary Judgment and
on Sprint Spectrum L.P.'s ("Sprint") Statement in Support of Summary Judgment Pursuant to
Trial Rule 56(B), the Court now enters the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. On or about June 15,2001, Permit No. 2001.0627.B (the "Building Permit") was
issued to Sprint for the placement of a wireless communication antenna and related equipment on
property owned by Edwin Zaniber (the "Zamber Site").
2. By letter dated Thursday, August 23, 2001, the Director of the Department of
Community Service of the City of Carmel revoked the Building Permit.
3. Sprint received the letter ofrevoc~tion on Friday, August 24,2001.
4. On Monday, September 24,2001, Sprint filed an appeal with the BZA regarding
the Building Permit revocation (the "Sprint Appeal").
5. Section 30.1 of the Carmel Code provides that "all appeals shall be filed with the
Director within thirty (30) days of the action to be appealed."
EXHIBIT
I
c
o
."
"0
6. 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.
7. The thirty (30) day period, as provided by Section 30.1 of the Carmel Code,
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.
8. The thirtie$ day fell upOh Saturday, September 22, 2001 and, due to the
Department being closed on weekends, the Sprint Appeal could not be filed on Saturday or
Sunday.
9. The Sprint Appeal was filed on the very next day the Department of Community
Development was open for business, which was Monday, September 24,2001.
10. On November 15, 2001, Richard Deer, an owner of property adjacent to the
Zamber Site, filed a motion to dismiss the Sprint Appeal as untimely.
11. A hearing on the Sprint Appeal was scheduled and held on November 26, 2002.
12. At the hearing, the BZA granted Deer's motion to dismiss and never reached the
merits of the Sprint Appeal because it found the Sprint Appeal to beuntirnely.
13. On December 21, 2001, Sprint filed its Verified Motion for Writ of Certiorari,
with supporting Brief (collectively, the "Petition"), alleging" that the BZA's dismissal of the
Sprint Appeal was illegal. .
14. On January 10, 2002, the BZA moved to dismiss the Petition. The Court denied
the BZA's Motion to Dismiss on February 1,2002, and issued a Wnt of Certiorari (the "Writ")
to the BZA on March 20, 2002.
2
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15. The BlA filed itsreturn to the Writ (the "Return") on April 1, 2002. ln the
Return, the BlA acknowledged that there were no factual issues that needed to be resolved by
the Court. Accordingly, the BlA moved for judgment on the pleadings or, in the alternative, for
partial summary judgment.
16. On May 29, 2002, Sprint filed its Statement in Support of Summary Judgment
Pursuant to Trial Rule 56(B), in which it agreed with the BlA that there are no issues of material
_ fact in dispute between Sprint and the BZA and that the only issues are ones of law.
17. Any conclusion of law stated below, to the extent it constitutes a fmding of fact, is
incorporated by reference as an additional finding of fact of the Court.
CONCLUSIONS OF LAW
1. Under Indiana law, the Sprint Appeal to the BlA was timely filed.
2. 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. Ball Stores. Inc. v. State Board of
Tax Commissioners. 316 N.E.2d 674 (Ind. 1974) ("every conceivable element of fair play,
common sense and logic mandates that the [appellant] be afforded the fully thirty days to
complete his appeal.")
3. The princIple espoused in Ball Stores 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 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. . .
3
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o
4. Trial Rule 6(A), by its express language, applies to "any period of time prescribed
or allowed by.. . any applicable statute," including Section 30.1 of the Carmel Code.
5. Furthermore, the principle embodied in Trial Rule 6(A) applies whenever the
applicable statute is silent as to the method of computing time~ Here, Section 30.1 of the Carmel
Code does not provide for a method of computing the thirty (30) day limit, and therefore, Trial
Rule 6(A) applies by default.
6. 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 mles 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, Trial Rule 6(A) was also applicable. Jenkins v.
Yoder. 324 N.E.2d 520 (Ind.App. 1975).
7. The BZA failed to apply Trial Rule 6(A) to the timing requirements of Section
30.1 even though Trial Rule 6(A) applies by its express language and must apply to avoid
making Section 30.1 unfair and unconstitutional.
8. Pursuant to Trial Rule 6(A), the thirtieth day after the Director revoked the Permit
was September 22, 2001, and that day being a Saturday, the Sprint Appeal was timely filed on
. the following Monday, September 24,2001.
9. Under Indiana law, 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
4
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[appellant's] inability to make delivery of such is beyond his control." Ball Stores. Inc. v. State
Board of Tax Commissioners. 316 N.E.2d 674,676 (Ind. 1974).
10. The BZA's interpretation of Section 30.1 of the Carmel Code also breached
common rules of statutory construction,
11. The BZA's dismissal of the Sprint Appeal was illegal and shall be reversed.
12. As there are no facts in dispute and Sprint is entitled to judgment as a matter of
law, summary judgment shall be entered in favor of Sprint and against the BZA pursuant to Trial
Rule 56(B).
13. Any finding of fact stated above, to the extent it constitutes a conclusion oflaw, is
- hereby incorporated by reference as an additional conclusion of law of the Court.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that summary judgment
be entered in favor of Sprint and against the BZA reversing the dismissal of the Sprint Appeal
and ordering the BZA to reschedule the Sprint Appeal as soon as possible to be heard by the
BZA on its merits.
Dated: . ~A~ VL,~L
.
~1.~,
JUDGE, Hamilton Circuit Court
Distribution attached
5
o
Copies to:
Thomas F. Bedsole
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244
Richard S. Nikchevich
W. Scott Porterfield
. Steven J. Yatvin
BARACK FERRAZZANO KIRSCHBAUM
PERLMAN & NAGELBERG LLC
333 West Wacker Drive, Suite 2700
Chicago, IL 60606
John R. Molitor
11711 North Meridian Street, Suite 200
Carmel, IN 46032
568176_1
o
6
:JUL-23-2002 TUE 03:28 PM ~L COMMUNITY SVCS
FAX NO. 31~71 2426
P. 01
..-\RMEUCLA Y BOARD OF ZONING APP i-S
'.
Cannel. Indiana
Docket No. :
Petitioner:
Son"t Spectrum. LP
~ ~~. . FINDINGS OF FACT. APPEAL (BallDt 'l!lootl
1. ~ s.oWo~'~~c.. ~~
~~\S\("o,~ ~O . ~\)f)\(G-~ ~~"E.. ~R\'(\ \~
'2. ~~t~~ ~O t\\t3-\~~\~ ~t\:~~~~
~C\S\C~ ~~~Q~\"\ ~,-?'. ~~. ~~
~~ \s)\~~~ ~~5 ~~,~~"t\V;i-~ C~
3. . ~t\\) \~\J\i"-
4.
. 5.
6.
DATED THIS
DAY OF
.20_.
. ~~,~,.v.; ~
Board mber ~..
t
-
EXHIBIT
al Application - pg 7
I
D
.
: JUL-23-2002 TUE 03:28 PM ~EL COMMUNITY SVCS
FAX NO. 3~71 2426
P. 02
....RMEUCLA Y BOARD OF ZONING APP. ...s
'.
Carmel, Indiana
'.
Docket No. :
Petitioner:
Sorint Spectrum. LP
1.
. , . FIND~GS OF FACT - APPEAL ISallol Sheet}
~<<~{J /.~~.
-- /
2.
3.
5.
6.
DATED THIS 2,'~ DAY OF
BZA Appeal Application - pg 7
", /'-"
~JUL-23-2002 TUE 03:28 PM ~EL COMMUNITY SVCS
FAX NO. 3~71 2426
P. 03
'. ,~RMEUCLA Y BOARO OF ZONING APP' ~S
Carmel, Indiana
..
Docket No. :
. Petitioner:
Sorint Soectrum. LP
FINDINGS OF FAcT - APPEAL (BaUot Sheet)
1.
2.
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BZA Appeal Application - pg 7
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~JUL-23-2002 TUE 03:29 PM ~EL COMMUNITY SVCS
FAX NO. 31~71 2426
P. 04
.~RMEUCLA Y BOARD OF ZONING APP ..S
Carmel, Indiana
'.
Docket No. :
Petitioner.
Sorint Spectrum. LP
FINDINGS OF FACT M APPEAL (Ballot Sheet}
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BZA Appeal Application - pg 7
~JUL-23-2002 TUE 03:29 PM'~EL COMMUNITY SVCS
FAX NO. 30n 2426
P. 05
.~RMEUCl..A Y BOARD OF ZONING APP ...S
.....
Carmel, Indiana
Docket No. :
Petitioner:
Sorint Spectrum. LP
FINDINGS OF FACT. APPEAL (Ballot Sheet}
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5.
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BZA Appeal Application - pg 7
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City of Carmel
DEP ARTIvlENT OF C011MUNITY SERVICES
Division of Planning & Zoning
March 20, 2002
Department Report
To: Board of Zoning Appeals Members
From: Department of Commpnity Services
Re: Projects scheduled to be heard Monday, March 25,2002
H. Public Rearin!!:
1h. This Item Currently Tabled at Petitioner's Request:
WTF - Sprint Spectrum (A-97-01)
Appellant (an Interested Party) wishes to appeal the decision.ofthe Director regarding the
collocation of a WTF antenna on an existing private radio tower. The site is located at
1388 Queen's Way. The site is zoned S-l/Residence - Very Low Density.
On August 23,2001. the Director issued a letter revoking the building permit (Permit No.
627.01B) for the antenna on this site. The Department believes it would be premature to
consider this petition until the matter of the Subdivision of the Subiect Property has been
addressed.
. The petitioner haS requested that this Item be Tabled until such time as the matter of the
Subdivision of the property has been addressed.
EXHIBIT
I
E
Page 1
.I r 'l
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""ARMEUCLAY BOARD OF ZONING APPt:ALS
CARMEL, INDIANA
Docket No.:
A-97-01
Petitioner:
RICHARD DEER
FINDINGS OF FACT - APPEAL
1. The Petitioner has properly followed the Appeals Procedures outlined in Ordinance Z-160, Section 30.2,
et. seq.
2. Nature of action appealed from:
Issuance of an Improvement Location Permit (No.627.01) / Refusal to revoke an Improvement Location
Permit (No.627.01)
Agency:
Department of Community Services
Official:
Director
Date of Decision:
June 15. 2001 / Auoust 14. 2001
3. Attached are copies of the pertinent Ordinance sections which are the subject of the Petitioner's Appeal:
Section 3.7 - Definition of "Antenna"
Section 5.0 - S-1 Residence District: Chapter 25 - Additional Use Reoulations
4. The written materials submitted to the Board dosupport the Petitioner because:
the use for which the ILP was oranted (a commercial antenna and unstaffed, unoccupied" commercial
radio eouipment shelter) is not a Permitted Use under the S-1 Residential District and related sections of
the Carmel/Clav Zonina Ordinance: thus. the ILP was improperlv issued and should be revoked.
5. . The Agency (DOCS) and Official (Director) should not be affirmed.
6. The work on the premises upon which appeal has been filed shan be stayed:
DECISION
IT IS THEREFORE the decision of the Carmel/Clay Board of Zoning Appeals that Appeal Docket No. A-97-01
is granted, subject to any conditions stated in the minutes of this Board, which are incorporated herein by
reference and made a part hereof,
ADOPTED this 24th day of June
~c/-
CHAIRPERSON, Carmel/Clay Board of Zoning Appeals
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SECRETARY, Carmel/Clay Board of Zoning Appeals
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C:\NrPortbJ\N01\MSTUCKEY\43314_1.DOC
EXHIBIT
Conditions of the Board are listed on the back.
titioner or his representative to sign.)
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< .
CARMEUCLA Y BOARD OF ZONING APPEALS
Carmel, Indiana
Docket No. :
A-97-01
Petitioner:
Richard Deer
FINDINGS OF FACT - APPEAL (Ballot Sheet)
1.
2.
3.
4.
5.
6.
DATED THIS
24th
DAY OF
June
02
,20_,
...
~~~~
Board Member
.t r 1 ~
o
o
CARMEUCLA Y BOARD OF ZONING APPEALS
Carmel, Indiana
Docket No. :
A-97-01
Petitioner:
Richard Deer
FINDINGS OF FACT - APPEAL (Ballot Sheet)
1.
2.
3.
4.
5.
6.
24th
DAY OF
June
02
,20_.
~. ~, -: 0t "
~'- /) /I ' j . II ..
. ~:..p~__ . L-TZA-iL~
Board Member
DATED THIS
.. r , '~
u
o
CARMEUCLA Y BOARD OF ZONING APPEALS
Carmel, Indiana
Docket No. :
A-97-01
Petitioner:
Richard Deer
FINDINGS OF FACT - APPEAL (Ballot Sheet)
1.
2.
3.
4.
5.
6.
DATED THIS
24th
DAY OF
June
02
,20_.
r-//7
.-...-....'( (.. .,' ,.../ ~-:......
'-
Board Member
",
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0,
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, ,-
CARMEUCLA Y BOARD OF ZONING APPEALS
Carmel, Indiana
Docket No. :
A-97-01
Petitioner:
Ric.hard Deer
FINDINGS OF FACT - APPEAL (Ballot Sheet)
1.
, 2.
3.
4.
5.
6.
DATED THIS
24th
DAY OF
June
t
. ).
~
9.
-'
CARMEUCLA Y BOARD OF ZONING APPEALS
. Carmel, Indiana
Docket No. :
A-97-01
Petitioner:
Richard Deer
FINDINGS OF FACT - APPEAL (Ballot Sheet)
1.
2.
3.
4.
5.
6.
24th
DAY OF
June
02
,20_.
DATED THIS
~~~w
Boar Member .