HomeMy WebLinkAboutNo. 29C011-0112-CP-1202
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IN THE HAMIL TON COUNTY CIRCUIT COURT
Respondent.
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Cause No. 29COll 2cpI(IIQ...3IOl
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SPRINT SPECTRUM L.P.,
a Delaware limited partnership,
Petitioner,
v.
THE BOARD OF ZONING APPEALS
FOR THE CITY OF CARMEL AND
CLAY TOWNSHIP,
JUNl 8 2002
--- ^ a..-"'1. -:Q.,..;..t"'":t.
~ CLERK \lol' THE-.)
HAMILTON CIRCUIT COURT
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 Summary 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 Jtine 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 Zamber (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 of revocation 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."
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6. The Department of Community Services is the entity responsible for the
accept. of appeals to the Board of Zoning Appeals. Its office is not open for business on
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Sa ~OVtl~ days and, therefore, no appeals can be filed on those days.
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tQOi 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 thirtieth day fell upon 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 be untimely.
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 Writ of Certiorari (the "Writ")
to the BZA on March 20, 2002.
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15. The BZA filed its return to the Writ (the "Return") on April 1, 2002. In the
Return, the BZA acknowledged that there were no factual issues that needed to be resolved by
the Court. Accordingly, the BZA 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 BZA 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 finding 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 BZA 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.. .
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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 rules of the Public
Service Commission specifically prescribed a manner for computing the thirty (30) day time
period. City of South Bend v. Users of Sewage Disposal. 402 N.E.2d 1267 (Ind.App. 1980).
Similarly, where the statute of limitations on a personal injury action was silent as to how the
time limitation therein wa,s to be computed, Trial Rule 6(A) was also applicable. Jenkins v.
Yoder, 324 N.E.2d520 (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
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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 Carinel 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: ~ll'^-O \ f{,'L\:)::::)'L
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~-R.~
rODGE, Hamilton Circu t Court
Distribution attached
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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
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HAMILTON COUNTY CIRCUIT/SUPERIOR COURT
Plaintiff,
) CAUSE NO. 29COI-01l2-CP-1202
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SPRINT SPECTRUM, L.P.,
v.
CARMEUCLAYBOARD OF ZONmG
APPEALS,
Defendant.
MOTION FOR LEA VB TO APPEAR PRO HAC VICE
Thomas F. Bedsole of the law firm of Locke Reynolds LLP moves the Court to grant
leave for Rick Nikchevich, W. Scott Porterfield and Steven J. Yatvin of the law firm ofBarack
Ferrazzano Kirschbaum Perlman & Nagelberg to appear pro hac vice in this matter on behalf of
Sprint Spectrum, L.P. In support of this Motion, the undersigned shows the Court:
I. Attached hereto as Exhibit A are the Verified Petitions of Rick Nikchevich, W. Scott
Porterfield and Steven J. Yatvin submitted pursuant to Rule 3 of the Indiana Rules for Admission
to the Bar and the Discipline of Attorneys demonstrating compliance with the conditions set
forth in Rule 3.
2. The undersigned counsel is a member of the bar of the State of Indiana, and has
previously entered his Appearance in this matter and agreed to act as co-counsel with Rick
Nikchevich, W. Scott Porterfield and Steven J. Yatvin.
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WHEREFORE, Thomas F. Bedsole of the law firm of Locke Reynolds LLP moves the
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Court to grant Rick Nikchevich, W. Scott Porterfield and Steven J. Yatvin leave to appear pro
hac vice in this matter, and for all 'other relief just and proper in the premises.
LOCKE REYNOLDS LLP
By: ~ <F~ mv
Thomas F. Bedsole, #15980-49
Attorneys for Plaintiff
LOCKE REYNOLDS LLP
201 N. Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
(317) 237-3800
542707_1
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
upon the parties listed below by first-class United States mail, postage prepaid, this 28th day of
December, 2001.
Ramona Hancock
Secretary, The Carmel/Clay Board of Zoning Appeals
Department of Community Services .
One Civic Square
Carmel, IN 46032
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Thomas F. Bedsole
542707_1
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HAMILTON COUNTY CIRUCIT COURT
Petitioner,
) CAUSE NO.
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SPRINT SPECTRUM L.P.,
Respondent.
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JAN 2 2002
Docs
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CARMEL/CLAY BOARD OF ZONING
APPEALS,
VERIFIED PETITION FOR ADMISSION TO PRACTICE UNDER
RULE 3. SECTION 2 (A)(3) OF THE INDIANA RULES FOR
ADMISSION TO THE BAR
Richard S. Nikchevich applicant herein, respectfully represents the following:
1. My residential address is:
3917 Grove Avenue
Western Springs, IL 60558
I am a member of the :firm ofBarack Ferrazzano Kirschbaum Perlman & Nagelberg. The
:firm's address, which is also my business address, is:
333 West Wacker Drive, Suite 2700
Chicago,IL 60606
Telephone: 312-629-7344
Fax: 312-984-3220
2. I am licensed to practice law in:
Illinois:
Registration No.: 237656
Year of Admission: 1987
3. I am currently a member in good standing of the Illinois bar.
4. I have never been suspended, disbarred, nor have I resigned as a result ora
disciplinary charge, investigation, or proceeding from the practice of law in any jurisdiction.
5. . No disciplinary proceeding is presently pending against me in any jurisdiction.
108459_1.DOC
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6. I have not appeared in any cases in the state or federal courts located in the State
of Indiana in the last five years. Other attorneys from my firm have appeared in the following
matters:
ATTORNEY
CASE NAME AND NUMBER
COURT
Wendi Sloane
David E. Gordon
Premier Graphics, Inc. v.
First Industrial Indianapolis, L.P.
49 D 129909 CP 001385
Marion County
Superior Court
7. Good cause exists for my appearance in this case. I have represented petitioner
Sprint Spectrum L.P. and its predecessor and successor firms on a regular basis since 1998. I
concentrate my practice in telecommunications and real estate, including the complex issues that
this case appears to involve.
8. I have read and will be bound by the Rules of Professional C<?nduct adopted by
the Indiana Supreme Court and I consent to the jurisdiction of the State of Indiana, the Indiana
Supreme Court, and the Indiana Supreme Court Disciplinary Commission to Resolve any
disciplinary matter that might arise as a result of the representation.
9. I will file a Notice of Pro Hac Vice Admission with the clerk of the Indiana
Supreme Court in compliance with Admission and Discipline Rule 3, Section 2(b) within thirty
(30) days after the Court grants permission to appear in the proceeding.
Sworn to before me this
l11hdayof 'V!.Cl/Irlber ,20.QL.
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Notary Public
OFFICIAL SEAL
THERESA J. BROWN
NOTARY PUBUC, STATE OF IlliNOIS
MY COMMISSION EXPIRES 4.2-2005
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HAMILTON COUNTY CIRUCIT COURT
SPRINT SPECTRUM LP,
Petitioner,
) CAUSE NO.
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2 2OtJ2
DoCS
v.
CARMEUCLAYBOARDOFZONmG
APPEALS,
Respondent.
VERIFIED PETITION FOR ADMISSION TO PRACTICE UNDER
RULE 3. SECTION 2 (A)(3) OF THE INDIANA RULES FOR
ADMISSION TO THE BAR. .,..
Steven J. Yatvin, applicant herein, respectfully represents the following:
1. My residential address is:
161 West Harrison Street, # 902
Chicago, lllinois 60605
Telephone: 312-786-9118
I am a member of the firm ofBarack Ferrazzano Kirschbaum Perlman & Nagelberg. The
fIrm's address, which is also my business address, is:
333 West Wacker Drive, Suite 2700
Chicago, IL 60606
Telephone: 312-984-5192
Fax: 312-984-3220
2. I am licensed to practice law in:
Illinois:
Registration No. 6270856
Year of Admission: 1999
3. I am currently a member in good standing of the Illinois bar. .
4. I have never been suspended, disbarred, nor have I resigned as a result of a
disciplinary charge, investigation, or proceeding from the practice of law in any jurisdiction.
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5. No disciplinary proceeding is presently pending against me in any jurisdiction.
6. I have not appeared in any cases in the state or federal courts located in the State
of Indiana in the last five years. Other attorneys from my firm have appeared in the following
matters:
ATTORNEY
CASE NAME AND NUMBER
COURT
Wendi Sloane
David E. Gordon
Premier Graphics, Inc. v.
.First Industrial Indianapolis, L.P.
49 D 129909 CP 001385
Marion County
Superior Court
7. Good cause exists for my appearance in this case..- -My. firm has represented
petitioner Sprint Spectrum, LLP and its predecessor and successor firms on a regular basis since
February 1998. I have personally represented petitioner in other litigation matters in
Minneapolis, Minnesota and St. Louis, Missouri.. I concentrate my practice in Commercial
Litigation including the complex issues which this case appears to involve.
8. I have read and will be bound by the Rules of Professional Conduct adopted by
the Indiana Supreme Court and I consent to the jurisdiction of the State of Indiana, the Indiana
Supreme Court, and the Indiana Supreme Court Disciplinary Commission to Resolve any
disciplinary matter that might arise as a result of the representation.
9. I will file a Notice of Pro Hac Vice Admission with the clerk of the Indiana
Supreme Court in compliance with Admission and Discipline Rule 3, Section 2(b) within thirty
(30) days after 1he Court grants permission to ~ce~.
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.&w~rn to before me this
~ day of1o..t'~~ 20J2.L.
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OFFICIAL SEAL
PATRICIA M. SMITH
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 4.2.2005
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HAMILTON COUNTY CIRUCIT COURT
SPRINT SPECTRUM LP,
) CAUSE NO.
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w 2 2002
Docs
Petitioner,
v.
CARMEUCLA Y BOARD OF ZONING
APPEALS,
Respondent.
VERIFIED PETITION FOR ADMISSION TO PRACTICE UNDER
RULE 3. SECTION 2 (A)(3) OF THE INDIANA RULES FOR
ADMISSION TO THE BAR
W. Scott Porterfield applicant herein, respectfully represents the following:
1. My residential address is:
1643 W. Wolfram Street
Chicago, Illinois 60657
I am a member of the firm ofBarack Ferrazzano Kirschbaum Perman & Nage1berg. The
firm's address, which is also my business address, is:
333 West Wacker Drive, Suite 2700
Chicago, II.. 60606
Telephone: 312-984-5192
Fax: 312-984-3220
2. I am licensed to practice law in:
Illinois:
Registration No. 03125110
Year of Admission: 1979
3. I am currently a member in good standing of the lllinois bar.
4. I have never been suspended, disbarred, nor have I resigned as a result of a
disciplinary charge, investigation, or proceeding from the practice of law in any jurisdiction.
5. No disciplinary proceeding is presently pending against me in any jurisdiction.
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6. I have not appeared in any cases in the state or federal courts located in the State
of Indiana in the last five years. Other attorneys from my firm have appeared in the following
matters:
ATTORNEY
CASE NAME AND NUMBER
COURT
Wendi Sloane
David E. Gordon
Premier Graphics, Inc. v.
First Industrial Indianapolis, L.P.
49 D 129909 CP 001385
Marion County
Superior Court
7. Good cause exists for my appearance in this case. My firm has represented
petitioner Sprint Spectrum, LLP and its predecessor and successor firms on a regular basis since
February 1998. I have personally represented petitioner in other litigation matters in Chicago,
lllinois. I concentrate my practice in Commercial Litigation including the complex issues that
this case appears to involve.
8. I have read and will be bound by the Rules of Professional Conduct adopted by
the Indiana Supreme Court and I consent to the jurisdiction of the State of Indiana, the Indiana
Supreme Court, and the Indiana Supreme Court Disciplinary Commission to Resolve any
disciplinary matter that might arise as a result of the representation.
9. I will file a Notice of Pro Hac Vice Admission with the clerk of the Indiana
Supreme Court in compliance with Admission and Discipline Rule 3, Section 2(b) within thirty
(30) days after the Court grants permission to 11~~
W. Scott Porterfield
Sworn to before me this 1
0i[wtdaYO~200-.
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L SEAL
. "IA M. SMITH
SUC, STATE OF IWNOIS
SSION EXPIRES 4-2-2005
MY COMMf'
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HAMILTON COUNTY CIRCUIT/SUPERIOR COURT
SPRINT SPECTRUM, L.P.,
Plaintiff,
) CAUSE NO. 29COI-0112-CP-1202
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'JAN 2 2002
DOcs
CARMEL~LAYBOARDOFZONmG
APPEALS,
Defendant.
CCSENTRY
The activity of the Court should be summarized as follows on the Chronological Case Summary (CCS):
Motion for Admission Pro Hac Vice, Verified Petitions and proposed Order
Submitted By:
Thomas F. Bedsole, #15980-49
LOCKE REYNOLDS LLP
201 N. Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
(317) 237-3800
Attorneys for Petition
Opposing Counsel:
N/A
*************************************************************************************
(TO BE DESIGNATED BY COURT)
This CCS Entry Form shall be:
[ ] Placed in case file
[ ] Discarded after entry on the CCS
[ ] Mailed to all counsel by: _ Counsel_ Clerk _ Court
[ ] There is no attached order; or
The attached order shall be placed in the RJO Yes [] No []
DATE
APPROVED
Judge
543899_1
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IN THE HAMIL TON CIRCUIT COURT OF INDIANA
Petitioner,
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SPRINT SPECTRUM L.P "
a Delaware Limited Partnership,
THE BOARD OF ZONING APPEALS
FOR THE CITY OF CARMEL AND
CLAY TOWNSHIP,
, . 01-02-02P01: 16 ~
,.:~~~\ RECEIVED
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\-'.>\ ..... If$' ...!:Y HAMILTON COUNTY
""<j',>,,;"'-....., .- A~ SHERIFFS DEPT.
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v.
Respondent.
To:
NOTICE OF FILING A WRIT OF CERTIORARI 'TO REVIEW A DEC ~II7;5:~"
OF THE BOARD OF ZONING APPEALS FOR THE CITY OF C .~;' i .... ''1,<::>\
AND CLAY TOWNSHIP HAMILTON COUNTY INDIAN=1/ ~~;~;;\.'),.,
-, ble ~-;;;!!V!8!J \", "
Ramona Hancock ,~1 II 21 _ ~-1
Secretary, The Carmel/~lay Boa;d of Zoning Appeals '2\, __ A:;3'
Department of CommunIty SeI'Vlces \~~~~ /<J
O C" Squar \.,/,>-, ,',-, ". /
ne IVlC e ',/i~fi'7.,.-~-r"\"\:;'0/
Carmel, IN 46032 .....,<..'~~.:,/./
You are hereby notified that the Petitioner 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
thede.cision,and order by the Board of Zoning Appeals for the City of Carmel and Clay
Township, Hamilton County, Indiana, in Docket No. A-HI-OI, said decision being dated
November 26,2001, and affecting the property located at 1388 Queens Way, Carmel, Indiana.
Respondent's decision dismissed Petitioner's Appeal of a 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 construction of
an accessory building on said property, Such Verified Petition for ~rit of Certiorari has been
filed in the Circuit Court under the cause number and style as set out above and prays that an
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Order be issued for Respondent to show cause why a Writ of Certiorari should not be issued
herein and further prays the decision of Respondent be declared illegal and without force and
effect.
You are further notified that Respondent 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~f.t~orari to review said decision of Respondent
Ii',,! '7 ~ '...' ,p:,"'.'
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should not be Issued. "-l~J::',1/:~\. ))
DATEDthis ztS+- daYOf~
,2001.
LOCKE REYNOLDS LLP
By:
o . edsole, #15980-49
Attorney for Petitioner
TOTHESHERWFOF~TONCOUNTY
PLEASE SERVE:
Ramona Hancock
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
543397_1
2
IN THE HAMILTON CIRCUIT COURT OF INDIANA
Petitioner,
) Cause No. 2..'9C1)' -D (12. -c'P-I2.c1.....
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SPRINT SPECTRUM L.P.,
a Delaware Limited Partnership,
v.
THE BOARD OF ZONING APPEALS
FOR THE CITY OF CARMEL AND
CLAY TOWNSIDP,
Respondent.
ORDER TO THE BOARD OF ZONING APPEALS FOR THE CITY OF CARMEL
AND CLAY TOWNSIllP _ HAMILTON COUNTY. INDIANA. TO SHOW
CAUSE WHY A WRIT OF CERTIORARI SHOULD NOT BE ISSUED
Petitioner, Sprint Spectrum, L.P., by counsel, having filed its Verified Petition for Writ of
Certiorari in the above-captioned cause and the Court having examined the same and being duly
advised in the premises finds that an Order should be issued in accordance with the law.
IT IS THEREFORE ORDERED by the Court that the Respondent, The Board of Zoning
Appeals for the City of Carmel 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 prayed for by this Petitioner.
DATED this V
day of OlrL~ ~ ,2001.
~ '..ro~ .~Itm
JUDGE, HAMILTON CIRCillT COT
TO THE SHERWF OF HANULTON COUNTY
PLEASE SERVE:
Ramona Hancock
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, TIN 46244-0961
543391_1
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IN THE IIAMlf~QmCUIT COURT
v.
SPRINT ~PECTRUM, L.P., a Delaware limi!ffltl ot 2' PM 3: 3'
partnershlp, 1 ..,
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CLERK. H^~!;lraN COU!'.'TY cottnts , '
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Petitioner,
THE BOARD OF ZONING APPEALS FOR
THE CITY OF CARMEL AND CLAY
TOWNSHIP,
Respondent.
APPEARANCE BY ATTORNEY IN CIVIL CASE
Party Classification:
Initiating:i:8]
Responding: 0
Intervening: 0
1. The undersigned attorney and all attorneys listed on this form now appear in this case for the following
party member(s): Sprint Spectrum, L.P..
2. Applicable attorney information for service as required by Trial Rule 5(B) (2) and for case information
as required by Trial Rules 3.1 and 77(B) is as follows:
Name:
Thomas F. Bedsole
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
liiaianapolis;]N 46244~0961
Attorney Number:
Phone:
FAX:
Co~p~t~r__i\ddr~~~: _
15980-49
317-237-3842
317-237-3900
None
Address:
3. There are other party members: YesO No IZI (If yes, list on continuation page.)
4. If first initiating party filing this case) the clerk is requested to assign this case the following Case Type
under Administrative Rule 8(b )(3): Civil Plenary
5. I will accept service by FAX at the above noted number: Yes 0 Noi:8]
6. This case involves support issues: Yes 0 No r8J (If yes, supply social security numbers for all
family members on continuation page.)
7. There are related cases: Yes 0 No i:8]
8. This form has been served on all other parties. Certificate of Service is attached: Yes 0 Noi:8]
9. Additional information required by local rule: Not Applicable
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SPRINT SPECTRUM L.P.'S BRIEF IN SUPPORT OF ITS
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SPRINT SPECTRUM L.P.,
~ Delaware limited partnership,
Petitioner,
v.
THE BOARD OF ZONING APPEALS
FOR THE CITY OF CARMEL AND
CLAY TOWNSHIP,
Petitioner, Sprint Spectrum L.P. ("Sprint"), through counsel, files this Brief in
Support of its Verified Petition for Writ of Certiorari (the "Petition").
SUMMARY OF FACTS1
This case arises out of the purported revocation of a building permit by the City of
Carmel (the "City"). Sprint engineers determined that, in order to provide seamless and
uninterrupted cellular telephone service in the Carmel area, Sprint needs to place wireless
communication antennae and related equipment (collectively, the "Sprint Antenna Equipment")
on or near the property owned by Edwin Zamber, located at 1388 Queens Way, Carmel, Indiana
(the "Zamber Site"). The Zamber Site is uniquely and ideally suited to host the Sprint Antenna
Equipment because it is already improved with an existing antenna tower upon which Sprint can
collocate. Sprint accordingly entered into a lease agreement with Mr. Zamber on May 14, 2001
(see Exhibit A to the Petition) and subsequently obtained a building permit ("Building Permit")
from the Department of Community Services ("Department") on June 15,2001. (A copy of the
Building Permit is attached to the Petition as Exhibit D.)
For a more in-depth discussion of the facts of this case, see Sprint's Verified Petition for Writ of Certiorari.
~-
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On August 6, 2001, Sprint's general contractor, began construction of the shelter
that was to house the Sprint Antenna Equipment. On August 15, 2001, Richard Deer, an owner
of property adjacent to the Zamber Site, filed an application with the Board of Zoning Appeals
("BZA") objecting to the issuance of the Building Permit. (A copy of Mr. Deer's August 15,
2001 application is attach~ !R,the Petition as Exhibit E.) By a letter dated August 23, 2001, the
I'; I / I':':' .... \
Director of the DepartIn~nt,'/~i~hael P. Hollibaugh, revoked Sprint's Building Permit
("Revocation Letter"). (A copy of the Revocation Letter is attached to the Petition as Exhibit
F.) Sprint, through its general contractor, received notice of the revocation on August 24,2001
by regular mail.
Sprint filed its appeal of the Building Permit revocation with the BZA on
Monday, September 24, 2001 pursuant to Section 30.1 of the Carmel City Code. (A copy of
Sprint's BZA Appeal Application is attached to the Petition as Exhibit G.) On November 15,
2001, Mr. Deer filed a motion to dismiss Sprint's appeal as untimely and Sprint filed a response
on November 24,2001. (Copies of Mr. Deer's Motion To Dismiss and Sprint's Objection to Mr.
Deer's Motion to Dismiss are attached to the Petition as Exhibits H and I, respectively.) Sprint
and Mr. Deer appeared before the BZA on November 26,2001 to argue the motion to dismiss.
At the November 26, 2001 hearing, the BZA granted Mr. Deer's motion to dismiss. Sprint
received notice of the granting of Mr. Deer's motion to dismiss through a Letter of Grant dated
November 27,2001. (A copy of the Letter of Grant is attached to the Petition as Exhibit K.)
l07539_4.DOC
2
.:
ARGUMENT
The BZA's decision to grant Deer's motion to dismiss is illegal. First, the BZA's
interpretation of how time is computed under Section 30.1 for purposes of filing an appeal is
wrong based on a plain reading of the ordinance. Second, the BZA incorrectly decided not to
apply Trial Rule 6(A) to determine when the 30 days on Sprint's appeal right commenced and
when it ended. By not applying Trial Rule 6(A), the BZA violated clear rules of statutory
construction. Moreover, the BZA, by ignoring Trial Rule 6(A), failed to utilize a mechanism
that would save Section 30.1 from being unconstitutionally vague and otherwise unduly
prejudicial to Sprint.
A. The BZA's Decision Is Illegal Under Common Rules Of Statutory
Interpretation.
The threshold issue is when does the 30-day period under Section 30.1 of the
Carmel City Code begin to run. Section 30.1 plainly states that:
. . . all appeals shall be filed with the Director within 30 days of the
action appealed
In construing ordinances, courts apply the rules of statutory construction. See Steuben County v.
Family Dev" Inc., 753 N.E.2d 693, 701 (Ind. Ct. App. 2001). As cogently stated by the Steuben
County court:
Interpretation of an ordinance is subject to the same rules that
govern the construction of a statute. The cardinal rule of statutory
construction is to ascertain the intent of the drafter by giving effect
to the ordinary and plain meaning of the language used.
Id. (emphasis added).
Mr. Deer argued at the hearing that when a time limit is stated as being within 30
days ofan act, that means that the 30 days starts running on and includes the day qfthe decision.
(See Exhibit J to Petition, at p. 9, 1. 7-12). Under Mr. Deer's analysis, the first day counted
107539_ 4.DOC
3
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would be the day following the act only if a time limit is stated as being within 30 days after the
date of decision. (Exhibit H ~ 5; Exhibit J p. 9,1. 13-16). This parsing of words resulted in Mr.
Deer's view that Sprint's 30 days to appeal the revocation of its Building Permit commenced on
August 23, 2001, the date of the Revocation Letter,2 and expired on Friday, September 21,2001.
Under Mr. Deer's argument, the 30-day period would have started to run on August 24, 2001
only if Section 30.1 read ''within 30 days after."
The key question here is if the ordinary and plain meaning of "of' and "after" are
different in the context of statutes of limitation. The answer to that question is no. To reach this
conclusion, this Court need look no further than fudiana opinions that reference statutes of
limitation. fu many circumstances, almost by rote, limitations periods are drafted as being
''within x days after" a certain event, such as with former Appellate Rule 2(A). Former
Appellate Rule 2(A) stated that the praecipe designating what is to be included in the record from
the circuit court on appeal had to be filed ''within thirty (30) days after entry of final judgment or
an appealable final order." Former App. R. 2(A). Yet, opinions addressing that rule often, and
interestingly, refer to the praecipe having to be filed within 30 days "of' final judgment. See
Breeze v. Breeze, 421 N.E.2d 647,650 (Ind. 1981) ("A praecipe is timely filed within thirty days
of the ruling") (emphasis added); accord, Marshall v. K & W Prods., 683 N.E.2d 1359, 1361
(Ind. Ct. App. 1997); Hatfield v. Edward J. De Bartolo Corp., 676 N.E.2d 395, 398 (Ind. Ct.
App. 1997). Thus, a review of how the courts characterize limitations periods when they are not
quoting the statutes but are discussing them in a "plain and ordinary" manner shows that the
terms "of' and "after" are interchangeable in the limitations context. This interchangeable usage
is backed up by other sources as well.
2 Mr. Deer does not explain why the date of the Revocation Letter was "day 1" for the purposes of
computing the 30-day limitations period of Section 30.1.
l07539_4.DOC
4
"
Perhaps one ,of the most obvious sources are the BZA's rules of procedure.
Section 2 of Article V of those rules states that an:
appeal shall be filed with the BZA within thirty (30) days after the
decision.
BZA Rules Art. V, ~ 2 (emphasis added). Certainly the drafters of the rule did not intend to
contradict Section 30.1 and, when applying the ordinary meaning of "of' and "after" in the
limitations context, they as a practical matter did not. Indeed, under Indiana law, the drafters of
the Rules could not have made them inconsistent with the zoning ordinance itself. See I.C. ~ 36-
7-4-91.6(a)(I) (2001) ("The board of zoning appeals shall adopt rules, which may not conflict
with the zoning ordinance, concerning: (1) The filing of appeals"). Therefore, Section 30.1 of
the Carmel Code and Article V, Section 2 of the BZA Rules must be read in a consistent manner.
There is also Trial Rule 6(A), which the BZA decided not to apply to Section
30.1. Trial Rule 6(A) states that, in computing time, the "day of the act [or] event. . . from which
the designated period of time begins to run shall not be included." Tr. R. 6(A). Trial Rule 6(A)
does not distinguish the phrases ''within 30 days of' versus "within 30 days after." If the drafters
of Trial Rule 6(A) intended there to be a distinction between limitations provisions that use the
word "of' versus using the word "after," they would not have made such a bright line rule of
universal applicability.
B. Trial Rule 6(A) Applies To Section 30.1.
In addition to his distinction between the words "of' and "after," Mr. Deer argued
that Trial Rule 6(A), which governs computation of time limits in Indiana court proceedings, did
not apply to Section 30.1 because that rule does not expressly include ordinances within its
scope. (Exhibit H, ~ 6; Exhibit J, p. 11,1. 24 - p. 13,1. 1). Thus, under Mr. Deer's theory, the
BZA had discretion to compute time as prescribed under Trial Rule 6(A) or in another fashion.
l07539_4.DOC
5
To underscore his argument that the BZA did not have to apply Trial Ru1e 6(A), Mr. Deer argued
that zoning boards are not bound by the same technical procedural requirements that bind courts
and, therefore, Trial Rule 6(A) should not apply. (Exhibit H, , 6; Exhibit J, p. 11,1. 7-18). The
ramifications of Mr. Deer's argument are that the BZA is not only free to commence the 30 day
period on the day of an event, as opposed to the day after as prescribed by Trial Rule 6(A), but
that the BZA does not have to allow a party filing an appeal under Section 30.1 to file on a
Monday when the 30th day falls on a weekend or holiday.
Mr. Deer overestimated the discretion of the BZA to prescribe its own method of
computing time. By its express terms, Trial Ru1e 6(A) applies to "any period of time prescribed
or allowed by. . . any applicable statute." Deer argued below that Trial Ru1e 6(A) did not apply
to Section 30.1 because that provision is an "ordinance" and not a "statute." This argument is as
illogical as it is hyper-technical and, moreover, it is not supported by law.
The Black's Law Dictionary definition of "ordinance" states that "An ordinance is
the equivalent of a municipal statute." Black's Law Dictionary 1097 (6th Ed. 1990). The
equivalence of "ordinance" and "statute" is also seen in how Indiana courts treat the two.
Indiana courts, when presented with a question of "ordinance" construction, do not apply a
different set of rules for determining the meaning of a given ordinance, they apply the same
rules. See Steuben County v. Family Dev., Inc., 753 N.E.2d 693, 701 (Ind. Ct. App. 2001). In
light of that fact, it is hard to see how an "ordinance," for purposes of Trial Ru1e 6(A), is
functionally any different from a "statute."
Notwithstanding Mr. Deer's hyper-technical point, the plain language of Trial
Ru1e 6(A) is broad enough to capture Section 30.1 within its scope. The language of Trial Rule
6(A) applies to time periods that are both "prescribed" and "allowed" by statute. Mr. Deer's
l07539_4.DOC
6
'-,.
argument differentiating between "ordinances" and "statutes" addresses only the word
"prescribed." Even if Mr. Deer is correct that, for Trial Rule 6(A) purposes, an "ordinance" is
different from a "statute," that does not diminish the fact that "ordinances," including ordinances
regarding time periods for appeals from the BZA, are "allowed by" statute. See I.C. ~ 36-7-4-
601 (2001) (Authorizing adoption of zoning ordinances); I.C. ~~ 35-7-4-916, 919 (Regarding
appeals to boards of zoning appeals). Thus, the 30-day period of Section 30.1 is "allowed by"
1. C. ~ ~ 36-7-4-601, 916, and 919 and, as a matter of construction, the method of computing time
under Trial Rule 6(A) applies to the 30-day period in Section 30.1. Applying Trial Rule 6(A),
the 30-day limitations period started, at the earliest, August 24, 2001 and ended Saturday,
September 22,2001, making Monday, September 24,2001, the date Sprint filed its appeal, the
last day of the limitations period.
C. Trial Rule 6(A) Must Apply To Section 30.1 To Prevent Section 30.1
From Being Unconstitutional And Fundamentally Unfair.
If Trial Rule 6(A) does not apply to Section 30.1, then Section 30.1 would be
unconstitutionally vague. In Lincoln v. Rd. ofComm'rs, 510 N.E.2d 716 (Ind. Ct. App. 1987),
the plaintiff appealed the decision of the county Board of Commissioners terminating her
employment. The relevant limitations provision, I.C. ~ 36-2-2-27, stated that "an appeal under
this section must be taken within thirty (30) days after" the adverse decision by the Board. ld. at
722. The Board filed a motion to dismiss, which the Circuit Court granted on grounds that the
limitations period had ended. ld. at 718. The plaintiff argued that, because I.C. ~ 36-2-2-27 did
not provide a method of computing when the limitations period began and when it ended, the
statute was unconstitutionally vague. ld. at 722. Rather than try to give meaning to the word
"after," the Lincoln court recognized that the "statute at issue is silent as to the method of
computing time" and applied Trial Rule 6(A). ld. at 723 (emphasis added). In doing so, the
107539_ 4.DOC
7
Lincoln court stated that ''we find that Trial Rule[] 6(A). . . appl[ies] and the statute is not
therefore unconstitutionally vague." Id. at 717.
In applying Trial Rule 6(A), the Lincoln court applied the precedent of Ball
Stores, Inc. v. State Bd. of Tax Comm'rs, 262 Ind. 386,316 N.E.2d 674 (Ind. 1974). The issue in
Ball Stores was whether the plaintiff timely filed an appeal from a decision of the State Board of
Tax Commissioners. In Ball Stores, the plaintiff had to file its notice of appeal within 30 days of
the Board's decision. The 30th day fell on a Saturday and the plaintiff filed its appeal on the
following Monday. In rejecting the argument that Trial Rule 6(A) did not apply to computation
of the relevant limitations period, the Indiana Supreme Court stated that:
Such result can neither be grounded in logic nor reason and is
contrary to the expressed legislative intent that the taxpayer act
within the thirty days prescribed. Every conceivable element of
fair play, common sense and logic mandates that the taxpayer be
afforded the full thirty days to complete his appeal to the courts.
The Board should either make provision for the actual receipt of
such notices on the thirtieth day or recognize that when such
receipt is impossible (e.g., because of the closing of its offices
and/or the non-delivery of the United States mails on Sundays and
holidays), receipt on the next business day is a timely receipt of
notice -- particularly when the taxpayer's inability to make
delivery of such notice is beyond his control.
262 Ind. at 3-89; 316 N.E.2d at 675-76 (emphasis added).
The need for fundamental fairness that is highlighted by Ball Stores applies with
equal force to zoning appeals. Mr. Deer recognized that fact in his motion to dismiss when he
cited McBride v. Bd. of Zoning Appeals, 579 N.E.2d 1312 (Ind. Ct. App. 1991), for the
proposition that BZAs are not subj ect to strict procedural requirements and may choose whatever
procedural mechanisms they wish as long as those mechanisms are "fundamentally fair." Id. at
1315. Ironically, Mr. Deer cited the relaxed procedural requirements proposition as a
justification for not allowing Sprint to file its appeal on the Monday following Saturday,
107539_ 4.DOC
8
September 22,2001, which was the earliest date that the 30-day period could have ended. See
Exhibit H, ~ 6. But under Ball Stores, the BZA should have rejected Deer's argument because
the net resUlt, Sprint being short-chariged its full 30 days, is fundamentally unfair.3
CONCLUSION
For the reasons stated above, this Court should reverse the November 26, 2001
decision of the Board of Zoning Appeals for the City of Carmel and Clay Township that granted
Mr. Deer's motion to dismiss Sprint's appeal of the revocation of the Building Permit.
Dated: December 21, 2001
Respectfully submitted,
LOCKE REYNOLDS L.P.
BY:~
Thom . Bedsole - # 15980-49
Attorney for Petitioner
Sprint Spectrum L.P.
Thomas F. Bedsole, Esq.
Locke Reynolds LLP
201 North Illinois Street
Suite 1000
Indianapolis, Indiana 46244
(317) 237-3842
3 In fact, Sprint can argue that fundamental fairness requires that the 30-day appeal period should start
running after it received notice of the revocation of the Building Permit. To allow Sprint the full 30 days, the frrst
day of the period should be Saturday, August 25, 2001. Computation of the period in this manner would make the
30th day fall on Sunday, September 23,2001, with the appeal still due on Monday, September 24,2001. Both the
Indiana Trial Rules and the Federal Rules of Civil Procedure provide that three additional days are to be added to
any time period when notice of the triggering act is provided by regular mail. These provisions apply here and make
Monday, September 24, 2001 the 29th day.
S43478_l.DOC
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SPRINT SPECTRUM L.P.'S VERIFIED PETITION FOR WRIT OF CERTIORARI
Respondent.
Petitioner, Sprint Spectrwn L.P. ("Sprint"), by its attorneys, for its verified
petition for writ of certiorari to Respondent Board of Zoning Appeals for the City of Carmel and
Clay Township (''BZA''), alleges as follows: 1
NATURE OF THE ACTION
1. This petition arises out of the BZA's illegal decision to grant Richard
Deer's motion to dismiss Sprint's appeal of the decision of the Director of the Department of
Community Services ("Director" and "Department", respectively) revoking the prior issuance of
a building permit to Sprint. Sprint, as part of its national personal communications service
network, obtained a building permit ("Building Permit") to collocate (i.e., install and operate) a
wireless communication antenna and related equipment (collectively, the "Sprint Antenna
Equipment") on an existing antenna tower located on property owned by Edwin Zamber at 1388
Queens Way, Carmel, Indiana ("Zamber Site"). After construction of a brick shelter that was to
house the Sprint Antenna Equipment was already underway, the Director revoked Sprint's
Building Permit. Sprint subsequently appealed the Director's revocation of its Building Permit,
1 In support of its verified petition, Sprint simultaneously files Sprint Spectrum L.P. ' s Brief in
Support of its Verified Petition for Writ of Certiorari.
}
"
but the BZA, instead of hearing the merits of Sprint's appeal, dismissed the appeal on grounds
that it was not timely filed.
PARTIES
2. Sprint is a Delaware limited partnership, with its principal place of
business at 2300 Shawnee. Mission Parkway, Westwood, Kansas, authorized to provide personal
communications services' (''PCS'') under license by the Federal Communications Commission
("FCC") in the State of Indiana.
3. The BZA is the entity created by ~ 10-130 of the City of Carmel Code of
Ordinances as authorized by I.C. 9 36-7-4-901. The BZA hears appeals from, inter alia,
decisions of the Director.
JURISDICTION AND VENUE
4. This Court has jurisdiction of this matter by virtue of I.C. ~ 36-7-4-1003,
as this verified petition seeks review of an illegal decision of a board of zoning appeals.
5. Venue properly lies in this Court under -r.C. ~ 36-7-4-1003 because the
premises affected are located in Hamilton County.
BACKGROUND FACTS
A. Sprint's PCS System
6. Sprint, 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. PCS technology is a new
generation of wireless service that uses digital transmission to improve available
telecommunications services. It provides a clearer connection, greater security to users and
better accommodates the requirements of internet and other data transmission. Moreover, PCS
l07931_3.DOC
2
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technology has substantially greater potential capacity than analog wireless technology. This
network provides a vital communications system for business, personal, governmental,
agricultural and other uses, including the handling of "911" type emergency communications.
7. On or about June 23, 1995, Sprint, through a partnership, was the
successful bidder at the auction held by the FCC for a PCS wireless broadcast license in the
fudianapolis Major Trading Area ("fudianapolis MTA") which includes Cannel, fudiana.
Sprint's fudianapolis MTA license expires on June 23, 2005. .
8. In order to meet its continuing obligations under the FCC license and to
serve its customer base, Sprint must develop. and maintain a system of "cell sites" to serve
portable wireless communication handsets and mobile telephones. These "cell sites" consist of
antennae mounted on poles, buildings or other structures, connected to small equipment cabinets
located near the antennae. The antennae feed the low power radio signals received from mobile
communications devices through electronic devices located in the equipment cabinets and,
ultimately, into an ordinary phone line from which the call can be routed to anywhere in the
world.
9. Cell sites are integral to Sprint's PCS network. To maintain effective,
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 limited area so that it can
properly interact with the surrounding cell sites and thereby provide reliable coverage throughout
the cell. Each antenna has a limited maximum coverage area, .the extent of which varies,
depending upon several factors, including the height of the antenna, local topography and
vegetation, and the configuration of various existing structures.
l07931_3.DOC
3
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10. Sprint's engineers have determined that the Zamber Site is critical to the
overall engineering and technical plan of Sprint's network in the Indianapolis MT A.
B. Sprint Obtains A Building Permit
11. On or about May 14, 2001, Sprint entered into a lease agreement with
Edwin Zamber to install the Sprint Antenna Equipment on the existing approximately 135 foot
tall antenna ("Existing Tower") located at the Zamber Site. (A true and accurate copy of the
lease is attached hereto as Exhibit A). Sprint has 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 therefore would have had to build its own tower
support structure to meet its coverage requirements.
12. The property at the Zamber Site is zoned "S-l Residence District"
pursuant to Section 1 0-30 of the Carmel Code. Collocation of an antenna facility on an existing
tower facility is a "permitted use" in the S-l Residence District pursuant to Section 1 0-30(b) of
the Carmel Code.
13. On or about February 22, 2001, a contractor for Sprint contacted the
Department to discuss the Sprint Antenna Equipment. In connection with those discussions, the
Department staff acknowledged that the Sprint Antenna Equipment was a permitted use, and
requested that Sprint house its ground level equipment in a brick clad equipment shelter (the
"Shelter"). A separate shelter is not needed by Sprint for installation or operation of the antenna,
and Sprint's ground-level PCS equipment could have been housed in, among other things,
equipment cabinets or in the basement of Mr. Zamber's home. The Shelter's architecture and
style duplicates the design and character of Mr. Zamber's existing home and pool house, and it
meets all applicable zoning requirements, including height and setback. As a part of the
l07931JDOC
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approved plans and specifications, Sprint agreed to landscape the area sUrrounding the Shelter.
14. On or about April 17, 2001, Sprint, through a contractor, attempted to file
an application and building plans with the Department. On or about May 7, 2001, Sprint
submitted a new application and,revised plans. (True and accurate copies of the April 17, 2001
application and May 7, 2001 application are attached hereto as Exhibits B and C, respectively).
15. On or about June 15,2001, the Department issued the Building Permit for
the Sprint Antenna Equipment. The Building Permit bears identification number 2001.0627.B.
(A true and accurate copy of the Building Permit is attached hereto as Exhibit D).
16. On or about July 9, 2001, Sprint engaged Q Serve Communications ("Q
Serve") as the general contractor for the installation of the Sprint Antenna Equipment.
17. On or about August 6, 2001, Q Serve, pursuant to the Building Permit,
began construction of the Shelter that was to house the Sprint Antenna Equipment. 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's Building Permit.
18. On or about August 15,2001, Mr. Deer, an owner of property adjacent to
the Zamber Site, filed an application for an appeals action with the BZA objecting to the
issuance of the Building Permit. (A true and accurate copy of Mr. Deer's August 15, 2001
application is attached hereto as Exhibit E).
19. On or about August 15, 2001, Jeff Kendall, Building Commissioner for
Carmel, issued a stop work order on the project.
20. Without notice or hearing, by letter dated August 23, 2001, the Director
l0793U.DOC
5
purported to revoke Sprint'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
Tracf' should have been divided into two (2) or smaller parcels.
Under Chapter 3 of the Carmel Clay Zoning Ordinance, this
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 been informed of any alleged
need for plat approval by the Plan Commission. (A true and accurate copy of the Revocation
Letter is attached hereto as Exhibit F).
21. On information and belief, Sprint and other cellular telephone service
providers have sought building permits from the City for installation of antennae and equipment
shelters and have been granted permits without having to divide the relevant property and obtain
subdivision approval.
22. Sprint incurred substantial site development expenses through the date of
receipt of the Revocation Letter.
23. Sprint, through Q Serve, received the Revocation Letter on August 24,
2001.
D. Sprint Appeals Building Permit Revocation
And Mr. Deer Moves To Dismiss Appeal.
24. Sprint filed an appeal of the revocation of its Building Permit with the
BZA on Monday, September 24, 2001 pursuant to Section 30.1 of the Carmel City Code. (A
true and accurate copy of Sprint's BZA Appeal Application is attached hereto as Exhibit G).
25. Section 30.1 of the Carmel City Code states that "all appeals shall be filed
with the Director within 30 days of the action to be appealed." Under Trial Rule 6(A), which
l0793U.DOC
6
..,
~
prescribes how time is to be computed for limitations provisions that do not otherwise provide
for time computation, the first day of the 30-day limitations period in Section 30.1 was, at the
earliest, August 24, 2001, the day after the Revocation Letter dated August 23, 2001. Tr. R.
6(A). The final day was, at the earliest, Saturday, September 22, 2001. Trial Rule 6(A) provides
that, if the final day of a limitations period falls on a Saturday, the period is extended to the
following Monday. Thus, under Trial Rule 6(A), the final day for Sprint to file its appeal would
have been Monday, September 24, 2001. Tr. R. 6(A).
26. On November 15, 2001, Mr. Deer filed a motion to dismiss Sprint's
appeal on grounds that the appeal was not timely filed under Section 30.1. (A true and accurate
copy of Mr. Deer's motion to dismiss is attached hereto as Exhibit H).
27. In his motion to dismiss, Mr. Deer argued that Sprint 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's 30 days to
appeal began running on the date of the Revocation Letter - August 23, 2001. Mr. Deer thus
argued that the last day for Sprint to file its appeal was Friday, September 21, 2001. Mr. Deer
also argued that, even if the last day for Sprint to file its appeal was Saturday, September 22,
2001, Sprint did not have until the following Monday to file its appeal.
28. Sprint filed a response to the motion to dismiss explaining why its appeal
was timely. (A true and accurate copy of Sprint's objection to Mr. Deer's motion to dismiss is
attached hereto as Exhibit I).
29. The parties appeared before the BZA on November 26,2001 to argue the
motion to dismiss. (A true and accurate copy of the transcript from the November 26, 2001
1 0793 1_3.DOC
7
hearing is attached hereto as Exhibit J-i
E. The BZA Grants Mr. Deer's Motion To Dismiss.
30. After hearing argument on November 26, 2001, the BZA granted Mr.
Deer's motion to dismiss Sprint's appeal as untimely. The BZA did not hear or rule on the
merits of Sprint's appeal of the revocation of the Building Permit.
31. By a November 27, 2001 Letter of Grant, the City informed Sprint of the
BZA's decision. (A true and accurate copy of the November 27,2001 Letter of Grant is attached
hereto as Exhibit K).
32. Sprint now seeks review of the BZA's November 26, 2001 decision and
November 27,2001 Letter of Grant (collectively, the "Decision").
CLAIM FOR RELIEF
33. Sprint re-a11egesand incorporates by reference its allegations m
paragraphs 1 through 32 as though set forth in paragraph 33.
34. The BZA's Decision is illegal because the 30-day period to appeal in
Section 30.1 of the City of Carmel Code began no earlier than August 24, 2001, it ended no
earlier than Saturday, September 22, 2001, and Sprint by law should have had until Monday,
September 24,2001 to file its appeal.
35. Sprint has been aggrieved by the BZA's Decision to grant Mr. Deer's
motion to dismiss.
36. As a person aggrieved by the BZA's Decision to grant Mr. Deer's motion
to dismiss, Sprint has the right to have that Decision reviewed by this Court pursuant to I.C. ~
36-7-4-1003.
2 The transcript of the proceedings was prepared by a court reporter hired by Sprint. The BZA recorded the
hearing with audio equipment.
l07931_3.DOC
8
....
::,
PRAYER FOR RELIEF
WHEREFORE, Sprint prays that this Court:
A. Find that the BZA's Decision was illegal;
B. Reverse the BZA's Decision; and
C. Grant all other relief that the Court deems just and proper.
Dated: December 21, 2001
Respectfully submitted,
LOCKE REYNOLDS L.P.
By: ~~-
Tho . Bedsole - # 15980-49
Attorney for Petitioner
Sprint Spectrum L.P.
Thomas F. Bedsole, Esq.
Locke Reynolds LLP
201 North Illinois Street
Suite 1000
Indianapolis, Indiana 46244
(317) 237-3842
S43480_1.DOC
9
~Spdnt
"
North Central RegIOll
Sprint pes
91101 We.1 Higl:ios :Road
Roscmont, n.60018
.1~ , .
I, John Buchert, affirm undc.t the penalties for peJjury, that I am a Site Development
Manager for Sprint Spectrum L.P., I have read the allegations in the foregoing Petition for Writ
of Certiorari ("petition"), and that the representations in the furegoing Petition are ~
. 04~..
John Buchert
<c(\TC-f":-t7':c'i-", ..
9~Y~ (~) (''\\ iQlw
/-1 ~\f"t~~~ ~ ';\ ~" .'~.J U- U
!'~I\. PJ$ St~~GR~~MENT ~
\ . noes . i- ,
\.I I _I
/, /
,,--<-:/ .'/
~
.-:;
Site Name: ZamberJWest Cannel
EX. A
April 99
. ./'
Site 10: IN54XC303-C
. . "~: </ /---r. 7.l"-;; - \ ';.~./
1. Premises and Use. Owner leaS8& to Sprtnt Spectrum LP., a Delir.vareJ-.
lIm~ed partnership ('SSLP), the site described below:
[Chec/(.applTJprtsts bax(es))-
o Land consIsting of approximately eoo 6g!lare feet upon which SSLP wHl
construct Its 0 equipment base station and 0 antenna structure; .
o Building Interior space consfstlng of approximately square feat;
o Building exterior space for attacllment of antennas;
o BuildIng exterior space for placement of base station equipment;
o Tower antenna space between the _ foot and _ foot level on the
Tower;
o Space required for cable runs to connect PCS equipment and antennas.
In the .locatlonCs) ('Site') shown on exhibit A, together with a non-excluslve
easement for reasonable. access thereto and to the approprIate, In the
discretion of SSLP, source of electric end telephone facilities. The Site WID be
used by SSLP for the purpose of Installing, removing, replacing, modifying,
maintaining and operating, at Its elCpo0S8, a personal communications service
system facUlty ("PCS'), Including, without limitation. antenna equIpment, cable
wiring, back-up power sources (Including generators and fuel storage tanks),
related nxtures and, If 8ppDcable to the Site, en antenna structure. SSLP will
use the Site In a manner which will not urveasonably disturb the occupancy of
Owner's other tenants. SSLP will have access to the Site 24 hours per day, 7
days per week.
2. Tenn. The tell'll of this Agreement (the 'Initial Term") Is 5 years,
commencing on the date ('Commencement Date') both SSLP and Owner
have executed this AgreemenlThls Agreement will be automatlcany renewed
for four additional terms (each a "Renewal Term') of 5 yeats each, unless
SSLP provides Owner notIce of Intention not to renew not less than eo days
prior to the expiration ofthe Initial Term or any Renewal Tenn.
3..Rent.. Untllthedatawblch.1a 00 days after the Issuance of a buDding
permit, rent will be a one-tJme aggregate payment of $100.00, the receIpt of
which Owner acknowledges. Thereafter, rent win be paid In equal monthly
Installments of $1500.00 (until Increased as eat forth hereln), partial months to
be prorated, In advance. Rent for eacll Renewsl Term will be the annual rent
In effect for t~e final year of the Initial Term or prior Renewal Term, as the case
may be, Increased by ten percent (10%);
4. nUe and Quiet Possession. OWner represents and agrees (a) that It Is
the Owner of the Slte; (b) that It has the rtght to enter Into this Agreement;
(c) that the person signIng this Agreement has the authority to 819n; (d) that
SSLP Is entitled to access to the Site at aU times and to the quiet possession
of tile Site throughout the Initial Tet11'I and each Renewal Term so long as
SSlP Is not In default beyond the expiration of any cure period: and (e) that
Owner shaft not have unsupervised access to the Site or to the PCS
equipment
6. AsslgnmenUSublettlng. Tenant shall have the right to sublease or
assign It's rights under thIs Agreement without notice to or consent of Owner.
See Modification Rider to the PCS SIie Agreement" #2..
6. Notices. AD notices must be In writing and are' effective only when
deposited In the U.S. mall, certified an~ postage prepaId, or when sent via
ovemlght cteDvery. Notices to SSLP are to be sent to: Sprint' PCS, Indiana
DIvision, SBQ1 W. Higgins Road, Rosemont, IL 60018. with a copy to Sprint
Spectrum LP., 4000 Main, Kansas City, MO 64112. Notices to Owner must
be sent to the address shown undemeath OWner's signature. .
7. Improvements. SSLP may, at Its expense, make such Improvements on
the Sll:e as It deems necessary from time to time for the operation of the PCS
sY$tem.. Owner egre8s to coaperBte with SSLP .wIth respect to obtainIng any
required zoning' approvals fcrttte Site and sucIt Impro'l8ments. Upon
termination or expIration of this Agreement, SSLP may remove Its eqUipment
and Improvements and will restore the SIte to substantially the condtlon
eldsting on the Commenoement Date, except for ordinary wear and tear and
casualty loss.
8. Compliance YoUh Laws. Owner represents that Owner's property (InclUd-
Ing the Site), and all Improvements located thereon, are In. substantial
compliance with buDding, IIfeJsafety, dIsability and other laws. codes and
regulations of applicable governmental authorities. SSLP will substantlany
comply with all applicable laws relating to Its possession and use of the Site.
8. Interference. SSLP will resolve technlcellnterference problems with other
equipment located at the Site on the Commencement Date or any equipment
that becomes attached to the Site at any Mute date when SSLP desires to
a~d additional equipment to the Site. Llkewlse, OWner will not permit or suffer
the installation of .any future equipment Which (a) results In technical
Interferenc~ problems with SSLP's then eXIsting equipment or (b) encroaches
onto the SIte.
10. UtUltles. Owner represents that utilItIes adequate for SSLP's uSe of the
Site are available. SSLP Will pay for all utilities used by II: at the Sits. Owner
WiD cooperste with SSLP In SSlP.'s efforts to obtain utilities from any location
provided by Owner or the servicing utility, Including signing. any easement. or
other instrument reasonably required by the utility company.
11. Termination. SSLP may terminate this Agreement at any time by notice
to Owner without .further liability If SSLP does not obtain all permits or other
approvals (collectively, "approval") required from any govemmental autllority
or any easements required from any third party to operate the PCS system, or
If any such approval Is canceled, expires or Is withdrawn or terminated, or If
OWner faDs to have proper ownership of the Site or authority to enter Into thIs
Agreement, or If SSLP. for any other reason, In Its sole discretion, determines
that It wiD be unable to use the Slte. 'Upon termination, all prepaid rent will be
rEtained by Owner unless such tell'lllnatlon Is due to Owner's failure of proper
ownership or authortYi or such termlnetion Is a result of OWner's default
12. Default. If either party Is In default under this Ag~ment for II period of
(a) 15 days following recalpt of notlce from the non-defaultlng party with
respect to a default which may be cured solely by the payment of money, or
(b) 30 days following receipt of notice from the non-defaultlng party with
respect to a default which may not be cured solely by the payment of money,
then, In either event, the non-defaUltlng party may pursue any remedies
available to It against the defaulting party under applicable law, InclUding, but
not limited to, the right to terminate this Agreement If the non-monetary
default may not reasonably be cured within a 3C).day period, thle Agreement
may not b~ terminated If the defaulting party commences action to cure the
default WIthin such 3O-day periOd and proceeds with due diligence to fully cure
the defat/It
13. Indemnity. Owner and SSLP each Indemnifies the other against and
holds the. other harmless from any and all costs Oncludlng reasonable
attomeys' fees) and claims of IlabUlly or loss which arise out of the ownership,
use and/or occupancy of the Site by the indemnifying party. This Indemnity
does not apply to any claims arising from the sole negligence or' intentional
misconduct of the Ind~mnlfied party. The Indemnity obligations under this
Paragraph will survive termination of this Agreement
14. Hazardous Substances. Owner represents that It has no knowledge of
any substance, chemical or waste (collectively. .substance') on the Site that Is
identified as hllZ8rdoUS, toxic or dangerous In: any appBcable federal, state or
locsllaw or regulation. SSLP will not Introduce or use any such substance on
the Site In ,violation or any applicable law.
1 &. Subordination and Non-Disturbance. This AgreemeRt Is subordinate to
any mortgage or deed of trust now of record against the Site. However,
promptly after the Agreement Is fully executed, Owner wi" use diligent efforts
to obtain a no~lsturbance agreement reasonably acceptable to SSLP from
the holder of any such mortgage or deed of trust.
18. Taxes. SSLP Will be responsible for payment of aI personal property
taxes assessed directly upon and arising 80lely from its use of the
communications facUlty on the Site. SSLP will pay to Owner any Increase In
. real property taxes attributable solely to any Improvements to the Site made by
SSLP within eo days after receipt of satlsfactory documentation Indicating
calculation of SSLP', share of such real estate taxes and payment of the real
estate taxes by owner. Owner wiD pay when due aU other real estate taxes
and assessments BttrIbutable to the property of Owner of which the Site Is a
part.
~~-7:" c. ~?tMJ,
'17" In5:uranCe. SSLP will procure and maintain commercial gen~llIabllllY
,Insurance, wih limits of not less than $1,000,000 combined single' limit per
o(;currenca for bodily Injury anc! property damage labIlity, with a certificate of
Insurance to be furnished to Owner within 30 days of written request. Such
policy will provide that canceUatlon will not occur without at least 15 clays prior
written notice to OWner, Each palty hereby waives Its right of recovery agaInst
the other for any loss or damage covered by any Insurance policies maintained
by the waMng party. Each party wiD cause each Insurance policy obtained by
it to provide that the Insurance company waives all rIghts of recovery against
the ather party In connection with any damage covered by such polley.
. 18. MaIntenance. SSLP will be responsible for repairing and maintaining the
PCS system and any other Improvements Installed by SSLP at the Site In a
proper operating and reasonably safe condition; provided, however If any such
. repair or maintenance Is required due to the acts of Owner, lI:8 agents or
employees, Owner shall reimburse SSL? for the reasonable costs Incurred by
SSLP to restore the damaged areas to the condition which existed
ImmedIately prior thereto. OWner will maintain and repair aU other portions of
the property of which the Site Ie a palt In a proper operating and reasonably
safe condition.
19. MIscellaneous. (a) This Agreement applies to and binds the heIrs, .
successors, executors, administrators and assigns of the partl~s to this
Agreement; (b) this Agreement Is govemed by the laws of the &tate In which
the Site Is located; (0) If requested by SSLP, Owner agrees promptly to
mcecute and deliver to SSLP a recordable Memorandum of this Agreement In
the form of Exhlbtl B; Cd) this Agreement (Including the ExhIbits) constitutes the'
entire agreement .between the parties and supersedes all prior written and
verbal agreements, representetlons, promIses or understandings between the
paltl~ Any amendments to this Agreement must be In writing and executed
by both parties; (e) It any provision of this Agreement Is InvaUd or
unenforceable with respect to any party, the remainder of this Agreement or
the applJcatlon of such provision to persons other than those as to whom It Is
held Invalid or unenforceable, win not be affected and each provisIon of this
Agreement WUl be valid and enforceable to the fullest mclent permitted by law;
and (f) the preval/lng party'ln any action or proceeding In court or mutually
agreed upon arbitratIon proceeding to enforce the terms of thllI,Agreement Is
entitled to receive Its reasonable attomeys' fees and other reasonable
enforcement costs and expenses from the non-prevalllng party, See
Modification Rider to the Option Agreement. #3.
QVlMER:
By:
lte:
S.S.lTsx No.:
Address:
17~...b ~ .-c:J5:J,1
I;).. 0 50 A,./" /"1 J v 1116.-4# .){P
'2./(}A.,)$' ,IIL-t:... e: I 'IV 4 ,. 07 7
( ~ _I ~ - "...:
Date:
-.~J
a Dela rJ,Jtne'
By:
Itv. I)lRfCTOR OF srr.;~~Et~/~~~'
'. .
20. Non-Binding U~J1 FuUy Executed. This Agreement is for discuss/on
purposes only and does not constitute a formal offer by either party. this
Agreement Is not and shail not be binding on either party untU and unless It Is
fully executed by both parties.
The followl"g exhIbits are attached to and made a part of this
Agreement: exhibits A , B and Modification Rider to the PCS Site Agreement.
Attach exhibit A - Site Description and Exhibit B - Memorandum of PCS Site Agreement
v
'\
.'
Modffication Rider to the pes Site Agreement
Page 1 of 1
Site Name: ZamberJWest Cannel
Site ID: IN54XC3Q3-C
ThIs rider Is made and entered Into by end between
Edv.(n C. ZaI.1l~
("Ow'ler.)
I,
AND
,"
SprInt Spectrum LP., a Dela'Mlre limited partnership .
("SSLP")
For attachment to the pes Site Agreement Dated '
s}cr/c9-f;() )
("Agreement")
1. 'Ibis Jiefer is incozpmated iDto and constitutes aD integral part of the Agreemeot to which it is attached. The terms. used herein which are
defined or specified in the Agreement shal1 ha'\'e the meanings indicated in the Agreement \Were the c:o.ntext permits and unless otherwise
indi~ herein, and definitions of terms set forth herein &baU apply to the Agreemeat \Were the coJJtext peonits. If there are any
inconsistencies between the provisiOllS of this Riefer and the provisions of the Agreement, the provisions oftbis rider shaD controL'
2. Paragraph ~, AssismuentlSub1etting. is deleted in it's eutirety and a new Paragraph S, AssijJl11nel1t1Sub1etting, is insetted to read as follows:
SSLP wiD not assign or traDsfer this Agreement or sublet all or any portion of the Site without the prior written consent of Owner, which
. COD.Sell1t wiD. not be umeasonably withheld, delayed or conditioned; provided, however, SSLP shall have the right to sublease or assign it's
rights 11Ilder this Agreement to any ofitts subsidiaries, affiliates or successor lesaI entities or to any entity acquirlngsubstantially all of tile
assets ofSSLP. .,:..." . "
3. Paragraph 19, .Misc:eJlaneous, is deleted in it's entirety and a new Paragraph 19, Miscellaneous; is inserted to read as follows:
. . Miscel1l1DCOUL (a) This Asn=neut applies to and binds the heirs. successors, exeaJtors, administIators and assigns of the parties to this
Agreement; (b) this' A~t is govemed by the laws of the state in which the Site is loc:ated; (c) . If requested by SSLP, Owner agrees
promptly to execute and cIe1iver to SSLP a reeotdable Memo.mndum. of this Agreement in the form of Exhibit B; (d) 1his Agreement
(including the&hi1?ifs) constitutes the eatire agreement between the parties and supersedes all prior writtenancl verbal agreements,
reproesentations. p1'Omises r understandinSS between the parties. Any amendments to this Agreement must be in wriling and executed by
both parties; (e) if any provision of this Agreement is invalid or unenforceable with respec;t to my party, the remainder of thia Agreem.em or
tho application of such provision to perscms other than those as to whom it is held invalid or unenforceable, will not be affected and each
provision oftbis Agreement will be valid andeoforoeable to the tbl1est extent permitted by JaW; and (I) tho prevailing party in any adion or
proceeding in court or mutually agreed upon arbitration plOceeding to eaforce thetenns of this .Agreement is entitled to receive its reasonable
attomeys' fees and other reasonable eaforcemeat c:osts and expenses from the non-prevailing party. (g) IfSSLP does not obtain an permits or
other approvals (collectively, "approval") required from any govsmm....t.nl authority and suc:b. govenuncota1 authority, as 8 result of SSLP
acti011S to seek such approvals, requires Ownerto dismantle OwDcrts existing tower stnJeture at Site, SSLP shall pay Owner ($3500.00) thn:e
thousand five buzulred dollars.
O_I~~ ~.
SSLP Initials "
EXHIBIT A
Page lof2
PCS Site Agreement
April 99
SIte Name: ZamberJWest Cannel
SIIe 10: 1N54XC3Q3.C
Site Des.crlptlon
Site situated In the CcWlty of Hamlltcn, state'of l"eIIena, commonly described as follows:
legal Description:
.:"""....
A PART OF THE NORTHWEST QUARTER OF SECOND 3, TOWNSHIP 17 NORTH OF RANGE 3 EAST IN HAMIL TONCOUNTH ,
INDlANA, BEING MORE PARTICULARLY DESCRIBED AS FOLLqwS; .
BEGINNING AT A PIONT ON THE WEST LINE OF SAID QUARTER SECTION WHICH BEARS NORTH 00 DEGREES 09 MINUTES
55 SECTIONS EAST (ASSUMED BEARING) 470.00 FEET FROM THE SOUTHWEST CORNER OF SAID QUARTER SECTION,
THENCE NORTH 00 DEGREES 09 MINUT~S 55 SECONDS EAST UPON AND ALONG SAID WEST LINE 509.93 FEET TO A
PIONTWHICH BEARS SOUTH 00 DEGREES 09 MIUTES 55 SECONDS WEST 1605 FEE FROM THE NORTHWEST"QUARTER
OF SAID QUARTER SECTION, THENCE SOUTH 89 DEGREES 50 MINUTES 05 SEQONDS EAST 520.38 FEET, THENCE SOUTH
00 DEGREES 09MINUTES 55 SECONDS WEST 509.93 FEET, THENCE NORTH 890EGREES 50 MINUTES 05 SECONDS WEST
520.38 FEET TO THE PLACE OF BEGINNING, CONTAILlNG 6.09 ACRES, MORE OR LESS (5.57 ACRES NET OF RIGHT OF
WAY)
01::"0 .
Owner Initials
Cc1
fiN
SSLP Initials
Note: Owner and SSLP may, at SSLP's option, replace this ExhIbit with an exhibit seltlng forth the legal description ofthe property on which the Site Is
located and/or an as-bUDt drawing depicting the SIte.
*{Use this Exhibit A for PCS SIte Agreement, Memorandum of PCS SIte Agreement, Option Agreement and Memoranclum of Option Agreement]
'\
EXHIBIT A
Page 2 Qf:Z
pes Site Agreement
AprIl8S
Site Name: ZamberJWest Cannel
Site ID: 1N54XC3J3..c
Site Description
I~ ii QueeN<;" WAY I CA.RI"Y'\i!l 1.-:t:N 46o~:1,-
SIte situated In the County or Hamilton, Slate or Indiana, commonly described as fonews: .
D{}.A""w~Nor To SC'h~
Sketch of Site:
.~
u or It. I t I ~ oS I Ace l.f)
/I{,T"I ST
s uB-:r.E ~i
"'-0
(,-1,.1...... G,l
r
S'o~ '
. II k powiR A r io..;Jd
Ar srRtl'i
0 iE.L.co
<Q .5 ~ll"-
c:::c -- (OlD
.~ ..
'::!:
u .) (-
\-
Q
wA
P (1. 0 Po j r../) J\ C(r[ s'S THI?O\.JGI~
P {<IV';' '-At
( C 6 r_" ST.
Ovvner InlUals
E:]C~
f#I
SSLP InItials
Note: Owner and SSLP may. at SSlP's option. replace this Elchlblt ~ an exhibit setting forth the legal description of the property on which the Sll:e Is
located and/or an IUrbu/lt drawing depicting the Site. .
"[Use this El<hlbll: A for PCS Site Agreement. Memoram1um of PCS Site A~reement. Option Agreement and Memorandum of Option Agreement.1
"
EXHIBIT B
April 99
Site Name:, ZamberlWest Cannel
PCS Site Agreement
Site 10: 1N54XC3CX3-C
Memorandum of PCS Site Agreement
This memorandum evidences that a lease was made and entered Into bywritten pes Site Agreement elated /2- -I 2., (J~ 2000,
between Hoosier Wood Preservera,lnc. ("Owner") and Sprint Spectrum LP., a Delaware limited partnership ("SSLPj.
Such Agreement provides in part that Owner leases to SSLP a certain site ("SIte") located at 1388 Queens \Nay. Cannel, indianapolis,
indiana, Counly of Maricx1, State of indiana within the property of Owner which Is described In Exhibit A attached hereto, with grant of
easement for unr~stricted rights of access thereto and to electric and telephone facilities for a term of five (5) years commencing on
(~ -./2-' 0 u . 2000, Which term Is subject to four (4) additional five (5) year extension periods by SSlP.
" .
I,
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the day and year first above written.
~Cr'~
"OWNER"
By:
Name:
Title:
f ~ 0 cf cJ ,N,' ,/17 I c//"? / 6-''?/.."J R. I:>'
";?- / 0,4/)' l/It-'- €: / I,d' ~ l. C 7?
Address:
"SSLP"
:ms_~
PETERJ.HARTWlCK
Name:
TItle:
DIRECTOR OF SITE DEVElOPMENT
1801 W. HIGGINS ROAn
ftOSEMONT.ILlINOJS @0018
Address:
Mtach Exhibit A - Site Description
..\
O~II.'NS~ NOTARY CLOCK:
STATE OF
~
ynd. 1" t. ", '-'
6ooY\~
.. .
COUNTY OF
The foregoing Instrument was acknOlNledged before me this
~y IG" tJ~,(.)W c .~4'l;t6J:lD by
of .8
/Ulv
~oI YtL'l',^,-bt.C .~c6
by
. partner (or agent) on behalf or
corporation, on behalf of the corporation,
a partnership.
(AFFIX NOTARIAL SEAL)
. My convnlsslon expIres: ')0 () Y
r
SSLP NOTARY BLOCK:
, -.
,,:, .
STATE OF :!.U..l ,.lo,~
COUNlY OF too/<"
The foregoing Instrumentwas acknowledged before me this
'''~
day of M ""'1
DIRECTOR OF SITE DEVELOPMENT
,JCo', by
PETER J. HARTWICK .
of
Sprint SpectnJm LP., a Delaware Dmltecl partnership, who executed the foregoing Instrument on behalf of such corporation.
~..,.,y.~-
Ota~i~~ $e~L.
( , FI~~rMtt\I.4~
, (lIJf.\l..~. (l'(l:\lt ~F IU.I~
~TAA~P;SI()N c;t.,~~.lS:1)G{14104
,w.N CO ,.,.,.~...,;-~
.. ..
YYt~~. ht~"'J{
(OFFICIAl. NOTARY SIGNATURE) .
NOTARY PUBUc-sTATE OF U/.J.,.Jo , &
, My commission expllll&:
MARITZA MUNOZ
(PRINTED. TYPEO OR STAMPED NAME OF NOTARY)
~
,. .
. . ~
EXHIBIT A
April 99
Memorandum of PCS Site Agreement
Site Name: Zamber/West Cannel
Site ID: IN54XC303-C
Site Description
site situated In the CQunty or Hamilton. stato at Indiana, commonly descrlbed as follows:
Legal Description:
., .
I.
A PART OF THE NORTHWEST QUARTER OF SECOND 3, TOWNSHIP 17 NORTH OF RANGE 3 EA'ST IN HAMILTON COUNTH I
INDIANA, BEING MORE PARTICUlARLY DESCRIBED AS FOLLOWS;
BEGINNING AT A PIONT ON THE WEST LINE OF SAID QUARTER SECTION WHICH BEARS NORTH 00 DEGREES 09 MINUTES
55 SECTIONS EAST CASSo UMED BEARING) 470.00 FEET FROM THE SOUTHWEST CORNER OF SAID QUARTER SECTION,
THENCE NORTH 00 DEGREES 09 MINUTE:S 55 SECONDS EAST UPON AND ALONG SAID WEST LINE 509.93 FEET TO A
PIONT WHICH BEARS SOUTH eo DEGREES 09 MIUTES 55 SECONDS WEST 1605 FEE FROM THE NORTHWEST QUARTER
OF SAID QUARTER SECTION. THENCE SOUTH 89 DEGREES 50 MINUTES 05 SECONDS EAST 520.38 FEET, THENCE SOUTH
00 DEGREES 09MINUTES 55 SECONDS WEST 509.93 FEET, THENCE NORTH 89DEGREES 50 MINUTES 05 SECONDS WEST
520.38 FEET TO THE PLACE OF BEGINNING, CONTAILlNG 6.09 ACRES, MORE OR LESS (5.57 ACRES NET OF RIGHT OF
WAY) .
.,".:.
OWner Initials
SSLP Initials
Note: OWner and SSLP may, at SSLP'a option, replace this E.lchlblt with an .exhlblt seWng forth the legal description of the propelty on Which the Site Is located
and/or an as-bullt drawing depk:tlng the Site. .
-(Use this Exhibit A for PCS Site Agreement, Memorandum of pes Site Agreement, Option Agreement and Memorandum of Option Agreement.]
i
This permit is valid only if construction is started within 120 days of issuance date; all construction must be
date unless an extension of time has been officiall ted b letter the Director, ent ofCOmmu
NAME PHONE
Jay ~, Q Serve Canmunications (317) 856~1694
....' :.....,.
STREET CITY
4515 S. High Scmo1 Ro~, Irrlianapolis
Carmel-Clay
T __!...._1..~ I
, OWl}lUllP
, \ ;or.
BUllJ)ER
e.f>
,
I
FAX ,roo,
(3P~)j856-0198
../' ,,/
',</ /7>;,."n o,'O'\"'BrA:ri'
'~It "\ /'
~-.. onJ--m
ZIP
46241
TENANT NAME
(if a licable) Sprint Spectr~, I?, d/b/a Sprint PCS
NAME
PHONE
(317) 848-9739
STATE ZIP
IN 46032
A. TYPE OF CONSTRUCTION
1. 0 Single Family
2. 0 Two Family
3. 0 Multi-Family Type of Foundation:
4. 0 Commercial! Industri!l1 DCrawlspace
5. 0 Farm OBasement
6. m OTHER }(JSlab
(S ifY) unstaff~, unoccupl.En
B. SEWER: pec .I..cu.li.u. t::y'u.i.!:4L~uL ::;helter
1. 0 Public (Name of System none )
2. 0 Private (Septic Tank, etc.)
C. WATER:
1. 0 Public (Name of System none
2. 0 Private (Well
D. ZONING: S-2
E. ESTIMATED COST OF CONSTRUCTION
(Excluding Land Value) Plumbing License # 0 BOCA or 0 E:ABO
************************************************************************************************************
The1Jt1detsignc=<hgreesthatifuy c6iislrucfiOn, recOriStriiclion, en1~gement, relocation; oi-alteratlon ofSt:rUctUTe, or any cfUnige m tbe'USeofland
or structures requested by this application will comply with. and conform to, all applicable laws of the State of Indi~ and the "Zoning Ordinance
of Carmel Indiana - 1993" (Z-289) and amendments, adopted under authority oflC. 36-7 et seq, General Assembly'oftb.e State of Indiana, and all
Acts amendatoxy thereto. I further certifY that only kitchen, bath. laundxy, and floor drains are connected to the sanitary sewer. I further certify
that the construction will not be used or occupied until a Certificate of Occupancy has been issued by the Department of Community
Services, Carme Indiana.
OWNER
Edwin: C. Zaml:er
STREET CITY
1388 Queens Way, Cannel
Lar
SUBDIVISlON
LOCATION
See attached lega,l, description
" _ ADDRESS OF CONSTlWCTION
1388 Queens Way, Canne;l, Irrliana
Do plans include a porch ?
DYes DNo
)
)
Sewer Capacity Allotted
Plan Commission/BZA Docket #:
FAX
N/A
SEcnON
F. TYPE OF IMPROVEMENT
1. D New Structure
2. D Addition Porch Room
3. 0 Remodel 0 Commercial Tenant Space
4. D Foundation Only
5. 0 Demolition
6. )(] Accessory Building
7. D Swimming Pool
8. D Garage Detached
G. Lot Split
H Flood Zones
1. Sump Pump
1. Manuf~tured Trusses
Attached
YES_NO~
YES_NO~
YES _ NO -X--
YES ----,- NO -X--
K Plumbing Contractor
None
Inspections Needed:
l!ootinglUnderslab Rough-In Meter Base
Site
F~
C/O
Permit (Square Footage)
Inspection Fees:
Certificate of Occupancy:
Reviewed/Approved: Dept of Community Services
TOTAL:
Fee Received By
.:IllmDs\iJp96,sJIs leV 12196
Carme1:C1ay
6.. C.-
/-:~i":~,-'r-'"" Permit No.
Application for ~()p' /~
Improvement Location Perm~ 1f~I\~ile
/ . 'f ~~(f'>r,;f1I\n
This permit is valid only if construction is started within 120 days of issuance date; all construction,.i~ ~a!It~o issued) within 2 years of issuance
date unless an extension of time has been officiall ranted b letter b the Director, De artment 0 m i ices.
Township
NAME
PHONE
DOCS FAX
(317t 856-1694 . (317) 856-0198
BUILDER
Jay I.emmon, Q Serve Carmunications
STREET
CITY
. STATE
ZIP
TENANT NAME
(if a licable)
'4515. .s. ~.Hi.gh Scl:ool Road, In:li.anapolis,
Sprint Spe~, lilt d/b/a Sprint Pes
IN
46241
OWNER
NAME
Edwin C. Zarnber
PHONE
FAX
(317) 848-9739
N/A
STREET
1388 Queens Way,
OTY
STATE
ZIP
Camel
IN
46032
uxr
SUBDIVISION
SECTION
LOCATION
ADDRESS OF CONSTRUcrlON
1388 Queens Way, Cannel, In:li.ana
A. TYPE OF CONSTRUCTION Do plans include a porch? F. TYPE OF IMPROVEMENT
1. 0 Single Family 0 Yes 0 No 1. 0 New Structure
2. 0 Two Family 2. 0 Addition: Porch_Room
3. 0 Multi-Family Type of Foundation 3. 0 Remodel 0 Commercial Tenant Space
4. 0 Commercial / Industrial DCrawlspace 4. 0 Foundation Only
5. KI OT~R unstaffed, DBasement 5. 0 Demolition
(Specify) K1Slab 6. KI Accessory Building
unoccUpied. radio
equipnent shelter 7. 0 Garage Detached
mne
Attached
B. SEWER:
1. 0 Public (Name of System
2. 0 Private (Septic Tank, etc.)
C. WATER:
1. 0 Public (Name of System
2. 0 Private (Well
D. ZONING: S-2
E. ESTIMATED COST OF CONSTRUCTION
(Excluding Land Value) . .. . .. .... . . . . ... Plumbing License # 0 UPC or 0 CABO
************************************************************************************************************'
none
)
G. Lot Split
H. Flood Zones
1. Sump Pump
J. Manufactured Trusses
YES. NO X
YES == NO-X-
YES NO~
YES _ NO-X-
K. Plumbing Contractor
none
.' -"-oThe undersigned agrees that any construction, reconstruction,-enlargement; relocation, or aIterationofstructure, or any change in the use ofland or structures
requested by this application will comply with, and conform to, all applicable laws of the State oflndiana, and the "Zoning Ordinance of Carmel Indiana - 1993"
(Z-289) and amendments, adopted under authority of r.c. 36-7 et seq, General Assembly of the State of Indiana, and all Acts amendatory thereto. r further
certify that only kitchen, bath, and floor drains are connected to the sanitary sewer. I further certify that the construction will not be used or occupied until
a Certificate of Occupancy has been issued by the Department of Community Services, Carmel, Indiana.
." INSPECTIONS NEEDED:
~~
Jt?G,?
Footing/Under Slab Rough-In
Meter Base
19nature of Owner or Authorized Agent
Jarces A. L. Blrldenbaun, Attorney for Sprint
Spectr~, IF (see attached lease' agreeIrent)
(Print) (Phone Number)
(317) 269-2500
Site
Final
c/o
Permit (Square Footage)
Inspection Fees:
Certificate 0 f Occupancy:
P.R.1.F.:
TOTAL:
Sewer Capacity Allotted
Plan CommissionJBZA Docket #:
Reviewed/Approved: Dept. of Community Services
Fee Received by
s:\ pem,itsllLP.ppJication 6/00
.
,
, ,
6<.P
~ - ~ity of Ca~el\Clay TOwnse-Q~t N::- '"
Ap'pRcatlons: 2001.0627.8
2001.0656.8 . : ~~D Date: 06/1512001
Application for Improvement Loc,ftiolJAWeTI ao? RoO File: 1713030000028017
..... - DJCE- " ; fU
BUILDeR fJAY LEMMON, Q SERVE COMMUNICATIONS .."',' I 1(317) 856-0198 I
\i ", (317) 856;t694
N_ -- ": /'r- ~/STAnl%IP .
[ ~4515 S HIGH SCHOOL. RD ". , .., '",'.:II~NOPLS,IN 46241 I
- --
. . ___0' I
TENANT NAME r
01"'-'
. .. - -
OWNER IAIII PIlall fAl
. rEDWlN C & OONNA 8 ZAMBER II( ) - I I( ) . I
STlIRI' em rUll ZIP
r 1388 QUEENS WAY I 1CAJWEl. 'IIIN 1146032 I
LOCATION LIlT -. WAD - ZUlli; lief art IlWP
- 1VJP
'iiiDiiii iii ClIamIImal -
SUlTI em lIP
1388 QUEEHS 'NY CARMa 46032
o New Slr\Icture
o Addition - Porch _
0, Addition. Room(s) How Many?
o Remodel
o Foundation Only
o Demolition
B Accessory Building
. Garage - Detached
o Garage - Attached
o Commercial Tenant Space
Report Type:
~ ICellubr Tower
Lot Split Y I N fB Flood Zones Y I N EB
Sump Pump Y IN,. Manufactured Y IN' M
Construction Notes . Trusses .
Co-locates on an existing amateur radio tower constructed at this site in 1987 by owner Zamber. Owner will partner with Sprint. who
proposed to remove the horizonal antenna arrays and install its 'slick type' PCSantennas on the tower, while maintaining the remaining
amteur radio antennas on the structure. The existing tower is 130' tall. proposed antennas will reach 100'. Correspondence in file.
Equipment shelter is 20' x 22'. PER Ll: Did not have to go through PC or BZA. NOR DID ORIGINAl TOWER. No corresponding
minutes.
i
1
:r'fPE OF CONSTRUCTION
IDTHEB
o
o
o
o
~
00 plans include a
porch? Y IN
Single Family
Two Family
Multi-F amily
Commetdal/lndusiDal
Farm
II
Type of Foundation
o Crawlspace
o Basement
l!I Slab
SUB
OTHER
1S'1C1'l!
Plumbing Contractor I
Plumbing Ucence , INaNE
ESTIMATED COST OF CONSTRUCTION
IExdudlng Land.Value) 1$ 85,000.00
,.
I Cad. Sook
TYPE OF IMPROVEMENT
ICElL~O~
I
D
.
.
. ..._._.._._._____.___._._._.___._.._._._._.___._._._._._._.___._._._..___._.._ - _._ _._ .. w. " ._...._
I - n;; ';"'hn~~';'~ d,;;;'';'' -~ ~~;;";'ii:II;:;,j,;;~-rd~,;-;":; ~d.,;,;f~ ;.:..-; '.b..:~~ in do;;'; 0(1::::';'; ~ ~";ta'-toY ~ ~;.k.';:' -
..iII-'''''r .,.;o:h.~Dd cnaIbni:I'" aD .pplic:ahkI.nutJdleStueolJncliana,2Dd 1Iw '"Zoaia; Ordi_euIC.rmrI 1__-lm-(L.1S9)...... :unmd...........pied under:nnburily01 u:.
~7 or _ (;..-.1 ,~ at llw SlIIro 01' Indi...... ancI all .\ea ..........lnry rloentn. r 1Iarrhor"nil)' dlar """ Wcdon.. ...110. Iaouodry. .... n.- dnl... .... CIlIlllO:Crrd 1D.1w oan"'ry ~....
IlVrrho:r r~rUl)- rIt:or rbc cOI..-,;.."i11 nol be usal /W DCCapied ...riI. C.errirlClll& ofO=apallC1 /Ill. beft, i:onod ,117 ltoe Deparh"'" .rt'_~r1 ~;cco; C.rmrI 11.6..-
Extended Building Description
ICO LOCATE CELL TOWERlRADIO TOWER@ RESIOENCE
1m
FooUng,
UndersJab
Meter Base
Rough-In
Signature of Owner or Authorized Agent
OIIL
,OJ
.a. ,OJ
; ~' Final Sltucture ~ B
Final Site
Bonding I Groun~~ B
11323 I Sq.Ft.
Permit Fee: I' 398.00
Inspection Fees:
Certificate of Occupancy
PRlF:
TOTAL: I' 440.00
(Print)
(Phone Number)
Sewer Capacity Allotted
1
1
Plan Commission I BZA Docket II:
_.J.J~ J IJun 15,2001
Reviewed/Approved: Oept. or Community Services
, 0.00
: , 012.00
, 0.00
ISGIIARI faaTAGU
SNl
Fee Received By:
~...~"
~~~
,
."to...
Et..E
."
l~'"
!
CTTY of CARMEL. CLAY TOWNSHIP .?,
HAMIl TONCOUNTY.lNOIANA C
APPUCATlON FOR SOARP Of ZONlNG .APPEALS~C1lQN DOCS
DOCKET NO.
APPEAL REQUEST
DATE RECEIVED:
1), ~ Richard Deer
Pddress:
1332 Queens Way, Carmel, Indiana
2)
Project Name: Sprint'Spectrum, LP, d/b/a 5print
EnglneerlA1dllted: First Group Engineering, Inc.
Phone:
Phone: (317) 290-'9549
Phone: (317) 57.4-3700
Attorney:
J. Taggart Birge, Bose McKinney & Evans LLP
3) AppUcanfs Status: (Check the appropriate resPonse)
(a) The applicanrs namd is on ttlt~ d~ to the property
(b) The apprlC3nt is the contract purchaser of the property
,X (e) Other: Applicant is an adjacent property owner.
4) If Item :3) (0) ~ chocked, ploo=:c oomplete the following:
Owner of the property involved; Edwin C. Zamb er
~etsadd~ 1388 Queens Way, Carmel, Indiana
Phone: (317)848-9739
5) RQCord of Ownors:hip:
Deed Book NoJlnstrument No.
Page: N/ A
9739910
Purehased3te: September 22, 1997
6) Common address of Itle properly inwlved: 1388 Queens Way . Carmel. Indiana
..Legaldescriplion: See the attached Exbibit "A"
Tax Map ParcefNo.:
17-13-03-00-00-028.017
7) State 9yplRnation of rl3quested Appeal: (State wtr.rt you want to do and cite the sec1fon number(s) of the
. CarmellCray Zoning Ordinance which apprJes and/or creates the need for this appeal). : .
See the attached E."Chibit "B."
. 8) State reasons supporting !he Appeal: CAddilionalJy, compete the attached question sheet entit1ed "'Findings'of Fa~
~~' ,
See the attached Exhibit "B.1l
BZA AppealApplic31ion - P9 1
,.
00 ,.
.
9)
10)
11)
12)
.....v
..r'
Present zoning of1he property (give exactclassification): 5-1
Present use of the property:
Residential
)
Size of lot/parcel in question
6.09
.' . acres
Cesaibe the proposed use of the propertY. The owner oroposes to lease an area to. Sorint
pes to install and maintain an antenna to serve the general public in.the
area. Included ~s the construction of an equipment shelter, a newD~C,
and a paved access road.
13)
Is the property:
Owner occupied
x
. Renter occupied
Other
14). ~e thera any restrictions, laws. covenants, variances, special uses, or appeals liTed in connection with this propeliY
that would relate or affect its use for the specific purpose of this application? If yes, give date aQd dodcet number,
decision rendered <2nd pertinent explan~lion. . 0 .
None of which I am aware at: this time.
1 S) H:Y.: work for which thiG application i3 being filed already started? If answer ~ Yt:r.5,9iva de~ib:
8uildlng Permit Number. 2001.0627. 3
8~er. Jay Lennon, QServe Communications (317-856-1694)
16) If propos;od 2ppoal is ~ranted, when wJ1l the work commence? The work is in progress.
17) If the proposed appeal is granted, who will operate andlor uSe the proposed improvement for which 1fl1s applfa.rtfon.
h:as bgon fit Q~? .
N/A
NOTE: .
LEGAL NOTICE shalJ be published in the NoblesYille DailY Ledaer a lIMNDATORY twenty-Iiva (25) days prior'to
the public he:anng date. The C'ortifigd i=lroof of P\Jb/ic;Jlion" -;;ffid:3vit for thD nowspapQr muSt be ~ablQ for insp9dion the,
night of the hearing.
. LEGAL NOTICE to all adjoining and abutting property.owners is also MANDATORY, two mgthO<Js ofnotic:e ara.
recommended:
1) CERTIFl~O MAIL - RETURN RECSPT REQUESTED sent to adjoining Pf'OpQrty owners:. (Tho while r4CQipt.
should be stamped by the Post Office at least twenty-five (25) days prior to the public hearing date)
2) HAND DEUVERED to :;dJoi"i~ and ~buning property owners (A raceipt signed by the adjoining. and abutting
property owner acknowledging the twenty-five (25) day notice should be kept for verification that the notice was c:ompteted)
RFAII71= nie BURDEN OF PROOF FOR ALL NOTICES IS THE RESPONSIBllfN OF THE APPUCANT. AGAIN: niJS
TASK MUST BE COMPLETED AT LEAST IWENTY-F1VE (25) DAYS PRIOR TO PUBLIC HEARING DATE. ..
. . The apprlC3nt understands that docket numbers wm not be assioned unbl alL@D.Qf.tiDgjnfQlnlab.b~~
submitted tt} the Deoortment of CommunitY Services. . .
BZA. Appeal AppfiC3lion - pg 2
"
.
'~
f
..
AfFiDAVIT
,~ being duly sworn depose and say 1;hat 1I1e foregcing signatures. statements and answers herein contained and
the information herewith submitted are in all respects true and correct to the best of my kncwfedge and berm. ~ ihe
unaersigned, authorize the appflC3nt to act on my behalf With regard to this appfication and subsequent h~ngs and
testimony.
~:
~ CO:4 .'
At!omey,~
for Richard Deer
J. Taggart Birge
(Piea58 Print)
STATE OF INDIANA
ss:
County of
'R~m;1ton
(County in which notarization take place)
Before me the undersigned, a Notary PUblic.
'.
Marion
(Notary Public's county of residence)
J. Taggart Birg~
(property Owner, AttDm~y. or Power of Attorney)
for
County, State or Indiana, personaUY appeared. .
and aclo1owledge tI'le execuuon ot lrieforegoing
instnunent tni$
15th
day of
L~
/Notary PUbr~ignature
.~ 2001.
(SEAL)
Steven B. Granner
Notary Public-Please f)rint
My commission axpres:
10-23-2008
~.
B~ Appeal ApprlCdOOn - pg 4
.' .
j
EXHIBIT A
Legal pescription
A PART OF THE NORTHWEST QUARTER OF SECTION 3, TOWNSHIP 17 NORTII OF
RANGE 3 EAST IN HAMILTON COUNTY, INDIANA, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON TIffi WEST LINE OF SAID QUARTER SECTION WHICH
BEARS NORTH 00 DEGREES 09 MINUTES 55 SECTIONS EAST (ASSUMED BEARING)
470.00 FEET FROM THE SOUTHWEST CORNER OF SAID QUARTER SECTION, THENCE
NORTH 00 DEGREES 09 ~fiNUTES 55 SECONDS EAST UPON AND ALONG SAID WEST
LINE 509.93 FEET TO A POINT WHICH BEARS soum 00 DEGREES 09 MIN1irEs 55
SECONDS WEST 1605 FEET FROM THE NORTHWEST QUARTER OF SAID QUARTER
SECTION, THENCE SOUTH 89 DEGREES 50 MINUTES 05 SECONDS EAST 520.38 FEET,
THENCE SOUTH 00 DEGREES 09 MINUTES 55 SECONDS WEST .509.93 FEET, THENCE
NORTH 89 DEGREES 50 MINUTES 05 SECONDS WEST 520.38 FEET TO THE PLACE OF
BEGINNING, CONTAINING 6.09 ACRES, MORE OR LESS (5.57 ACRES NET OF RIGHT OF
~~ .
#43308vl<NOI> -Legal Descrlption.wpd
,
.
Exhibit B
Petitioner contends that Permit No. 627.01 for the construction of the Sprint PCS Site, at the
property commonly known as 1388 Queens Way, was issued in error by the Director and should be
revoked. A commercial Sprint PCS site can only be located in a residential neighborhood zoned 5-1 under
specific circumstances dictated by the Zoning Ordinance and after a hearing before the aZA (the "BZA").
The property located at 1388 Queens Way does not complv with those circumstances as regulated by the
Zoning Ordinance and no hearing was held before the BZA.
The purpose of the S-l zon ing district is '10 provide for the development of innovative residential
environments in keeping with the rural character of the district." Any interpretation of the standards of
the Zoning Ordinance by the Director should be guided by this stated purpose. A commercial Sprint PCS
Site, with an ancillary equipment building, is not in keeping with the purpose and intent of the S-l zoning
district.
According to the Director, the Sprint PCS Site is permitted because under Section 5.U of the
Zoning Ordinance (S-l District standards), an "Antenna," if collocated with an existing "Antenna," on an
approved andlor existing tower, is a Dermitted use. However, the Director's analysis is flawed because
the "tenn [A~~ldoes not include the amateur radio station antennae" which is currently attached to
the existing tower. As such, Section 5.1.1 of the Zoning Ord inance does not apply to the case at hand'
because there is no "Antenna" (as defined by Section 3.7 of the Zoning Ordinance) upon which the Sprint
PSC Site antenna can collocate with.
Consistent with Laurence Lillig's initial recommendation and Section 5.2 of the Zoning
Ordinance, the Sprint PCS Site and the ancillary equipment building requires Special Use approval from
the BZA. In addition to the Special Use approval required by the BZA, Secoon 5.2 of the S-1 zoning
district dictates that a variance must be obtained prior to placing the Sprint PCS Site antenna on thesite
because an initial "Antenna" must be locat~d "on or wlthin a structure other than a ~r." If you could
locate an Antenna on an amateur radio station tower (a permitte~ use), the whole purpose of requiring a
special use for an Antenna could and would be circumvented.
The 130 foot tower site is in its present location because Section 5.3.7 permits "private radio and
television reception and transmitting towers and antennas. .." Since the tower was originally constructed
in 1987, it has been used solely for private purposes. The attorney for:Mr. Zambers, in a letter dated
February 22, 2001, sta~ed that the location of the Sprint PCS Site and the ancillary equipment building
will allow Sprint PCS to serve "its customers and the general public in this area." Such commercial uses
are. not private aJ:ld should not be permitted on the private t,?wer site without a public review of the
proposed uses at the site by the BZA.' .
Currently, if a church wants to attach an antenna to a church spire, a Special Use is required under
Section 5.2 of the 5-1 Zoning Ordinance. In light of such requirements, it is hard to imagine how a
commercial Sprint PCS Site, an ancillary equipment building and a paved access road can be constructed
and permitted in a residential neighborhood, without a public hearing in front oftheBZA.
C:\NrPortbl\NO 1 \NO 1\43307 _2.DOC
.'
CARMEUCLA Y BOARD OF ZONING APPEALS
CARMEL, INDIANA
J
"
Docket No.:
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 (2001.0627;3) I Refusal to revoke an Improvement Location
Permit (2001.0627.3)
Agency:
Official:
Department of Community Services
Director
Date of Decision:
June 15. 2001 I AUQust 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
4. The written materials submitted to the Board do support the Petitioner because:
the use for which the ILP was Qranted (an Antenna) is not a Permitted Use under the 5-1 Residential
District thus. the ILP was improperly 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 shall be stayed.
DECISION
IT IS THEREFORE the decision of the CarmeVClay Board of Zoning Appeals that Appeal Docket No.
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
day of
,20
q'fAIRPER50N, Carmel/Clay Board of Zoning Appeals
SECRET ARY, Carmel/Clay Board of Zoning Appeals
C:\NrPortbI\N01 \MSTUCKEY\43314_1.DOC
Conditions of the Board are listed on the back.
(Petitioner or his representative to sign.)
l
ZONING ORDINANCE
. ALLEY. A permanent public service way providing a secondary means of access to
abutting lands, and not intended for general traffic circulation.
ALTERATION, MAlERIAL. Any change to an approved plan of any type that involves the
substinition of one material, species, element, etc. for another. .
ALTERATION, MINOR Any change to an approved plan of any type that involves the
revision of less than ten percent (10%) of the plan's total area or approved materials.
ALTERATION, SUBSTANTIAL. Any change to an approved plan of any type that involves
the revision often percent (10%) or more of the plan's total area or approved materials.
ANIENNA A structure or device that is used for the purpose of collecting or transmitting
signals, images, sounds, or information of aIrj 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.
APARTMENT. A dwelling unit, prlmariIy of a rental natur~.
ARCHITECTURAL PLAN. .A plan for the construction of any structure designed by a
qualified registered architect.
ARTIF1CIAL LAKE. A man-made body of water fed by a watercourse.
ASSESSED VALUATION. The monetary value placed on a property and/or building
as established bY.$e assessor with authority over the jurisdiction oftbis ordinance.
AUTOMOBILE FILLING STATION~ Any place of business with pumps and under-
ground storage tanks, having as its purpose the selling of motor vehicle fuels and lubricants at
retail.
AUTOMOBILE SERVICE STATION. Any place of business with pumps and
underground storage tanks having as its purpose the retail servicing of motor vehiCles with fuels
and lubricants, including minor.repairs and inspections incidental thereto but.not including a
general repair shop, paint or body shop, machine shop, vulcanizing shop or any operation
requiring the removal or installation of a radiator, engine, cylinder head, crankcase, transmission,
differential, fender, door, bumper, grill, glass or other body part, or any body repairing or
painting.
BASEMENT. A story having part, but not less than one-haIt: of its height below grade.
A basement is counted as a story for the purposes of height regulation if subdivided, used for
dwelling purposes other than by ajanitor employed on the premises and/or as walk-out access.
8
ZONING ORDINANCE
j
5.0 5-1 RESIDENCE DISTRICT
Purpose and Intent. The purpose of this district is to provide for the development of
. innovative residential environments in keeping with the rural character of this district, by
providing for a development process that allows a high degree of flexibility in the design
of single-family subdivisions. Further, it is the purpose of this district to provide for a
development process that allows for more efficient use of the land through the
introduction of open space and conservation lands within subdivisions. It is the intention
of this .district to protect remaining significant natural features within this district by
placing an emphasis on less intensive urban land uses.
5.1 Permitted Uses:
5.1.1 Antenna,. if collocated on an existing or previously approved tower
Home occupation
Kenne~ residential'
Single-family dwelling
5.1.2 Area Density Requirements for qualifying subdivisions shall be regulated on a
sliding scale based upon the amount of open space provided. (see subdivision
regulations, section 7.0) .
.5.2 Special Uses: (See Section 21.0 for additional regulations.)
Antenna, if visually integrated with or camouflaged on or within a structure other than a
tower (such as a chiinney stack, church spire, light standard, monument, power line
support device or water tower).
Artificia1lake or pond (not part of a plat)
Cemetery
Church, temple or other place of worship
College or University .
Commercial greenhouse
Country club
Day nursery
Golf course
Kenne~ commercial
Kindergarten
Mineral extraction, borrow pit, top soil remoVal and their storage
Plant nursery
Power transmission line, in excess of 129 KV A
Private airplane or helicopter landing and/or service facility
34
, .
ZONING ORDINANCE
,
,"
Private recreational development or facility
Private water treatment and/or storage facilities .
Radio or television transmission tower
Raising and breeding of non-farm fowl and animals (not a kennel)
Riding stable
School of general elementary or secondary education (accredited by the State)
5.2.1 Minimum Area Requirements:
~
Cemetery
Day nursery
Kindergarten
Plant nursery
Minimum Area (Acres)
30
1
1
10
5.2.2 Other Requirements:
. Use
Mineral extraction,
borrow pit, top soil
Removal and their storage
Other Requirements
Minimum perimeter Natural Open
Space buffer (as defined in 7.3.B of
the Subdivision Regulations) of300'
when adjoining or abutting any
residential use or district
5.2.3 Special Exc~ons (see Section 21.0 for additional regulations)
Wireless telecommunications service tower, monopole-type COnstru,ction only
5.3. Accessory Building and Uses (See Section 25.0 for additional regulations.)
5.3.1 Accessory uses and structures are permitted under the following conditions:
(1) They do not alter or chAnge the character of the premises;
,(2) They are on the same property as the principal structure to which they are
accessory; .
(31 They are not attached to the principal structure, with the exception of an
allowable uniform and continuous roof supported by customary supports or
joists, and no other connection or attachment between the structures exists;
(4) They are not erected prior to the erection of the principal building;
(5) They do not exceed eighteen (18) feet in height;
(6) When detached from the principal building, they are set back seventy-five
(75) feet or more from the front lot line. Comer lots and through lots are
exempt from this paragraph 6.
35
.. '" ,. .
ZONING ORDINANCE
-.
i)
(7) When closer than ten (10) feet to main building, they shall be considered as
part of the main building and shall be provided with the side and rear yards
required for the main building; and
(8) When more than ten (rO) feet from a main building, they may be erected
within five (5) feet, or easement plus three (3) feet, of a side or rear lot line,
but not within any easement.
5.3.2 A private swimming pool may be permitted as an accessory use, but shall be
located only within the side or rear yard.. No swimming pool or its deck shall be
closer than ten (10) feet to the property line. For purposes for safety, the
following shall apply:.
(1) walls or fencing deemed to be impenetrable by the enforcing autho~ty, that ""
is not less than five (5) feet high completely surrounding the swimIning
pool and the deck area with exception of self-closing and latching gates
and doors, both capable of being locked~ other means not less than five (5)
feet high and deemed impenetrable by the enforcing authority at the time of
construction and completely surrounding the pool and deck area when the
pool is not used; and
(2) a combination of subdivisions (1) through (2) that completely surrounds
the pool"and deck with the exception of self-closing and latching gates and
doors which are capable of being locked~ and
(3) in conjunction with (I), (2), or (3) a safety pool cover may be used
provided that: "
A there is a continuous connection between the cover and the deck, so as
to prohibit access to the pool when the cover is completely drawn over
the pool; .
. B. it is mechanically operated by key or key and switch such that the
cover cannot be drawn upon or retracted without the use of a key;
C. it is capable of supporting a four hundred pound imposed load upon a
completely drawn cover,
D. it is installed with a track, rollers, rasils or guides; and
E. bears an identification tag indicating the name of the manufacturer, .
name 'ofthe installer, installation date, and applicable safety standards,
ifany. AMENDED BY Z-261 & Z-272.
5.3.3 Tennis courts may be permitted as an accessory use but shall be located only
within a side or rear yard. Open wire mesh fences surrounding tennis courts
may be erected to a height of 16 feet if such fences only enclose a regulation
court area and standard apron areas. Lighting of the court area shall not create
more than five foot candles of light 25 feet from the court perimeter.
5.3.4 Quarters for bonafied servants employed by the occupants of
the dwelling are permitted.
36
.j
ZONING ORDINANCE
"
5.3.5 One guest house with cooking facilities may be permitted as an accessory
building on lots containing not less than one (1) acre.
5.3.6 Accessory lighting is permitted; however, no lighting shall cause illumination at
or beyond any lot line in excess ofO.l foot-candles of light. .
5.3.7 Private radio, television reception and.transmitting towers and antennae are
permitted subject to applicable local, state and federal regulations. No
structure shall be located or permitted within ten (10) feet of a power
transmission line.
5.3.8 Accessory uses such as public. utility installations, private walks, driveways,
retaining walls, mail boxes, nameplates, ~p posts, birdbaths and. struct\1.res
of a like nature are pennitted in any required front, side or rear yard.
5.4 Height and Area Requirements (See Section 26.0 for additional regulations.)
5.4.1 Maximum height: 25 feet.
5.4.2 Minimum lot area:"
A Lots without service by a Community water system and a community sanitary
sewer system, 43,560 square feet.
B~ Lots with service from a community water system, and private septic system,
35,000 square feet. "
C. Lots with service from a community sanitary sewer system and private water
system, 25,000 square feet.
D. Lots with community water system and community sanitary sewer system
15,000 square feet. "
.5.4.3 :Minimum Lot Standards.
A Mnimum front yard: 40 feet.
B. Mnimum side yard: single-family home -10 feet;
all other uses - 20 feet
C. Minimum aggregate of side yard: single-family home - 30 feet;
all other uses - 50 feet.
37
i
. .
. ZONING ORDINANCE
;.
(J
D. Minimum rear yard: single-family home - 20 feet;
all other uses - 15 feet.
E. Minimum lot width: single-family home - 120 feet;
all other uses - 200 feet.
F. Maximum lot coverage: 35 percent cflot.
5.4.4 Any lot within a qualifying subdivision, as descn"bed in Chapter 7.0 of the
subdivision regulations, is exempt from the requirements of sections 5.4.2 and
5.4.3.
38
~.
. . '
:>>
CARMELJCLAY BOARD OF ZONING APPEALS
J
"!'l
Carmel, Indiana
Docket No. :
Petitioner:
RICHARD DEER
AN DINGS OF FACT - APPEAL rBallot Sheet}
1.
2.
3.
4.
5.
6.
..
DATED THIS
DAY OF
.n .lQQ.1. .
Board Member
R7A AnnA::;/ Annlir.::ltinn - nn 7
- 0"
6.~
City of CarmeiCTI AWG 242001
DEPAKfMENTOF COMMUNITI SERVICES
!
/ ~ ',-:...
Michael P. Hollibaugh
Director
August 23, 2001
/,,;"
C
l~\
\
/,,~ /
Mr. Jay Lemmon
Q Serve Communications
4515 South High School Road
. Indianapolis, IN 46241
RE: Revocation of Permit No.627.01
Dear Mr. Lemmon:
Pursuant to the authority vested in me by the general ordinances of the jurisdictional :3Iea
6f the City of Carmel, Indiana, under whose jurisdiction all improvement location permits
(building permits) are issued for that City and for Clay Township, Ii1diana, I hereby
. revoke the above referenced permit.
This office has determi:Oed that, prior to the issuance of a permit for the proposed
"Equipment Shelter" on the ''Lease Area" (as described in your Application for
Improvement Location Permit), the "Parent Tract" should have been divided into twql (2)
or more smaller parcels. Under Chapter 3 of the Carmel Clay Zoning Ordinance, this:
cons.titutes the subdivision ofland requiring plat approval by the Plan Commission.
Should you desire to submit an application for plat approval, you may contact Jon
Dobosiewicz oftbis Department to discuss the necessary process.
Sincerely,
.. ?!ti~
Director
Department of Community Services
CC: James A. L. Buddenba~ Attorney for Sprint Spectrum, LP"'/".
ONE CMC SQUARE CARMEL. INDIANA 46032 317/571-2417
"'
~
CITY OF CARMEL - CLAY TOWNSHIP
5.q
-., ...
HAMILTON COUNTY, INDIANA
APPLICATION FOR BOARD OF ZONING APPEALS ACTION
,'-'
:;j
DATE RECEIVED:
APPEAL REQUEST
1} Ja Lemmon Qserve Communications
Address: 4515 S. Hi h School Rd. Indiana olis IN 46241
2} Project Name: 1388 Queens Way
Engineer/Architect Lawrence C. Suhre
Phone: (317)290-9549
Phone: (317) 237-3800
Attorney: Thomas F. Bedsole. Attorney for Sprint Spectrum loP.
3) Applicanfs Status: (Check the appropriate response)
(a) The applicant's name is on the deed to the property
(b) The applicant is the contract purchaser of the property
x (c) Other: Applicant isa tenant for the purpose of co-locatinq a personal wireless service antenna on
existinq tower. '
4} If Item 3} (c) is checked, please complete the following:
Owner of the property involved: Edwin C. Zamber
Owner's address: 1388 Queens Way. Carmel. IN 46032
Phone: (317) 848-9739
5} Record of Ownership:
Deed Book No./lnstrumentNo.
9739910
Page:
N/A
Purchase date: September22., 1997
6} Common address of the property involved:' 1388 Queens Way. Carmel. IN
Legal description: See Attached Exhibit -An
Tax Map Parcel No.: 17-13-03-00-00-028.017
7} State explanation of requested Appeal: (State what you want to do and cite the section number(s) of the
Carmel/Clay Zoning ,Ordinance which applies and/or creates the need for this appeal).
See Attached Exhibit "S"
8) State reasons supporting the Appeal: (Additionally, complete the attached question sheet entitled "Findings of Fact-
Appeal"). '
See Attached Exhibit "B"
BZA Appeal Application - pg 1 .
9) Present zoning of the property (give exact classification): S-1
.
10) Present use of the property:. Residential
11 )
Size of 10Vparcel in question 6.09
acres
\.j
12) . . Describe the proposed use of the property Co-location of antenna on existinQ tower and construction of accessory
buildinQ.
13)
Is the property:
Owner occupied
x
Renter occupied
. Other
14)
Are there any restrictions, laws, covenants, variances. special uses, or appeals filed in connection with this
property that would relate or affect its use for the specific purpose of this application? If yes, give date and docket
number, decision rendered and pertinent explanation.
Appeal Request of Richard Deer filed AUQust 15. 2001. Docket Number A-97 -01
15) Has work for which this application is being filed already started? If answer is yes, give details:
Building Permit Number. 2001.0627.B - Revoked
Builder. Jav lemmon. Qserve Communications
16) If proposed appeal is granted. when will the work commence? Immediatelv
17) If the proposed appeal is granted;whowill operate and/or use the proposed improvement for which this application
has been filed? .
Sprint Spectrum loP.
NOTE:
lEGAL NOTICE shall be published in the Noblesville Dailv ledQer a MANDATORY twenty-five (25) days prior to
the public hearing date. The certified "Proof of Publication" affidavit for the newspaper must be available for inspection the
night'of the hearing.
. lEGAL NOTICE to all adjoining and abutting property owners is also MANDATORY, two methods of notice are
recommended:
1) CERTIFIED MAll- RETURN RECEIPT REQUESTED sent to adjoining property owners. (The white receipt
should be stamped by the Post Office at least twenty-five (25) days prior to the public hearing date)
2) HAND DELIVERED to adjoining and abutting property owners (A receipt signed by the adjoining and abutting
property owner acknowledging the twenty-fIVe (25) day notice should be kept for verification that the notice was completed)
REALIZE THE BURDEN OF PROOF FOR ALL NOTICES IS THE RESPONSIBILITY OF THE APPLICANT. AGAIN. THIS
TASK MUST BE COMPLETED AT LEASTlWENTY-FIVE (25) DAYS PRIOR TO PUBLIC HEARING DATE.
The applicant understands that docket numbers will not be assiQned until all supportinQ information has been
submitted to the Department of Community Services.
BZA Appeal Application - pg 2
The applicant certifies by signing this application that he/she has been advised that all representations of the
t. Department of Community Services are advisory only and that the applicant should rely on appropriate subdivision and
. . zoning ordinance and/or the legal advice of hislher attorney.
~
I, I Auditor of Hamilton County, Indiana, certify that the attached
affidavit is a true and complete listing of the adjoining and adjacent property owners concerning Docket No.
OWNER
ADDRESS
Auditor of Hamilton County, Indiana
Date
. BZA Appeal Application - pg 3
AFFIDAVIT
I, being duly sworn depose and say that the foregoing signatures, statements and answers herein contained and
the information herewith submitted are in all respects true and correct to the best of my knowledge and belief. I, the
undersigned, authorize the applicant to act on my behalf with regard to this application and subsequent hearings and
testimony. .~~ .'
Signed: ~
( ney for Sprint Spectrum~)
"
.
Thomas F. Bedsole
(Please Print)
STATE OF INDIANA
SS:
(Yl II l.J 0,)
(County in which notarization take place)
for ..........JOtffJSDN
.....f (Notary Public's county of r~sidence)
7 HoMtrs r. ~7.)s(jLt:'
(Property Owner, Attorney, or Power of Attorney)
County of
Before me the undersigned, a Notary Public
County, State of Indiana, personally appeared
and acknowledge the execution of the foregoing
instrument this
J,,J
day of
?:i:: ~ ;2;i'
Notary Public-Signature
.' ,.: f t! ~: " . .
...\.......... ,'Or " "t#
.,:.' '. ;..", I / -. i '"
I;~~:..~...h....~.~ :;,~;
:; ""~: .-J _' ,:' ;..:;......,{SEAL}
~ ,'.. '. '.; ~
. . c.'",....
"0 I' 'Ill. ;::
"0 j;...... " .... ,...:::
'.' l' ...'...." ,-
:'" . f) 1 t, f.. r,\.--'
. f, ',I, I ~ "" & II \" \".
(lA-Ilk R...t Ai.{
s
;..d rn-l
Notary, Public-Please Print
My commission expires:
~ -;ZO - 09
BZA Appeal Application - pg 4
. NOTICE OF PUBLIC HEARING BEFORE THE
~
.
CARMEUCLA Y BOARD OF ZONING APPEALS
Docket No.
Notice is hereby given that the CarmeVClay Board of Zoning Appeals meeting on the
day of
. 200 at 7:00 pm in the City Council Chamber,2nd floor of City Hall,
One (1) Civic Square, Carmel, Indiana 46032 will hold a Public Hearing upon an Appeal of a decision rendered by the
Director of the Department of Community Services to
property being known as
The application is identified as Docket No.
The real estate affected by said application is described as follows: .
(Insert Legal Description)
All interested persons desiring to present their views o~ the above application, either in writing or verbally, will be given
an opportunity to be heard at the.above-mentioned time and place.
PETITIONERS
BZA Appeal Application - pg 5
PETITIONER'S AFFIDAVIT OF NOTICE Ot: PUBLIC HEARING
CARMEUCLAY BOARD OF ZONING APPEALS
(Petitioner's Name)
NOTICE OF PUBLIC HEARING BEFORE THE CARMEUCLAY BOARD OF ZONING APPEALS CONSIDERING
DO HEREBY CERTIFY THAT A LEGAL
.
I (WE)
DOCKET NUMBER
. ,WAS GIVEN AT LEAST TWENTY-FIVE (25) DAYS PRIOR
TO THE DATE OF THE PUBLIC HEARING TO THE BELOW LISTED OF ADJOINING AND ABUTTING PROPERTY
OWNERS:
OWNER
ADDRESS
STATE OF INDIANA
SS:
The undersigned, swear that the above information is in all respects is true and correct to the best of my
knowledge and belief. ' .
Signature of Petitioner
County of Before me the undersigned, a Notary Public
(County in which notarization takes place)
for County, State of Indiana. personally appeared
(Notary Public's county of residence)
and acknowledge the execution of the foregoing instrument this
(Property Owner, Attorney, or Power of Attorney)
day of
,200
Notary Public-Signature
(SEAL)
Notary Public-Please Print
My commission expires:
8ZA Appeal Application - pg 6
. .
CARMEUCLA Y BOARD OF ZONING APPEALS
Carmel, Indiana
;;
Docket No, :
Petitioner:
Sprint Spectrum. LP
FIND1NGS OF FACT - APPEAL (Ballot Sheet)
1.
2. .
3.
4.
5.
6.
DATED THIS
DAY OF
,20_.
Board Member
BZA Appeal Application - pg 7
CARMEUCLA Y BOARD OF ZONING APPEALS
CARMEL, INDIANA
Docket No.:
.'
Petitioner:
Sprint Spectrum. LP
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:
Revocation of Improvement Location Permit (2001.0627.B)
Agency: Department of Community Services
Date of Agency Decision: Auqust 23. 2001
3. Attached copy of Ordinance or materials which is subject of Appeal:
Section 5.0 - S-1 Residence District
Section 3.7 of the Carmel/Clav Zoninq Ordinance. entitled Definitions. specificallv the term .SUBDIVISION"
4. The written materials submitted to the Board does support the Petitioner because:
The use for which the ILP was oranted is a permitted use in the S-1 Residence district. and the lease of riqhts
to use the tower and construct an accessory buildinq does not constitute a division of land. Therefore. the lease
arranqement does not constitute the subdivision of. land. .
5. The Agency (DOCS) and Official (Director) should not be affirmed.
6. The work on the premises upon which appeal has been filed shall not be stayed because the permit was properly
issued, and subdivision is not necessary. .
DECISION
IT IS THEREFORE the decision of the CarmeVClay Board of . Zoning Appeals that Appeal Docket No.
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
day of
,200
CHAIRPERSON, Carmel/Clay Board of Zoning Appeals
SECRETARY, Carmel/Clay Board of Zoning Appeals
S:\carmellanduseregs\checklist\appealapp rev112412000
Conditions of the Board are listed on the back.
(Petitioner or his representative to sign).
BZA Appeal Application - pg 8
ZONING ORDINANCE
"
5.0 S-1 RESIDENCE DISlRICT
PuIJ>ose and Intent. The purpose of this district is to provide for the development of
innovative residential environments in keeping with the rural character of this district, by
providing for a development process that allows a high degree of flexibility in the design
of single-family subgivisions. Further, it is the purpose of this district to provide for a
development process that allows for more efficient use of the land through the
introduction of open space and conservation lands within subdivisions. It is the intention
of this district to protect remaining significant natural features within this district by
placing an emphasis on less intensive urban land uses.
5.1 Permitted Uses: .
5. I. I Antenna, if collocated on an existing or previously approved tower'
Home occupation
KenneL residential
Single-family dwelling.
5.1.2 Area Density Requirements for qualifying subdivisions shall be regulated on a
sliding scale based upon the amount of open space provided. (see subdivision
regulations, section 7.0)
5.2 Special Uses: (See Section 21.0 for additional regulations.)
Antenna, if visually integrated with or camouflaged on or within a structure other than a
tower (such as a chiInney stack, church spire, light standard, monument, power line
support device or water tower).
Artificial lake or pond (not part ofa plat)
Cemetery .
Church, temple or other place of worship
College or University
. Commercial greenhouse
Country club
Day nursery
Golf cours~
KenneL commercial
Kindergarten
lvfineraI extraction, borrow pit. top soil removal and their storage
Plant nursery
Power transmission line, in excess of 129 KV A
Private airplane or helicopter landing and/or service facility
34
WNING ORDINANCE ..."
."
Private recreational development or facility
Private water treatment and/or storage facilities
Radio or television transmission tower.
Raising and breeding of non-farm fowl and animals (not a kennel)
Riding stable
School of general elementary or secondary education (accredited by the State)
5.2.1 Minimum Area Requirements:
Use
Cemetery
Day nursery
Kindergarten
Plant nursery
1vfinimum Area (Acres)
30
1
1
10
5.2.2 Other Requirements:
Use
Mineral extraction,
borrow pit, top soil
Removal and their storage
Other Requirements
Minimum perimeter Natural Open
Space buffer (as defined in 7.3.B of
the Subdivision Regulations) of300'
when adjoining or abutting any
residential use or district
. 5.2.3 Special Exceptions (see Section 21..0 for additional regulations)
WJreless telecommunications service tower, monopole-type constru.ction only
5.3 Accessory Building and Uses (See Section 25.0 for additional regulations.)
5.3.1 Accessory uses and structures are permitted under the fonowing conditions:
(1) They do not alter or cmnge the character of the premises;
. (2) They are on the same property as the principal structure to which they are
accessory; .
(31 They are not attached to the principal structure, with the exception of an
allowable uniform and continuous roof supported by customary supports or
joists, and no other connection or attaclunent between the structures exists;
(4) They are not erected prior to the erection of the principal building;
(5) They do not exceed eighteen (18) feet in height;
(6) When detached from the principal building. they are set back seventy-five
(75) feet or more from the front lot line. Comer lots and through lots are
exempt from this paragraph 6.
35
l.UI'UI'U Utu)ll'jA,Nl;t.
. (7) When closer than ten (10) feet to main building. they shall be considered as
part of the main building and shall be provided with the side and rear yards
required for the main building; and
(8) When more than ten (10) feet from a main building, they may be erected
within five (5) feet, or easement plus three (3) feet, of a side or rear lot line,
but not within any easement. .
5.3.2 A private swimming pool may be permitted as an accessory use, but shall be
located only within the side or rear yard.. No swimming pool or its deck shall be
closer than ten (10) feet to the property line. For purposes for safety, the
fonowing shall apply:
(1) waDs or fencing deemed to be impenetrable by the enforcing authority, that
is not less than five (5) feet high completely surrounding the swimIning
pool and the deck area with exception of self-closing and latching gates
and doors, both capable of being locked; other means not less than five (5)
feet high and deemed impenetrable by the .enforcing authority at the time of
construction and completely surrounding the pool and deck area when the
pool is not used; and
(2) a combination of subdivisions (I) through (2) that completely surrounds
the pool and deck with the exception of self-closing and latching gates and.
doors which are capable of being locked; and
(3) in conjunction with (1), (2), or (3) a safety pool cover may be used
provided that:
A there is a continuoUs connection between the cover and the deck, so as
to prohibit access to the pool when the cover is completely drawn over
the pool;
. B. it is mechanically operated by key or key and switch such that the
cover cannot be drawn upon or retracted without the use of a key;
. C. it is capable of supporting a four hundred pound imposed load upon a
completely drawn cover;
D. it is installed with a track, rollers, rasils or guides; and
E. bears an identification tag indicating the name of the manufacturer,
name of the installer; installation date, and applicable Safety standards,
ifany. AMENDED BY Z-261 & Z-272.
5.3.3 Tennis courts may be pennitted as an accessory use but shall be located only
within a side or rear yard. Open wire mesh fences surrounding tennis courts
may be erected to a height of 16 feet if such fences only enclose a regulation
court area and standard apron areas. Lighting of the court area shall not create
more than five foot candles of light 25 feet from the court perimeter.
5.3.4 Quarters for bonafied servants employed by the occupants of
the dwelling are.permitted.
36
ZONING ORDINANCE
5.3.5 One guest house with cooking facilities may be permitted' as an accessory
building on lots containing not less than one (1) acre.
/
.'
5.3.6 Accessory lighting is permitted; however, no lighting shall cause illnmin::ltion at
or beyond any lot line in excess of 0.1 foot-candles of light .
5.3.7 Private radio, television reception and transmitting towers and antennae are
permitted subject to applicable local. state and federal regulations. No
structure shall be located or pennitted within ten (10) feet of a power
transmission line.
5.3.8 Accessory uses such as public utility installations, private walks, driveways,
retaining waDs, mail boxes, nameplates,lCl:lllp posts, birdbaths and structlJres
of a like nature are permitted in any required front, side or rear yard.
S.4 Height and Area RetDJirements (See Section 26.0 for additional regulations.)
5.4.1 Maximum height: 25 feet.
5.4.2 Minimum lot area:
A. Lots without service by a Community water system and a community sanitary
, sewer system, 43,560 square feet.
B. Lots with service from a community water system, and private septic system,
35,000 square feet.
C. Lots with service from a community sanitary sewer system and private water
system, 25,000 square feet.
D. Lots with community water system and community sanitaIy sewer system
IS,OOO.square feet.
5.4.3 Minimum Lot Standards.
A. Minimum front yard: 40 feet.
B. Minimum side yard: single-family home - 10 feet;
all other uses - 20 feet
C. Minimum aggregate of side yard: single-family home - 30 feet;
all other uses - 50 feet.
37
ZONING ORDINANa
"
D. Minimum rear yard: singIe-fumiIy home - 20 feet;
all other uses - IS feet.
E. Minimum lot width: singIe-ftmily home - 120 feet;
all other uses - 200 feet. .
F. Maximum lot coverage: 3S percent oflot.
5.4.4 Any lot within a qualifying subdivision, as described in Chapter 7.0 of the
subdivision regulations. is exempt from the requirements of sections 5.4.2 and
504.3.
38
PLAT
RO AD w::\ Y WIDTH
ROW HOUSE OR TO\V"'N HOUSE
SOIL ~t-\P
STREET.
SUB o [V1S rON
TYPE OF OW}.iERSHIP
TYPE OF STRUCTURE
'vlSI0N CLE..1,RANCE ON CO~'&'.fER LOTS
ZERO LOT LINE"
. .
C. Section 3.; of the CarmeVClay Zoning Ordiilance (Z.239), as amended, e~titl~d Dennitions. is
hereby further amended to change the defmition of the term "StTBDMSIONn to read as follows:
"Su13DMSION. Any of the following shall be considered the subdivision ofland requiring plat
approval by the Plan Commission:
. (1) The division of any parcel of land (recorded after January 11, t980, and before
January t, 1000) into three (3) or more parcels. sites or lots, wi:.en more than cwo
(2) of the lotS are less than five (5) acres in are~ for [he purpose ot transfer of
ownership. or building development, exc!udingcemeteries; or
(2) The improvement (before January 1,2000) of one (1) or more t=arcels ofland for
residential~ commercial or industrial Si:rucrures or groups of Si:!":zcrures involving the
subdivision and allocation of land as streetS or other open spac:s for. common use
by~ owners. occupantS or tease holders or as easements ror the extension and
maintenance of public se'.ver. ',~"ater, storm drai~age, or other ?'.:~lic utilities and
faci.lities; or
(3) .-\.ny division (recorded alter December 31, t 999) of a lot or ott~r parcel of land
where: (.-\) the division resultS in two i2) or more smaller locs or parcets. at least
two (2) otwhich are less than five l5) acres in are3.; (B) the division results in two
p) or more smaller lots or parcels. any of which frOnt on or utilize an e:lSemenc 0 f
access; or I,C) the division is for the purpose of building deve!c~ment (excluding
cemeteries) and a Si:reet is to be dedicJeed. reserved, or otherwi.:~ platted.
All divisions or'land recorded :l:!er a certain c::'i:e. :1S specified in this c:dnition. from a lot
or other !Jarcel ofiand describec un or befure ~h::.t dace in the records of:~e Hamiiton
Coumy Recorder shall be counted in cete:minir.g th~ number 0 f lots or ?ucels for the
purpose of this derinition. The origin:!.l lot or ;>arcelshall also be cOIlr::e~ for this purpose.
D. Section 3 of the Flooriolain Ordinar.::e (Z.237),:15 :lmended. is hereby fur:::~r J.mended to
. .
include the foIlowing subparag:1ph (hl:
Ordinance ~o.
?J.ge The:::: or' Sc:ven PJ~~S
EXHIBIT A
Legal Description
A PART OF THE NORTHWEST QUARTER OF SECTION 3, TOWNSHIP 17 NORTII OF
RANGE 3 EAST IN HAMILTON COUNTY, INDIANA, BEING MORE PARTICULARLY
DESCRlBED AS FOLLOWS:
BEGINNING AT A POINT ON TIlE WEST LINE OF SAID QUARTER SECTION WHICH
BEARS NORTH 00 DEGREES 09 MINUTES 55 SECTIONS EAST (ASSmvrED BEARING)
470.00 FEET FROM THE SOUTIIWEST CORNER OF SAID QUARTER SECTION, TIffiNCE
NORTH 00 DEGREES 09 MINUTES 55 SECONDS EAST UPON AND ALONG SAID WEST
LINE 509.93 FEET TO A POINT WHICH BEARS SOUTH 00 DEGREES 09 MINUTES 55
SECONDS WEST 1605 FEET FROM THE NORTIIWEST QUARTER OF SAID QUARTER
SECTION, THENCE SOUTH 89 DEGREES 50 MINUTES 05 SECONDS EAST 520.38 FEET,
THENCE SOUTII 00 DEGREES 09 MINUTES 55 SECONDS WEST 509.93 FEET, TIIENCE
NORTH 89 DEGREES 50 MINUTES 05 SECONDS WEST 520.38 FEET TO THE PLACE OF
BEGINNING, CONTAINING 6.09 ACRES, MORE OR LESS (5.57 ACRES NET OF RIGHT OF
WAY)
EXHIBIT B
.'
IN THE BOARD OF ZONING APPEALS
CITY OF CARMEL, INDIANA
SPRlNT SPECTRUM L.P.
Appellant,
) Docket No.
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Re: Revocation of Building Pennit
Number 2001.0627.B by MICHAEL P.
HOLLffiAUGH, in his Capacity as
DIRECTOR OF THE DEPARTMENT
OF COMMUNITY SERVICES,
CARMEL, INDIANA,
APPEAL
Appellant, Sprint Spectrum L.P. (hereinafter "Sprint") by counsel, and for its Appeal of
the revocation of its location improvement permit by Michael P. Hollibaugh, in his capacity as
Director ("Director'') of the Department of Community Services (the "Department''), Carmel,
Indiana, ahd any other applicable capacity, states as follows:
SUMMARY OF THE CASE
This Appeal arises out of the Director's decision to revoke an improvement location
permit (the "Building Permit'') for property located at 1388 Queens Way, Carmel, Indiana (the
"Site"). The Building Permit permits the collocation (Le., the installation and operation) by
Sprint of certain wireless communication antennae and related improvements and equipment
(collectively, the "Sprint Antenna Equipment") on a.? existing 135 foot tall antenna tower
property (the "Existing Tower"). The collocation of the Sprint Antenna Equipment on the
Existing Tower is necessary to provide seamless, reliable wireless telephone and other
VJ . APPEAL OF REVOCAnON OF LOCA nON IMPROVEMENT PERMIT TO CARMEL ZONING BOARa.DOC
communication services to persons located in parts of the City of Carmel and environs. The
Director's purported revocation of the Building Permit was arbitrary, capricious, illegal, unjust,
impermissible and contrary to applicable law. Pursuant to the Carmel/Clay Zoning Ordinance
(the "Carmel Code"), the Director's actions entitle Sprint to, inter alia, an order reversing and
nullifying the Director's attempted revocation of the Building Permit.
PARTIES
1. Sprint Spectrum L.P. is a Delaware limited partnership, with its principal place of
business at 2300 Shawnee Mission Parkway, Westwood, Kansas, authorized to provide personal
communications services ("PCS") under license by the Federal Communications Commission
("FCC") in the State of Indiana.
2. Michael P . Hollibaugh is the Director of the Department and, in that capacity,.is
responsible for issuing building permits in the City of Carmel, Indiana.
V3 . APPEI\1. OF REVOCA nON OF LOCA nON IMPROVEMENT PERMIT TO CAR."IEL;!ONlNG BOARD. DOC
JURISDICTION
. 3. Section 30.1 of the Cannel Code authorizes thisBoard of Zoning Appeals to hear,
review and determine appeals taken from any order, requirement, decision or determination
made by the Director or any administrative official or board charged with the enforcement of the
Zoning or Subdivision Control Ordinance of the City of Carmel.
4. The Board of Zoning Appeals has jurisdiction to hear and determine this Appeal
pursuant to Section 30.1 of the Carmel Code since this Appeal stems from the order,
requirement, decision and determination by the Director to revoke the Building Permit.
BACKGROUND FACTS
A. Sprint's PCS System
5. Sprint, along with its affiliates, is a communications venture committed to
providing a single iJltegrated offering of wireless telephone and other communications services
by building a national wireless network using PCS technology under the brand name "Sprint
PCS." ~CS technology is a new generation of wireless service that uses digital transmission to
improve available telecommunications services. It provides a clearer connection, greater
security to users and better accommodates the requirements of internet and other data
transmission. Moreover, pes technology has substantially 'greater potential capacity than analog
wireless technology.
6. On or about June 23, 1995, Sprint, through a partnership, was the successful
bidder at the auction held by the FCC for a PCS wireless broadcast license in the Indianapolis
VJ . APPEAL OF IlEVOCA nON OF LOCATION IMPROVEMENT PERMIT TO CAR....IEL 30NING BOARD. DOC
Major Trading Area ("Indianapolis MTA") which includes Carmel, Indiana. Sprint's
Indianapolis MT A license expires on June 23, 2005.
7. In order to meet its continuing obligations under the FCC license and to serve its
customer base, Sprint must develop and maintain a system of "cell sites" to serve portable
wireles~ communication handsets and mobile telephones. These "cell sites" consist of antennae
mounted on poles, buildings or other structures, connected to small equipment cabinets located
near the antennae. The antennae feed the low power radio signals received from mobile . .
communications devices through electronic devices located in the equipment cabinets and,
ultimately, into an ordinary phone line from which the call can'be routed to anywhere in the
world.
8. Cell sites are integral to Sprint's pes network. To maintain effective,
uninterrupted service to a pes telepho~e user traveling in a given area, there must be a
continuous interco~ected series of cells, which overlap in a grid pattern approximating a
honeycomb. Additionally, each cell site must be locat~d within a limited area so that it can
properly interact with the surro).lIlding cell sites and thereby provide reliable coverage throughout
the cell. Each antenna has' a limited maximum coverage area, the extent of which varies,
depending upon several factors, including the height of the antenna, local topography and
vegetation, and the configuration of various existing structures.
9. Sprint's engineers have determined that the Site is critical to the overall
engineering and technical plan of Sprint's network in the Indianapolis MTA.
B. The Site Development Process
VJ . APPEAL OF REVOCATION OF LOCATION IMPROVEMENT PERMIT TO CARMEL40NING BOAAO.DOC
10. On or about May 14,2001, Sprint entered into a lease agreement with Edwin
Zamber to install and operate a PCS antenna array and related equipment on the existing
approximately 135 foot tall antenna located on the Site.. Sprint has 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 that Sprint therefore would have had to build its
own tower support structure to meet its coverage requirements.
..
.11. The Property is zoned "S-1 Residence District" pursuant to Section 1 0-30 ,of the
Carmel Code. Collocation of an antenna facility on an existing tower facility is a "permitted
use" in the S-1 Residence District pursuant to Section 10-30(b) of the Carmel Code.
12. On or about February 22, 2001, a contractor for Sprint contacted the Department
to discuss the Sprint Antenna Equipment. In connection with those discussions, the Department
staff acknowledged that the Sprint Antenna Equipment was a permitted use, and requested that
Sprint house its gro:md level equipment in a brick clad equipment shelter (the "Shelter"). A
separate shelter is not needed by Sprint for installation or operation of the antenna, and Sprint's
ground-level pes equipment could have been housed in, among other things, equipment cabinets
or in the basement of Mr. Zamber's home. The Shelter's architecture and style duplicates the
design and character of the 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,
Sprint agreed to landscape the area surrounding the Shelter.
13. The Shelter is permitted as part of a collocation pursuant to Section 1 0-30(b) of
the Carmel Code.
V3. APPEAL OF REVOCATION OF LOCATION IMPROVEMENT PERMIT TO CARMEL 50N~G BOARD. DOC
14.
On 01' about April 17, 200 I, Sprint, through Acquisition Mercenaries, Inc., its
contractor, made application with the Department for the Building Permit. On or about June 4,
2001, Sprint submitted revised plans for the Building Permit application to include the Shelter
requested by the Department's staff.
15. On or about June 15,2001, the Department issued the Building Permit for the
Sprint Antenna Equipment. The Building Permit bears identification number 2001.0627.B
(Copy attached hereto as Exhibit 1).
16. On or about July. 9, 2001, Sprint engaged Q Serve Communications ("Q Serve")
as the general contractor for the installation of the Sprint Antenna Equipment.
17. On or about August 6, 2001, Q Serve began construction pursuant to the Building
Permit. 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 Site.
18. On or about August 15,2001, an owner of property adjacent to the Site filed an
applica~on for an appeals action with the Board of Zoning Appeals objecting to the issuance of
the Building Permit.
19. On or about August 15,2001, Jeff Kendall, Building Commissioner for Cannel
issued a stop work order on the project.
20. Without notice or hearing,on or about August 23,2001, the Director sent Q Serve
a one-page letter revoking Sprint's Building Permit. (Copy attached as Exhibit 2) (the
VJ - APPEAl. OF REVOCATION OF LOCATION IMPRO~"EMENT PERMIT TO CAIlMEL60NlNG BOARD. DOC
"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 Improvement Location
Permit), the "Parent Tract" should have been divided into two (2)
or smaller parcels. Under Chapter 3 of the Carmel Clay Zoning
Ordinance, this constitutes the subdivision ofland requiring plat
approval by the Plan Commission.
At no time prior to its receipt of the Revocation Letter had Sprint been informed of any alleged
need for plat approval by the Plan Commission.
21. Sprint has incurred over $400,000 in site development expenses through the date
of the Revocation Letter.
22. The Revocation Letter prohibits Sprint from operating a facility necessary to its
provision of continuous and uninterrupted wireless communications services and, therefore,
Sprint cannot carry out its federally-imposed obligation to provide such services to the
Indianapolis MT A ;mder its licenses. The FCC granted Sprint the licenses 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's ability to fulfill this Federal goal. In addition, the
Revocation Letter has caused Sprint to suffer a loss of consumer goodwill and critical market
share. This results in a competitive disadvantage which Sprint might not be able to oyercome.
CLAIM FOR RELIEF
23: Without waiving or otherwise limiting any other claims or causes of action
available to it, Sprint hereby states and avers that each of the following bases, in and of itself and
without regard to any other basis, compels the reversal of the Director's determination,
VJ - APPEAL OF REVOCATION OF LOCATION IMPROVEMENT PERMIT TO c.UME1.10NINO BOARO.DOC
requirement, decision and order under the Revocation Letter and the declaration that the
Revocation Letter is null and void.
A. The Director's Revocation of the Building Permit is Not Permitted Under the
Carmel Code
24. Indiana state law empowers Indiana municipalities to exercise certain powers
concerning the subdivision of real property. That power is not unlimited, but is subject to the
terms and conditions respecting the same imposed by the laws of the state of Indiana and such
further limitations as may be imposed under applicable local ordinance. The Sprint Antepna
Equipment is not the type offaciIity which falls within the ambit of applicable subdivision
control law, and the purposes and intents of such regulation would not be furthered in this
context
25. Under applicable local ordinance, no "division" has occurred relative to the Sprint
Antenna Equipment, hence the City has no right, power or authority to impose its subdivision
control ordinances~th resJlect thereto.
26. Even if that were not the case, subdivision control authority does not extend to
utility facilities.
27. The specific provisions of the Carmel Code which explicitly authorize the
collocation of the Sprint Antenna Equipment trump any conflicting provisions of general
applicability .
28. Under the Carmel Code, neither the Director, nor any other board or official, has
the right to issue the Revocation Letter or to attempt to revoke otherwise the Building Permit.
VJ . APPEAL OF REVOCATION OF LOCATION IMPROVEMENT PERMIT TO CARMEl.. 80N1NG BDAIlD.DOC
29. Since the sole basis for the revocation of the Building Permit is the alleged failure
to obtain subdivision approval, but no subdivision approval is required under applicable local
ordinance relative to the Sprint Antenna Equipment, the Revocation Letter was without legal
basis, and must be reversed.
B. Other Claims
30. The Sprint Antenna Equipment and the Building Permit are also subject to other
. federal and state laws which are not within the purview of the Board of Zoning Appeals. .
31. A failure by the Board to reverse and revoke the Revocation Letter or to issue any
other relief herein requested may entitle Sprint to pursue any and all such additional claims,
causes of action and forms of relief. Sprint expressly reserves all of its claims, causes of action
and other rights.
WHEREFORE, Sprint prays that the Board enter an order approving this Appeal and
reversing the Revoc,ation Letter, thereby declaring the same null and void, and for such other and
further relief as the Board deems appropriate. Please furnish to the undersigned copies of all
reasons relating to your decision.
Respectfully submitted,
LOCKE REYNOLDS LLP
By:
Tho edsole, #15980-49
Attorney for Plaintiff,
Sprint S pectruin L.P.
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
V3 . APPEAL OF REVOCATION OF LOCATION lMPROVEMENr PERMIT TO CARMEL~ONINQ BOARO.DOC
~ .
P.O. Box 44961
Indianapolis, Indiana 46244-0961
Phone: (317) 237-3800
Fax: (317) 237-3900
V3. A.PPEAI. OF R.EYOCATlON OF LOCATION lMPROYEMSNl' PERMIT TO CARMElJ.:O>N1NCi BOARD.DOC
. .
,.~>
-.
Ex.H
IN THE BOARD OF ZONING APPEALS
CITY OF CARMEL, INDIANA
200
DOCS
)
MOTION TO DISMISS
SPRINT SPECTRUM L.P.
Appellant,
Re: Revocation of Building Permi~
Number 2001.0627.B by MlCHAEL P.
HOLLmAUOH, in his Capacity as
DIRECTOR OF THE DEPARTMENT
OF coMMUNITY SERVICES,
cARMEL, INDIANA,
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Richard Deer. an adjacent property owner to the site commonly known as 1388 Queens
. Way, Carmel, Indiana (the "Site") respectfully requests that pursuant to Section 30.1 of the
Zoning Ordinance, Ordinance NO. Z-l60, as amended, of the City of Cannel and Clay
Township, Hamilton County, Indiana (hereinafter, "Section 30.1 of the Carmel Code''} this
Bo~ of Zoning Appeals dismiss this appeal and would show as follows:
1. Michael P. HolbD3ugh (the "Director''). in his capacity as Director of the
Department of Conununity Services (the "Department"). Cannel, Indiana revoked the issuance
of the improvement location permit (the nILP") on August 23. 2001
2. Sprint Spectrum L.P. (the "Appellant'') filed its appeal on September 24, 2001
(the "Appeal''} thirty-three (33) days after the revocation of the lLP.
3. The Appeal was not timely filed.
4. Pursuant to Section 30.1 of the Carmel Code, Appellant has to and including
September 21,200 I in which to file its Appeal.
5. Section 30.1 of the Cannel Code states "All appeals shall be filed with tbe
Director within tbirty(30) days of the action to be appealed." The action which is the subject
of Appellant's appeal is the revocation of the ILP. The last date which is within thirty (30) days
of the revocation of the ILP is Friday. September 21. 2001. The Board of Zoning Appeals must
t '" It
~
administer the ordinance in accordance with its stated tenns. T.W. Thorn Const.. Inc. v. City of
Jeffersonville. 721N.E.2d 319 (Ind. Ct. App. 1999). If the Board of Zoning Appeals had
intended that the Appellant should have thirty (30) days after the date of the decision to revoke
the ILP to appeal, Section 30.1 of the Carmel Code should have been drafted in accordance with
Ie 36.7-4-1003 which states:
The person shall present the petition to the court
within thirty (30) days after the date of that decision
of the board'of appeals.
As drafted. IC 3~ 7-4-1003 clearly provides for thirty (30) days afte, the date of a decision by
the Board of Zoning Appeals to present an appeal to the trial court whereas Section 30.1 of the
Carmel Code only allows for an appeal to be:filed within thirty (30) days of the date of the action
to be appealed. Any interpretation of Section 30.1 of the Carmel Code to the contrary violates
Indiana law as an ordinance must be given its plain, ordinary and usual meaning. Johnson Oil
Co. v. Area Planninf! COnl'n of Evansville and Vanderburlili County, 715 N.E. 2d lOll, 101S
(Ind. Ct. App. 1999). Failure to comply with the stated time limitations is fatal to the appellant's
clwm. Bif!gs v. Board of Zoning Appeals of CitY of Wabash. 448 N.E.2d 693.694 (Ind. Ct. App.
1983).
.6. Assuming for the sake of argument thai Appellant's argument that the thirtieth
(30) day fell on September 22,2001 is correct, there is still no basis in the Carmel Code for the
Appellant to have until September 24, 2001 to file the appeal. In certain situations, Indiana Rule
of Trial Procedure 6(A) extends a deadline that would otherwise fall ona Saturday, S1.Ulday, or
legal holiday if the statute is silent as to the method of computing time. However, according to
, .
the text of Trial Rule 6(A), it only applies to the trial rules, orders of the court, or any applicable. .
statute. Because the issue in front of the Board of Zoning appeals has. to do with the
interPretation of Section 30.1 of the Cannel Code rather than a trial rule, court order or statute,
2
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,I'
the Board of Zoning Appeals is not required to extend the time limit if the last day to :file the.
.appeal falls on a Saturday, Sunday or legal holiday. Under Indiana law, "because a zoning board
is a body usually composed of persons without legal training, courts are reluctant to impose rigid
technical requirements upon their procedure as long as they are orderly, impartial, judicious and
fundamentally fair." quoting McBride v. Board of Zoning Appeals of Evansville- Vander burgh
Area Plan Com'n, 579 N.E.2d 1312, 1315 (Ind. Ct. App. 1999). Thus, unless the procedures
used by the Board of Zoning Appeals to detennine whether the Appellants' case should be heard
are not orderly, impartial and fundamentally fair, they will Dot be held as contrary to law. Id. at
. -
1315.
WHEREFORE, Richard Deer. an adult resident of Indiana, respectfully requests that the
Board of Zoning Appeals diSmiss this appeal becaUse it is untimely under Section 3 O. t of the
Carmel Code.
Respectfully submitted.
~f~ B[~
1. Tagg e (Atty No.2 9-49) .
BOSE McKINNEY & EVANS LLP
600 East 96t1a Street
Suite SOO
Indianapolis, IN 46240 .
(317) 574-3732
.Attorney for Richard Deer,
an adult resident of Indiana
44148
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EX. I
IN THE BOARD OF ZONING APPEALS
CITY OF CARMEL, INDIANA
, At.
SPRINT SPECTRUM L.P.
) Docket No. A-1I1-01
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Appellant,
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RECE\\J\>
~U~ 16 200\
DOCS
Re: Revocation of Building Permit
Number 2001.0627.B by MICHAEL P.
. HOLLIBAUGH, in his Capacity as
DIRECTOR OF THE DEPARTMENT
OF COMMUNITY SERVICES,
CARMEL, INDIANA,
/:. ."
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, .\ DOCS
\ .-?~
SPRINT'S OBJECTION TO RICHARD DEER~'S MOTION TO DISMISS
'~~L. ,< -; -~- -. \
Appellant, Sprint Spectrum L.P., (hereinafter "Sprint"), by counsel, hereby objects to
Richard Deer's Motion to Dismiss Sprint's appeal of the revocation of its location permit by
Michael P. Hollibaugh, in his capacity as Director ("Director") of the Department of Community
Services, Carmel, Indiana, and in support thereof states:
1. The Director revoked the improvement location permit at issue (the "Permit") for
property located at 1388 Queens Way, Carmel, Indiana, on Thursday, August 23, 2001. The
Director notified Sprint of his. decision ~y a letter sent by regular mail on Thursday, August 23,
2001. Sprint received the letter of revocation on Friday, August 24,2001.
.._" . -
2. Section 30.1 of the Carmel/Clay Zoning Ordinance provides that "all appeals shall
be filed with the Director within thirty (30) days of the action to be appealed." The Director's
decision to revoke the Permit on Thursday, August 23, 2001, is the "action" being appealed by
Sprint in this case.
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3. The Department of Community Services is the entity responsible for the
acceptance of Appeals to the Board of Zoning Appeals. Its office is not open for business on
Saturdays or Sundays, and therefore, no Appeals can be filed on those days.
4. The thirty (30) day period, as provided by Section 30.1 of the Carmel/Clay
Zoning Ordinance, commenced at the earliest on Friday, August 24, 2001, which was the first
full day after the Director's decision to revoke the Building Pennit.1
5. The thirtieth day fell upon a Saturday, and Sprint could not file on Saturday.
Sprint timely filed its appeal on the very next day the Department of Community Development
was open for business, which was Monday, September 24,2001.
6. Under Indiana law, where a statutory period mandates that an appeal must be
taken within thirty (30) days, that period commences on the first full day after notice is received
of the initiating event and expires thirty (30) days thereafter. Most notably, the Indiana Supreme
Court held that "every conceivable element of fair play, common sense and logic mandates that
the [appellant] be afforded the full thirty days to complete his appeal." Ball Stores. Inc. v. State
Board of Tax Commissioners, 316 N.E.2d 674 (Ind. 1974).
7. This' principle is embodied in Indiana Trial Rule 6(A), which in pertinent part
provides:
In computing any period of time prescribed or allowed by these
rules, by order of the court or by any applicable statute, the day of
the act, event, or default from which the designated period of time
begins to run shall not be included. The last day of the period so
computed is to be included unless it is: (1) a Saturday. (2) a
Sunday. (3) a legal holiday. ., (emphasis added)
I Sprint did not receive notice of the revocation until August 24, 2001 by regular mail. To allow Sprint the full
thirty days, the first day of the period should be Saturday, August 25th. Computation of the period in this manner
would make the thirtieth day fall on Sunday, September 23rd, with the appeal still due on Monday the 24m.
Therefore, this objection treats the date of issuance at the trigger date. Both the Indiana Trial Rules and the Federal
Rules of Civil Procedure, the principles of which are applicable by analogy as discussed below, provide that three
additional days are to be added to any time period when notice of the triggering act is provided by regular mail. In
this case, addition of three days for service by mail makes Monday, September 241h the twenty-ninth day.
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8.
The principle embodied in T.R. 6(A) applies whenever the applicable statute is
silent as to the method of computing time. Here, Section 30.1 of the Carmel/Clay Zoning
Ordinance does not provide for a method of computing the thirty (30) day limit, and therefore,
T.R 6(A) applies by default.
9. Trial Rule 6(A)'s method of computing time limits was properly used by the
Indiana Public Service Commission when neither the applicable statutes nor rules of the Public
Service Commission specifically prescribed a manner for computing the thirty (30) day time
period. . City of South Bend v. Users of Sewage Disposal. 402 N.E.2d 1267 (Ind.App. 1980).
Similarly, where the statute of limitations on a personal injury action was silent as to how the
time limitation therein was to be computed, T.R. 6(A) was also applicable. Jenkins v. Yoder,
324 N.E.2d 520 (Ind.App. 1975).
10. In the context of an appeal from a property tax assessment, our Supreme Court
held that when the receipt of an appeal is impossible (e.g., because of the closing of its offices
and/or the non-delivery of the United States mails on Sundays and holidays), receipt on the next
business day is a timely receipt of notice-particularly when the taxpayer's inability to make
delivery of such notice is beyond his control. Ball Stores. Inc. v. State Board of Tax
COmnUssioners, 316 N.E.2d 674 (Ind. 1974). Here, the Department of Community Services'
office was closed both Saturday, September 22 and Sunday, September 23, 2001- thus filing its
Appeal on those days was impossible and beyond Sprint's control.
11. This method of computation has also been adopted in the Rules of Appellate
Procedure. Specifically, Indiana Appellate Rule 9(A) provides that a Notice of Appeal must be
filed within thirty (30) days. In Board of Commissioners of Lake County v. Foster, the Court of
Appeals determined that under Indiana Appellate Rule 2(A), Rule 9(A)'s predecessor, if the time
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"
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period expires on a Saturday, the appellant has until the next Monday to file a timely praecipe.
/..
(I,
614 N.E.2d 949 (Ind.App. 3 Dist. 1993). Similar to T.R. 6(A), Indiana Appellate Rule 25(B)
~
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provides:
In computing any period of time prescribed or allowed by these
Ru1es, by order of court, or by any applicable statute, the day of the
act, event, or default from which the designated period of time
begins to run shall not be included. The last day of the period so
computed is to be included unless it is a non-business day. . . .
12. As indicated bOy the Indiana Supreme Court, "every conceivable element of fair
play, common sense, and logic mandates that [Sprint] be afforded the full thirty days" to
complete the appeal. In accordance with both Indiana law and Section 30.1 of the Carmel/Clay
Zoning Ordinance, Sprint timely filed its appeal on the next possible day of business, which was
Monday, September 24,2001.
WHEREFORE, Sprint respectfully requests that the Board of Zoning Appeals deny Mr.
Deer's Motion to Dismiss.
Respectfully submitted,
LOCKE REYNOLDS LLP
~
By'
. TI", ... drole; #15980-49
Attorney for Appellant,
Sprint Spectrum L.P.
LOCKE REYNOLDS LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, Indiana 46244-0961
Phone: (317) 237-3800
Fa-x: (317) 237-3900
538986_1
4
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ex.J
ORIGINAL TRANSCRIPT
IN RE: THE BOARD OF ZONING APPEALS
CITY OF CARMEL, INDIANA.
Docket No. A-lll-0l
/--
NO.
SPRINT SPECTRUM, L.P.,
Appellant
Re:
~apacityas Director of the Department of Community
Services, Carmel, Indiana
")
(317) 231-9004
B~~~~!!'sey,'nc.
FAX (317)231-1950
111 Monument Circle · Circle Center . Suite 582 I Indianapolis, IN 46204
BaynesandShlrey@EarthRnk.net www.BaynesandShIleY.c()m
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B~~~~~~~y.~ ,
Linda Mayo Baynes, RPR, CP, CSR
President
111 Monument Circle/Circle Center, Suite 582
n 1":l171 Indianapolis, IN 46204 4QI:.n ~
~ 231-9004 www.BayneSandShlrey.co:AX (317) 231-~ i
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Zoning Boa:d of Appeals
APPEARANCES
2
3 Charles W. weinkauf,
4 President of the BZA
5
6 Leo Diercikman,
7 BZA Board Member
8
9 Pat, Rice,
10 BZA Board Member
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12 Michael A. 'Mohr,
13 BZA Board Member
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15 John Mo:litor, Esq.,
16 Carmel-Clay Plan Commission/BZA
17
18 Doug Haney, Esq.,
19 City of Carmel (on behalf of
2
20 Michael Hol~ibaugh, Director, Department of
21 Community Services)
22
23 Laurence Lellig,
24 O~pa~t~ent of Communit~; Services
25
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Zoning Board of Appeals
APPEARANCES
,2
3 COUNSEL FOR SPRINT:
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Tho ma 5 F . Bed 5 ole, E 5 q .
Locke Reynolds
COUNSEL FOR RICHARD DEER:
Jonathan Taggart Birge, Esq.
Bose, McKinney & Evans
,25
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IN ~BE BOARD OF ZONING APPEALS
CI~Y OF CARMEL, INDIANA
SPRIN~. SPEC~RUM, L.P.,
Re: Revocation of Building Permit
No. 2001.0627.B, by Michael P. Hollibaugh in
his capacity as Director of the Department of
Community Services, Carmel, Indiana.
MR. WEINKAUF:
The appellant wishes
to appeal the decision of the Director
regarding the revocation of the improvement
location Permit No. 627.01B for a wireless
telecommunications antenna on an existing
private radio tower.
The site is located at
1388 Queens Way.
The site is zoned
S - 1 / R e s-i den c e .
Very low density.
Filed by
Thomas F. Bedsole of Locke Reynolds or Sprint
Spectrum.
MR. MOLITOR:
Mr. President, the
staff report indicates the Board needs to
address the motion to dismiss which has been
filed by Mr. Birge of Bose McKinney & Evans.
And that motion and a copy of the objection
of the same, filed by Mr. Bedsole, have been
included in the Board's packet.
Without this site -- this type of an
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Zoning Board of Appea1s
item being covered by our rules of procedure,
2 I would recommend you first hear from the --
3 the attorney who filed the motion to dismiss
4 on behalf of -- I believe it's Mr. Deer.
5 And then give the petitioner here an
6 opportunity'to respond~and anyone else in the
7 audience who may be here that wishes to
8 comment.
9
And as I understand it, as well,
10 Mr. Haney is here representing
11 Mr. Hollibaugh, who is not here tonight and'
12 does occupy the position ,of Director, and so
13
14
15
16
is a party, in a sense, regarding revocation
of the permit.
Thank you.
MR. WEINKAUF:
Thank you,
Mr. Molitor.
Is the attorney for the
17 petition on the motion to dismiss present?
18
Okay.
We will follow the recommended -- or
19 the pro c e d u r ere C 0 mm end e d by Mr. Mol it 0 r ,
20 al~owing the attorney for the petitioner on
21 the motion to dismiss to present that motion
22 and then follow that with the attorney on
23 the objection to dismiss the mbtion.
24
25
. MR. BIRGE:
Good evening,
Mr. Chairman, Members of the BZA.
My name
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1 is Taggart Birge with the office of
2 Bose McKinney & and Evans, 600 East 96th
3
Street.
I am here this evening on behalf of
4 Richard Deer to discuss our motion t~ dismiss
5 Sprint's appeal of the Director's decision to
6 revoke the improvement location permit.
7 You .have a copy of my motion to
8 dismiss, and my argument this evening will be
9 twofold. The first portion of my argument
10 is on Section 30.l.of the ordinance, and the
11 second- portion of my argument, in the
12 alternative, is whether .or not this Board is
13 required to go past 30 days to accept the
14 appeal which Sprint has filed.
15 'Turning now to the first part of my
16
argument.
The first part of my argument is
17 based on an interpretation of Section 30.1 of
18
the ordinance.
I'll pass out ~ copy to the
19 members of the Board.
20
21
Section 3~.1 of the ordinance states
in no uncertain terms:
All appeals shall be
22 filed with the Director within 30 days of
23 the action to be appealed.
24
The question before you this evening
25 i s w hat i s the d ate 0 f the act ion t 0 be
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appealed.
Based on my reading of the
2 ordinance, the date of the action to be
3 appealed is the Director's decision to revoke
4
the improve~ertt location permit.
The
5 Director's action or decision to revoke the
6 improvement location permit occurred on
7
You can see there from the
August 23, 2001.
8 viewgraph that the date of August 23, 2001,
9 is marked as "Revocation of the improvement
10
location permit."
Now, if you count the
11 number of day si n August, i tIs clear that
12
13
there's nine days in August.
If you go from
30 days from the date of the action of the
14 Director, which in this case was a decision
15 tor e v 0 k e' the imp r 0 v em e n t 1 0 cat ion per m i t for
16 the Sprint pes -- proposed Sprint p.es site
17 at 1388 Queens Way.
18
19
So, as you can see, we have nine days
in August.
In addition to the nine days in
20 August, we now have a monthly calendar of
21
T.he 21
the 21 additional days
September.
22 pI u s the n i n e day sin Au 9 u s t get s you tot h e
23 30th date.
24
Now, the question really i~ how
25 should Section 30.1 of the ordinance be
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.interpreted.
Under. Indiana law, the law
2 states in no uncertain terms that ordinances
3 should be interpreted with their plain, clear
4
and unambiguous reading.
I ask you to look
5
to the or~inance once again.
It clearly
6 states that all appeals shall be filed within
7 30 days of the action to be appealed.
8
Now, if -- for the computation of
9 time that August 24, 2001, was the date. that
10 the Board of Appeals should start the 3D-day
11 clock, the ordinance should have been drafted
12 a 5 follow s, and t his i 5 S t r a i.g h t fro m the
13
handout that I've given yo~:
All appeals
14 shall be filed with the Director within
15 30 days' after the date of the action to be
16 appealed.
17 It's a subtle but very important
18
distinction.
I will draw you now to
19 Section 36-7-410-1003 of .the Indiana Code.
20 This is the procedure wher~by if I was to
21 appeal the Board -- a ~oning appeals decision
22 to a superior court or Mar{on County or
23 Hamilton County court, how much time I would
24 h a v e .
25 And that portion of the statute
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Zoning Boa~d of Appeals
states:
The person shall present the
2 petition to the Court within 30 days after
3. the date of that decision to the Board of
4
So, clearly, in that case, you
Appeals.
5 have 30 days, commencing with one day after
6 the date of the decision.
7 But Section 30.1 of your ordinance
8
was not drafted in that manner.
Because of
9 t hat, Au g u s t 2 3 , 2 0 0 1, co mm e n c e san d i s the
10 date of the action, and from August 23,
11 2001, you go 30 days forward, and that gets
12 you to September 21, 2001.
13
Now, the petitioner's appeal was not
14 filed until the 33rd day, which I believe is
15
S e p t em b e r'2 4 t h , 2 0 0 1 .
That's 33 days from
16 the date of the action.
17
So, because of that, and under
18 Indiana law, failure to timely appeal a
19 decision forces that appeal to be thrown out,
20 bO$h in this body and in a trial court.
21
Now, let's assume for the sake of
22 argument that my clear and unambiguous
23
reading of the ordinance is incorrect.
Let's
24 assume for the purposes of argument that the
25 date of the action for computation of the
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30 days began August 24, 2001, which is
2 essentially what I believe Sprint would like
3 to have this Board of Zoning Appeals believe.
4
Now, the question then becomes
5 whether or not this body is required to
6 extend its 30-day deadline to September 24,
7 2 0 0 1, w h i chi 5 e i the r 3 3 days pas t, 0 r
8 32 days, if you begin on A~gust 24, 2001.
9 Now, reviewing the motion in opposition to my
10 motion to dismiss, it's clear that some of
11 t he a r gum e nt s . w hie h S P r i nth a s rn a d e in t here
12 do not apply to the Board of Zoning Appeals.
.....
13
14
Sprint discusses
Specifically, Sprint first raises the
issue of notice by mail.
15 therein- that the Indiana Rules of Trial
16 Procedure or the Federal Rules of Civil
17 Procedure require an additional three days
18 when notice is given by mail.
19
There's absOlutely no case, statute,
20 ordinance or law out there which requires
21 this body to grant three additional days.
22 On the contrary, Indiana law is clearly --
23 has clearly stated this Board is not subject
24 tot h est r i c t rig i d r u 1 e s 0 f the t ria 1 .
25 co u r t s .
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Zoning Board of Appeals
I have before you a recent
somewhat recent decision which I would like
td draw upon for the rest of my argument on
whether or not you, in fact, are required to
go to 32 or 33 days to allow Sprint to have
this appeal be heard.
The case before you there is Sprint
Spectrum v. Marion County Board of Zoning
Appeals.
In no uncertain terms, the law
states that this Board of Zoning Appeals or
any board of zonin~ appeals may make rules
gov~rning its procedure on zoning appeals.
Furthermore, as a general rule of
law, such proceedings are not ~overned nor
restrict~d by the technical or form~l rules
that govern judicial ~roceedings, when the
same rules of strictness are not called fOI
or usuall~ observed irt such proceedings.
So, on its face, the argument that
th~ Federal Rules of Civil Procedure and
Indiana Trial Rules should apply to this body
have been rejected by other courts and you
are not required to follo~ them.
I'd like to now turn to Sprint's
argument that Tri~l Rule 6A should apply by
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analogy.
I think it's very important to
2 understand what exactly Trial Rule 6A says.
3 Trial Rule 6A says if the 30th day falls on
4 a Saturday, Sunday or a legal holiday, that
5 you then go to the next day, which would be
6 a Monday or Tuesday, depending upon the
7
circumstances.
But what this Board needs to
8 understand is that Trial Rule 6A says that
9 it 0 n I yap p lie s to court 0 r d e r 5, s tat ute 5 , or
10 the trial rules.
11
12
13
What we are interpreting right now is
not any of the three.
It is simply an
ordinance.
An ordinance enact~d by the City
14 Council, rather than a statute enacted by the
15 General. Assembly of Indiana.
16 If Trial Rule 6A had wanted to extend
..
17 that rule to an ordinance, it could have
18 simply stated ordinance, statute, trial rule
19
or court order.
But it's important to note
20 that it does not state that..
21
In the body of Sprint's motion, it
22 goes on to cite several cases where a
23 statute, not an. ordinance, was silent as to
24 the issue as to what occurs when the
25 t i m e 1 in e e x p ire son the 3 0 t h day w hie his a
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Zon~ng Board of Appea1s
Saturday, Sunday or legal holiday.
N6ne of those cases are on point or
dispositive of this issue.
I think what
this issue is really controlled by is the
line of reasoning which I have right up
there.
That you, the Board of Zoning
Appeals, are allowed to adopt your own rules
of zoning procedure.
You are not subject to the strict
rules of law that govern judicial
proceedings.
This is not a statute; this is
an ordinance.
And you, the Board of Zoning
Appeals, can decide wheth~r or not you want
to gr.nt additional days.
In conclusion, I would like to say
that it's my firm belief that the 30th day
fell on September 21, 2001.
But if. that
argum~nt fails or logic fails, it's my
further firm belief that this ~oard of Zoning
Ap~eals is not required to extend the
deadline to the 32nd day, which would be
September 24, 2001.
This Board of Zoning Appeals has a
chance to establish a bright line and rule
on it.
I doubt this issue has ever been
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briefed or discussed up here before.
But
2 there shopld be a bright line that you have
3 30 days.
4 Sprint had weeks to get this appeal
5
on file.
I t. did n 't d 0 so.
By not doing so,
6 ~t's paralyzed its appeal and it also, in my
7 opinion, should result in that appeal being
8 dismissed.
9
For those reasons, I respectfully
10 request that this Board dismiss Sprint's
11
12
13
14
appeal for being untimely filed.
Thank you.
MR. WEINKAUF:
T h a n k you, Mr. B i rg e .
MR. BEDSOLE:
Mr. Chairman, Members
of the Board, ~y name is Thomas Bedsole.
I
15 am an a.t tor n e y wit hL 0 c k e Reynolds,
16
representing Sprint.
There's one thing
17 and there's no question about this -- there's
18 one thing that counsel and I would both
19
agree on.
And that 'is everything that I
20 ~ite for you, everything that I tell you I
21 believe, is firmiy the law of Indiana as it
22
relates to time.
That being said, there is
23 n 0 1 a w d ire c t 1 yon poi n t d i s c u s sin 9 t his
24
issue.
He said that.
I agree with him.
25 The rei s no law.
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~
As simply a matter of your
2 alternative options, the first and one of the
3 options that you certainly could exercise, as
4 we have done earlier this evening, would be
5
to simply suspend the 30-day rule.
That
6 avoids the questions and simply is your right
7 and option, as you have suspended other rules
8 throughout the course of the evening.
9
Even if you'don't do that, though, I
10 believe that the law of the state of Indiana
11 on time is not simply a clear reading, but,
12 as you would imagine, law has been made and
13
rules do exist on time in other contexts
14 that can be applied to determine what is
15 fair, rea"sonable and just under the
16 circumstances.
17 The decision from the Department was
18
19
20
21
made on August 23, 2001.
What time of the
day was the decision made?
We don't know.
W~en was notice received?
Well, we do know
when notice was received.
Notice was
22 received the next day, the 24th of August.
23 Under counsel's reading and
24 interpretation, it would simply be enough to
25 i S sue the de cis ion, m a k e the d e cis ion, the
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16
clock starts to run, and notice is received
2
3
by sprint whenever it's received.
Now, in
this case, it was one day.
Not a big deal.
4 But, accepting that interpretation, it is a
5 big deal, because it could severely hamper
6 pet~tioner's right to exercise the full
7 30 days.
8
Now, the first day of the period,
9 then, the date that notice was received, the
10 same day that is the first day to count,
11 which is not the 23rd, the date that it was
12
issued.
For example, if it had been issued
13 at five o'clock, which we don't know, and
14 dropped in the mail, to call that a day for
15 purpose- of computation really shortchanges
16
17
Sprint one of its 30 days.
So the 24th is
the first day we can fairly use.
For
18 purposes of this, I will be talking as if- we
19 were using the 24th as the first day.
20
And the last day, 30 days later, the
21 30th day, using the 24th as the first, was
22
Saturday the 22nd.
Now, the Department was
23 closed on the 22nd, a Saturday, closed on
24 the 23rd, a Sunday, arid we filed our
25 petition on the next available business day,
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Zoning Board of Appeals
taking full advantage of the 30 days.
As I said, there are no decisions
directly on point.
But there are plenty of
decisions in case law that have been made
that regard time and computation of time, how
it applies to the rules, how it applies to
the statutes.
The Indiana Supreme Court has said,
in the case of Ball Stores Inc. v. State
Board of Tax Commissi~ners, that a 30-day
appeal within 30 days means 30 full days.
It doesn't mean within 30 days, meaning the
29th day.
There is a case that discusses
the meaning of that word.
So counsel's argument that within
30 days means it has to be filed on the 29th
day is directly contradicted by the Ball
Stores case, holding in the Indiana Supreme
Court.
Now, as counsel indicated, certainly
the trial rules are not applicable here.
But they are useful to determine what's fair
and just in terms of applying rules, deciding
when things are filed, because, after all,
that's what courts do all the time.
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In Trial Rule 6A, which discusses
2 time, this has the same effect and
3 application as the Federal Rule and the
4 Indiana Court of Appeals, Supreme Court text.
5 They all apply this rule computing any
6
period:
The date of the event shall not be
7 included as the first day when the decision
a was issued. That's just for the reason I've
9 discussed, all the problems associated with
10
what happens on that first day.
The last
11 day is included, the 30th day, unless it is
12
a Saturday, Sunday or legal holiday.
If
13 that's the case, then it's the next business
14 day.
15
-Now, that certainly was what Sprint
16 used in this case, and we believe would.
1} mandate acceptance, and believe is a fair
18 interpretation of the 3D-day rule that's
19 before you.
20 This rule has been applied in other
21 noncourt-based contexts, and it has been
22
affirmed by the courts.
For example, the
23 rURC, Indiana Utility Regulatory Commission,
24 in the City of South Bend v. Users of Sewage
25 Disposal case decided in 1980,. applied this
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application of the 30-day rule and it was
2 upheld as being appropriate.
3
In addition, for. statutes of
4 limitations, which decide when a lawsuit is
5
extinguished.
Jenkins v. Yoder, a case in
6 the Indiana Court of Appeal~, says that even
7 though it's dispositive whether or not you
8 even have a lawsuit, that the same principles
9 involved in Trial Rule 6A govern.
10 In the case of property tax
11 assessment, the Indiana Supreme Court has
12 held that if the office is closed on the
13
30th day, receipt on the next business day
14 is timely filing, for tax assessment
15
purposes.
Again, that's the Ball Stores
16 case, in that specific context.
17
Now, the case that is cited. and
18 there's only one case that r.eally, I think,
19 in their motion that tries to push to the
20 CODclusion that you cannot accept the 30
21 days, and that,! don't believe is the law
22
23
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a.t all.
That's the Biggs v. Board of Zoning
Appeals, a City of Wabash case.
That
doesn't deal with our issue at all.
The
25 question then was what's the date of the
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decision.
Was it the date the minutes were
2
issued?
The date that the decision was made
3 at the hearing?
4
They cite in their .brief the McBride
5 case, McBride versus Board of Zoning Appeals
6 0 f E van s vi 11 e , I n d i a n a Co U r t 0 f A p.p e a 1 sea s e .
7
It says:
The procedure must be orderly,
8 impartial, judicious and fundamentally fair.
9
Now, the Ball,Stores case has what I
10 think is the best summary of the whole
11 notion of 30 days being the full 30 days as
12 set forth, and this is a direct quote from
13
the BalL Stores case:
Every conceivable
14 element of fair play, common sense and logic
15 man d at e.s t hat a nap p e 11 ant be a f for s:i e d the
16 full 30 days to complete his appeal.
17
Now, the only issue that we have in
18 this case before us right now is whether or
19 not subdivision control ordinance applies.
20 If we decide, for example, that our petition
21 was untimely at this point, then the issue
22 of whether or not the subdivision control
23 ordinance applies in this particular se~tinq
~ will eventually ~ork its way back here.
25 I believe it would be in the best
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Zoninq Board of Appeals 21
interests of the Board and everyone involved
.'
to simply deal with the issue
straightforward, decide where we stand,
resolve it.
It's b~en fully presented for
appea~ and petition.
The quote -- and I think this
particularly is appropriate -- looking at the
rules and procedure that. are applied in
federal court, in state court, the Court of
Appeals and the Supreme Court, the highly
technical procedures, Sprint's filing was
timely.
The quote that was placied on the
Board by opposing counsel stated that the
)
,
procedure in zoning hearings
as we are
such procedure is and should be simple, less
formal and less technical than that of .
judi,cial procedure."
I submit to you that a fair reading
an~d application of the statute' concludes that
Sprint's filing was timely.
Thank you.
MR. WEINKAUF:
Thank you,
Mr. Bedsole.
Mr. Molitor, it's customary
under our normal procedure, hearing variances
and so on, special use permits, that the
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Zoning Board of Appeals
presenter has an opportunity for rebuttal.
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Do we classify the petitioner on the motion
to dismiss as being in a position now to --
for some time for rebuttal, or what is your
intent on how to handle this?
MR. MOLITOR:
Conventionally, yes,
they would get some time for rebuttal, but
the opposing party would also get some time
for rebuttal.
So I would suggest you allow..
each of them a few minutes.
And, also, you
may want to ask Mr. Haney if he wants to
weigh in on the issue, as well.
MR. Ii E IN KA U F :
Very good.
Mr. Birge,
would you like to have some time for
r e but t a-I?
MR. BIRGE:
Once again, I would like
to reiterate that .the cases which Mr. Bedsole
has cited are not dispositive, since we are
interpreting an ordinance.
And I do feel
that Mr. Bedsole's analysis, while well
reasoned, is much more appropriate for a
court of law than in front of a board of
zoning appeals.
I think that a simple -- fair and
simplistic reading of the statute is within
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Zoning Board of Appea1s
30 days of the action.
The action was
October 23, 2001.
The 30 days from that was
September 24, 2001.
Once again, I think
that a simple and fair reading of the
ordinance does not require this Board to
apply Trial Rule 6A or Appellate Rule 9A or
the Federal Rules of Civil Procedure, or the
Indiana Trial Rules to get to that 32nd day,
as Mr. Bedsole has asked you to do.
There was plenty of time to file this
appeal.
Why they waited till the last
minute, I don't know.
But I don't think
that this Board should step in and correct
that mistake, for whatever reason that
mistake occurred.
For those reasons, I would urge the
Board to act independently, as the~ are
allowed to by law, and decide a fair and
simplistic way to enforce this.
And,
hopefully, going forward, it will be in a
uniform manner.
You guys have an. opportunity
to do that.
I think it should be within
30 days, and there shouldn't be a sliding
scale.
Thank you.
MR. WEINKAUF:
Thank you, Mr. Birge.
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Zoning Board of Appeals
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Mr. Bedsole.
2
3
MR. BEDSOLE:
Just briefly.
I think
we covered everything pretty well.
Rule
4 No. 1 of both the Indiana Rules of Trial
5 Procedure and the Federal Rules of Civil
6 Procedure .states that these rules shall be
7 construed to effectuate the just, speedy and
8 efficient determination of all actions, as
9 the overriding principle.
10 I was struck while hearing the
11 response that, while certainly not
12 applicable, the rules that have been
13 litigated and are tried and true to
14 effectuate the just, speedy and efficient
15 determination of complex technical actions
16
should be disregarded by the Board.
I
17 simply don I t think that that give.s fair
18 treatment to the history that we bring to
19
20
21
the table tonight.
Thank you.
MR. WEINKAUF:
Thank you,
Mr. Bedsole.
Mr. Haney, do you have
22 s qm e t h i n g you w 0 u 1 d 1 i k e t 0 add '?
23
24
MR. HANEY:
Good evening. .I'm
Doug Haney.
I'm the Carmel City attorney.
25 I'm ~ot normally at your meetings and thank
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Zoning Board of Appeals
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:-
goodness for that.
Nothing personal, but
o
2 it's one less night.
3
I do bave some general thoughts on
4 the need for formality in the administrative
5 hearing, and those are my general views that
6 there needs to be a bright line.
7
However, I only was apprised of this
8 situation th~ da~ before Thanksgiving, and I
9 wasn't aware of the fact until today that
10 Bose McKinney was one of the parties
11
involved.
And I want to just disclose to
12 the Board that my wife is a partner at
13
Bose McKinney.
And, therefore, I feel
( )"
.....
14 constrained not to give an opinion on this
15 specific 'matter, even though perhaps
16
17
technically there's no conflict.
I think
there certainly is a
-- I don't w~nt even a
18 suggestion of impropriety.
19
20
So, as to this specific matter, I
thjn~ I should bow out without. a comment.
I
21 do apologize, because it prevents you from
22 h a v i n gap 0 sit ion fro m the 0 e par t men t, but
23 un d e r the c i r cum s tan c e s, I t h ink i t's
24 probably prudent to go that route.
25
MR. WEINKAUf':
Thank you, Mr. Haney.
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Zon.ing Board of AppeaJ.s
26
I want to make it clear to everybody present
2 that this Board is a quasi-judicial board.
S Although this -- I have been on this Board
4 now for five years and this is the first
5 time that we've had to handle anything of
6
this type.
So, we are going to try to work
7 our way through this, without causing anybody
8 any undue consternation or whatever.
9 I find it -- there are two things
10 here that I personally find very interesting.
11 One is that we have a petition for a motion
12
to dismiss.
And citing a -- citing 30.1,
13 wherein it states all appeals shall be filed
.14 with the Director within 30 days of the
15
action ~o be appealed.
And we have heard a
16 lot of reaso'ns here tonight why there should
17 be different interpretations of t,hat.
18
But in my ~- in my interpretation,
19 when I read that, "30 days of the act.ion,"
20 it indicates that the -- commencing on the
21
22
date of the action.
That's my
interpretation.
I can't speak for any of
23 the other four Board members.
24
But with that being said, we have the
25' mot ion to d is m i s s , and I' m not e x act 1 y sur e
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Zoninq Board of Appeals
what the petitioner with the motion to
dismiss hopes to accomplish.
Because I
believe I heard the -- and maybe Mr. Birge
can answer that question for me -- but I
believe I heard the attorney for -- on the
objection, indicate that eventually this
action will make its way back before this
Board.
And, Mr. Birge, I will call on you,
but I'm going to allow
before we do any
of that, I'm going to allow any other Board
member that has anything that they might want
to say on this matter to make their points,
and then we will give both parties again a
little bi't of a chance to maybe talk about
what you have heard from each of us.
But i. f, if, the 0 n 1 y rea son. t hat we
have the motion to dismiss is to either
cause more time to be had before this
eventually comes before this Board to be
heard, then I'm going to have to weigh that.
On the other hand, I do find it
interesting, when the -- 30.1 does say
"30 days of."
To me, that means commencing
with the date of the action, not the day
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Zoning Board of Appeals
28
that the -- a petitioner receives the notice.
2 Having said that, Mrs. Rice.
3
M R S. R ICE.:
Well, I also found it
4 interestirig that the counsel for Sprint used
5
a couple of phrases.
What is "fair,
6 reasonable and just," and, particularly,
7 "just, speedy and efficient"?
8 And my question would be to the counsel for
9 Sprint as to why the petition -- their own
10 petition wasn't filed in a speedy and
11 efficient manner and waiting until -- either
12 way we count it -- the very. last minute.
13 And I would just be intere_ted in why that
14 was done.
15
16
"MR. WEINKAUF:
Mr. Dierckman.
MR. DIERCKMAN:
I keep on hearing
17 this last minute concept, which w.ould suggest
18 that they actually made the deadline, but
19 they, in my opinion, did not make the
20
deadline.
In my opinion, they didn't wait
21 until. the last minute, because there were no
22 minutes left.
23
24
25
50, in my opinion, there's no debate
here, because all the time has passed.
It's
30 days.
If they wanted to appeal, they
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Zoning Board of Appea1s
29
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should have done it within the 30 days.
,"-\
I
.I
2
It's clear.
I think what Sprint is maybe
3 suggesting is that if we don't -- if we live
4 to the spirit of our -- the rules of our
5 Board of Zoning Appeals, they will probably
6 take this to another court to try to get
7
this matter heard in this forum.
But I
8 think it's pretty clear-cut to me that there
9 weren't any minutes left and that we
10 shouldn't be hearing this tonight.
11
MR. WEINKAUF:
Mr. Birge, your
12 response.
13
14
MR. BIRGE:
Thank you, Mr. Chairman,
..}
Members of the BZA.
I want to address the
15 issue as 'towhether or not we are trying to
16 delay Sprint, and let me assure you that
17 what we are trying to get to is a s.ituation
18 where the neighbors can have a p~blic meeting
19 on the merits of this issue.
20
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25
And I think that the next step
and
John Molitor can correct me if I am wrong on
this - - is that if you guys rule in favor of
our motion to d ism is s , this will be sent to
the Planning Commission, as the D i r e.c tor
s u 9 9 e s. t e d should happe.n anyway, that the
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Zon:i.nq Board of AppeaJ.s
30
Planning Commission then will discuss whether
2 or not this property in ~ residential area
3 should be subdivided to allow this commercial
4 use.
5
That's where I envision these events
6 turning, and I question whether or not Sprint
7 can take this to a state or federal court
8 until they have exhausted their'
9 administrative remedies.
They still have
10 several administrative remedies left, but, to
11 me, the next remedy' should occur -- or the
12 'next action by Sprint, if you grant this
13 motion to dismiss, should be in front of the
14 Planning Commission.
15 With that, I'd be open to any questions.
16
17
18
19
MR. WEINKAUF:
Ahy questions?
Thank
you, Mr. Birge.
Mr. Bedsole.
MR. BEDSOLE:
Thank you.
I will
start by addressing Ms. Rice's concern.
Why
20 did Sprint wait until the last ~inute.
21 There. again, there are any number of reasons
22 why things certainly aren't done in a timely
23
fashion.
The question specifically arose
24 with Sprint, when do we need to have this
25
filed.
And I told Sprint we need to have
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Indianapolis. IN 46204
Zoning Board of Appea1s
..
this filed on Monday.
2
3
So, to the extent that it was done on
Monday, that's my responsibility.
And for
4 that, I apologize, for creating an issue
5 where certainly there wouldn't have been one,
6 had the petition been filed on Thursday or
7 Friday.
8 But it simply was a matter of advice
9 and knowing that if you have the period
10 and certainly Sprint believed, based on the
11 advice that I gave them, that they had that
12 period --that it was not filed up until
13
that point.
There were consultations
14 throughout the company on the issue of how
15
it should be appioached.
But, ultimately, it
16 comes down to me and my responsibility.
17
I certainly don't want to suggest,
18 for a moment, and I don't know if
19 Mr. Dierckman somehow got the irnpre.ssion that
. 20 w ~ w ere de fin i tel y, you k now, h e ad e d t 0 a
21 different court to try to decide this issue.
~ I have not discussed that issue with my
23 c 1 i en t .
24
But, I do belie.ve; and what I was
25 alluding to was, that the permit was revoked.
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ZOD~ng Board of Appea1s
32
Upon revocation of the permit, if the
2
notice
if we don't go forward because the
3 appeal is determined untimely filed, then .it
4 would then, I believe~ be Sprint's obligation
5 to refile the permit, and upon refiling the
6 permit, presumably the permit would then be
7 denied by the Department of Community
8 Services for failure to go through zoning.
9
As we have indicated, we don't
10 believe that zoning is even necessary -- or
11 z 0 n i n g, I' m s 0 r r y - - t h r 0 ugh sub d iv i s i on
12 cQntrol; we don't believe that subdivision
13 con t rol is even nece ssa ry 0 r appropria te in
14 this case, for all the reasons that we will
15 get to 'if we get past this point.
16
Upon denial of the permit request,
17 then we could -- certainly Sprint. could file
18 an appeal of that denial to be back before
19 this Board to hear what we are certainly
20 ~repared to discuss this evening.
21
And there is, we believe, a very real
22 is sue a b 0 u t w h e the r 0 r not sub d i v is i on
23
control applies.
We don't think it applies
24 for a nu~ber of reasons, but we particularly
25 fee 1 t hat i n a cas e' sue has t his, it' 5
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'"
,;;
Zon~ng Board of Appeals
particularly bad policy for the Board to
2 apply the subdivision control ordinance for
3 all ~he reasons that the subdivision control
4 ordinance exists.
5 If the Board de~ides that it should
6 apply, then it's certainly -- it's my opinion
7 that it would be better off to know that now
8 and simply go to subdivision control.
9
In terms of counsel's representations
10 regarding delay, and whether or not this
11 mot ion was f i led for de la y, w e had a
12 telephone conversation this afternoon,
13
opposing counsel and I, and I reiterated
14 again Sprint's desire to try to work
15 so IIi e t hi n g' 0 u ton t his.
16
And I was informed in no uncertain
17 terms that the motion that was ahea.d of this
18 on the agenda was being tabled, because that
19 can happen later, there's time for appeals,
20 we..!ve got all the time in the world to
21 exhaust the remedies and drag this out as
22
1'ong as we need to drag it out.
That
23 statement was made to me this afternoon on
24 the telephone.
25
So I believe it certainly is
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Zoninq Board of Appea1s
34
disingenuous to bring forward the fact that
2 this is being brought for any reason other
3
than a procedural delay.
Now, the reality
4 is subdivision control either applies or it
5
does not.
But this is simply an opportunity
6 not to get to the merits, whether that be as
7 a result of advice that I gave, or for
8
9.
10
whatever reason.
Thank you.
MR. WEINKAUF:
Mrs. Rice.
MRS. RICE:
Since I don't believe my
11 question was adequately answered by counsel,
12 I w o. ul d. s u g g est, the n , the b rig h t 1 i n e r u 1 e
13 needs to be established, needs to be made,
14 and perhaps he will carry that responsibility
15
for Spr-int.
But I still don't have .an
16 answer to my question.
17
MR. WE I N KA U F :
Let me go ~ith my
18 train of thought here, Mr. Dierckman, if I
19
20
could.
At this time, I think we've heard
!nough from counsel on both sides.
And in
21 order to help us make a decision on this, I
22 am going to ask either the Department,
23 Mr. L i 11 i 9 0 rM r . Molitor, to just run us
24 thr6ugh a couple of things.
25
Obviously, Agenda Item lOH, which
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Zoning Board of Appeals
35
~
relates to 11H, has been tabled, okay? And
2 that's tabled predicated on the outcome of
3
11 H.
If this Board was to deny I1H, then
4 lOH wouldn't even be necessary, I believe.
5 Is that correct? Am I on the right target
6 there?
7
If we deny 11H, lOH would not even be
8 necessary; is that correct?
9
10
11
MR. MOLITOR:
Well, let's work
through it here, Mr. President.
11H has
been filed by Sprint.
If you deny Sprint's
12 appeal on IlH, or if you dismiss the
13 petition, as Mr. Birge has asked you to do,
14 in my opinion, that upholds the Director's
15 determina'tion that this particular permit
16 needs to go through the subdivision process
17 first, before it can be considered for
18 issuance by the Department.
19
So, a subdivision plat would need to
20 b e.. f i l.e d b Y the P 1 ann i n 9 Com m i s s i 0 ri, the
21 Planning Commission would need to review
22 t ha t, and de t e r mi new h e the r 0 r not i t was i n
23 0 r d e r, and, i f so, i t C 0 u 1 d 9 ran tap pro val
24
of that subdivision.
And at that point in
25 t i me, w her e t his lie s i s t ~ a t the per m i t
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Zoninq Board of Appeals
36
would then be up for determination under
2 Agenda Item lOH, as to whether or not the
3 Director's initial decision, which was to
4 issue the permit was correct. I hope I
5 didn't muddy that further.
6
MR. WE IN KA U F :
We were going along
7 pretty well thereuntil your last statement.
8 Now, as I understand it, the Director -- the
9 Director originally issued'a permit.
10
MR. MOLITOR:
The Director initially
11 issued a permit.
12
MR. WEINKAUF:
And then revoked the
13 permit.
14
MR. MOLITOR:
And then revoked the
15 permit 'after d.iscovering that the application
16 contained an arrangement which would trigger
17
the subdivision requirement.
The. i nit i a 1
18 issuance of the permit, as I understand it,
19 was based on an understanding that
20 ~ubdivision would not be required.
21
MR. WE I N KA U F:
Again, just, for
22 ins tan c e she r e - - bee a use, p lea s e, I hop e
23
everybody will bear with me.
I'm trying to
24 help myself and everybody else on this Board,
25 I guess,' and maybe they don I t need the help,
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Zon~ng Board of Appea~s
but I know I do.
If we uphold the motion to dismiss,
then the -- then, as you indicated, Sprint
would have to go through all the procedures
that you outlined.
If we deny the motion to
dismiss, then we still have to have -- we
still wpuld handle Agenda Item 10H at some
point in time at another meeting; not at
this meeting, because it has been tabled.
MR. MOLITOR:
No,
If you deny the
motion to dismiss, then the way is clear for
you to go ahead and consider the .merits of
Agenda Ltem IlH, which is Sprint's appeal of
the Director's determination that SUbdivision
o ugh t t 0 "b e don e for the per m i t t 0 b e
issued.
And that could be done tonight.
it could be held over to the next meeting.
MR. WEINKAUF:
Got it.
Now I'm
clear.
Thank you.
Mr. Mohr.
MR. MOHR:
Mr. Molitor, if it would
have been found that .it would have been met
within the 30-day period, then this would not
have come before us, if they would have met
that timeline determined by the Department
Director, what steps then would have been
(317)2314004 FAX (317)231-1950
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_.BayneNndShlrey.com
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111 Monument Circle
CIn:Ie Cent8r,Sulte 582
IncllanapoUs. IN 46204
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Zoning Board of Appea1s
taken at that time with this appeal?
MR. MOLITOR:
When this appeal came
in, the Department went ahead and docketed
the appeal.
But with kind of a question as
to whether or not it had been timely filed,
because this rule has never been clarified.
qur rule of procedure is similar to what the
ordinance says, but the ordinance says all
appeals shall be filed with the Director
within 30 days of the action to be appealed.
MR. MOHR:
My question is, though,
what would have been that process then,
like
would he have had the ability just
to deny that appeal, would the Director have
been ab~e to do that?
Or would -- I mean,
what process would have been made?
r.f it
would have been received .in a tim~ly manner,
what process would have been taken?
MR. MOLITOR:
The Director cannot
just refuse to accept an appeal of his
decision.
The statute, the state law,
requires that if the Director accepted an
appeal of his decision and put it on your
agenda, you are the body that reviews th~
decisions that the Director makes in regard
(317)2314004 FAX 1317)231.1950
Baynesandstllrey@Ear1hllnk.net
_.BaynesandShlrey.com
B~~.!'~~s
111 Monument Circle
CIrcle emler,Sulte 582
indianapolis, IN 46204
38
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Zoning Board of Appeals
to the enforcement of the zoning ordinance.
2
MR. WEINKAUF:
What we would have,
3 Mr. Mohr, then -- if I'm clear now, and I
4 think 1 am -- is, had it been filed in
5 20 days, as an example, we would not have a
6 motion to dismiss and we would have in front
7 of us Agenda Item IlH, which would be the
8 appeal to the decision of the Director.
9
So what we are first dealing with
10 here is the motion to dismiss the appeal,
11 because in the -- in the -- in that motion
12 to dismiss, they feel that the 30.1 was not
13
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properly met, okay?
Mrs. Rice.
MRS. RICE:
Had th~ Director made the
1~ determinition that it ~as not in a timely
16 matter, he could have rejected the appeal: is
17 that correct?
18
MR. MOLITOR:
Well, I suppose
19 hypothetically if it had been filed 50 days
20 af~er the decision, the Director could have
21
refused to accept the appeal.
But, frankly,
22' Mr. Hollibaugh and I discussed this, and I
23 said I think it's in a gray a~ea and I think
24 the best thing for you to do is go ahead and
25 put i ton the Boa r d' sag end a .
(317)231~04 FAX (317)231-1950
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Zoning Board of Appea1s
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MRS. RICE:
And let us decide, okay.
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MR. WEINKAUF:
Mr. Dierckman.
MR. DIERCKMAN:
Tome, it's not in a
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gray area.
TO me, it'. pretty clear-cut.
I
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think we need to live by our rules.
That's
what we have th~m for.
And we need to
7 clarify this rule that it is 30 days from
8
the date.
As stated, all appeals shall be
9 filed with the Director within 30 days of
10 the action to be appealed.
11
So, I don't.. know.
Maybe you can tell
12 me how to make a motion to dismiss this.
t3 Shall we move to dismiss Agenda ItemllH?
14 Is that how you would make that motion?
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-MR. MOLITOR:
You could make a motion
16 to grant the request of the -- Mr. Birge to
17 dismiss the petition.
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MR. WEINKAUF:
Okay.
Let's -- I know
where you're going, Hr. Dierckman.
Let's be
~lear on this, Kr. Molitor.
Under normal
21 un d ern 0 r mal con d i t ion s, in ha n d 1 in 9 a
22 v ar i a n ceo r asp e cia 1 use a p p 1 i cat ion and so
23 on, we make all our motions in the.
24
affirmative, okay?
We make
under normal
25 con d i t ion s, w.e m ak e a 11 0 u r mot ion sin the
(317)231-&004 FAX (317)231-1960
BayMCanclShlNY@Elrthllnk.net
_.BaynelllndShlrey.com
B~~~~U'K
111 Monument CIrcle
Circle Center.Sulte 582
indianapolis. IN 46204
,.r
Zoning Board of Appeals
.~
affirmative.
2
What we have in front of us -- what
3 we have from the Board -- and the Chair is
4 not going to ask for a motion like I
5 normally do -- we have to decide, basically,
6 whether we are going to allow the motion to
7 dismiss or whether we are going to reject
8
the motion to dismiss.
Is that basically
9 the issue that'~ before us?
10
MR. MOLITOR:
Yes, it is.
And this
11 is a procedural issue, so there would not be
12 findings of fact required as there would in
13 a normal agenda item which you dealt with
14 otherwise tonight.
15
MiL WEINKAUF:
But, again, what we
16 are being asked here is either to u'phold' the
17 motion to dismiss or deny the motion to
18 dismiss?
19
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MR. MOLITOR:
Correct.
MR. WEINKAUF:
And we can do that by
a voice vote or a written ballot.
Which do
>> >22 you:r e c>omme>ri d~i -
23
MR. MOLITOR:
Under our rules, it
24 states that v~ting shall be by written
25
ballot.
It seems that that probably applies
(317)2314ON FAX (317)231.1eso
BaynISWldShlnly@Ealthllnk.n8t
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B:t.~~ey'E
111 Monument Circle
CIrcle Cenlltr.Sulte 582
Indbmapolls. IN 48:204
41
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Zoning Boaxd of Appeals
to typical petitions, but it doesn't it
2
also doesn't allow for any exceptions.
So I
3 would sU~gest that we follow the written
4 ballot.
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.MR. WEINKAUF:
I'm going to recommend
that we do it by written ballot.
If we
7 could have a
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MRS. RICE:. We need a motion.
MR. WEINKAUF:
We'll get one.
Let's
get us some ballots.
Okay.
Is there
11 prior to a member of this body making a
12 motion, would -- is there any other
13
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discussion?
Are there any other questions?
Would someone make a motion in the
matter of the motion to dismiss?
Would
16 someone make a motion in the matter of the
17 motion to dismiss?
18
I move to uphold the
MR. DIERCKMAN:
19 motion to dismiss.
20
21
22.
MR. WEINKAUF:
Is there a second?
MRS. RICE:
Second.
MR. W.EI.NKAUF:- It's-been m-oved and
23 seconded to uphold the motion to dismiss.
24
Is there any discussion?
Hearing none, by
25 w r i t ten ballot, t he Boa r d w i 11 v 0 tee i t he r i n
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B~~~~Y.m
111 Monument Circle
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Indianapolis, IN 48204
42
J
Zoninq Board of Appeals
1 favor of the motion to dismiss or in
43
2 opposition to the motion to dismiss.
3
MR. WEINKAUF:
The vote on the motion
4 on the floor, which is to uphold the motion
5 to dismiss, is 5 in favor and none opposed.
6 The motion to dismiss is upheld.
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(317)2310&004 FAX (317)231-1S5G
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Baun~hlre!J&
!!!!L~r(y-...-
111 Monument CIrcle
CIrcle Center,Sulte 582
indianapolis, IN 41204
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Ex.K
CITY OF CARMEL
DEPARTMENT OF COMMUNITY SERVICES
Division of Planning & Zoning
LET T E R of G RAN T
27 November 2001
!
Thomas F. Bedsole DOCS
Locke Reynolds LLP . _ '.
201 North IDinois Street, Suite'19Q.0
P.O. Box 44961 -,' _t;:;-:
Indianapolis, IN 46244-0961
. , ,/
. . -~'
Re: Sprint Spectrum WTF at 1388 Queen's Way
Appeal (A-ll1-01)
Via US Mail &fax (317/237-3900)
Dear Mr. Bedsole,
,f .
At the meeting held Monday, November 26, 2001, the CarmeVClay Board of Zoning
Appeals took the following action regarding the Appeal filed by yourself on behalf of Sprint
Spectrum:
DISlVIISSED: DocketNo. A-lll-01, an appeal of the Director's Determination'regarding Section
3.7: Definitions: SUBDIVISION of the Zoning Ordinance. The Board moved to dismiss the appeal
as not timely filed as required per Section 30.1: Appeals to the Board. The Board voted five (5) in
favor, zero (0) opposed, thereby dismissing the petition.
If I can be of any further assistance, please do not hesitate to contact me at 317.571.2417.
Sincerely,
rlF'tdi, ,rJ. .
V '~ce M. Lillig, Jr.
Planning & Zoning Administrator
Department of Community Services
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