HomeMy WebLinkAboutCourt Judgement 7-28-11STATE OF INDIANA
SS:
COUNTY OF HAMILTON)
AMERICAN TOWERS, INC.,
Petitioner,
and
CARMEL BOARD OF ZONING
APPEALS,
Respondent.
F1 L E D
JUL 2 8 2011
I 0- wo
C K Jr THE
HAMILTON CO. CIRCUIT COURT
ORDER ON AMERICAN TOWERS' PETITION FOR JUDICIAL REVIEW
This matter, has come before the Court on Petitioner American Towers, int.'s
Petition for Judicial Review of Respondent Carmel Board of Zoning Appeals' denial of
American Towers' applications for a special exception and for a variance. The issues
have been fully briefed, oral argument was held on June 28, 2011, and the matter was
taken under advisement by this Court. The Court having; reviewed the flings in the
matter, heard arguments, and being duly advised in the premises, now makes the
following Order:
FINDINGS OF FACT
1. On August 8, 2008, American Towers filed two (2) applications with the
Carmel Board of Zoning Appeals "Carmel BZA to build a cell tower on a lot that was
coned residential, namely an application for a Special Exception, Docket No.
08080011 SE "Special Exception and an application for a Development Standards
Variance, Docket No. 08080014V "Variance American Tower's Appendix
(hereinafter "AT Am. at 0003 -0010.
2. American Tower requested the Special Exception to construct a one-
hundred twenty foot (120') stealth monopole wireless communications tower with
IN THE HAMILTON CIRCUIT COURT
CAUSE NO.29COI- 0905 -PL -00885
1
accommodations for four (4) wireless carriers "Tower "within a 60 -foot by 60 -foot
compound" on the vacant lot commonly known as 11104 Towne Road, Carmel, Indiana
"the Lot AT Appx. at 0003 -0014; AT Appx. at 0047; AT Appx, Exhibit B at 3:35-
42- 4:1 -12. The surrounding neighborhood has been established for 40 -plus years and the
Lot is directly across the street from the Crooked Stick Subdivision. AT Appx. at 0089.
Crooked Stick Subdivision is a high -end neighborhood with homes that are adjacent to
the Crooked Stick Golf Club, a club that has hosted PGA, LPGA and Senior PGA golf
tournaments.
3. American Tower sought the Variance as relief from the setback
requirements imposed by the Carmel Zoning Ordinance 25.13.01(1 )(B). Because the
Lot is zoned S -1 (Residential), construction of the Tower as proposed requires a total
setback of two-hundred twenty feet (220'). Without the Variance it would be impossible
for American Tower to construct the Tower in accordance with the setback on any part of
the Lot.
4. The Lot is owned by two couples, James and Angela Volpert and Michael
and Judith Ruggiero, with a Zionsville, Indiana address (jointly referred to hereinafter as
"the Owners AT Appx. at 0003 -0014
5. All of the surrounding lots in the neighborhood have homes built upon
them, but the Owners have not built a home on the Lot. Rather, the Owners leased the
Lot to American Tower, and American Tower, as the tenant, applied for the necessary
Special Exception and Variance approvals that the City of Carmel would require in order
to build and operate the 4- carrier cell tower on the residential lot. Id.
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6. The applicable Special Exception Ordinances (AT Appx., Exhibit F)
provide in pertinent part as follows:
Citv of Carmel Zoning Ordinance 25.13.0.10
Towers shall be permitted in the Residential Districts only as Special Exception,
and as such are subject to the approval of the Board of Zoning Appeals... if a
Tower is permitted as a Special Exception in a Residential District, the tower
must be built:
i. not less than one hundred (100) feet, plus one (1) additional foot for every
foot of the Tower's height, from the property line of any parcel zoned
and/or used for residential purposes...
City of Carmel Zoning Ordinance 21.04.02.
A Special Exception application may be approved by the Board only upon a
determination in writing that:
1. The approval will not be injurious to the public health, safety, morale, and
general welfare of the community, in relation to the above listed items (Section
21.03) concerning the proposed Special Exception;
2. The use and value of the area adjacent to the premises under consideration
will not be affected in a substantially adverse manner,
3. The need for the Special Exception arises from the applicant's
responsibility to provide public utility service, and not from any condition
peculiar to the premises under consideration;
4. It will constitute an unnecessary hardship for the applicant if the Special
Exception is denied, in that there are no existing or approved towers or other
structures in the vicinity of the premises under consideration which would be
suitable for collocation of the equipment that the applicant needs to locate in such
vicinity, having regard to the following factors:
a. Whether the needed equipment would exceed the structural
capacity of such existing or approved towers or structures, as documented
by a qualified professional engineer, and whether such towers or structures
could be reinforced, modified, or replaced to accommodate the needed or
equivalent equipment at a reasonable costs;
b. Whether the needed equipment would cause interference
materially impacting the usability of existing or planned equipment at such
existing or approved towers or structures, as documented by a qualified
professional engineer, and whether such interference could be prevented at
reasonable cost; and
c. Whether the needed equipment could be accommodated on such
existing or approved towers or structures at a height necessary to function
reasonably, as documented by a qualified professional engineer; and
5. The approval of the Special Exception does not interfere substantially with
the Comprehensive Plan, in that there are no alternative sites suitable (raving
regard to the factors listed above in subparagraph (4) for the equipment that the
applicant needs to locate in the vicinity which are located in either Business,
Industrial, or Manufacturing Districts, or on property outside of the jurisdiction or
otherwise exempt from the requirements and procedure of this Zoning Ordinance.
7. The Variance Ordinances (AT Appx., Exhibit G) provide as follows:
Citv of Carmel Zoning Ordinance. 3.0.04.
In deciding whether or not the applicant has presented sufficient proof to permit
the granting of a variance of development standards, the Board shall determine in
writing that:
I. The approval will not be injurious to the public health, safety, morals and
general welfare of the community;
2. The use and value of the area adjacent to the property included in the
variance will not be affected in a substantially adverse manner; and
3. The strict application of the terms of the Zoning Ordinance will result in
practical difficulties in use of the property.
8. The Carmel Department of Community Services ("Carmel DCS
evaluated the applications in the normal course of business and issued two (2) reports.
After American Tower made the suggested aesthetic changes to the Tower plans (in
particular, the equipment building), Carmel DCS recommended that the Carmel BZA
approve the applications. AT Appx. at 0244 -0248, 0260 -0262.
9. There were three (3) public hearings on the applications held on
November 24, 2008, January 26, 2009, and February 23, 2009. AT Appx. 0227 -0243;
0249 -0259; 0263.0273; AT Appx. Exhibits B, C, D, and E.
10. At the hearings, American Towers presented witnesses and evidence to
support its requests including statements and testimony of Brian Ramirez, site acquisition
agent for American Towers, testimony of Brian Robbins and Hamid Zia, Radio
Frequency Engineers with Sprint Nextel and AT &T respectively, and Amanda Woodall,
an appraiser trainee, who testified about the findings and conclusions contained within a
report she authored "Woodall Report').. AT Appx., Ex. A at 0086 -0117 and Exhibit C.
4
11. The Woodall Report included studies of eight (8) areas in which cellular
services or radio towers were constructed, and provided sales information for homes
purchased and sold in the area for a twenty -four (24) month period. Only two (2) of
those areas included towers built in established neighborhoods. AT Appx., Exhibit A, at
0087.
12. At the January 26, 2009 hearing, Carmel BZA Member Hawkins
questioned American Towers' representative regarding the Woodall Report. Ms.
Woodall had concluded that property values surrounding the Lot would not be affected
by the construction of the Tower. AT Appx., Exhibit C, 23:1 -29- 24:1 -7. Member
Hawkins noted that Ms. Woodall was an appraiser trainee and could not appraise
properties on her own. AT Appx., Exhibit C, 23:1 -29- 24:1 -7.
13. Member Hawkins also noted concerns that American Tower's Woodall
Report "[a]etually does show those markets declining after the antennas went in" Id.
14. Member Hawkins again raised the issue at the February 23, 2009 hearing,
pointing out that the Woodall Report only included two situations where a cell tower was
constructed after the surrounding homes were established, and that the data indicated the
values of the surrounding homes went down in one of those examples. AT Appx., Exhibit
D at 13:15 -21.
15. The situation where the cell tower was constructed after the surrounding
homes were established and the data showed that the property values did not decrease
was in Cicero, Indiana. AT Appx., Exhibit A at 0112. Carmel BZA Member Dierckman
expressed that he had "difficulty taking Cicero comp[arables]" and applying them to the
subject neighborhood that had been established for 40 -plus years. AT. Appx., Exhibit D
5
at 15:10 -12. Member Dierckman expressed some desire that additional comparable
studies be performed, but Ms. Woodall stated they could not be performed because of
timing consideration. Id.
16. Other testimony for American Tower on the property value factor, offered
by Carmel DCS and Brian Ramirez, concerned aesthetics and was intended to show that
the design would minimize obtrusiveness, thereby avoiding a diminishing effect on
property values.
17. A number of remonstrators voiced their general concern about the
possibility of diminishing property values including live testimony by Robert Ware, Dee
Fox, Debbie Zancanaro, Elizabeth Philpott, Brett Thomas, Gus Sevastianos, Prem
Sharma, Reina Decapua, Matt Misterka, Vincent P. Johnson, Fred Yde, and Paul
Oliveira. Some of these citizens also represented others through their Homeowners
Association affiliation (nearly 200 households) or a petition (approximately 80 total
signatures). See Carmel Appx. Exhibit 8, 0237 -0240; AT Appx. Ex. B, C, D. There were
no expert studies offered in support of the opposition.
18. At the February 23, 2009 hearing, there was additional testimony opposing
the Tower by Remonstrator Brad Donaldson, a licensed real estate broker for over 30
years. AT Appx., Exhibit D at 7:28 -30. Remonstrator Donaldson testified as follows in
pertinent part:
There's no question in my mind 1 could put a study together for you to
prove this. There's no question in my mind about what a tower like this
will affect value. 1 would ask that the impact study [the Woodall Report]
not go out one mile because when you can't see it, it doesn't affect you.
When you go a mile away from this, it doesn't affect you. You need a
study of properties that see it or back up to it and 1 guarantee you, they are
affected by about 10 to 15% from my ascertation [sic]. Backing up to a
busy street, backing up to power lines, backing up to anything unsightly
r
that has trucks and workmen and people around and invites children to
maybe try to climb the fence and climb and fall off, it is not good for the
residential, especially state -type neighborhood. Drive up and down
Towne Road. You'll see what's out there. It's beautiful estate -type
properties and, take this thing out to the country."
AT Appx., Exhibit D at 7:32- 36- 8:1 -11.
19. Remonstrator Fred Yde, board officer of the citizens advocacy group
"NDAX also provided his testimony on values at the February 23, 2009 hearing as
follows:
We're also talking about a change of highest and best use on Towne Road.
An appraisal is not for speculative purposes, for determining future loss of
value, appraisal is for value, what it is right now. We're asking, you, you
were asking for appraisal for something that could or couldn't happen. An
appraisal does not determine. The impact study is appropriate, but it does
not take into consideration properties where the highest and best use of
that property is being changed. None of the properties in her impact study
showed a piece of property with the highest and best use in this particular
situation, it's an estate property.
AT Appx., Exhibit D at 8:13 -34.
20. A number of other remonstrators also voiced their opposition and concerns
about property value both in person and through electronic communications. The
remonstrators testified as to how they were each convinced the property values in the
established neighborhood would decrease if this Tower were to be constructed on the Lot.
AT Appx. at 0275 -0437.
21. Brian Ramirez, the site acquisition agent for American Towers, offered
testimony that "there are no existing viable structures" available for co- location and also
no actual viable alternative sites to accommodate a Tower. AT Appx., Ex. B, 18a;25-
19:13.
VA
22. Testimony by remonstrators offered what they viewed to be potential
alternative sites to be considered by American Tower including Carmel Dad's Club and
University High School. AT Appx., Exhibit Cat 8:25-40,10:2-17.
23, The Department of Community Services staff also addressed the
alternative site issue, showing that some sites had rejected the possibility, but others were
willing to consider such an opportunity:
The fire station property at Towne and 115' is still looking at the
possibility of having the tower there. They wouldn't really commit
themselves one way or the other but, said they would think about it. And
the University High School and the Dad's Club both indicated that
depending on the design and site and the landscaping, etc., then that might
be something that they might look at. Carmel Schools has said that they
are not interested and the Street and Utility Departments over on
Shelbourne does actually have a couple of towers on their water tower,
with room for a couple more providers so they, they have that facility
available.
Id. at 15:1 -15.
24. Various remonstrators also complained about purported adverse health
effects of building a tower on the Lot. AT Appx., Ex A at 0235 -0272.
25. Counsel to the Carmel BZA, John Molitor, specifically instructed the
Carmel BZA members before the vote on the special exception and variance applications
that any information received about a potential adverse impact of wireless towers on
health was "not pertinent and should not be considered." AT Appx. at 4237; AT Appx. at
Ex. B, p. 8:11 -21.
25. The Carmel BZA considered the evidence before it on the Special
Exception and Variance applications and made and announced its decision denying them
both at the conclusion of the February 23, 2009, public hearing. See Signed Findings
8
Template at AT Appx. at 0769 -0781; Letter of Decision at AT Appx. at 0768; Formal
Findings at AT Appx. at 0783 -0786 (hereinafter "the Decision
27. The findings template form signed at the public meeting had been
prepared by American Tower as required by Carmel DCS in advance of the vote on the
special exception application (Appx., Ex. A, 0069 -0770) and on the variance application
(Apex., Ex. A, 0076). The individual votes were attached to the findings form template
and indicated as follows on the special exception:
1.
No value (AT Appx. at 0771)
2.
No. (AT Appx. at 4772)
3.
No. (AT Appx. at 0773)
4.
Yes. (AT Appx. at 0774)
5.
Yes (AT Appx. at 0775)
The votes indicated as follows on the variance:
1. No. value (AT Appx. at 0077)
2. No. (AT Appx. at 0778)
3. No. didn't approve SE (AT Appx. at 0779)
4. No. find another property that won't require variance (AT Appx. at 0780)
5. No. (AT Appx. at 0781).
28. The Letter of Decision stating the applications were denied was mailed to
American Tower on February 24, 2009. AT Appx. at 0768.
29. American Tower then filed its Petition for Writ of Certiorari and Judicial
Review on March 25, 2009.
30. The Carmel BZA filed its formal findings on July 9, 2010. Formal
Findings at AT Appx. at 0783 -0786 (hereinafter "the Decision It provided as follows:
In accordance with the Carmel Zoning Ordinance (the "Ordinance the
Board hereby determines that the Applicant's Special Exception and Variance
9
application (the "Application should be denied pursuant to the following
provisions of the Ordinance:
I.
§21.04.02(2) [Use/Value of Adjacent Land]: The Applicant failed to prove
that the use and value of the area adjacent to the premises under consideration
will not be affected in a substantially adverse manner. The Application called for
a wireless telecommunications tower "Tower to be built in the S -1 residential
zoning district, and evidence submitted to the Board indicated that the Tower
would make certain neighboring residential properties difficult if not impossible
to resell for the residential development for which they are zoned. The Board
finds that even the Applicant's own evidence tended to show that nearby
residential property values could or would be negatively affected by the
construction of a Tower.
H.
§21.04.02(5) [Interference with Comprehensive Plan]: The Applicant
failed to prove that the approval of the Special Exception does not interfere
substantially with the Comprehensive Plana, in that there are no alternative sites
suitable which are located in either Business, Industrial, or Manufacturing
Districts, or on property exempt from the requirements and procedures of fthej
Zoning Ordinance. Evidence submitted to the Board showed that the entire
Southwest Clay area has been planned for residential estates and high -end
residential subdivisions, which generally are incompatible with industrial uses
such as a Tower. Moreover, while there are no Business, Industrial, or
Manufacturing Districts in the vicinity, there are several nearby properties owned
by governmental agencies which are exempt from the requirements and
procedures of the Ordinance, that is, their owners are not required to obtain
zoning approvals before constructing governmental buildings or facilities thereon.
The Board finds that the Applicant failed to demonstrate that none of these
alternative sites that are owned by governmental agencies would be suitable for its
proposed Tower.
III.
§36.04(2) [Use/Value of Adjacent Land]: The Applicant failed to prove
that the use and value of the area adjacent to the property included in the
variance will not be affected in a substantially adverse manner. The Ordinance, at
§25.13.01(1 )(B), states that, "[i]f a Tower is permitted as a Special Exception in a
Residential District, the tower must be built not less than one hundred (104)
feet, plus one (1) additional foot for every foot of the Tower's height, from the
property line of any parcel zoned and/or used for residential purposes...." The
Application requested a Variance from this development standard because of
alleged "practical difficulties" that the Applicant would otherwise have in
utilizing the property for a Tower. The Board finds that granting such a Variance
would serve only to exacerbate the potential negative impact that a Tower would
have on contiguous residential parcels, as discussed above in Finding I. Without
doubt, the City Council's primary purpose in enacting §25.13.01(1 )(B) was to
provide nearby residents with an additional safeguard against any diminution of
10
their property values via a reasonable setback whenever the Board deemed a
Special Exception otherwise acceptable.
§30.04(3) [Practical Difficulties in Use of Property]: The Applicant failed
to prove that the strict application of the terms of the Zoning Ordinance will result
in practical difficulties in use of the property. Evidence submitted to the Board
showed that the Applicant would indeed have practical difficulties in utilizing the
subject property for a Tower, but there was no evidence submitted that the owners
of the property who are not the same persons as the Applicant have had or
might have any practical difficulties in using the property for the purpose for
which it is zoned, that is, for residential development. The Board finds that the
property's location next to a public elementary school and in the vicinity of
several high -end residential subdivisions makes it eminently practical for it to be
used for residential development, and that therefore, the property owners have no
need for a Variance in order to make a reasonable use of their property.
CONCLUSIONS OF LAW
The Carmel BZA Decision denying American Tower's Special Exception and
Variance requests was appropriately supported by substantial evidence. Moreover, the
Decision contains no evidence that the procedure violated the Telecommunications Act
of 1996 by considering remonstrators' testimony as to adverse health effects. Finally,
while there was a lengthy inexplicable delay in issuing the Board's Formal Findings
there has been no evidence of prejudice as a result of that delay. Based on these facts and
the deference due to the decisions of the original fact finder, the Decision of the Carmel
BZA will be upheld. Although, the Court finds that the Carmel BZA used an
inappropriate standard for denying the variance in that it found that the Owners of the
property had no practical difficulty in using the land.
1. Standard of Review
31. Actions taken by local boards of zoning appeals may be reviewed by trial
courts via certiorari pursuant to Indiana Code 36- 7- 4- 1003(a). The statute provides in
pertinent part that "[e]ach person aggrieved by a decision of the board of zoning appeals
11
or the legislative body may file with the circuit or superior court of the county in which
the premises affected are located, a verified petition setting forth that the decision is
illegal in whole or in part and specifying the grounds of the illegality."
32. Under Indiana law, when reviewing an administrative decision, "a court is
not to try the facts de nova or substitute its own judgment for that of the agency." Town
of Beverly Shores v. Bagnall. 534 N.E.2d 1059, 1061 (Ind. 1992). The court in Burrell v.
Lake County Plan Commission., 624 N.E.2d 525, 533 (Ind. Ct. App. 1993), elaborated on
this standard, ruling that a judicial review "is not a test of [the court's] agreement with
the Commission's finding," Rather, where findings are supported by substantial
evidence, the court "is bound by the finding of fact." Id.
33. American Towers bears the burden of demonstrating that the Cannel
B7_A's conclusions when "viewed on a whole" are "clearly erroneous." Equicor
Development, Inc. v. Westfield Washington Township Plan Commission, 758 N.E.2d
34, 37 (Ind. 2041); BagnalL 590 N.E. 2d at 1051; Wo ff'v. Mooresville Plan Commission,
754 N.E.2d 589, 594 (Ind. Ct. App. 2001). This standard "requires great deference
toward the administrative board" when the petition "challenges findings of fact or the
application of the facts to the law." Equicor, 758 N.E.2d at 37. The court's role "is to
determine whether the evidence before the Commission taken as a whole provides a
reasonable evidentiary basis for its decision," Wolff 754 N.E.2d at 094. A court "will
not determine the credibility or weight to be given to technical evidence." Id.
34. An agency's decision is presumed correct "and will not be overturned
unless it is arbitrary, capricious, or an abuse of discretion." Id., citing Cundiff v. Schmitt
Dev. Co.,649 N.E.2d 1063, 1066 (Ind. Ct. App. 1995). As a result, the agency decision is
12
to be "sustained if it was correct on any grounds stated for disapproval of the petition."
.Id.; see also Burrell, 642 N.E.2d at 534.
35. As set forth in Porter County Board of .Zoning Appeals v, SBA Towers R,
LLC, 927 N.E.2d 915, 921 (Ind. Ct. App. 2010):
In the context of zoning adjudications, we will set aside the board's
specific findings only if they are clearly erroneous, meaning the
record lacks any facts or reasonable inferences supporting them.
Network Towers, LLC v, Bd. of Zoning Appeals of LaPorte Co.,
770 N.E.2d 837, 844 (Ind. Ct. App. 2002). A decision is clearly
erroneous when it lacks substantial evidence to support it. Town of
Beverly Shores v, Bagnall, 590 N.E.2d 1059, 1061 (Ind. 1992).
When determining whether an administrative decision is supported
by substantial evidence, the reviewing court must determine From
the entire record whether the agency's decision lacks a reasonably
sound evidentiary basis. Crooked Creek Conservation and Gun
Club, Inc. v. Hamilton Co. North Bd. of Zoning Appeals, 677
N.E.2d 544, 548 (Ind. Ct. App. 1997), reh'g denied, trans. denied.
Thus, we have noted that evidence will be considered substantial if
it is more than a scintilla and less than a preponderance. Id. at 549.
In other words, substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
Id. (emphasis added).
u. Appropriate Denial of Special Exception
36. American Tower's primary argument to contest the Carmel BZA's denial
of the Special Exception and Variance application has been that its decision is not
supported by substantial evidence because much of the evidence submitted on the
decreasing property values consisted of the generalized fears of opposing citizens.
37. Precedent supports the rule that speculative and generalized fears of
declining property values are not "substantial evidence." See Town of Merrillville Bd. of
Zoning Appeals v. Public Storage, Inc., 568 N.E.2d 1092, 1095 (Ind. Ct. App. 1991).
13
However, interpretations of the rule from this and other jurisdictions show that while
such general fears may not alone constitute the substantial evidence on which denial
rests, a Board may consider such opinions in its determination, 1d; see also Ripley
County Bd. of Zoning Appeals v. Rumpke of Indiana, Ina, 663 N.E.2d 198, 205 (Ind. Ct.
App. 1996) [reasoning that "boards are not expected to be unaware of the overall
sentiment, including legitimately expressed concerns of other members of the
community Moreover, specific and substantiated citizen concerns are clearly
admissible.
38. For example, in AT T Wireless PCS, Inc. v. City Council of City of
Virginia Beach, 155 F.3d 423, 430 -1 (4th Cir. 1998), the cell tower vendor had
"numerous experts touting both the necessity and the minimal impact of towers" at the
location. The court reasoned that the standard for accepting citizen testimony should be
that which "would have justified a reasonable legislator in voting to approve the
application." In the view of the court in that case, "Congress, in refusing to abolish local
authority over zoning of personal wireless services, categorically rejected [the dismissal
of citizen testimony as `generalized concerns']."
39. Similarly, in AT T Wireless PCS, Inc. v, Winston Salem Zoning Bd. of
Adjustment, 172 F.3d 307, 315 -317 (4th Cir. 1999), the court accepted the testimony of a
resident with experience as a mortgage banker and determined that competent citizen
testimony could be considered as evidence to support denial of the Special Use Permit.
Citizens are not required to offer any expert testimony to rebut that offered by an
applicant's expert. See e.g., 4mnipoint Common. Inc. v. City of White Plains, 430 F.3d
14
529, 533 -35 (2d Cir. 2005). It is the job of the Board to consider any offered expert
testimony and evaluate the appropriate weight.
40. Here, it appears that the Board questioned both the credentials of Ms.
Woodall and the legitimacy of her report for Petitioners, particularly because the
neighborhoods studied differed so drastically from the one at issue.
41. In the case at bar, the extensive testimony of generally concerned
remonstrators was not the only evidence upon which the Board relied in its denial. In
addition, while the testimony of Brad Donaldson may not rise to the level of an "expert"
his experienced opinion as a realtor of more than 30 years certainly amounts to more than
"general concern." See Davis v. Stare, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003)
(allowing the testimony of a "skilled witness" in criminal proceedings, defined as "a
person with a degree of knowledge short of that sufficient to be declared an expert under
Indiana Rule of Evidence 702, but somewhat beyond that possessed by the ordinary
jurors). American Tower's representative even agreed that a licensed broker is qualified
to give opinions of value. AT Appx., Exhibit C at 23:17 -22. Furthermore, the Carmel
BZA found that "even [,American Tower]'s own evidence tended to show that nearby
residential property values could or would be negatively affected by the construction of a
Tower." Decision, AT Appx. at 0783 -0786.
42. The consideration of all of this evidence in combination, viewing the
record as a whole, certainly amounts to more than a scintilla and therefore qualifies as
substantial evidence to support the denial of both the Special Exception and the Variance
applications.
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43. Because it was appropriate for the Board to deny the Special Exception if
even one of the factors was not met, the property value factor is dispositive and the Court
need not reach the question of whether substantial evidence supported the other grounds
for denial.
IH. Appropriate Denial of Variance
44. As to the Variance application, the same evidence which supported denial
of the Special Exception based on property values supports the denial of the Variance.
Moreover, without the approval of the Special Exception, American Tower no longer has
grounds on which to request a Variance. Finally, as in the case of the Special Exception,
because the property value factor proved to be dispositive in supporting denial of the
Variance, the Court need not address the other grounds cited by the Board.
45. Although, as referenced above, the Court does not believe it was
appropriate to deny the variance based on the distinction between ownership and
applicant. The Carmel ordinance does not require the applicant to be the owner of the
land. Taking the Board's argument that the applicant must be the Owner of the property
to the extreme, would mean that a cell tower vendor such as Petitioner would be required
to purchase a plot of land before asking for Special Exceptions and Variances. The
Carmel ordinances specifically permit Special Exceptions for cell tower construction in
residential areas where appropriate, and it is unfathomable that the same applicant for a
Special Exception could not also request a Variance.
46. This Court finds that the evidence before the Commission, when taken as
a whole provides a reasonable evidentiary basis for its decision to deny both the Special
Exception application and the Variance application. The evidence in the record along
1G
with the Board's ruling persuades the Court that the Petitioner failed to prove that the
"use and value of the area adjacent to the premises under consideration will not be
affected in a substantially adverse manner."
IV. Other Grounds: Health Effects, Procedural Defects
47. As for American Tower's contention that the denials were improperly
based upon "adverse health" reasons, there is a complete absence of any reference to
`'adverse health" information in the Decision, and the Carmel BZA's counsel specifically
directed the Carmel BZA members to disregard any such information. American
Tower's attorney also announced that health information was irrelevant under federal law
at both the November 24, 2008 and January 26, 2009 meeting, and one of the Carmel
BZA members reminded the public of the need to refrain from raising heath issues at the
January 26, 2009 hearing. AT Appx., Exhibit B at 1:21 -43; Exhibit C at 1:30 -39, 2:1 -12.
American Tower bears the burden of demonstrating that Carmel's conclusions when
viewed on a whole are clearly erroneous, and it cannot met its burden by simply alleging
the Carmel BZA members relied upon improper information when that information is not
cited in the Decision and the members were instructed to disregard that information.
48. Finally, American Towers has argued that they were prejudiced by the
formal Findings of Fact denying the application being filed on July 9, 2010, which is
beyond the statutory time frame. The Cannel BZA voted on February 23, 2009 and
denied the applications, notified American Tower of the denial at that time, signed a
findings template form for the denial at the Carmel BZA meeting, mailed a letter the
following day to again notify American Tower of the denial, and then had its counsel
prepare the formal findings, which were not completed and filed until July 9, 2010. One
17
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cannot have "tainted the underlying proceedings" when the delay occurred after the
Carmel BZA members voted and notified American Tower of the resulting denials.
49. American Tower was unable in its Petition, its Briefs, or oral argument to
cite any prejudice occasioned by the delay. The delay was lengthy, but harmless error.
Porter Countvs 927 N.E.2d at 920 03ZA's several month delay in entering written
findings was harmless error], citing Ripley County Bd. of Zoning Appeals v. Rum ke of
Indiana,_In 663 N.E.2d 198, 205 (Ind. App. 1996); Town of Merrillville Bd. of Zoning
A eals v. Pub. Storage, Inc., 568 N.E.2d 1092, 1093 n.2 (Ind. App. 1991), trams. denied.
50. American Tower has failed to meet its burden of showing that the Carmel
BZA's Decision was clearly erroneous and unsupported by substantial evidence.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, as follows:
1, American Towers has failed to satisfy its burden to show that Carmel BZA's
denial of the Special Exception application when viewed as a whole is clearly
erroneous.
1 American Towers has failed to satisfy its burden to show that Carmel BZA's
denial of the Variance application when viewed as a whole is clearly erroneous.
3. The evidence before the Carmel BZA taken as a whole provides a reasonable
evidentiary basis for its decision to deny the Special Exception application and for
its decision to deny the Variance application. The threshold of a "mere scintilla"
has been met and there is therefore substantial evidence for the denials.
4, American Towers' request for relief in its Petition for Judicial Review to reverse
or remand Carmel BZA's denial of its application for a Special Exception is
denied.
W -1i
American Towers' request for relief in its Petition for Judicial Review to reverse
or remand Carmel BZA's denial of its application for a Variance is denied.
6. All findings of fact may be deemed conclusions of law, and all conclusions of law
may be deemed findings of fact.
All of which is so ordered this day of 2011.
Judge, Hamilton County Circuit Court
Distribution:
Melanie E. Harris, Esq.
Timothy E. Ochs, Esq.
Michael A. Wukmer, Esq.
Rabeh M. A. Soot, Esq.
Ice Miller, LLP
One American Square, Suite 2900
Indianapolis, IN 46282
Judy G. Hester, Esq.
Brazill.Hester, PC
334 N. Senate
Indianapolis, IN 46204
John Molitor
9465 Counselors Row
Indianapolis, IN 46240.6423
Robert C. Ware
30 East Main Street
Carmel, IN 46432
WE