The owners of a house (the “Applicants”) filed an application seeking a variance from the requirements of the zoning ordinance for Warrick County, Indiana to allow a permit to be issued for a wind turbine exceeding the maximum height requirement in an ‘R-2’ Multiple Family Zoning District. The variance sought to allow an additional 20 feet which would allow for the proper operation of the turbine. The Board of Zoning Appeals of Warrick County (the “BZA”) granted the variance.
A number of individuals (the “Residents”) filed a complaint (1) alleging that the variance granted by the BZA was “unsupported by substantial evidence”, was arbitrary and capricious, and was in all other respects contrary to Indiana law; and (2) seeking a declaratory judgement that a free standing wind turbine was not a permitted use under the zoning ordinance.
Regarding the variance, the trial court concluded that there was not substantial evidence before the BZA to show that strict application of the applicable zoning ordinance would result in practical difficulties in the use of the Applicants' property as residential real estate, and the trial court reversed the BZA's decision. The trial court's reversal of the BZA's decision to grant the variance was not appealed.
Regarding the claim for declaratory relief that a free standing wind turbine was not a permitted use under the zoning ordinance, the trial court concluded that a free standing wind turbine tower is permitted as an accessory use. The Residents argued that the definition of accessory use or structure in the zoning ordinance required that a valid accessory use be incidental or subordinate to and customary in connection with the principal building or use. The Residents argued that the word “custom” is defined as a habitual practice and the term “customary”, which is derived from the word custom, is defined as “of or established by custom; usual or habitual.”
The Court held that the “customary in connection with” requirement for an accessory use structure should not be construed so as to prevent the implementation of new technologies in residential districts. Indeed, if, as Residents contended, the definition required that the intended use be demonstrated as a “habitual practice,” this would preclude improvements in the standard of living since innovations in the production of energy and other technologies could not have been “established by custom; usual or habitual” at the time of the adoption of the zoning ordinance. Such a requirement would be contrary to public policy. Also, the Court stated that although homes have historically received electricity from a power company via a power plant, the Court recognized that state and federal governments have made it a priority to encourage the implementation of renewable energy technologies such as wind power.
For a copy of this decision, contact Anthony Dorland at dorlanda@moss-barnett.com.