STEINBORN v. LaPORTE COUNTY BOARD OF ZONING APPEALS (Indiana Court of Appeals, March 14, 2011).
Applicant applied for a special exception to build a 195 foot monopole and facility on the property, which was zoned agricultural. At the hearing, the Plaintiff and other neighboring landowners appeared at the hearing with counsel and objected to the proposed plan. Applicant offered a report and testimony from a designated expert, a real estate appraiser and consultant with 28 years of experience. The expert opined that "the proposed communications facility will not have any negative impact on the use, enjoyment, or value of surrounding properties" and that "no substantial or undue adverse effect upon adjacent property, the character of the area, or other matters affecting the public health, safety, and general welfare will occur" as a result of the proposed tower. The expert's opinions were based upon a review of the proposed plans, inspection of the site, as well as his experience with this issue in other locations.
Plaintiff and their counsel offered evidence in the form of letters and lay testimony at the hearing. The Plaintiff offered no designated expert to counter the opinions of Applicant's expert. The Plaintiff generally voiced concerns about the aesthetic impact of the communications facility, opining that the tower was inconsistent with the rural nature of the area and would have a negative effect on the desirability and resale value of the neighboring properties.
Following the hearing, the County voted 5-0 to grant the special exception to Applicant. The County made no specific written findings of fact, merely noting that the exception was granted because it "meets all the requirements as provided by the ordinance and such granting is mandatory." The Plaintiff sought judicial review of the County's decision, and the trial court summarily affirmed the County's approval.
On appeal, the Court stated that it must consider whether the County's decision was based upon substantial evidence. Pursuant to Indiana law, "substantial evidence" is such relevant evidence as a reasonable mind might accept as adequate to support the decision of the board of zoning appeals. In other words, if the record as a whole contains such relevant evidence as a reasonable mind would find adequate to support the decision, that decision stands.
The Plaintiff contended that the County erroneously concluded that the cell phone tower proposal fulfilled all of the criteria set forth in the relevant ordinance. Specifically, they argued that the County erred by concluding that (1) the tower would not substantially diminish the value or the use and enjoyment of neighboring residential properties; and (2) the communications facility was more than 500 feet from neighboring residential structures.
In regard to the value, use, and enjoyment of neighboring properties issue, the Court noted the opinion of the Applicant's real estate appraiser and Plaintiff's evidence of lay opinions and determined that it was for the County to weigh the evidence. The Court stated that it cannot and will not second guess the County's decision to credit the opinion of an expert with decades of experience over the lay opinions of the property owners.
The Plaintiff also argued that the County's refusal to consider moving the tower to another area on the property behind a grove of trees was unreasonable. However, they offered no citation to authority suggesting that the County was required to select another site when the original site, as proposed, met the relevant criteria of the ordinance. The Court stated that the County considered all of the relevant evidence, including official survey plans, maps, and the request to move the tower behind the trees and concluded that the County did not err by approving the originally proposed location for the cell phone tower.
Next, the Plaintiff argued that the wireless communication facility is within 500 feet of a residential structure, in violation of the terms of the ordinance. The Plaintiff did not argue that the tower itself or the 100-by-100-foot fenced-in facility around it would be within 500 feet from a residential structure. Instead, they argued that the access drive leading up to the tower would be less than 500 feet from a residential structure and contended that the access drive is, or should be, included within the phrase "wireless communication facility." The County declined to interpret "wireless communication facility" to include the access drive leading thereto, and the Court noted that the definition does not specifically include the access drive. The Court decided that the County's interpretation of the ordinance was reasonable.
Finally, the Plaintiff argued that the decision should be reversed because the County failed to enter written findings of fact supporting its decision to grant the special exception. The Court stated that although the better practice would have been for the County to have made written findings of fact supporting its decision, the Court found that any error was harmless. The Plaintiff failed to show that they were prejudiced as a result of the absence of written findings. The trial court reviewed "the record as a whole," including the meeting minutes and the video recording of the hearing, and found that the County's decision and conclusions were supported by substantial evidence. Additionally, the Court noted that there were no disputed facts in the case. Instead, the dispute turned upon whether the undisputed facts constituted substantial evidence supporting the County's decision. In such a circumstance, the Court stated that the County's findings of fact are less important than in cases where the facts are in dispute. Thus, the Court decided that the County's failure to enter written, specific findings of fact was a harmless error.
Anthony Dorland
(612) 877-5258
DorlandA@moss-barnett.com