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Thursday, September 10, 2009
Ind. Courts - "Homeowners spin wind turbine lawsuit back to judge"
Adding to the ILB's lengthening list of wind turbine stories, Lydia X. McCoy of the Evansville Courier & Press reports today:
A Warrick County judge will rule again on a variance granted by the county's Board of Zoning Appeals that allows a resident of the Huntington Creek Subdivision to build a wind turbine on his property.Homeowners in the Huntington Creek Subdivision, represented by attorney Les Shively, have asked the court to overturn the decision the board made in October allowing David Johnson, also a resident of the subdivision, to erect a 60-foot-tall wind turbine on his lot.
On Wednesday, Shively and the zoning board's attorney, Morrie Doll, appeared in front of Warrick County Superior Judge Keith Meier for oral arguments. When Meier makes his decision, it will be the second time he's ruled in the case.
His first ruling ordered the board to vote on the variance again and to vote on six questions in its decision, which included addressing whether it would be injurious to public health, safety, public morals and general welfare of the community and whether the use and value of the area's adjacent property would be affected in a substantially adverse manner.
Board members were allowed to vote based only on previous documents and testimony, and it again passed the ordinance.
On Wednesday, Shively told the judge that the board's finding did not "rest on a rational base" in the case and it made its ruling based on "improper considerations."
"I'm asking this court to look at that record under the substantial evidence and determine if it was substantial evidence ... that the petitioner has met all prerequisites," he said. "... The variance never should've been granted by the Board of Zoning Appeals. We believe when an application was made with the Area Plan Commission ... it should've been rejected."
Doll told the judge that the board's decision was "rational and based on evidence," and the ordinance does not define what is and is not an accessory on a lot.
"That's left to the discretion of the Board of Zoning Appeals," he said. "Whether a wind turbine at any height is appropriate will now be determined by the court. What may not have been customary years ago ... is becoming customary. This is a cutting edge case of what's going to be a long line of cases before the court."
Meier told the parties that the case "exemplifies where technology outpaces law."
Posted by Marcia Oddi on September 10, 2009 09:28 AM
Posted to Indiana Courts