Network Towers, LLC v. BD. OF ZONING APPEALS OF LaPORTE CTY.

• Court: Indiana Appellate Court
• Writing for the Court: RILEY.
• Citation: Network Towers, LLC v. BD. OF ZONING APPEALS OF LaPORTE CTY., 770 N.E.2d 837 (Ind. App. 2002)
• Decision Date: 19 June 2002
• Docket Number: No. 46A03-0110-CV-326.,46A03-0110-CV-326.
• Parties: NETWORK TOWERS, LLC, Appellant-Plaintiff, v. BOARD OF ZONING APPEALS OF LaPORTE COUNTY, INDIANA, Appellee-Defendant.

770 N.E.2d 837

NETWORK TOWERS, LLC, Appellant-Plaintiff, v. BOARD OF ZONING APPEALS OF LaPORTE COUNTY, INDIANA, Appellee-Defendant.

No. 46A03-0110-CV-326.

Court of Appeals of Indiana.

June 19, 2002.

Jon A. Bomberger, Karen T. Moses, Baker & Daniels, Fort Wayne, IN, Attorneys for Appellant.

Robert C. Szilagyi, Schoof, Szilagyi & Davis, LaPorte, IN, Attorney for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Plaintiff-Appellant, Network Towers LLC (Network), appeals the findings of fact and conclusions of law made by the Board of Zoning Appeals of LaPorte County, Indiana (the "Board").

We reverse and remand.

ISSUE

Network raises several issues for review, one of which we find dispositive and restate as follows: whether the Board erred in denying Network its Petition for Conditional Use Permit.

FACTUAL AND PROCEDURAL HISTORY

Network is a limited liability company in the business of constructing and maintaining wireless communications towers, and maintains an office in Fort Wayne, Indiana. Centennial Communications (Centennial) contracted with Network for the construction of a 250-foot wireless communications tower in Union Township, Indiana. To that end, Network entered into a lease with Bruce Wolff for a .0147-acre lot (the "real estate") located near the town of Hamlet, Union Township, Indiana, in an area zoned R-2.

At all relevant times, LaPorte County Zoning Ordinance (the "Ordinance"), Sec. 8-22, stated:

Paging Towers/Wireless Communications Placement:

...

B. Location

Any wireless communications facility must qualify under the following standards as a permitted use or a conditional use:

...

4. Tower placement.

1. At least Fifty (50) feet greater that (sic) the tower height from any property boundary and Five Hundred (500) feet from any residential structures.

2. One thousand (1,000) feet from any R1, R2, or R3 zoned districts.

3. Fifty (50) feet greater than the tower height from any public road.

4. No tower placement shall be within five (5) miles of any existing tower.

5. Cannot be greater than Two Hundred and Fifty (250) feet in height.

6. Any tower greater than One Hundred and Fifty (150) feet must be capable of co-location of at least four (4) users.

(Appellant's Appendix p. 31).

Because the real estate was within 1000 feet of a residential zone, within 500 feet of a residential building, and within five (5) miles of another wireless communications tower, Network's proposed tower could not qualify as a permitted use. In such a case, the Ordinance provided for a conditional use permit, but only under the following provision:

C. Conditional Uses

The Board of Zoning Appeals shall approve or deny conditional use permit applications for wireless communications facilities based on consideration of the following factors:

1. Whether the facility will offer potential opportunities for co-location;

2. Whether all applicable development standards will be met;

3. The previous or existing use of the site and its impact on surrounding properties;

4. Compatibility of the proposed use with the existing use of the site and existing neighboring uses;

5. The extent to which granting the conditional use would substantially serve the public safety and welfare;

6. The particular physical suitability of the site for the proposed use; and

7. Whether conditions may be imposed by the Board or commitments made by the applicant which are sufficient to mitigate any potential adverse impact on neighboring property.

(Appellant's App. p. 25).

To obtain a conditional use permit, Network had to submit a written application in compliance with the Ordinance, Sec. 8-22(E), which required, among other things, the following demonstration:

An application for a zoning clearance permit or conditional use approval for a wireless communications facility shall be submitted to the County Planning and Zoning Office and shall comply with the requirements set forth below:

1. Tower application

a. Co-location requirements

An application for a zoning clearance permit or a conditional use permit for a new tower shall not be considered unless the applicant demonstrates to the satisfaction of the Board of Zoning Appeals that no existing tower, structure, or building can accommodate the proposed antenna due to one or more of the following reasons:

1. No existing or approved towers, structures, or buildings are located within the geographic area needed to meet the applicant's engineering requirements.

2. No existing or approved towers, structures, or buildings are of sufficient height or structural capacity to meet the applicant's engineering requirements ...

b. Documentation

An application for a zoning clearance permit or a conditional use permit for a new tower shall include the following documentation:

1. Documentation of inability to comply with co-location requirements.

...

3. Conditional use application

An applicant for approval of a conditional use permit for a wireless communications facility shall:

a. Provide an explanation of why the facility cannot be located on a site for which it would be a permitted use.

(Appellant's App. pp. 27-9).

On October 2, 2000, Network filed a Petition for Conditional Use for a Wireless Communications Facility (the "Petition"). In its Petition, Network alleged that there was no existing structure, within the relevant geographical area, of sufficient height or structural capacity to meet Network's engineering requirements. Network supported its allegation of an inability to co-locate, as required by the Ordinance, Sec. 8-22(E)(1)(b), by attaching to its Petition an "Engineering Statement in support of proposed Network Towers, LLC communications tower at Kingsford Heights, IN" which stated, among other things, that:

Centennial Communications is licensed by the FCC to provide cellular service to LaPorte County.... Centennial identified a need to improve service in Kingsford Heights. In order to provide service at the earliest possible date, Centennial first evaluated existing and previously approved towers for suitability. It identified one existing tower belonging to Lodestar located in the adjacent community of Kingsbury and one approved (but not constructed) tower in the community of South Center.

As a cellular licensee, Centennial has to meet certain service responsibilities stipulated by the FCC.... The ability to satisfy the FCC standards is highly dependent on achieving adequate signal strength in any area. Populated communities require higher signals because of the inherent signal loss when communicating with hand held units operated inside buildings. Consequently the most satisfactory communication systems are those comprising towers located closer to the targeted communities so that the signals are strong enough to penetrate the buildings.... Centennial has discovered over more than 10 years of operational experience that, for adequate in-building service, transmission locations should be within 2 miles of the building where service is required. Evaluation of the alternative towers showed that none met this criterion.

...

Network Towers was ... further instructed to attempt to achieve a location close to the point at which US6 bends from following an east/west route to a north south route. This is because transmission locations which are aligned with highway rights of way produce optimum coverage results thus minimizing the need for additional towers. The presently proposed location meets these principal requirements.

(Appellant's App. p. 58).

On October 17, 2000, Network appeared before the Board for a public hearing on its Petition. Charles Koifer testified on behalf of Network and Centennial that gaps existed in Centennial's coverage area, and customers were complaining about losing signal strength. Koifer's testimony also corroborated the engineering statement included with the Petition, to the effect that no present tower or other structure was capable of meeting Centennial's service needs. Network also demonstrated, among other things, that (1) the proposed tower had room for co-location by three additional carriers, (2) all development standards specified in the Ordinance would be met, (3) the existing use of the site was agriculture, and that use would continue after the tower was constructed, and (4) that the proposed location served the public interest by providing sufficient coverage to fill the gaps in Centennial's service.

Two remonstrators spoke against the Petition, based on their aesthetic concerns and the potential for a reduction in their property values due to the proximity of Network's proposed tower to their own property. None of the remonstrators, however, submitted any evidence other than their personal opinion. At the conclusion of the hearing, one of the Board members moved to deny Network's petition because "he ha[d] not been successfully convinced that another tower will not work for them." (Appellant's App. p. 46). The motion was seconded and carried.

Sometime later¹, the Board issued written Findings of Fact and Conclusions of Law (the "Findings"), which stated, in pertinent part:

The purpose of such Petition was for variance to construct a 250 foot wireless communications tower within the 1000 foot setback from an [sic] R1, R2, and R3 districts as well as within a five (5) mile limit of any existing towers and within a 500 foot setback from residential structures as located at 1502 E. U.S. Highway 6, Union Township currently zoned R2 and on 0.147 acres.

After hearing all the evidence to be presented, the Board of Zoning Appeals makes the following findings of facts and conclusions of law:

1. That pursuant to the LaPorte County Zoning Ordinance, a variance is need [sic] for the location of such tower at this vicinity in relation to residential districts and the existing residential structures.

2. That there are other towers within the five (5) mile radius for which co-locators can be utilized.

3. That the location of such tower and direct

...