Agenda - Planning Commission - 07/09/2009

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56 June 10, 20091 Volume 31 No. 11 Zoning Bulletin Case Note: The district court had allowed the Wohrles to augment the record during the judicial review of the Board's decisions. Spe- cifically, the district court had allowed the Wohrles to present evi- dence regarding the Board's granting of variances in another case. On appeal the county had argued that the court erred in allowing that evidence to be added to the record. The Supreme Court of Ida- ho agreed with the county. It held that the trial court was not justi- fied in allowing that augmentation of evidence because: (1) the other case was not material to the Board's decision based on the Unique characteristics of the owners' properties; and (2) even if itwas ma- terial, the district court was required to. remand the matter to the Board with directions that the Board receive the additional evidence and conduct additional fact-finding. Validity of Zoning Regulations-Residents challengel as illegal spot zoningl zoning amendments that create distri.ct allowing cellular towers . Amendments affect land leased by town to cellular service provider for construction of cell tower Citation:Scalambrino v. Town of Michiana Shores, 904 N.E.2d 673 (Ind. Ct. App. 2009) - INDIANA (04/20/09)-In early 2006, T-Mobile approached the town about the possibility of locating a cell tower on town-owned property. Thereafter the town: (1) leased the property to T-Mobile; (2) issued a building permit for the construction of the proposed cell tower; and (3) amended the town's zoning ordinance. The zoning ordinance amend- ments (the "Amendments") created a governmental zoning district. That district included the lots leased by the town to T-Mobile, as well as ten other lots. That district was created for the stated purpose of concentrat- ing cell towers in one area of the town in order to preserve the town's residential nature. Public and private cell towers were among the uses permitted in the new district by the Amendments. The Amendments also exempted cell towers and antennae from height restrictions. Bruce Scalambrino and other town residents (collectively, the "Resi- dents") brought a legal action against the town, alleging, among other things, that the Amendments were illegal and void because: (1) the town acted with an improper motivation (i.e., "in order to legitimize its deci- sion ~to authorize erection of the (T-Mobile cell] tower" and for "purely -4 @ 2009Thomson Reuters /'~\ -' '-~) ~) I I -----~