Agenda - Planning Commission - 01/06/2011

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Zoning Bulletin October 10, 2010) Volume 41 No. 19 The BZA granted the variance in October 2008. Thereafter, multiple county homeowners (the "Homeowners") ap- pealed the grant of that variance to court. Among other things, the Ho- meowners alleged that "a free standing wind turbine [was] not a per- mitted use under the zoning ordinance in the R -2 district." The county's zoning ordinance (the "Ordinance ") allowed only "speci- fied permitted uses" in the R -2 district. Those uses included dwelling units and their accessory uses. "Accessory" uses were defined as those "incidental or subordinate to and customary in connection with the PRINCIPAL BUILDING or USE ... located on the same lot " The Homeowners argued that "[e]ven if it could be shown that a free standing wind turbine is `incidental or subordinate' a free stand- ing wind turbine ... could not by any reasonable interpretation be con- strued to be `customary." On the other hand, the BZA and the county's Board of Commis- sioners (collectively, the "County ") maintained that the term "custom- ary" in the Ordinance was meant to be considered within the context of the principal building or use on the same lot; it was not meant as a "measurement against the general standard of currently used acces- sory uses or structure[s] in all R -2 districts or in residential districts in general." The County further argued that the "Homeowners' posi- tion[] that until wind turbines are 'customary' 'they are not permitted accessories, [was] a circular argument" making it "impossible for [new energy technologies] to become `customary. " The trial court agreed with the County. It found that the Ordinance permitted a wind turbine tower as an accessory use in an R -2 district. Ac- cordingly, the court upheld the grant of the variance to the Applicants. The Homeowners appealed. DECISION: Affirmed. The Court of Appeals of Indiana held that a free - standing wind tur- bine was "customary in connection with" a residence and thus was, under the Ordinance, a permitted accessory use in the R -2 district. In so holding, the court noted that the Ordinance did not define "cus- tomary?' The court therefore looked at the "ordinary" meaning of the word, and construed the ordinance "to favor the free use of land ...." The Homeowners had contended that the intended use of "custom- ary" in the Ordinance was to allow only accessory uses that were a "habitual practice." The court rejected this interpretation, noting it would be "contrary to public policy." The court found that such an interpretation would "preclude improvements in the standard of living © 2010 Thomson Reuters 3 15