Agenda - Planning Commission - 04/05/2007

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Zoning Bulletin In early 2005, several neighbors became aware of the construction and its poten- tial impact on their lake views and property values. Allegedly, Ross told one of the neighbors that he had obtained the work permit through a "loophole." Ross acceler- ated the construction in response to the complaints. . In June 2005, a group of Ross' neighbors filed a request for a temporary restrain- ing order - which would have halted construction - but the request was denied. The neighbors then filed a request for an injunction against Ross and the city; es. sentially they asked the court to order the construction stopped. Before that request could be heard, the project was completed. Subsequently, one of the neighbors, Harris, modified the request, asking the court to order Ross to take dovv-n the tower. Ross asked the court to dismiss the case, argu- ing that Harris did not have standing because he had not first exhausted his adminis- trative remedies by appealing to the zoning board. Ross also argued that the zoning code had an exception to its height limitation for towers. Ultimately, the trial court found in favor of Harris and ordered the part of the tower that exceeded the height limit to be removed. Ross and the city appealed. Decision: Affirmed. On appeal, Ross' argwnent was nom-fold. First, he claimed that Harris did not have standing due to the doctrine requiring exhaustion of administrative remedies. Second, he claimed that the addition was permissible under a provision of the zoning code that regulated towers. The appeals court found that Harris was not bound to the exhaustion of adminis- trative remedies principle because he was not the party that initiated the permit appli- cation. It was not his responsibility to "monitor the issuance of permits for which he had not applied." Harris could have appealed to the board, but it was not required. To overturn J:he decision of the lower court there had to be evidence of an abuse of discretion. Here, Ross argued that the lower court had abused its discretion be- cause Harris' claim did not succeed on the merits and injunction, therefore, was inap- propriate. To determine this issue, the appeals court had to interpret the height ordi- nance and its tower exception to see if the trial court had improperly construed the ordinance. Alter reviewing the language in the tower exception, the appeals CoUIt found that Ross' addition did not meet any of the conditions set forth. Where the language was clear and included specifically which types of structures were permissible, the court had to find that those types not named specifically in the ordinance were not allow- able. The appeals court foui"ld that Ross "simply used the word 'tower' to circum- vent the [residential] height restriction." Despite arguing the opposite, the language in the exception provision in conjunction with the reS! of the ordinance - which was entitled "Control over Bulk" and was aimed at "providIing] healthy, attractive, and stable neighborhoods - demonstrated the clear intent of the provision to restrict structures such as Ross'. Additionally, commercial applicants seeking to build towers had to engage in a lengthy process of evaluating the impact of the structures on the surrounding neigh- borhood. The court found it unlikely that the legislature would require such a strin- gent prerequisite process for commercial developers and simply allow a tower to be constructed for residential purposes after only obtaining a building permit. The appeals court found no error or abuse of discretion by the lower court, and the decision of that court was affirmed. See also: Bixler v. LaGrange County Bldg. Dept., 730 N.E.2d 818 (Ind. Ct. App. 2000), 8 114