Agenda - Planning Commission - 05/03/2007

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February 15, 2007 I Vol ume 1 I No.4 In Jurle 2005, a group of Ross' neighbors filed a request for a temporary restraining order - which would have halted construction - but the request was denied. The neighbors then filed a request for an injunction against Ross 8J.id the city; essentially 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 down the tower. Ross asked the court to dismiss the case, arguing that Harris did not have standing because he had not first ex- hausted his administrative 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' argument was two-fold. First, he claimed that Harris did not have standing due to the doctrine requiring exhaustion of adminis- trative 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 administrative remedies principle because he was not the party that initiated the permit application. 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 the 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 because Harris' claim did not succeed on the merits and injunc- tion, therefore, was inappropriate. To determine this issue, the appeals court had to interpret the height ordinance and its tower exception to see if the trial court had improperly construed the ordinance. - After reviewing the language in the tower exception, the appeals court found that Ross' addition did not meet any of the conditions set forth. Where the language was clear and included specifically which types of struc- tures were permissible, the court had to find that those types not named spe- cifically in the ordinance were not allowable. The appeals court found that Ross "simply used the word 'tower' to circumvent the [residential] height restriction." Despite arguing the opposite, the language in the exception pro- vision in conjunction with the rest of the ordinance - which was entitled "Control over Bulk" and was aimed at "provid[ing] 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 en- gage in a lengthy process of evaluating the impact of the structures on the surrounding neighborhood. The court found it unlikely that the legislature would require such a stringent prerequisite process for commercial develop- ers 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). --c .Tji~~j;;i~l~~~~~t~~n~;~-i;~~~~;;'::e~t,q~i~l~~~~.~R~~ri;';~i';'!.c -,--,-;;.;_~:~-"~.~:_.~'-:::~.:-:.:..~-:.._-,,._.c...:.........'"~ ...~__.~.__-.:..'_- ,__.c..;...----=_..-' ._._ _ _.__~._:... ,__..~_...;.;.=~_ ,""'., 8 L-327335 38