The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Apr 04 2018, 9:08 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Terry K. Hiestand Adam J. Sedia
Hiestand Law Office, LLC Hoeppner, Wagner & Evans, LLP
Chesterton, Indiana Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Central States Tower III, LLC, April 4, 2018
a/k/a Central States Tower, Court of Appeals Case No.
Appellant-Petitioner, 64A04-1710-CC-2400
Appeal from the Porter Superior
v. Court
The Honorable William E. Alexa,
Plan Commission of the Judge
City of Portage, Trial Court Cause No.
Appellee-Respondent 64D02-1705-CC-4934
Baker, Judge.
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[1] Central States Tower III, LLC (CST), appeals the trial court’s order denying
relief on CST’s petition for judicial review. CST sought review of the Plan
Commission of the City of Portage’s (the Plan Commission) denial of CST’s
site plan proposal for construction of a telecommunications tower. Finding no
error, we affirm.
Facts
[2] Portage Township Multi-School Building Corporation (the School Building
Corporation) owns approximately thirty-five acres of land (the Property) in
Portage on which Willowcreek Middle School is located. On November 13,
2015, the School Building Corporation and CST executed a lease agreement
(the Lease), pursuant to which CST would rent a 7,961-square-foot parcel (the
Site) on the Property. CST planned to construct and operate a
telecommunications tower on the Site.
[3] The Lease granted CST unrestricted access to the Site in accordance with
Exhibit 2 to the Lease. Exhibit 2 conveyed an access and utility easement (the
Easement) stretching eastward from the Site and connecting to Evergreen
Avenue, which in turn connected with Willowcreek Road. The Lease also
contained the following provision regarding access:
12. ACCESS. At all times through the Term of this
Agreement, and at no additional charge to [CST], [CST]
and its employees, agents, and subcontractors, will have
twenty-four (24) hour per day, seven (7) day per week
pedestrian and vehicular access to and over the Property,
from an open and improved public road to the [Site], for
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the installation, maintenance and operation of the
[telecommunications tower] and any utilities serving the
[Site]. [The School Building Corporation] grants to [CST]
an easement for such access and [the School Building
Corporation] agrees to provide to [CST] such codes, keys,
and other instruments necessary for such access at no
additional cost to [CST]. Upon [CST]’s request, [the
School Building Corporation] will execute a separate
recordable easement evidencing this right. In the event any
public utility is unable to use the access or easement
provided to [CST] then [the School Building Corporation]
agrees to grant additional access or an easement either to
[CST] or the public utility, for the benefit of [CST], at no
cost to [CST].
Appellant’s App. Vol. II p. 41.
[4] CST filed a petition for a special zoning exception for the Site with the Portage
Board of Zoning Appeals (the Board). Portage’s Development Review Planner
(the Planner) submitted a report to the Board on CST’s petition. The Planner
noted that “the location of the service entrance” as accessed through
Willowcreek Road and Evergreen Avenue, was “not ideal.” Id. at 60. On
April 25, 2016, the Board voted to approve the special exception on three
conditions: (1) CST must adopt the Planner’s proposed landscaping plan; (2)
CST must erect an eight-foot fence around the Site; and (3) the fence must be of
better quality than a chain link fence.
[5] Under Portage’s zoning ordinance, anyone seeking to erect a
telecommunications tower must first obtain an improvement location permit,
which requires a site plan review. Only after an improvement location permit is
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obtained may the party apply for a building permit. CST submitted its site plan
proposal to the Plan Commission on June 23, 2016. Before being considered by
the entire Plan Commission, however, the site plan was reviewed by the Plan
Commission’s Development Review Committee (DRC).
[6] When the DRC reviewed CST’s site plan proposal, the DRC noted that
Portage’s future development plans included elimination of the portion of
Evergreen Avenue where the Easement connected. Specifically, the city
planned to end Evergreen Avenue in a cul-de-sac before it reached the point
where the Easement connected, replacing the road in that area with a sidewalk.
The plan’s purpose was to change traffic flow between the middle and nearby
elementary schools and to consolidate the schools into a single campus.
Because of this plan, which had been approved in May 2016, CST would need
a new easement from the School Building Corporation to be able to access the
Site.
[7] Notwithstanding the uncertainty regarding CST’s ability to access the Site, the
DRC approved CST’s site plan on three conditions: (1) CST would need to
acquire a new access easement to the Site; (2) the Board’s landscaping and
fencing conditions would have to appear in the site plan; and (3) the revised site
plan would have to be re-submitted for final approval.
[8] On October 28, 2016, CST submitted a new site plan. The new site plan
showed the original Easement (with access supplied via Evergreen Avenue) as a
temporary access for construction, with access to be discontinued as soon as
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construction was complete. After that time, the plan showed a new access
point going south and west of the Site to a north-south access road (the
Alternative Easement).
[9] On November 15, 2016, the DRC convened a special meeting to consider
CST’s new site plan. The DRC questioned CST as to whether the School
Building Corporation had approved the Alternative Easement; CST stated that
an “agreement for site access would be worked out at a later time.” Id. at 84.
Because of the lack of an agreement for the Alternative Easement, the DRC
recommended that the Plan Commission deny CST’s site plan.
[10] On December 5, 2016, the Plan Commission held a final hearing on CST’s site
plan. CST introduced multiple documents into evidence, including two emails
from people affiliated with the School Building Corporation. First, the
superintendent of the Portage Township Schools stated as follows:
I’d like to reiterate that it is not my intention to bring [CST’s
request for the new easement] to the [school] board at this time. .
. . We have a school to run and that is our first priority at this
important time. It is not in the best interest of the school
corporation to lock ourselves into a new agreement at this time.
. . . We know there will be a great deal of work and effort in the
area in question around Willowcreek Middle School. Until we
have greater clarity on what changes will be made for the future
and what we as a school corporation need to do, we will
withhold any new agreements.
Id. at 92. Second, the president of the school board stated as follows:
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. . . [M]y recommendation to the [school] board is to follow the
suggestion from our Superintendent on this issue. . . . As I
previously stated, maybe at a later date once we have clarity on
both what the city wants to do and consequently what we
(school) wants [sic] to do we could look at it again. . . .
Id. at 93. After CST presented its case, an employee of Portage’s Department of
Community Development noted that the construction on Evergreen Avenue
would begin within the coming year and that traffic from Evergreen Avenue
would then have to be redirected down side streets. A number of proposals
existed to modify those streets to accommodate the additional traffic, but none
had been adopted or approved yet. In other words, there was a great deal of
uncertainty about general traffic patterns and traffic flow in that area.
[11] CST argued that under the Lease, the School Building Corporation was
obligated to grant CST access to the Site. But a member of the Plan
Commission did not find that argument persuasive:
. . . The real point is, that [proposed new easement] is not a
recorded access easement. So as we sit here, there is no access to
this site. In my opinion, the Plan Commission is being put in a
position between somebody who wants to build a tower and their
landlord, the school system. . . . I think the Plan Commission—I
think we should stay out of that fight. This is not our fight, and I
think we—I don’t think that there’s any way we can approve this
plan as it exists.
Id. at 157. At the conclusion of the hearing, the Plan Commission unanimously
denied CST’s site plan. On April 21, 2017, the Plan Commission issued written
findings; among other things, the Plan Commission found as follows:
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7. While the . . . [Lease] apparently requires [the School
Building Corporation] to give [CST] access to the cell
tower site, [the School Building Corporation] has not
given its approval to the [Alternative Easement] reflected
on the site plan, and [CST] has been unsuccessful in
negotiating a new access agreement . . . .
8. When the [original Easement] is no longer available, there
may be an issue . . . as to the location of a permanent
access easement to the [Site].
9. There is not currently a document available in recordable
form verifying the [Alternative Easement] reflected on the
site plan.
10. Without an Easement Agreement in recordable form
verifying the [Alternative Easement] reflected on the site
plan, [CST] is not in compliance with City Ordinance as to
site plan review and approval for wireless
telecommunication facilities.
Id. at 101-02.
[12] On May 19, 2017, CST filed a petition seeking judicial review of the Plan
Commission’s denial of its site plan proposal. Following submission of written
materials and argument, the trial court denied CST’s request to overturn the
Plan Commission’s decision on October 3, 2017. Ultimately, the trial court
found that “[t]he Plan Commission was justified in denying site plan approval
because the [School Building Corporation] had neither given its approval to
[CST] for the [A]lternative [E]asement, nor was there an Access Easement in
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recordable form as to the new permanent access proposed.” Id. at 11. CST
now appeals.
Discussion and Decision
[13] CST argues that the trial court should have overturned the Plan Commission’s
decision. Final decisions of plan commissions are reviewed in the same manner
as appeals from decisions by boards of zoning appeals. Plan Comm’n v. Aulbach,
748 N.E.2d 926, 933 (Ind. Ct. App. 2001). When reviewing such decisions, we
are bound by the same standard of review as the trial court. Hoosier Outdoor
Advert. Corp. v. RBL Mgmt., 844 N.E.2d 157, 162 (Ind. Ct. App. 2006). As such,
we must accept the facts as found by the zoning board/plan commission, and
may not substitute our own judgment for that of the agency. Id. at 163.
Furthermore, we may neither reweigh the evidence nor reassess witness
credibility. Id.
[14] In conducting judicial review of a zoning decision, 1 a trial court may grant relief
only if:
the court determines that the petitioner has been prejudiced by a
zoning decision that is: (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) contrary
to constitutional right, power, privilege, or immunity; (3) in
excess of statutory jurisdiction, authority, or limitations, or short
1
It is undisputed that CST is entitled to judicial review. See Dunmoyer v. Wells Cty., 32 N.E.3d 785, 792 (Ind.
Ct. App. 2015) (petitioner entitled to judicial review if it has standing, has exhausted administrative remedies,
has filed a timely petition for review, and has timely filed the board record for review).
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of statutory right; (4) without observance of procedure required
by law; or (5) unsupported by substantial evidence.
Dunmoyer, 32 N.E.3d at 792-93. An agency’s decision is arbitrary and
capricious when it is “‘patently unreasonable’ and is ‘made without
consideration of the facts and in total disregard of the circumstances and lacks
any basis which might lead a reasonable person to the same conclusion.’” A.B.
v. State, 949 N.E.2d 1204, 1217 (Ind. 2011) (quoting City of Indianapolis v.
Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998)).
[15] CST’s argument can be summarized as follows: because the School Building
Corporation was contractually obligated (via the Lease) to provide CST with an
easement to access the Site, the fact that there is currently no such permanent
easement in place should not form the basis of the denial of CST’s site plan
proposal. CST has temporary access, via the original Easement, until the city
begins construction on Evergreen Avenue; when that access is removed, the
School Building Corporation will simply have to provide an alternative way for
CST to access the Site.2
2
CST also contends that the city would not have the right to begin construction on Evergreen Avenue if CST
did not have alternative access to the Site. See Ind. Code § 36-7-3-13(2) (providing that a person aggrieved by
a proposed vacation of a public way may object if the vacation would make access to the lands of the
aggrieved person by means of public way difficult or inconvenient). The Plan Commission notes that this
statute “grants the right to remonstrate to a lot owner’s petition to vacate a public way on or contiguous to
the owner’s lot, not to a municipality’s decision to vacate its own public roads.” Appellee’s Br. p. 22. In any
event, the final decision to make the changes to Evergreen Road had already been made over six months
before the Plan Commission’s hearing on CST’s site plan. Therefore, we do not find this argument
persuasive.
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[16] Portage has an ordinance requiring an application for site plan approval for a
telecommunications facility to include “copies of any necessary easements.”
Portage Mun. Code § 90-6.50(J)(11); Appellant’s App. Vol. II p. 107. CST’s
application did not include such copies—because an agreement as to the
Alternative Easement had not been reached. Indeed, CST’s representative
admitted that no such agreement existed and both the superintendent and the
president of the school board stated quite clearly and firmly that no such
agreement was likely to materialize in the near future.
[17] What CST is asking the Plan Commission to do is to step into a potential
breach of contract dispute between CST and the School Building Corporation.
In fact, as noted by the Plan Commission, for it to have considered CST’s rights
and the School Building Corporation’s obligations under the Lease would have
required it to construe the language of a legal document “and adjudicate not
even an actual, but a potential dispute over the document’s meaning.”
Appellee’s Br. p. 25. The Plan Commission has no obligation or authority to
do so. The site plan as presented to the Plan Commission did not have the
required easements attached—because they did not exist. Under these
circumstances, we find that the trial court did not err by finding that the Plan
Commission’s denial of CST’s site plan proposal was not arbitrary, capricious,
contrary to law, or unsupported by substantial evidence.
[18] The judgment of the trial court is affirmed.
Kirsch, J., and Bradford, J., concur.
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