Hamby v. Board of Zoning Appeals of the Area Plan Commission of Warrick County

Indiana residents David Johnson and Phyllis Stilwell applied to the Board of Zoning Appeals of the Area Plan Commission of Warrick County (the BZA) (defendant) for a variance from a county zoning ordinance that limited the height of wind turbines in multifamily residential districts. Johnson and Stilwell wanted to install a wind turbine that was 20 feet higher than the zoning ordinance allowed; they claimed that the variance was necessary for proper operation of the turbine for use as an alternative power source on Johnson and Stilwell’s property. The BZA granted the variance. Roughly one month later, neighboring homeowners, including Timothy and Theresa Hamby (collectively, the homeowners) (plaintiffs), brought a declaratory-judgment action against the BZA and sought judicial review of the BZA’s decision, asserting that the variance was arbitrary, capricious, and contrary to Indiana law. The homeowners also asserted that a freestanding wind-turbine tower was not permissible in the multifamily residential zoning district. The relevant zoning regulations allowed accessory uses or structures, defined as a building or use that was “incidental and subordinate to and customary in connection with the principal building or use” and located on the same lot as the principal building or use. The homeowners did not dispute that a residential wind turbine would be incidental or subordinate to Johnson and Stilwell’s residence, but the homeowners asserted that wind turbines should not be permitted accessories because they were not customary. The homeowners submitted no evidence indicating that wind turbines were not customary in the county, but they asserted that wind turbines were a new technology that was not a habitual practice. The trial court reversed the BZA’s decision, finding that Johnson and Stilwell had not met the required standard to receive a variance. However, the court further found that if a variance were properly granted, a residential wind turbine would be a permissible accessory use in the zoning district. The homeowners appealed.