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ATTORNEYS FOR APPELLANT James D. Johnson Krista B. Lockyear Evansville, Indiana

ATTORNEYS FOR APPELLEE Joseph H. Harrison, Jr. David E. Gray Evansville, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 82S01-0702-CV-69 ST. CHARLES TOWER, INC., Appellant (Plaintiff below), v. BOARD OF ZONING APPEALS OF EVANSVILLE-VANDERBURGH COUNTY, Appellee (Defendant below). _________________________________ Appeal from the Vanderburgh Circuit Court, No. 82C01-0506-PL-466 The Honorable Carl A. Heldt, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 82A01-0603-CV-128 _________________________________ September 18, 2007 Sullivan, Justice.

The Vanderburgh County Zoning Code requires cellular telephone towers to be located a distance of two feet for each foot of height of the tower or 300 feet, whichever is greater, from any residence. St. Charles Tower, Inc., proposed to erect a 185-foot cell tower within 370 feet of three residences, one of which was within 168 feet of the tower's proposed location. The Board of Zoning Appeals of Evansville-Vanderburgh County properly rejected an application to erect the cell tower based on these facts.

Background St. Charles Tower, Inc. ("St. Charles"), a corporation that constructs and installs cellular tower facilities, sought to erect a cell tower in Vanderburgh County. Under the circumstances, the county zoning code required that St. Charles obtain both a special use permit and a variance from a setback requirement in the zoning ordinance.

In February 2005, St. Charles submitted its request to the Board of Zoning Appeals of Evansville-Vanderburgh County ("BZA"), the administrative body authorized by Indiana statute 1 and designated by the Vanderburgh County Code 2 to consider applications for special use permits and variances. In May, the BZA heard argument from St. Charles and from remonstrators on the applications. At the conclusion of the hearing, the BZA voted to deny St. Charles's application for the special use permit and St. Charles withdrew its application for the variance.

Specifically, the BZA found:

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Indiana Law