Chesterton Tribune                                                                                   Adv.

January hearing set on new WBEZ radio tower plan

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By PAULENE POPARAD

Local attorney Greg Babcock said it would be a win/win situation for both his clients and the town of Porter.

Chicago-based WBEZ radio would get a 595-foot FM transmission tower and in turn the derelict buildings at the former Andershock’s Fruitland would be demolished, truckloads of debris previously dumped behind them would be removed or mitigated in place, and more than half the 20-acre site offered for future business or light-industrial development.

In addition, a pending lawsuit brought by WBEZ after the Porter Board of Zoning Appeals rejected its 2006 tower request at another location could be dropped by mutual agreement; a trial had been set in Porter Superior Court this month but was postponed in light of the new zoning petition being filed.

A public hearing on it was set unanimously Wednesday by the Porter Plan Commission for its Jan. 16 meeting.

Babcock said time is of the essence because WBEZ’s option to purchase the property is contingent on a February closing and WBEZ, operating as Chicago Public Radio, doesn’t want its federal construction permit for a new tower to upgrade service in this area to expire.

Last year WBEZ proposed locating a 499-foot tower at the southwest corner of State Road 49 and U.S. 20. The current request is for a 595-foot tower, including the antenna, about 800 feet south of U.S. 20 at the southwest corner of its intersection with Tremont Road.

WBEZ’s planned unit development or PUD, initially to contain four parcels that later could be subdivided with town approval, is dubbed Tremont Place. It abuts Lake Erie Land’s largely undeveloped Munson Place light-industrial subdivision to the west.

Babcock said WBEZ wants to retain the Business-3 zoning on the north end of the Andershock parcel fronting U.S. 20 to be consistent with similar zoning along the highway. The balance of the WBEZ land would become Industrial-1 although certain uses like truck stops voluntarily would be prohibited by the petitioner.

Several years ago the town allowed apparent construction debris to be dumped behind Andershock’s, but it’s not fully known what all was dumped, said Babcock.

Because wetlands are an issue, he’s checking with the U.S. Army Corps of Engineers to determine if a violation has occurred and if so, what to do about it. Commission members Lorain Bell and Paul Childress suggested WBEZ consult the Indiana Department of Environmental Management and the U.S. Environmental Protection Agency about the dumping as well.

Babcock said WBEZ would need about 5 acres in the center of the site to locate the guyed lattice tower, its concrete pad and an equipment building within a dedicated safety zone. Tower construction, razing the Andershock buildings and loading docks as well as dealing with the dump site on the south end of the parcel would be encompassed in Phase 1.

Babcock said an agreed timetable and even a bond or guarantee could be posted to assure the Phase 1 work is completed.

Phase 2 would come when the non-tower parcels are sold and end users are identified as to their zoning, traffic and sewage needs. The town would exercise control over such development through resubdivision or site plan review, said Babcock and town officials.

Bell said he wanted to make sure provision is made in the original PUD for the town to require a service road through the parcel in the event uses with semi-trucks are sought because the town might not want semis traveling on Tremont Road, even a short distance.

Technical specifications for the radio tower itself will be supplied for the public hearing, said Babcock, in addition to information requested last night like plans for bird protection, the potential for radio interference, the possibility of the nearby Indiana State Police radio tower co-locating on WBEZ’s so the ISP tower can be removed, and landscape plans for the tower base.

Town planner Jim Mandon said after the first WBEZ tower was denied, staff worked with the station to find an industrial area that from a land-use perspective would work well. “This a very good solution to a lot of problems,” according to Mandon.

Agreed Bell, also a BZA member, “This is the best thing we’ve looked at for WBEZ as well as the property. We’re headed in the right direction. This could work for the town as well as the petitioner.”

When the motion passed setting the January public hearing, commission member Brenda Brueckheimer gave a thumbs up sign.

The commission’s future decision on the WBEZ PUD would be a recommendation to the Town Council, which has final jurisdiction over the PUD ordinance establishing parameters for the development.

Babcock said WBEZ is offering to mount a webcam on the tower to monitor local weather conditions and to provide space for Porter fire/police antennae, but unlike 2006 it is not offering to donate WiFi wireless communications equipment for the town’s use.

Schmoll BZA appeal fails

In other business, town attorney Patrick Lyp announced the Indiana Court of Appeals on Tuesday upheld a July 20, 2005 decision by the Porter BZA reaffirming the issuance of a residential building permit for James and Dawn Dines at the northeast corner of Bote’ Drive and Glenwood Beach Trail in Porter Beach.

Adjacent property owners to the north, Jon and Sandra Schmoll, objected to the building permit and appealed to Porter Superior Court, which ruled in favor of the Dineses and the town, and then to the Court of Appeals. The Schmolls have 30 days if they wish to appeal to the Indiana Supreme Court.

The Schmolls challenged the BZA’s interpretation of Porter’s zoning ordinance and asserted that the BZA erred in concluding the Dines property was a “corner lot.” Doing so allowed the Dineses to choose either Bote’ or Glenwood for their front lot line.

The parties agreed that Glenwood is not a dedicated street, according to the Appeals Court, so the question is whether it is a “public way” or “public right-of-way,” neither of which was defined in the zoning ordinance. The town subsequently amended the ordinance June 26, 2007 to include a private right-of-way as a street but the court noted that could not be addressed because it occurred after the relevant rulings in the Dines case.

The five-page Tuesday decision said Jon Schmoll admitted at the BZA hearing that the Dineses had an ingress and egress easement on Glenwood. Using Black’s Law Dictionary and the American Heritage Dictionary to define “easement” and “public,” the court found that the BZA’s interpretation of their definitions to be reasonable.

Its ruling also cited a 2006 Appeals Court decision that found when interpreting the language of a zoning ordinance, “...our goal is to determine, give effect to, and implement the intent of the enacting body."

 

Posted 12/20/2007

 

 

 

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