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
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
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
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
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."