*1 by made merely Commission was objective an This is rot or role as- signed by law to the Federal Communica- observation that and compa- RCCs landline tions As a Commission. result of focus- nies fundamentally different with re- ing competitors, competi- first on next on spect to the number of customers each can tion, interest, public and then on the ultimately By "finding", serve. as RAM given FCC has scant attention to the charges, that frequencies number of question public convenience neces- granted effectively places an RCC a limit and sity, and therefore has not met its statu- serve, on the number of customers it can torily imposed duty." the Commission simply stating was the ob- (emphasis original). Id. at 775-76 in Likewise, vious. when the Commission ob- served that a landline company does not case, In argues the instant RAM limitation, have the same Commission, Commission like the FCC in Hawaiian again was stating what was obvious within Telephone, placed emphasis much too on expertise. Therefore, its area of competition we public's and too little on find no error in proposed need for the the distinction by services. We disa drawn gree. Commissionnor do we any believe it was in contrary manner to law. Digital argued,
As has the Commission Finding in gave no error the Cоmmission's or- competi- consideration to the issue of only concluding public tion but after conve- der, we affirm. necessity required
nience granting and Affirmed. of the certificates. What Haowation Tele- held, phone essentially, competi- was that NEAL, P.J., ROBERTSON, J., con- tion was a provided relevant consideration cur. precede it did not consideration public Here, interest. the Commission's comрetition
consideration of the issue was only public
made after that of the interest.
We therefore do not believe the Commis- in respect.
sion erred this
Issue Nine
RAM's final contention concerns by the distinction made the Commission ASH, Foreman, Mae Clara Kenneth Mat- telephone between RCCs landline com ney, Philip Mundy, Clifford Pender- panies. specific finding challenged by grass, Wilson, Dwight Plaintiffs- pertains RAM to the distinction made Appellants, regard Commission with to the finite v. capabilities capabili of an RCC and infinite company ties of a landline in terms of the RUSH COUNTY BOARD OF ZONING number of сustomers each can APPEALS, Defendants-Appellees, serve. view, Record at 925-26. In RAM's this Inc., Intervening distinction has no basis in Indiana law since Defendant-Appellee. it is not in made Indiana Code section 8-1- 2-88. No. 1-1282A363. RAM is correct insofar as Indiana Code Indiana, Appeals Court of distinguish section 8-1-2-88 does not be- First District. tween companies. RCCs and landline In fact, provides for an identical standard June 1984. for each in the of certificates Rehearing July 10, Denied providers service that wish to offer their already services an area served an- However, provider.
other the distinction
348 *3 Quinn, Jr., Clark, Clark,
Thomas Michael
Pappas
Quinn, Indianapolis,
&
Ronald L.
Wilson,
Wilson, P.C., Rushville,
Badell &
were raised
these issues
plain-
to disclose
Gaddy, Indianapolis,
E.
Maureen
are not a court
trial court. We
before the
tiffs-appellants.
jurisdiction.
original
Dunsmore, Knightstown,
E. Edward
Rushville, for defend-
Waggoner,
M.
Vance
petition
to discuss the
In order
ants-appellees.
necessary to make
final
issue it
ers'
Judge.
regarding zoning law.
ROBERTSON,
certain observations
gener
has been
great deal of confusion
A
prop-
Ash,
other
along with several
Mae
parties'
in this case because
ated
owners,
appeal
the find-
(petitioners)
erty
among
rezoning
distinguish
failure
made
of law
fact and conclusions
ings of
amendments, variances,
exceр
Zoning Appeals
County
Board
the Rush
legislative matter
Rezoning is a
tions.
application for a zon-
(Board) regarding the
accomplished by the
only
can
Termi-
made
the Glenwood
ing variance
*4
body.
v. Area
legislative
a
Hills
actions of
Terminal).
(Glenwood
Glenwood
nal, Inc.
(1981)
Cty.,
Vermillion
Plan Com'n. of
to
in order
applied for a variance
Terminal
re
Appellate
was considered to be clean and well Inc., Supply, Farm a few miles from the ed. Terminal, project Glenwood Inc. and hаs petitioners argue (5) the evidence is in- with five different been connected installations; storage support grain handling and sufficient to of fact any They specifically problem and conclusions of law. there has never been a of 352 support to lack of substantial deteriorating in which facility
such decision, contrary to law. this or the decision operating and Compton has been (Glenwood Terminal, Zoning Appeals, Jas Stanley v. Board of operation will Inc. deteriorate; (1972) Ind.App. 283 permitted County, per not be slip structures will be concrete results because grain bins 809. This standard N.E.2d standing; there will be no and free administra appeal form from an the action is an problem to exist. presumption rodent a There is tive determination. Terminal, zoning in board Inc. will of (i) that the determinations entire area surround- not be overturned blacktop the correct and should future are storage multi-grain handling arbitrary, capricious, or ing they unless caused facility eliminating the dust thus so as to constitute patently unreasonable Terminal, Inc. by traffic on the Glenwood v. Boone discretion. an abuse of Boffo supra. Zoning Appeals, Cty. Bd. of property. danger of fire minimal (j) There will be challenged have Terminal, operation in the of Glenwood sufficiency of the evidence Inc.; a fire that is not if there should be We have two findings of fact. the Board's contained, so far removed it would be regarding the suffi of review standards as to consti- any other structures from determining an abuse ciency question for proper- or others danger to other tute no discretion, upon whether depending ty. applications. granted or denied the board (k) property values The likelihood is of a board to reverse an order In order community of the Glen- immediate variance, appellant grants Terminal, project will be en- Inc. wood quantum legitimate that the must show depreci- than devalued hanced rather meager as proportionately so evidence was ated. finding conviction that thе lead to the (l) public morals question no There is rest on the Board does not decision of integrity of unless the morals involved or rational basis. Id. person- Inc. and its *6 be, question; if such so is a moral nel argue that the evi petitioners The integrity. question of such there is no (f), 4(c), (e), supporting paragraphs dence (m) Inc.'s construc- Glenwood (k), (/), (m) The and is insufficient. (g), (J), pro- subsequent operation will and tion essentiаlly invitation to re an argument is general welfare of the Commu- mote the spokesman The weigh the evidence. of the interest nity and is the best very little Terminal testified reasons community for welfare north. from the traffic would come truck and to be stated. stated grain the as to where There was evidence 4(c), (e), argue paragraphs petitioners The facility, the and located at dryer would bе (F), (m) sup- (k), are not €), (g) (), thus, petitioners's from the the distances they further by the evidence ported petitioners The could calculated. homes be (k) 4(d), (h), (F), and paragraphs argue that support the there is no evidence contend by the Board and speculation are but mere would not disturb findings that the noise the trial court. record does establish Although the them. is of review The same standard operation would normal hours of examining the by this court when applied except during p.m. to 5:00 from 7:00 a.m. zoning appeals of a board determination season, have failed petitioners harvest was action regardless of whether grain from the the noise to demonstrate excep or a brought as a variance disturbing.1 dryer would be provides that the deci tion. This standard para is a also claim petitiоners unless there not be reversed The sion will evi- unsupported by the discretion, also graph 4(g) is showing of an abuse clear grain complained construc- petitioners about noise from The noise, dryer. tion not regarding dence because no evidence water public threat morality. petitioners The or lack contamination thereof was ever have failed to show that this decision did presented to the Board. Glenwood Termi- not rest on a rational basis. get septic permit approved. nal did its 4(m) Paragraph consisting of a though regarding Even there is no evidence finding that Glenwood facility Terminal's contamination, any certainly water error is promote general would welfare of the petitioners harmless because the admitted community and is in its best interest. The contrary рeti- there was no evidence. The petitioners challenge support the evidence tioners submitted evidence that the water ing this determination because of the in construction, supply during diminished but problems creased traffic and health this did not relate to the Glenwood some residents. There was evidence that operation. Terminal's facility would result in local farmers being paid 5 cents to 25 per cents more petitioners The para also contend grain facility bushel of when the graph 4(j), which found a minimal fire dan was com pleted. supported This ger, by decision suffi supported by is not The evidence. cient evidence. petitioners again presented evidence of a construction, during fire but there was con petitioners The challenged findings trary evidence that Glenwood Terminal had 4(a), (h), () (k) being speculative as danger minimized the of fire due to paragraphs because the deal with future by accumulation its construction methods. actions to be taken Glenwood Terminal The evidence submitted Glenwood Ter potential problems. to alleviate peti finding. minal was sufficient to correctly tioners assert that these para graphs findings cannot constitute оf fact petitioners challenge also they upon because are based future action. finding that the terminal will enhance the property in the values area. Both sides petitioners challenged have also oth- presented opinions regarding the effect findings being speculative. er as These property terminal would have on potential deal with the of a deteri- values, оrating facility, property better ser- value. The Board's decision believe Terminal does not constitute an farmers, vice for area the cleanliness of the abuse of discretion. An facility, facility operat- administrative and how the will be agency grain facility could determine that a ed. adjacent agri
could enhance the value of Although paragraphs specula- these рroperty. cultural have not they tive because are based on future ac- shown Board's decision did not rest on tion, paragraphs indicate that a rational basis. potential problems Board examined *7 possible could exist and solicited solutions challenged The have spokesman from Terminal. Its 4(/) finding in paragraph contained re testified as to how Glenwood Terminal's garding integrity of Glеnwood Termi methods of construction and its future personnel. They presented nal's evidence plans potential problems. could alleviate that the construction had workers been "findings" These establish the Board did a open. rude and relieved themselves in the thorough job in its examination of this mat- Although we have no that these doubt ac ter. petitioners, tivities disturbed some of the presented there was In summary, petitioners, that the facil in order to ity managed by appeal, would be individuals who succeed on had to establish that the facility. quantum proportionately had worked at the Falmouth The of evidence was easily meager Board have that could concluded such that it leads to the conclusion integrity moral of these was not individuals that and determinations subject dispute. operation to The of a do a The Board not rest on rational basis. evidence, grain handling facility unlikely contradictory to involve record but contains to evidence of record sufficient there is findings. SCHULTZ, as Administratrix of Susan Schultz, De- of Harold R. the Estate affirmed. judgment is The Service, ceased, Bros. Motor and Welsh Defendants-Appellants, NEAL, P.J., concurs. opin-
RATLIFEF,J., separate v. concurs with ion. VALLE, Plaintiff-Appеllee. Ray
RATLIFFE, concurring. Judge, No. 3-783A229. very in its first majority opinion Indiana, Appeals of of Court Terminal that Glenwood paragraph states District. Third to alter order applied for variance agricul- property from zoning of its status 12, 1984. June that it could build commercial so tural to Aug. Rehearing Denied it could not do. drying facility. This plan area commission County bas an Rush zoning appeals. Area boards of
and bоard from appeals prohibited zoning or a use district a variance from terms of the express
classification Indiana Code section statute. applicable
36-7-4-918(d). this matter majority later states that application for a treated as an
has been shall treat exception and that we special If the action Slip Opinionat 8. such.
as up- Appeals is to be Zoning
the Board
held, that it was on the basis it must be excep- special request for a dealing with rezoned had been The area involved
tion. use agricultural to commercial.
from that of a
sought handling facility appears multigrain exception in a commer- special
an allowable 515, Category: under Code No. cial district materials) (raw Farm Products
Wholesale Zoning County Ordinance. under the Rush Ordinance, appear parties p. 86.
See the Board the matter before agree exception. petition for a
was power Board's within the
Such was meeting of the conditions grant upon the (See Ordi- by the ordinance.
prescribed major-
nance, 67-69). I pp. concur with *8 findings and the evi- Board's ity that the to sustain the
dence are sufficient exception. Stults, Jr., III,
Fred M. Fred M. Stults Forszt, Stults, Custer, Kutansky Robert P. McClean, defendants-appel- Gary, & lants.