*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 Commission'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 competition

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 customers 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, excep 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 416 N.E.2d 456. Ind.App., property from zoning status of its the alter quite is legislative determinations view of in order to build commercial agricultural to v. Associated City Anderson limited. of unineorporat- facility in the drying grain a Furniture, (1979) Ind.App., N.E.2d 398 application was Mauzy. The village of ed Ind., 423 1321, grounds, on other rev'd County Area Plan Com- Rush with the filed a devia A variance involves N.E.2d 293. sought appeal to petitioners The mission. zoning change legislated the from tion or the Board variance to granting of this the piece certain applicable to a classification plan the the decision of affirmed which of a variance granting The property. of appealed this petitioners The commission. though the discretionary even Board is which affirmed the cireuit court decision statutory may satisfied the have petitioner appeal was the Board. The decision of a use exception involves special A criteria. We re- to this court. further pursued zoning given permitted within which is deci- the trial court's remanded and versed statutory criteria certain make find- onee failed to classification the Board sion because of satisfied. have been fact, 1182. Ind.App., 451 N.E.2d ings of upon compli mandatory special exception is peti- and the been made have in set forth statutory criteria with the ance appeal the determination. now tioners Cty. Bd. v. Boone the ordinance. of Boffo affirm. We (1981) 421 Ind.App., Zoning Appeals, three errors petitioners raise remand, has this case Upon 1119. N.E.2d findings of from the Board's appeal on application for treated as an been 1) law: whether and conclusions facts spe it as a shall also treat exception. We supported are findings and conclusions exception. cial law, evidence, contrary to are by sufficient village con- unincorporated Mauzy is an discretion; 2) an abuse or constitute on It is located sisting of six houses. County zoning ordi the Rush whether inter- E in the area County Road 600 vague; unconstitutionally and nances Mauzy's size 44. State Road sects with composition was 3) the Board's whether 1900 about constant since has remained constituted, action such that its unlawfully conducted has been no other business can two issues The last be void. would the land than area since 1892. Other in the they not were resolved because easily Terminal, the area by Glenwood purchased in their motion to petitioners by the raised agricultural purposes. is to include is zoned The failure errors. correct con- that the presented evidence petitioners consti errors to correct in the motion sues rude, that sur- had been Royal Insur v. struction workers tutes a waiver. Winkler in traffic increase rounding had an roads (1975) App. Ind. 337 167 Company, ance morning, Furthermore, early in the record fails beginning often N.E.2d challenge the sufficiency of evidence to trespassed some of the construction traffic petitioners' property, onto the and that the following findings: experienced difficulty had some 4(c) large preponderance A of the truck supply. peti- with their water One of the ing hauling will be from the south negotiating tioners testified that she was pass part thus not but a of one of prior the sale of her home to the construc- objectors real estate. tion, negotiations but that ceased after the (d) Drainage presently problem is began. construction objectors Terminal, and Glenwood presented Glenwood Terminal Inc. prepared spend as much as purpose to the Board that its in altering the $6,000.00 correcting drainage its own zoning permit was to the construction of a help such a manner as will correct grain handling facility. ship It intended to present drainage problems objec- grain eventually to the east coast and over- tors; if County Road from the south presented seas. Glenwood Terminal also Terminal, to the facility Inc. evidence that operate very farmers on a has strengthened, to be widened and tight budget and that due to increased Terminal, Inc. volunteers maintenance, costs of fuel and truck keep repair said road in expense; at its pay would be able to from 5 cents to 25 further Glenwood Inc. as a per cents more bushel of because the safety precaution will maintain a cross- property purchased which it had contained ing guard at during railroad railroad track which would enable it to *5 periods school to warn school buses of grain store in train loading cars as well as rail traffic. grain cars. Glenwood Terminal also admit- (e) only noisy machinery would be a willing spend ted was to as much as grain dryer located at the east end of the $6,000 drainage to a problem correct which facility which would operate only three help petitioners would the with their drain- to four annually during weeks harvest age. presented Evidence was to the Board season; dryer the noise of such located facility that the road north of the would this Board estimates is no closer [sic] traffic, great not have a in increase but objector's than 800 feet from the nearest might that the road south have to be wid- residence and 1500 feet from the further- strengthened ened and and that if neces- objector's est residence will not be [sic] sary, Glenwood Terminal would use its re- disturbing any objectors. to keep sources to repair. the road in Evi- (£) operation The hours of of Glenwood presented only dence was also that Terminal, Inc. will 7:00 be from a.m. to noisy equipment facility at the would a be p.m. normally 5:00 during and until dark grain drying machine which was to be lo- practical harvest time thus as a matter facility, cated at the east end of the which grain there will no noise from either only operate per would three to four weeks hauling switching or railroad car on the year season, during crossing harvest that a B. passing & O. Railroad track disturb- guard during would be at the railroad ing sleep. traffic, periods school to warn buses of rail eventually facility (g) that the area around There will be no contaminations of blacktopped any would be to eliminate dust supply by operation water of Glen- problems, Terminal, and that bins would be wood Inc. standing free concrete structures. (h) Compton represents Mr. William spokesman (Glenwood for Glenwood Terminal man- Terminal, Inc. as co-owner and aged facility a similar in Falmouth which thereof; operator he also owns Falmouth operat-

was considered to be clean and well Inc., Supply, Farm a few miles from the ed. Terminal, project Glenwood Inc. and has 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 the 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 essentially 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 be (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 petitioners 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 peti- 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 of 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, orating 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 property. 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 Glenwood 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-Appellee. 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 board 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.