MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
                                                                             Apr 04 2018, 9:08 am
regarded as precedent or cited before any
court except for the purpose of establishing                                      CLERK
                                                                              Indiana Supreme Court
the defense of res judicata, collateral                                          Court of Appeals
                                                                                   and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Terry K. Hiestand                                        Adam J. Sedia
Hiestand Law Office, LLC                                 Hoeppner, Wagner & Evans, LLP
Chesterton, Indiana                                      Merrillville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Central States Tower III, LLC,                           April 4, 2018
a/k/a Central States Tower,                              Court of Appeals Case No.
Appellant-Petitioner,                                    64A04-1710-CC-2400
                                                         Appeal from the Porter Superior
        v.                                               Court
                                                         The Honorable William E. Alexa,
Plan Commission of the                                   Judge
City of Portage,                                         Trial Court Cause No.
Appellee-Respondent                                      64D02-1705-CC-4934




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018                  Page 1 of 10
[1]   Central States Tower III, LLC (CST), appeals the trial court’s order denying

      relief on CST’s petition for judicial review. CST sought review of the Plan

      Commission of the City of Portage’s (the Plan Commission) denial of CST’s

      site plan proposal for construction of a telecommunications tower. Finding no

      error, we affirm.


                                                     Facts
[2]   Portage Township Multi-School Building Corporation (the School Building

      Corporation) owns approximately thirty-five acres of land (the Property) in

      Portage on which Willowcreek Middle School is located. On November 13,

      2015, the School Building Corporation and CST executed a lease agreement

      (the Lease), pursuant to which CST would rent a 7,961-square-foot parcel (the

      Site) on the Property. CST planned to construct and operate a

      telecommunications tower on the Site.


[3]   The Lease granted CST unrestricted access to the Site in accordance with

      Exhibit 2 to the Lease. Exhibit 2 conveyed an access and utility easement (the

      Easement) stretching eastward from the Site and connecting to Evergreen

      Avenue, which in turn connected with Willowcreek Road. The Lease also

      contained the following provision regarding access:


              12.      ACCESS. At all times through the Term of this
                       Agreement, and at no additional charge to [CST], [CST]
                       and its employees, agents, and subcontractors, will have
                       twenty-four (24) hour per day, seven (7) day per week
                       pedestrian and vehicular access to and over the Property,
                       from an open and improved public road to the [Site], for

      Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018   Page 2 of 10
                       the installation, maintenance and operation of the
                       [telecommunications tower] and any utilities serving the
                       [Site]. [The School Building Corporation] grants to [CST]
                       an easement for such access and [the School Building
                       Corporation] agrees to provide to [CST] such codes, keys,
                       and other instruments necessary for such access at no
                       additional cost to [CST]. Upon [CST]’s request, [the
                       School Building Corporation] will execute a separate
                       recordable easement evidencing this right. In the event any
                       public utility is unable to use the access or easement
                       provided to [CST] then [the School Building Corporation]
                       agrees to grant additional access or an easement either to
                       [CST] or the public utility, for the benefit of [CST], at no
                       cost to [CST].


      Appellant’s App. Vol. II p. 41.


[4]   CST filed a petition for a special zoning exception for the Site with the Portage

      Board of Zoning Appeals (the Board). Portage’s Development Review Planner

      (the Planner) submitted a report to the Board on CST’s petition. The Planner

      noted that “the location of the service entrance” as accessed through

      Willowcreek Road and Evergreen Avenue, was “not ideal.” Id. at 60. On

      April 25, 2016, the Board voted to approve the special exception on three

      conditions: (1) CST must adopt the Planner’s proposed landscaping plan; (2)

      CST must erect an eight-foot fence around the Site; and (3) the fence must be of

      better quality than a chain link fence.


[5]   Under Portage’s zoning ordinance, anyone seeking to erect a

      telecommunications tower must first obtain an improvement location permit,

      which requires a site plan review. Only after an improvement location permit is

      Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018   Page 3 of 10
      obtained may the party apply for a building permit. CST submitted its site plan

      proposal to the Plan Commission on June 23, 2016. Before being considered by

      the entire Plan Commission, however, the site plan was reviewed by the Plan

      Commission’s Development Review Committee (DRC).


[6]   When the DRC reviewed CST’s site plan proposal, the DRC noted that

      Portage’s future development plans included elimination of the portion of

      Evergreen Avenue where the Easement connected. Specifically, the city

      planned to end Evergreen Avenue in a cul-de-sac before it reached the point

      where the Easement connected, replacing the road in that area with a sidewalk.

      The plan’s purpose was to change traffic flow between the middle and nearby

      elementary schools and to consolidate the schools into a single campus.

      Because of this plan, which had been approved in May 2016, CST would need

      a new easement from the School Building Corporation to be able to access the

      Site.


[7]   Notwithstanding the uncertainty regarding CST’s ability to access the Site, the

      DRC approved CST’s site plan on three conditions: (1) CST would need to

      acquire a new access easement to the Site; (2) the Board’s landscaping and

      fencing conditions would have to appear in the site plan; and (3) the revised site

      plan would have to be re-submitted for final approval.


[8]   On October 28, 2016, CST submitted a new site plan. The new site plan

      showed the original Easement (with access supplied via Evergreen Avenue) as a

      temporary access for construction, with access to be discontinued as soon as


      Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018   Page 4 of 10
       construction was complete. After that time, the plan showed a new access

       point going south and west of the Site to a north-south access road (the

       Alternative Easement).


[9]    On November 15, 2016, the DRC convened a special meeting to consider

       CST’s new site plan. The DRC questioned CST as to whether the School

       Building Corporation had approved the Alternative Easement; CST stated that

       an “agreement for site access would be worked out at a later time.” Id. at 84.

       Because of the lack of an agreement for the Alternative Easement, the DRC

       recommended that the Plan Commission deny CST’s site plan.


[10]   On December 5, 2016, the Plan Commission held a final hearing on CST’s site

       plan. CST introduced multiple documents into evidence, including two emails

       from people affiliated with the School Building Corporation. First, the

       superintendent of the Portage Township Schools stated as follows:


               I’d like to reiterate that it is not my intention to bring [CST’s
               request for the new easement] to the [school] board at this time. .
               . . We have a school to run and that is our first priority at this
               important time. It is not in the best interest of the school
               corporation to lock ourselves into a new agreement at this time.


               . . . We know there will be a great deal of work and effort in the
               area in question around Willowcreek Middle School. Until we
               have greater clarity on what changes will be made for the future
               and what we as a school corporation need to do, we will
               withhold any new agreements.


       Id. at 92. Second, the president of the school board stated as follows:


       Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018   Page 5 of 10
               . . . [M]y recommendation to the [school] board is to follow the
               suggestion from our Superintendent on this issue. . . . As I
               previously stated, maybe at a later date once we have clarity on
               both what the city wants to do and consequently what we
               (school) wants [sic] to do we could look at it again. . . .


       Id. at 93. After CST presented its case, an employee of Portage’s Department of

       Community Development noted that the construction on Evergreen Avenue

       would begin within the coming year and that traffic from Evergreen Avenue

       would then have to be redirected down side streets. A number of proposals

       existed to modify those streets to accommodate the additional traffic, but none

       had been adopted or approved yet. In other words, there was a great deal of

       uncertainty about general traffic patterns and traffic flow in that area.


[11]   CST argued that under the Lease, the School Building Corporation was

       obligated to grant CST access to the Site. But a member of the Plan

       Commission did not find that argument persuasive:


               . . . The real point is, that [proposed new easement] is not a
               recorded access easement. So as we sit here, there is no access to
               this site. In my opinion, the Plan Commission is being put in a
               position between somebody who wants to build a tower and their
               landlord, the school system. . . . I think the Plan Commission—I
               think we should stay out of that fight. This is not our fight, and I
               think we—I don’t think that there’s any way we can approve this
               plan as it exists.


       Id. at 157. At the conclusion of the hearing, the Plan Commission unanimously

       denied CST’s site plan. On April 21, 2017, the Plan Commission issued written

       findings; among other things, the Plan Commission found as follows:

       Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018   Page 6 of 10
               7.       While the . . . [Lease] apparently requires [the School
                        Building Corporation] to give [CST] access to the cell
                        tower site, [the School Building Corporation] has not
                        given its approval to the [Alternative Easement] reflected
                        on the site plan, and [CST] has been unsuccessful in
                        negotiating a new access agreement . . . .


               8.       When the [original Easement] is no longer available, there
                        may be an issue . . . as to the location of a permanent
                        access easement to the [Site].


               9.       There is not currently a document available in recordable
                        form verifying the [Alternative Easement] reflected on the
                        site plan.


               10.      Without an Easement Agreement in recordable form
                        verifying the [Alternative Easement] reflected on the site
                        plan, [CST] is not in compliance with City Ordinance as to
                        site plan review and approval for wireless
                        telecommunication facilities.


       Id. at 101-02.


[12]   On May 19, 2017, CST filed a petition seeking judicial review of the Plan

       Commission’s denial of its site plan proposal. Following submission of written

       materials and argument, the trial court denied CST’s request to overturn the

       Plan Commission’s decision on October 3, 2017. Ultimately, the trial court

       found that “[t]he Plan Commission was justified in denying site plan approval

       because the [School Building Corporation] had neither given its approval to

       [CST] for the [A]lternative [E]asement, nor was there an Access Easement in



       Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018   Page 7 of 10
       recordable form as to the new permanent access proposed.” Id. at 11. CST

       now appeals.


                                       Discussion and Decision
[13]   CST argues that the trial court should have overturned the Plan Commission’s

       decision. Final decisions of plan commissions are reviewed in the same manner

       as appeals from decisions by boards of zoning appeals. Plan Comm’n v. Aulbach,

       748 N.E.2d 926, 933 (Ind. Ct. App. 2001). When reviewing such decisions, we

       are bound by the same standard of review as the trial court. Hoosier Outdoor

       Advert. Corp. v. RBL Mgmt., 844 N.E.2d 157, 162 (Ind. Ct. App. 2006). As such,

       we must accept the facts as found by the zoning board/plan commission, and

       may not substitute our own judgment for that of the agency. Id. at 163.

       Furthermore, we may neither reweigh the evidence nor reassess witness

       credibility. Id.


[14]   In conducting judicial review of a zoning decision, 1 a trial court may grant relief

       only if:


                the court determines that the petitioner has been prejudiced by a
                zoning decision that is: (1) arbitrary, capricious, an abuse of
                discretion, or otherwise not in accordance with law; (2) contrary
                to constitutional right, power, privilege, or immunity; (3) in
                excess of statutory jurisdiction, authority, or limitations, or short




       1
        It is undisputed that CST is entitled to judicial review. See Dunmoyer v. Wells Cty., 32 N.E.3d 785, 792 (Ind.
       Ct. App. 2015) (petitioner entitled to judicial review if it has standing, has exhausted administrative remedies,
       has filed a timely petition for review, and has timely filed the board record for review).

       Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018                Page 8 of 10
                of statutory right; (4) without observance of procedure required
                by law; or (5) unsupported by substantial evidence.


       Dunmoyer, 32 N.E.3d at 792-93. An agency’s decision is arbitrary and

       capricious when it is “‘patently unreasonable’ and is ‘made without

       consideration of the facts and in total disregard of the circumstances and lacks

       any basis which might lead a reasonable person to the same conclusion.’” A.B.

       v. State, 949 N.E.2d 1204, 1217 (Ind. 2011) (quoting City of Indianapolis v.

       Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998)).


[15]   CST’s argument can be summarized as follows: because the School Building

       Corporation was contractually obligated (via the Lease) to provide CST with an

       easement to access the Site, the fact that there is currently no such permanent

       easement in place should not form the basis of the denial of CST’s site plan

       proposal. CST has temporary access, via the original Easement, until the city

       begins construction on Evergreen Avenue; when that access is removed, the

       School Building Corporation will simply have to provide an alternative way for

       CST to access the Site.2




       2
         CST also contends that the city would not have the right to begin construction on Evergreen Avenue if CST
       did not have alternative access to the Site. See Ind. Code § 36-7-3-13(2) (providing that a person aggrieved by
       a proposed vacation of a public way may object if the vacation would make access to the lands of the
       aggrieved person by means of public way difficult or inconvenient). The Plan Commission notes that this
       statute “grants the right to remonstrate to a lot owner’s petition to vacate a public way on or contiguous to
       the owner’s lot, not to a municipality’s decision to vacate its own public roads.” Appellee’s Br. p. 22. In any
       event, the final decision to make the changes to Evergreen Road had already been made over six months
       before the Plan Commission’s hearing on CST’s site plan. Therefore, we do not find this argument
       persuasive.

       Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018              Page 9 of 10
[16]   Portage has an ordinance requiring an application for site plan approval for a

       telecommunications facility to include “copies of any necessary easements.”

       Portage Mun. Code § 90-6.50(J)(11); Appellant’s App. Vol. II p. 107. CST’s

       application did not include such copies—because an agreement as to the

       Alternative Easement had not been reached. Indeed, CST’s representative

       admitted that no such agreement existed and both the superintendent and the

       president of the school board stated quite clearly and firmly that no such

       agreement was likely to materialize in the near future.


[17]   What CST is asking the Plan Commission to do is to step into a potential

       breach of contract dispute between CST and the School Building Corporation.

       In fact, as noted by the Plan Commission, for it to have considered CST’s rights

       and the School Building Corporation’s obligations under the Lease would have

       required it to construe the language of a legal document “and adjudicate not

       even an actual, but a potential dispute over the document’s meaning.”

       Appellee’s Br. p. 25. The Plan Commission has no obligation or authority to

       do so. The site plan as presented to the Plan Commission did not have the

       required easements attached—because they did not exist. Under these

       circumstances, we find that the trial court did not err by finding that the Plan

       Commission’s denial of CST’s site plan proposal was not arbitrary, capricious,

       contrary to law, or unsupported by substantial evidence.


[18]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CC-2400 | April 4, 2018   Page 10 of 10
