By PAULENE POPARAD

The Porter Board of Zoning Appeals emphasized Wednesday that if it would have allowed a 499-foot FM radio transmission tower along what is viewed by the town as the “gateway” to the dunes, that would have been in serious conflict with the town’s Comprehensive Plan.

The board also noted that it felt “uncomfortable” having thousands of dollars of free wireless Internet equipment, technical support and other considerations offered to the town even if they were not specifically part of the tower petition.

Both observations were contained in a two-page findings of fact the BZA approved last night to support its Sept. 20 denial of Chicago Public Radio station WBEZ’s petition to allow the tower as a use variance at the southwest quadrant of U.S. 20 and Indiana 49.

The 10-acre parcel is zoned residential and two cellular towers about 200 feet tall each are on the wooded site, which is 80 percent wetlands. WBEZ also proposed having a 12-foot by 20-foot equipment building 10 feet tall in addition to the tower.

The land is owned by and the new tower would be erected and owned by Tom Tittle’s Aqua-Land Communications Inc. WBEZ would lease the tower, on which other providers could co-locate. WBEZ officials said a higher tower would allow it to upgrade its programming and signal for Chesterton-based sister station WBEW.

Vote to adopt the findings was 3-1 with members Greg Stinson, Henry Huyser and President Bruce Snyder in favor; Bill Donley was opposed. That mirrored the Sept. 20 vote to deny the petition.

The fifth BZA member, Lorain Bell, has recused himself and did so again Wednesday because he previously was contacted by WBEZ representatives about placing the tower on land he owns.

The findings, required by state law for all cases heard by a BZA, were prepared by town attorney Patrick Lyp. Some BZA members had not received them so they were given time to review the findings prior to the vote; no discussion occurred. Lyp said given the magnitude of the discussion Sept. 20, which followed a four-hour public hearing Sept. 5, he wasn’t able to prepare the findings until now.

In order to have the use variance eligible for approval, WBEZ would have had to satisfy five statutory standards. The findings show none of them were met, and that the BZA adopts the concerns raised by its own members and town staff.

The tower would be injurious to the public health, safety and general welfare of the community, according to the BZA, because “property owners near the site of the communications tower expressed legitimate concerns about the potential collapse of the tower and the effect that such would have on themselves.” In addition, property owners related more general concerns about how their quality of life and general welfare would be adversely affected. “The Board accepts these concerns.”

As for the use and value of the area adjacent to the tower site being affected in a substantially adverse manner, the BZA found that it would be by applying its own knowledge and experience to the facts provided.

Another standard was whether the need for the variance arises from some condition peculiar to the property involved. There is no evidence that the property contains unique or peculiar conditions, according to the BZA, and although the board is sensitive to the argument that wetlands and other characteristics of the property may make development more difficult, there are other uses compatible with its topography.

The fourth standard also was not met. “Other than the Petitioner’s claim that the property presents certain difficulties in developing, nothing was provided to suggest that the requirements of the Town’s Zoning Ordinance created an “unnecessary” hardship.”

On the matter of interfering with the comprehensive plan, which identifies the 10 acres as desired to be residential and light-commercial uses, the findings state, “The proliferation of cell towers and large communications towers in that area would defeat the articulated aim of the Comprehensive Plan. In many ways this area is a unique and special resource to the Town as well as the region, and the Board is very sensitive to any type of development that would be incompatible” with the plan.

An approximately 421-foot Indiana State Police radio tower lies within a ramp interior of the Indiana 49/U.S. 20 interchange. On the east side of Indiana 49 is the new joint Porter County/National Park Service visitor center slated to open this fall.

The findings also noted that “there was credible evidence presented that alternative (WBEZ tower) sites, both within the Town of Porter and in other communities, exist.” During WBEZ’s presentation its lawyer, Richard Riley, said they were unable to reach agreement with other property owners.

The findings conclude with a statement that “various perceived incentives” offered in relation to the WBEZ petition were not considered by the BZA as part of its decision. These included free Internet access for Porter residents for a fixed period of time, radio equipment for town police installed on the tower, and the placement of weather warning devices and live cameras for emergency scanning on it as well.

In reciting the procedural history of the WBEZ petition the findings state that on Sept. 20  “...by a vote of 3-1, the Board denied Petitioner’s request for a Use Variance.” Lyp said the petitioners have 30 days from Wednesday’s adoption of the findings to file an appeal seeking judicial review. “That’s the mechanism we’ll use going forward.”

Indiana code states that appeals shall be filed with the court within 30 days after the date of decision by the BZA. Tittle attorney Terry Hiestand, present last night, said they believe the deadline to be Oct. 20 and that Tittle and WBEZ jointly will be filing an appeal.

Chicago Public Radio president and general manager Torey Malatia has stated that denying the Porter tower will have no impact on WBEZ.

Posted 10/19/2006