Posted by: Patricia Salkin | June 26, 2009

Municipal Lease for Siting of Cell Tower Did Not Violate Zoning

In early 2006, T-Mobile approached the Town about the possibility of locating a cell tower in the Town. In October 2006, the Town Council voted to authorize the Town to enter into a site lease. Realizing that it had not followed the statutory procedures required to lease municipal property, the Town began taking the necessary steps to comply with the statutes, and eventually approved again the construction of the cell tower. In December  2006, Scalambrino and other residents of the Town filed a complaint including four counts: (I) request for a temporary restraining order (“TRO”) preventing the construction of the cell tower; (II) request for a preliminary injunction for the same purpose; (III) request for a declaratory judgment that the construction of the cell tower violates the Town’s municipal code and is prohibited; and (IV) request for a permanent injunction preventing the construction of the cell tower or any other structure that violates the Town’s municipal code. That same day, the trial court held a hearing on and denied the request for a TRO. Scalambrino later added T-Mobile as a defendant to the lawsuit.

 Beginning at the end of March, 2007, the Town began considering proposed amendments to its zoning ordinance and zoning map, which would create a governmental zoning district. On March 31, and April 3, 2007, the Plan Commission held a public hearing on Ordinance 2007-02, an amendment to the zoning ordinance to create a governmental zone, and Ordinance 2007-03, an amendment to the zoning map to create a governmental zone. Following the public hearing, the Plan Commission approved the two ordinances and certified them to the Town Council who subsequently enacted the ordinances. Scalambrino then amended his complaint to include a request for a declaratory judgment that Ordinances 2007-02 and 2007-03 are illegal and void, alleging, among other things, that the actions constituted spot zoning.

In December 2007, T-Mobile filed a motion for summary judgment, which the Town joined in February 2008. The trial court held a hearing on the motion in April 2008 and granted summary judgment in favor of the Town and T-Mobile.  The Appeals Court affirmed. The Court found that the ordinances were both procedurally and substantively valid, and that they did not change the zoning solely for the purpose of constructing a cell tower.  The Court said that the ordinance created a governmental district where the town could consolidate governmental services and utilities.With respect to the spot zoning argument, the appeals court said, even assuming that the plaintiffs were correct that the ordinances constituted spot zoning, their argument that the amendments did not bear a rational relation to the public health, safety, morals, convenience or general welfare was unpersuasive.  Improved cellular communications in the area had a direct, positive effect on the safety and convenience of the town as well as the surrounding community.  Further, the Town’s decision to supplement its revenues by leasing municipal property was rationally related to improving the town’s general welfare.

Scalambrino v. Town of Michiana Shores, 904 N.E.2d 673 (Ind. Ct. App. 4/20/2009).

The opinion can be accessed at:

Read the summary from the Indiana Law Blog here

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