## Facts

- David Johnson and Phyllis Stilwell owned property in Warrick County, Indiana, in a multifamily residential zoning district.
- They sought to install a residential wind turbine to generate alternative power for use on their property.
- A county zoning ordinance limited the allowable height of wind turbines in that district, and Johnson and Stilwell proposed a turbine about 20 feet taller than the ordinance allowed.
- Johnson and Stilwell applied to the Board of Zoning Appeals of the Area Plan Commission of Warrick County (BZA) for a variance from the height limit, asserting the added height was needed for proper turbine operation.
- The BZA granted the requested height variance.
- About a month later, neighboring property owners—including Timothy and Theresa Hamby and other homeowners (collectively, Homeowners)—filed a declaratory-judgment action against the BZA (and related county entities) and also sought judicial review of the BZA’s variance decision.
- The Homeowners alleged the variance grant was arbitrary, capricious, and contrary to Indiana law, and they further contended that a freestanding wind-turbine tower was not allowed in the zoning district.
- The county ordinance permitted “accessory uses or structures,” defined as a building or use that is “incidental and subordinate to and customary in connection with the principal building or use,” and located on the same lot as the principal building or use.
- The Homeowners did not dispute that a wind turbine serving a residence would be incidental and subordinate to the residence; their objection focused on the ordinance’s requirement that an accessory use be “customary,” arguing that residential wind turbines were new technology and not a habitual practice in the county.
- The Homeowners presented no evidence that residential wind turbines were not customary in the county.
- The trial court reversed the BZA’s grant of the variance, concluding the applicants had not met the legal standard for a variance on the record presented.
- At the same time, the trial court declared that if a variance were properly granted, a residential wind turbine would be a permissible accessory use or structure in the zoning district.
- The Homeowners appealed the portion of the trial court’s ruling declaring that a residential wind turbine could qualify as a permissible accessory use or structure.

## Issues

1. Whether, under the Warrick County zoning ordinance’s definition of “accessory use or structure,” a residential wind turbine serving a home may be considered “customary in connection with” the principal residential use and therefore permitted as an accessory use or structure in the multifamily residential district.

## Decision

- The Indiana Court of Appeals affirmed the trial court’s declaratory ruling that a residential wind turbine may qualify as a permissible accessory use or structure under the ordinance.
- The court rejected the Homeowners’ argument that the turbine was not “customary” merely because wind turbines were characterized as newer technology.
- The court noted that the Homeowners offered no evidence showing residential wind turbines were not customary in the county; argument alone was insufficient.
- The appeal addressed the legal permissibility of the wind turbine as an accessory use or structure, not whether Johnson and Stilwell were entitled to the variance on the specific record (which the trial court had already reversed).

## Legal Principles

- When a zoning ordinance allows accessory uses or structures, the controlling definition governs: an accessory use must be (1) incidental and subordinate to the principal use, (2) customary in connection with the principal use, and (3) located on the same lot as the principal use.
- A party challenging a proposed accessory use as “noncustomary” must support that claim with evidence; a bare assertion that a use is new or uncommon, without proof, does not establish that the ordinance forbids it.
- “Customary” in an accessory-use definition is not limited to long-established practices; the inquiry asks whether the use is of a kind commonly associated with, and logically related to, the principal permitted use, rather than whether it has existed for decades in the jurisdiction.
- Courts treat ordinance interpretation as a legal question, and they will not read extra prohibitions into accessory-use language when the text permits accessory uses meeting the stated criteria.
- A decision addressing whether a use fits within an ordinance’s accessory-use definition is distinct from whether a particular variance was properly granted under statutory and ordinance criteria; the former can be resolved as a matter of ordinance meaning even if the variance fails on the record.

## Conclusion

Hamby held that a residential wind turbine intended to power a home can fall within a zoning ordinance’s allowance for accessory uses or structures in a multifamily residential district, because the neighbors challenging the turbine did not present evidence that such a device was not “customary in connection with” residential use, and novelty alone did not make the accessory use impermissible.


Hamby v. Board of Zoning Appeals of the Area Plan Commission of Warrick County, 932 N.E.2d 1251 (2010)