The Liberty Landowners Association has lost its appeal of a county court ruling that found that the citizen group doesn’t have the legal standing to try to block Porter Health System from building its new hospital at U.S. 6 and Ind. 49.

In a ruling Tuesday, the Indiana Court of Appeals concurred with a decision by Porter County Circuit Court Judge Pro Tem James Sarkisian, who in April dismissed the Liberty Landowners’ lawsuit against the Porter County Commissioners and the hospital, known in the case as Northwest Health System.

The landowners filed suit after the county commissioners’ 2-1 decision to rezone the Liberty Township parcel from Residential to Institutional, arguing that the new zoning violated the county’s Unified Development Ordinance.

Sarkisian found that because the Liberty Landowners do not own adjoining property to the hospital site, they lack legal standing to sue over the rezoning.

The court of appeals concurred. “With regard to zoning cases, it is well settled that standing to challenge a rezoning ordinance requires a property right or some other personal right and a pecuniary injury common to the community as a whole,” the appeals court ruling says.

The ruling cites two local cases that involved the issue of standing and what constitutes an “aggrieved party.”

In a case involving Beverly Shores resident George Bagnall and the town of Beverly Shores, the Indiana Supreme Court found that a person must be “aggrieved” in order to have standing to seek judicial review of a board of zoning appeals’ decision, and that to be aggrieved, a person must experience a “substantial grievance” that involves the loss of personal or property right.

In the 1989 case involving Charlotte Robertson’s legal fight with the Chesterton Board of Zoning Appeals over the Lake Erie Land development, the Court of Appeals found that a party seeking to petition the courts on behalf of a community “must show some special injury other than that sustained by the community as a whole.”

Tuesday’s decision cites other cases, such as one heard by the Indiana Supreme Court, which found that a landowner whose property line was less than a mile from a proposed confined animal feeding operation was found to not meet the definition of an “aggrieved party.”

In its appeal, the Liberty Landowners argued that its claim challenging the rezoning complies with the “public standing doctrine,” which is an exception to the general requirement that a plaintiff must have a specific interest in the outcome of a case. However, the Court of Appeals said that the landowners did not raise this public standing issue during the trial court and thus waived the issue. Even with public standing, the court ruled, claimants must still have some property right or pecuniary interest.

The court concluded that the Liberty Landowners do not own property, pay no taxes, and have no legal right that has been put into jeopardy by the commissioners’ rezoning decision. “In other words, Liberty Landowners has not alleged any direct harm and has not been denied any rights,” said the court ruling.

This morning, the Liberty Landowners’ attorney, Martin Lucas, said the landowners can now opt for a rehearing before the Court of Appeals or seek to transfer the case to the Indiana Supreme Court. He said he does not yet know if the landowners will opt to continue the case but did say that the time period for them to act is relatively short before Tuesday’s ruling becomes final.

Porter Health System Chief Executive Officer Jonathan Nalli welcomed the Court of Appeals decision, calling it another affirmation and “another positive step” in the hospital’s plans.

“It allows us to continue in an expeditious manner,” he said.

Nalli also said that the hospital is in the process of closing on the sale of the 104 acres. Exactly when construction will begin will hinge not so much on a possible appeal of Tuesday’s ruling, but on how quickly closing will occur, he said.

It’s possible that some construction could begin yet this year. “If we can, we will,” Nalli said.

Posted 9/30/2009