Chesterton Tribune

Town Council won't appeal ruling in Burns Harbor vs. Burns Harbor case

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Following extended discussion, the Burns Harbor Town Council voted 3-2 Wednesday not to appeal a judge’s ruling that says the town has no standing to challenge the controversial C.R.England zoning decision.

Council members Mike Perrine, Toni Biancardi and president Jim McGee rejected an appeal; Cliff Fleming and Louis Bain voted in favor.

McGee said to carry the appeal forward at all levels to its conclusion could cost up to $100,000 with the first round about $15,000. Having brought the recent challenge in Porter Superior Court is estimated to cost up to $30,000 for special attorneys Ice Miller LLP of Indianapolis, who have yet to submit a claim.

Last night the council approved a $5,022 claim for special attorney Brian Hurley, who defended the town Board of Zoning Appeals against the Town Council’s challenge of the BZA’s split Aug. 24 decision allowing Engand Trucking to build a new 250 semi-truck parking lot and guardhouses west of Indiana 149 south of Tech Drive.

Hurley and England attorney Terry Hiestand successfully argued that the Town and Town Council didn’t have standing to reverse the BZA decision because neither will suffer any specific injury other than the community as a whole.

Fleming strongly disagreed; he said the town’s safety and future is at stake.

Cost of not appealing?

Fleming said Burns Harbor stands to invest hundreds of thousands of dollars, if not millions, to reconfigure Old Porter Road at Indiana 149 because of the huge influx of trucks the England parking lot will bring. Utah-based England’s Midwest regional truck terminal is located on Tech Drive now.

Fleming said the new appeal, which has to be filed by Feb. 2, needs to address the merits of legal arguments not even considered by Superior Court/Circuit Judge Mary Harper because the town’s standing claim was rejected.

Fleming said it’s a matter of paying legal fees now or rebuilding Old Porter Road later.

Said Bain, “I won’t sleep if we let a bad decision stand. I’m wholeheartedly convinced (if England can build) it will negatively impact the town.”

McGee, too, said the town’s larger arguments --- like the council, not the BZA, should have heard England’s petition --- were not addressed. Neither was the standing of two residents and 11 businesses as co-plaintiffs including Fleming’s BH LLC as developer of The Village in Burns Harbor subdivision. To-date, the co-plaintiffs have not contributed to legal fees but may pursue the Harper appeal on their own.

McGee said an Ice Miller attorney told him the success of a new appeal to overturn Harper’s ruling “is a crap shoot, toss of a coin. I say it’s a $15,000 coin.”

Perrine and McGee said they thought there was agreement among members that if the Harper appeal failed, that would end the town’s legal involvement. Fleming said he never agreed to that.

Perrine noted U.S. 20, a heavy-haul truck route that bisects the town, makes Burns Harbor not like other area communities even though Fleming said it has the potential to be a pedestrian-friendly, full-service community with grocery stores, restaurants, coffee shops and a pub or two.

Biancardi did not comment during the discussion.

Bain asked if the council should have a closed executive session to discuss litigation strategy. Associate town attorney Charles Parkinson, whose firm recused itself over the conflict of representing both the council and BZA, declined Wednesday to answer any questions related to the appeal.

Asked McGee, “Why are the other co-plaintiffs not here saying ‘Keep it up’?” The matter was not on the published agenda.

Resident Clark Hamilton urged the council, “Fight it at least one more step. Less trucks makes a lot of sense to me.”

Perrine called the question on Fleming’s motion to appeal saying, “I want to see who spends more of taxpayers’ money. I think it’s worth knowing.”

After the meeting Fleming, an attorney, said he didn’t know whether he would pursue the appeal as BH LLC alone or with other co-plaintiffs, if at all.

Cool to Fire Territory

Perrine and Burns Harbor fire chief Bill Arney updated the council on ongoing discussions with Chesterton and Porter about possibly creating a joint territory with taxing authority to provide consolidated firefighting services.

At this point, “We don’t need to participate; for us, it’s a bad idea,” said Perrine. Resident Jim Constantine urged the council to be very cautious when considering a fire territory.

Arney said an advantage would be paid staffing but equipment-wise Burns Harbor could be worse off because fire equipment between the participating departments would be pooled and just one of the towns would be designated as the territory’s governing body.

Perrine said the biggest drawback is Burns Harbor’s department has a relatively new aerial truck and operates a BLS ambulance which both could be moved elsewhere. While it may not always be the case, he added, the town currently is financially able to fund the best fire service around so citizens can have extra protection.

According to McGee, “I haven’t heard anything I like about (a fire territory).” Perrine said discussions are still preliminary and Burns Harbor will stay involved until a final decision is made.


Posted 1/13/2011