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
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
Cost of not
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
Fleming said it’s a matter of paying legal fees now or rebuilding Old Porter
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
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
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
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.