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Burns Harbor Town Council going to court against its own BZA

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It was described as “very rare” in municipal government.


Meeting in special session Wednesday, the Burns Harbor Town Council voted to mount a legal challenge to the Aug. 24 decision of the town’s own Board of Zoning Appeals that granted a special exception to CR England trucking.

The council also agreed to hire Ice Miller, one of the most prominent law firms in the state, to represent them in the BZA lawsuit.

The council’s public meeting was preceded by a closed executive session called to discuss strategy for initiation of litigation or litigation which is either pending or has been threatened specifically in writing. A Sept. 10 executive session for the same purpose also had been advertised.

Vote to challenge the BZA and hire Ice Miller was 5-0 with member Louis Bain attending his first public council meeting in six months.

Several of the 20 persons in the audience reacted favorably following the council’s decision; no public comment was taken.

Councilman Cliff Fleming explained that the position taken by the BZA --- allowing a special exception so England can expand its current Burns Harbor truck terminal with a 250-truck parking lot --- may be contradictory to the new town master plan and vision for the community that hopes to move Burns Harbor from its rural, industrial roots to a pedestrian-friendly new urbanism.

The Aug. 24 BZA vote was 3-2 with members Amy Zehner, Gordon McCormick and Terry Swanson in favor, and Bernie Poparad and Gene Weibl opposed.

Swanson is BZA president and was contacted after Wednesday’s meeting for comment. “I have none at all. It’s all news to me.”

Associate Burns Harbor town attorney Charles Parkinson was present for the council meeting last night, however, he announced that because he represented the BZA at the time of the England decision, he and long-time town attorney Bob Welsh had discussed the situation and felt it would be a conflict of interest to represent the council in its legal challenge.

Asked after the meeting if he would defend the BZA, Parkinson said he hasn’t been asked to do that and more than likely he would not. Who would represent the BZA wasn’t immediately determined.

Fleming, an attorney, said Ice Miller was chosen rather than a local attorney because of the firm’s expertise in the particular area of real estate and zoning. Ice Miller has offices in Indianapolis, Washington D.C, and Chicago and Lisle in Illinois.

Fleming was asked how much Ice Miller would charge for its services; he said the amount will be determined.

He also outlined what he described as significant health and safety concerns as well as the substantial cost the town could face because of England’s expanded operations. Fleming later said increased truck traffic would pose a safety hazard to people who walk, ride or travel in and through town.

Burns Harbor also would face potential engineering and other costs, he added, in trying to design and implement a solution for what could become a problematic intersection at Indiana 149 and Old Porter Road, the latter a two-lane town street paralleling the CSX tracks just south of U.S. 20.

Based in Utah, England’s Midwest regional truck terminal on Tech Drive is located west of Indiana 149 four blocks south of Old Porter Road. England has agreed to install a traffic signal at 149 and Tech Drive as one of the conditions tied to its BZA approval.

Fleming said the council received a lot of feedback and emails from the public following the BZA decision.

This past Monday at the suggestion of town Advisory Plan Commission president Jeff Freeze, the commission set a public hearing Oct. 4 on removing truck terminals as a permitted use in light-industrial zoning districts.

The Town Council’s challenge of the BZA decision will test whether the council has legal standing even to bring such an action. Freeze was the only person to remonstrate against England’s petition at the Aug. 24 public hearing.

Wednesday, Freeze said, “I feel the town worked diligently for nine months to adopt a new comprehensive plan, zoning ordinance, downtown district and (hike/bike) trail plan, and I’d not like to see most of that derailed because of increased truck traffic.”

Citizen Gary Hicks was asked if he supports the Town Council decision to appeal. “On the face of it I’d say I agree, but I don’t know the details to make a totally informed decision.” Yet if England’s expansion would bring significantly more trucks to town with the traffic that’s already here, he added, that would make things very congested.

Resident Tracy Freeze said her concern is for teens in cars and on scooters mixing with semi-tractors and trailers. “We see it as a dangerous combination.”

U.S. 20 is a designated heavy-haul truck route and Indiana 149 serves steel processing plants in the Tech Drive industrial park as well as ArcelorMittal Steel to the north.

Saying pedestrians and big rigs don’t mix, the Indiana Department of Transportation earlier turned down Fleming’s request that sidewalks be installed as part of the ongoing $2.6 million U.S. 20/Indiana 149 intersection reconstruction.





Posted 9/17/2010




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