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Burns Harbor argues BZA approval of trucking firm violated town zoning law

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By PAULENE POPARAD

The Town of Burns Harbor stands to incur financial obligations to modify the Old Porter Road intersection at Indiana 149 to manage traffic if CR England builds its 250 semi-truck parking lot to the south.

Thatís one of the reasons why Englandís permission to build the parking lot should be reversed and denied, special town attorney Thomas Mixdorf of Ice Miller LLP told Porter Circuit/Superior Court Judge Mary Harper on Monday.

Under the townís zoning ordinance, no one can be granted a special exception, as England was, if it places a burden on the townís existing services or facilities, or incurs costs for the town that must be paid for out of the town treasury, according to Mixdorf.

Lawyers spent nearly one hour laying out what they believe to be the facts in the Town Councilís challenge of the town Board of Zoning Appealsí Aug. 24 split decision granting England trucking a special exception and two variances.

At the hearingís conclusion Harper indicated she could rule in late December. BZA attorney Brian Hurley expressed concern whether the judge had enough information on which to base a ruling. ďIf I donít, Iíll let you know,Ē said Harper, who directed additional written findings to be filed by all sides.

Harper will determine whether the BZA has to turn over its complete file regarding the England petition for her review, or whether to grant the BZAís motion not to turn over its records and Englandís motion to dismiss the complaint.

Mixdorf said itís premature to decide anything without first handing over Englandís case file to be examined.

Hurley said the town and Town Council donít have legal standing to bring their appeal, which is a necessary element of the court acquiring jurisdiction to proceed further. ďIím adamant in my argument the town does not belong in this case.Ē

Mixdorf said they do because the BZA erred in allowing England to apply for a special exception when the company should have sought a rezoning under the town zoning ordinance; rezonings are reserved for the Town Council to hear so the BZA usurped the councilís ability to regulate Englandís site expansion, he added.

ďI donít think (BZA members) knew they were doing something wrong but it was wrong nonetheless,Ē said Mixdorf.

But attorney Terry Hiestand representing England said the 250-truck lot and guardhouses are not a site expansion of the midwest regional truck terminal at 321 Tech Dr. but a separate new facility 1/4 mile away south of Tech Drive west of Indiana 149.

Hiestand said his client ďis a victim of a squabble between town entities.Ē

Furthermore, the ďBZA didnít do any egregious things appropriate for the Town Council to take offense at, like pass an ordinance or levy taxes,Ē Hiestand continued. ď(The BZA) didnít mandate the town spend any money.Ē

Mixdorf said the petitioners believe the transcript of Englandís BZA public hearing will show that there was evidence --- including testimony from Englandís own traffic expert --- that granting the petition will require the Old Porter Road/Indiana 49 intersection to be reconfigured with the town footing the bill.

ďA town and a Town Council canít bring (an appeal) on behalf of everybody,Ē said Mixdorf, but in this case Burns Harbor is clearly an aggrieved party itself.

Hurley said the town doesnít have standing to appeal because only property owners within 300 feet of the truck parking lot are considered interested parties; that would leave just three of the 15 plaintiffs and not the town or its council.

Hurley also noted itís in the townís interest to remove itself as a plaintiff or otherwise end the litigation now to avoid piling up legal bills.

The contracted town attorneys of Harris, Welsh and Lukmann have recused themselves citing a conflict because they represent both boards involved. The council hired Ice Miller LLP at $338 per hour for Mixdorf and Hurley at $210 per hour for the BZA. Mixdorf was accompanied by attorney Abigail Cella, whose fee is $261 per hour.

Hiestand told Harper that England, as was the BZA, was blindsided by the Town Councilís appeal when neither it nor the 13 co-plaintiffs raised any objections previously during Englandís petition. Yet now, he added, the council is attempting to carve out a non-existent oversight function.

Harper opened the hearing, which began 15 minutes late, by saying she gave the parties time to chat and asked if that resulted in any agreement.

Mixdorf said he didnít know thatís what they were supposed to be doing. ďWe talked a little but I donít think any positions were changed.Ē

Hurley was accompanied by BZA president Terry Swanson and BZA secretary Tyler DeMar.

 

 

Posted 11/30/2010

 

 

 

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