Chesterton Tribune

Judge favors Burns Harbor in zoning case against truck terminal

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By PAULENE POPARAD

If William Scott, doing business as Scott’s Way, doesn’t cease trucking operations that violate the Burns Harbor zoning ordinance of today, he faces a $1,000 per-day fine.

That was the ruling Friday of Porter Superior Court Judge David Chidester, in whose court the case was heard.

Chidester also entered an injunction and restraining order barring Scott/Scott’s Way from operating a truck terminal and dispatch operation at 277 Melton Rd. in a RC-2 zoning district, or any other act or business operation in violation of town zoning codes.

Furthermore, the judge warned if illegal signs on the building housing Scott’s Way aren’t removed or brought into conformity as of today, a $5 per-day fine accrues.

Chidester also ordered that, in the future, any town or municipality --- and specifically Burns Harbor and the Town of Porter --- that seeks a court hearing on a zoning-ordinance violation, particularly one where an injunction is being sought, the government unit must file it as a general court filing eligible to be heard by the six other Porter Superior Court judges, not just Chidester.

Chidester ruled in July in defendant Ray Cahnman’s favor when the Town of Porter alleged zoning violations after issuing Cahnman two 2010 citations for erecting an illegal fence and for planting an illegal tree.

Chidester based his new policy on the fact that his court is given credit for only two minutes of work done on a zoning-ordinance violation per the Indiana State Court Administration.

“Obviously, when the Town of Burns Harbor (and this applied to the Town of Porter) files a Zoning Ordinance Citation, the cases evolve from a mere citation worth 2 minutes to 12 hours of court time in hearings, briefs, research and the drafting and issuance of orders. This is unfair to the Court and must cease.”

When the Burns Harbor participants arrived Dec. 12 for the long-scheduled Scott’s Way hearing, Chidester’s staff initially said no hearing was slated and none would take place; it eventually did after town attorney Bob Welsh proved he had an order setting the hearing date.

Chidester subsequently found the Town of Burns Harbor presented proof at the hearing that Scott was operating a truck dispatching center on the premises in violation of the zoning laws, and that signage on the property was in violation, too.

Being a civil action, the standard of proof was a preponderance of the evidence, not beyond a reasonable doubt.

Scott was informed in late 2007 by a town official he would need special zoning approval to conduct expanded trucking activities there (truck repair and maintenance previously had been approved), and Scott was warned about the sign irregularities in 2009. He did not file a petition with the Board of Zoning Appeals for either.

Scott was represented by attorney Terry Hiestand. He maintained the dispatching of trucks is primarily an office function of processing paperwork, similar to activities conducted in an office building and allowed in Scott’s RC-2 zoning district.

Hiestand also said in final written argument to Chidester that the town’s evidence was weak, especially in three areas: regarding the signs, whether a truck terminal was being operated, and whether trucks parked at Scott’s Way constituted illegal “outside storage".

Hiestand argued the Burns Harbor zoning ordinances were being selectively enforced and Scott should have been granted a variance by the BZA, yet Chidester said Scott/Scott’s Way never filed with the BZA seeking such relief. Property owner Lisco Inc. and then-tenant Job Steel did seek BZA permission for a trucking terminal there in 2008 but were denied.

The denial was appealed by Lisco/Job Steel and has sat dormant in Porter Superior Court Judge Mary Harper’s court. Chidester indicated he has discussed the issue with Harper and she will determine that matter soon.

Hiestand had argued what happens with the pending Lisco/Job Steel BZA appeal somehow affects the Scott’s Way matter; Chidester disagreed. “The only issue before this Court is whether the current occupant, William Scott d/b/a Scott’s Way has violated a town ordinance.”

 

 

Posted 12/19/2011