Chesterton Tribune                                                                                   Adv.

Town of Burns Harbor in court against itself Monday

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By PAULENE POPARAD

Opposing lawyers square off Monday in court over the Burns Harbor Town Council’s challenge to the town Board of Zoning Appeals’ Aug. 24 decision allowing expansion of the CR England midwest regional truck terminal.

A 250 semi-truck parking lot and guardhouses were approved for land on the west side of Indiana 149 south of Tech Drive. Several conditions including installation of a new traffic signal at the intersection were tied to the 3-2 BZA approval.

Attorney Terry Hiestand, representing England and other property owners drawn into the litigation, and attorney Brian Hurley representing the BZA both have filed motions seeking to have the Town Council’s appeal dismissed.

Sept. 22 attorney Thomas Mixdorf of Ice Miller LLP of Indianapolis filed on behalf of the town, its council, two residents and 11 businesses asking Porter Superior Court Judge Mary Harper to review the record in the BZA case, and to remand it back to the board with instructions England’s special exception and two variances be denied.

Ice Miller maintains England should have filed for a rezoning, not a special exception, to expand its site in a special-use district, and that it incorrectly described its business as a “freight terminal", which is defined as using various forms of transportation and providing multimodal shipping capabilities such as rail, truck and air.

Hiestand contends that, in addition to “serious flaws in the interpretation of the Burns Harbor Zoning Ordinance that the Petitioners argue for,” the Town Council doesn’t have standing to bring its action because it can prove no special injury other than that sustained by the community as a whole.

Hiestand cites court rulings in previous area lawsuits including Liberty Landowners Assn. v. Porter County Commissioners and Robertson v. Board of Zoning Appeals, Town of Chesterton that clarified who is an “aggrieved party” when it comes to zoning decisions.

Hiestand also cited judicial rulings he said show “neither the Town of Burns Harbor nor the Burns Harbor Town Council is eligible to be a petitioner” in the England case. Those rulings arose out of legal attempts by the Michigan City Common Council and the City of Hammond to overturn decisions of their respective BZAs.

The point also was made by Hiestand that the Town of Burns Harbor/Town Council “were late to the party and none of their contentions were presented to the BZA” in a timely manner at the England public hearing or by other means so Harper can review them now.

In Hurley’s response on behalf of the BZA, he too questioned why no one involved with the town or its council challenged the BZA decision to have England apply for a special exception/variances instead of a rezoning at the time that decision was made this summer.

Typically, town administrative remedies should be exhausted before lawsuits are filed.

Hurley also tackled the issue of standing contending that a town as a political subdivision cannot and should not attempt to overturn BZA action. “Indiana law does not allow an executive-legislative body to overrule a quasi-judicial Board of Zoning Appeals decision.”

Regarding other specific allegations made in the Ice Miller appeal, Hurley said the BZA is without sufficient information with which to admit or deny them so denies them now, and on other points the BZA would require strict proof before agreeing to the allegations raised.

The two residents and 11 businesses named as co-plaintiffs in the appeal are not paying for the litigiation, which is being funded entirely at this point by the town, council president Jim McGee has said.

The Chesterton law firm of Harris, Welsh and Lukmann represents Burns Harbor and its various boards but has recused itself from representing either side in the BZA appeal citing a conflict.

 

 

Posted 11/26/2010

 

 

 

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