The Burns Harbor Board of Zoning Appeals has been sued.

Edward McKeever, Evelyn McKeever and Elizabeth Smith through attorney Todd Leeth have asked a court to reverse the BZA’s Oct. 27 decision granting A-1 Towing LLC permission to operate a towing business and impound storage yard at 347 W. Melton Rd. (U.S. 20).

The McKeevers and Smith own property in the adjacent The Village of Burns Harbor subdivision. The lawsuit has been assigned to Porter Superior Court Judge William Alexa.

The BZA voted 3-2 last month to allow a use variance for A-1 Towing, LLC operating out of A-1 Complete Auto Care at the same location. Voting for the variance were members Tom Marconi, Gordon McCormick and Amy Zehner; Jim Meeks and Terry Swanson voted no.

The lawsuit asks Alexa to order the BZA to produce its records for review; to reverse and overrule the BZA and direct it to deny the application for use variance; and to award the McKeevers/Smith all costs and attorney fees involved with their appeal.

Upon adoption of the town’s new $100,000 comprehensive plan/zoning ordinance earlier this year, towing was not a permitted use in A-1 Towing’s Downtown District zoning category so a use variance was required.

BZA approval was granted Oct. 27 for petitioners Dan Tratar and Charles Haskell, listed as owners of the premises involved, but the lawsuit maintains the BZA record doesn’t make it clear if A-1 Towing actually owns the real estate.

This past September after complaints arose, the Burns Harbor Town Council ordered A-1 Towing to cease its tow operations out of the auto repair shop and to file a request for use variance before the BZA.

At the board’s subsequent public hearing Tratar said he needs tow trucks on-site to bring disabled vehicles to his shop and store them until they can be repaired or removed, which is cheaper and more efficient than keeping the tow trucks elsewhere in rented space.

In his lawsuit Leeth said such testimony led the BZA to make its decision based on inappropriate economic considerations.

Leeth also found fault with the BZA’s five findings of fact the board is required to adopt under state law. He said the one-sentence findings are mere statements not supported by the evidence, and that when Marconi signed them he did not check “yes” or “no” so that left a 2-2 decision when it takes at least three affirmative votes for official action.

Only Tratar’s testimony was given to support A-1 Towing’s variance, according to the lawsuit, and at least six persons spoke against it.

Leeth was of the opinion the remonstrators presented sufficient evidence that granting the use variance would be injurious to the general welfare of the community, would affect in an adverse manner the use and value of adjacent property, and would interfere with the town’s comprehensive plan.

Leeth also alleges that A-1 Towing did not establish, as required for a use variance, that strict application of the zoning ordinance will constitute an unnecessary hardship if applied to the property involved, or that the need for the use variance arises from some condition peculiar to A-1 Towing’s property.

The Downtown District is intended under the comprehensive plan to be a mix of commercial, mixed-use and multi-family residential buildings with a high degree of pedestrian amenities that allow town residents to meet their daily and weekly needs on foot, bicycle and motor vehicle.

In an interview following the Oct. 27 meeting BZA member Zehner, who voted to grant the variance, said auto repair/service is consistent with the needs of a downtown district where small businesses are encouraged, and auto repair has taken place at Tratar’s location for 25 years.

She also said if Tratar didn’t tow disabled vehicles into his business, other tow trucks would, and that he has cleaned up the property substantially since he purchased it.

The BZA put no conditions on A-1 Towing’s variance other than it is limited to the current property owners. In his application Tratar said he wanted to tow small- to medium-duty vehicles to and from his repair shop.

Monday, BZA attorney Charles Parkinson declined to comment on the lawsuit. “I haven’t discussed this yet with the BZA.” He said he probably will ask that a closed executive session with the board be called prior to next week’s scheduled meeting.

Posted 12/15/2009