Porter Circuit/Superior Court Judge Mary Harper ruled Monday that the Town of Burns Harbor and its Town Council legally cannot challenge an Aug. 24 decision made by its own Board of Zoning Appeals.

The Town/Town Council alleged in its subsequent appeal that letting C.R. England Trucking build a new 250 semi-truck parking lot 1/4 mile from its existing trucking terminal on Tech Drive would be illegal, unreasonable and procedurally wrong on several grounds.

Harper approved England attorney Terry Hiestand’s motion to dismiss both the Town and Town Council from the appeal on the grounds that neither one had standing under the law to bring it.

The BZA had retained Brian Hurley as its attorney for the litigation; he argued the BZA didn’t have to turn over its record of the England proceedings for judicial review because the Town/Town Council had no right to appeal in the first place.

The town has not alleged any concrete injury, pecuniary or otherwise, they they will suffer if their appeal is not heard, said Harper. “Both the Appellate and Supreme Courts have repeatedly found there must be an injury clearly involved” beyond that of the community as a whole.

The Town/Town Council’s lawyer, Thomas Mixdorf of Ice Miller LLP in Indianapolis, was unavailable for comment this morning.

Town Council president Jim McGee said he hasn’t spoken to Mixdorf or the other council members but they may call an executive session to discuss the matter. The town can ask a higher court to review Harper’s ruling.

During a Nov. 29 court hearing before Harper, Mixdorf said Burns Harbor stands to incur financial obligations to modify the Old Porter Road intersection at Indiana 149 to manage traffic if England builds its new parking lot.

In her ruling Harper wrote, “(T)he existence of the Town and its Town Council is to represent the town as a whole, it does not exist for its own sake.”

Regarding Old Porter Road, “The community treasury would have to be utilized to fund any needed infrastructure, such as the claimed intersection (although it is unclear whether one would even be needed); thus this cost would be a harm suffered by the whole community.”

State law requires that a party be “aggrieved” from a BZA decision before it may seek and receive judicial review of that decision, Harper noted, and the Town has failed to satisfy that test.

Neither is the Town an “adverse” party, said Harper, defined in part as any property owners who remonstrated against the England petition in person or in writing for the BZA public hearing.

One of the cases Harper relied on in her ruling was Bagnall v. Town of Beverly Shores, a case decided previously by her court and affirmed on appeal by the Indiana Supreme Court.

Two residents and 11 businesses were co-plaintiffs in the England appeal with the Town/Town Council although none of the 13 actively participated in court proceedings and the town funded the entire litigation cost, the latter confirmed by McGee.

Harper noted that although the municipal parties have no standing, “The other named Petitioners are not presently in dispute and are therefore not subject to this Order.”

Those petitioners include BH, LLC, developer of The Village in Burns Harbor subdivision headed by Town Council member Cliff Fleming; Arnell Chevrolet Inc.; Lake Shore Imports Inc.; Camp Land Inc.; Fast Coffee Services Inc.; Steelworkers Hall Inc.; and Herminio and Andrea Soto.

Fleming was unavailable for comment this morning. Only the Sotos and the Steelworkers Hall own property within 300 feet of the England parking lot, defined as “interested parties” under Burns Harbor town code.

Said Hiestand, “If the other Petitioners want to carry the case forward, C.R. England will have to try to demonstrate in future pleadings that the logic of the Court’s rulings applies equally to all the Petitioners as was originally argued in (our) Motion to Dismiss.”

According to Hurley, “To me the ruling said leave it up to the private citizens if they want to assert their pecuniary interest, if they want to take up the cause.”

But it may not be Hurley representing the BZA if they do.

He was hired by the BZA after the Town Council approved additional funding because the town’s contracted attorneys --- Harris, Welsh and Lukmann --- cited a conflict of interest and declined to represent either municipal body.

Monday, usual Burns Harbor BZA attorney Charles Parkinson of HWL had no comment on Harper’s decision. Neither did BZA president Terry Swanson.

With the Town/Town Council no longer a party to the appeal, said Hurley, that should remove him from the case. “The Town doesn’t have to be paying both sides of this. It’s tough for the town to fund a lawsuit, let alone both sides.”

At the Nov. 29 court hearing, the town was paying a combined approximately $800 an hour for two attorneys from Ice Miller and Hurley to be there.

Harper’s ruling addressed one town body suing another. “This Court finds that this type of action puts the Town, and in turn (its) taxpayers, in a precarious position through the utilization of the same treasury funds to finance the adverse objectives of the opposing parties.”

The Town’s initial Sept. 22 appeal filing against the BZA included as defendants William J. Brandt Jr. & Associates and Robert Poparad and Maria Poparad, all previous owners of the property England purchased for its parking lot and two guard houses. Harper said their respective parcels have been sold to England and as such they are no longer a party to the litigation by mutual agreement of all sides.

Posted 1/4/2011