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Saturday, March 08, 2008
Ind. Decisions - "Decision to void ordinance could stop ethanol plant"
Anita Munson of the South Bend Tribune reports today in a story that begins:
Judge Michael Cook's ruling that Argos' rezoning ordinance is unconstitutional and void has many residents wondering if the decision is the death knell for a proposed ethanol plant.Marshall County Circuit Court Judge Michael Cook's retirement plans are detailed in this Jan. 23, 2008 ILB entry.The town had used the ordinance to change the zoning of two parcels of real estate from agricultural to heavy industrial to allow Indiana Renewable Fuels LLC to build on the southeast side of Argos.
Neighbors of the proposed plant formed a corporation and filed suit in Marshall Circuit Court in February last year.
The suit claims the Argos Plan Commission's actions in the rezoning were "wholly illegal, arbitrary, capricious, unreasonable, an abuse of discretion, erroneous ... contrary to state law, contrary to the Argos Land Use and Development Code, and contrary to provisions of the Indiana and United States Constitutions."
Cook, on his last day on the bench before retirement Feb. 29, issued a summary judgment in agreement with the petitioners, who include Don Mahoney, Carl E. Smith, Martha A. Smith, Timmy Allen Bailey, Peggy Lea Jones, John F. Richard and Amanda K. Richard.
Cook, in his 14-page summary judgment, said Argos "... wholly failed to comply with the Site Development Plan procedures in the LUDC (Land Use and Development Code) with regard to IRF's ethanol facility ..."
Cook cited in his findings of fact several flaws regarding the process that town officials and IRF followed to permit the rezoning. They include:
-That IRF's zoning application "lacked most of the detailed information" required by the LUDC.
-The LUDC requires a Technical Review Committee -- composed of seven individuals -- to review and approve the site development plans, but Argos did not have a duly appointed TRC. Instead, Ron Gifford, town attorney, and Pam Bishop, town clerk, met Nov. 28, 2006, with Glen Bode, IRF president, and another corporation official to conduct the technical review.
No minutes or agenda were taken or kept, Cook found, making that a private meeting. It was not until Dec. 6, 2006, that the town officially designated Gifford and Bishop as the town's TRC. The designation still did not comply with the LUDC's mandate of a seven-person TRC, and no public meeting was held, as required.
-Cook also found that the town did not issue proper notice to "all interested parties" of a public hearing held Jan. 8, 2007, and that the notices that were mailed out failed to say that the Argos Plan Commission would "review or hear information on a proposed written commitment or a Site Development Plan." The Plan Commission decided following the Jan. 8, 2007, hearing to recommend approval of the site development plan and rezoning.
Cook also noted that Argos officials conceded in their summary judgment brief and during oral arguments that the LUDC is flawed and that its rezoning procedures violate Indiana law, making the rezoning ordinance illegal.
Posted by Marcia Oddi on March 8, 2008 12:33 PM
Posted to Environment | Ind. Trial Ct. Decisions | Indiana economic development