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Refusal to remove biased board member ends potential administrative remedies

June 25, 2013

After finding that the exhaustion of administrative remedies was excused for a company seeking to operate a stone quarry because a drainage board member was biased against the project, the Indiana Court of Appeals ruled the trial court acquired subject matter jurisdiction and properly denied the board member’s motion to dismiss.

Gerry Scheub was a vocal opponent to an application filed by Singleton Stone with the Lake County Plan Commission for a zone change to allow it to construct a stone quarry. Scheub was a member of the plan commission as well as chairman of the Lake County Drainage Board, from which Singleton needed to obtain a permit after approval by the Lake County Council.

Singleton asked that Scheub recuse himself from a vote on the drainage permit, but Scheub declined. Singleton then filed a complaint seeking a declaratory judgment that Scheub’s participation in or attempts to influence the board’s consideration of the permit would deprive Singleton of due process and should be enjoined. Scheub and the board filed a motion to dismiss alleging the action was not justiciable for lack of subject matter jurisdiction.

The parties entered into a settlement conference at which Scheub agreed he would recuse himself as long as the stipulation of judgment would be filed after the primary election, in which he was running. Singleton accepted, and the parties agreed Scheub would be replaced on the board by Richard McDevitt on this matter. A week after the election, Scheub’s attorney said there was “no deal” because Scheub “changed his mind.” Singleton then filed a motion to enforce the settlement agreement. The trial court denied the motion to dismiss filed by Scheub and found the parties entered into an enforceable agreement.

In Gerry Scheub, and the Lake County Drainage Board v. Van Kalker Family Limited Partnership, Lake County Trust Company as Trustee of Trust No. 5240 and Singleton Stone, LLC, 37A03-1210-PL-453, the judges found this case to be similar to Ripley County Bd. Of Zoning Appeals v. Rumpke of Indiana, Inc., 663 N.E.2d 198 (Ind. Ct. App. 1996).

“Here, as in Rumpke, it is clear that Scheub’s actions in the quarry project amounted to an actual bias against Singleton. In order to give the Drainage Board an opportunity to prevent an error as a result of bias, Singleton requested Scheub’s disqualification,” Judge Patricia Riley wrote. “Upon the Drainage Board’s refusal to disqualify Scheub, any further action by the Drainage Board became futile and of no value under the circumstances because any decision in which a biased Board Member participates will be vacated. Therefore, as the exhaustion of administrative remedies was excused, the trial court acquired subject matter jurisdiction over the cause and properly denied Appellants’ motion to dismiss.”

 

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