Refusal to remove biased board member ends potential administrative remedies

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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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  1. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

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