PRINCETON — Gibson County residents opposed to the county’s new zoning ordinance have filed a lawsuit in Gibson Superior Court, asking for a declaratory judgment finding that the zoning ordinance and the comprehensive plan that it’s based upon is not valid.

The lawsuit was filed Sept. 17 by attorneys Grant Swartzentruber and John Molitor on behalf of Scott Garrett, Dave, Mary Lou and Shawn McKinney, Paul Smith, Arvin Schurmeier, Danny Lefler, Larry Michel and Ron Miley, after Gibson County Commissioners conducted a second vote to reaffirm the ordinance at their Sept. 15 meeting.

The complaint against Gibson County Commissioners and the Gibson County Advisory Plan Commission also asks for a permanent injunction against administration or enforcement of any comprehensive plan or zoning ordinance by the commissioners or APC, and for attorney fees associated with the suit.

The 18-page suit alleges that the county did not follow provisions of Indiana statute (IC 36-7-4) for adopting a comprehensive plan and an initial zoning ordinance for the unincorporated area of Gibson County.

Molitor said the core of the complaint alleges the county did not follow the zoning code. “In addition to that, we believe more recently that they have not followed the Open Door Law.”

“The thing I find particularly beguiling...is how much money they’ve spent on this, and they’ve repeatedly broken the rules,” said Swartzentruber. “If they simply followed the rules...we’ve got nothing to say, we could do nothing about this.”

Molitar said the remedy for the violations would be to declare them null and void and start over.

“I’ve never seen a community use a plan that out of date,” said Molitor. “State law says that in order to pass a zoning ordinance, you first have a comprehensive plan and let residents have a chance to have some input. Even though they claim they did — even if they had, nobody ever had a chance to review that 11-year-old plan.

“...Zoning is a concept that was designed for New York City 100 years ago,” said Molitor. “It’s very difficult to adapt it to a rural county in Indiana.”

Swartzentruber said nine people are named plaintiffs, but many others wanted to be a part of the suit. “The bottom line is that they remain vocal about not being heard. I just see it as a travesty, a violation of the public trust.”

Attorney Mike Schopmeyer, who provided legal counsel to commissioners and the APC through the process, said on initial review of the complaint, “from what we have seen thus far, we find this lawsuit meritless. It advances legally groundless claims for challenging Gibson County’s unanimously adopted comprehensive land use planning ordinance.”

Schopmeyer said counsel for the plaintiffs are challenging Gibson County’s underlying plan, a plan which those same two attorneys followed using the same state-funded process in adopting a similar land use zoning ordinance in nearby Daviess County. He said one of the attorneys is also consulting on Vanderburgh County’s complete re-write of its code. “But in that zoning code process he has not once advised the old Vanderburgh County plan needs to be revisited, as was argued in this complaint,” he said.

He made note that Molitor and Swartzentruber provided testimony during the Gibson County ordinance’s hearings “that the date of Gibson plan made no difference, yet in its complaint, it now infers otherwise.

“Of the 81 of 92 Indiana counties that have adopted a land use zoning ordinance, none has ever conducted more hearings and taken in more public input than has Gibson County,” he said. Schopmeyer said more public testimony supporting the ordinance for reasons such as preservation of farming, land values and public safety outweighed the testimony rejecting any form of comprehensive land use plan whatsoever.

“Ironically, many among the plaintiffs’ ranks supported the Gibson County subdivision and stormwater ordinances, which also contains many land use restrictions like this zoning ordinance being challenged. Those ordinances benefit and protect primarily farmers. This comprehensive land use ordinance being challenged protects more Gibson County landowners, whether a single-family homeowner, a small business, a manufacturer or a farmer,” he said.

Schopmeyer said the aim of the lawsuit “appears to be to force further delay and added costs on the residents of Gibson County — all of this despite the many concessions that the Gibson APC extended to the plaintiffs in this ordinance’s adoption. This is unfortunate and aimed at keeping residents divided rather than working together toward a common goal of improving Gibson County.”

The complaintAccording to the lawsuit, “there is no record that any plan commission was involved in the preparation of the 2009 plan, nor is there any record that any plan commission existed for the unincorporated area of Gibson County before calendar year 2017.”

The complaint also says there is no public record of the APC giving citizens notice of a public hearing on the 2009 plan, and cites minutes of a Feb. 22, 2018 meeting that describe reports provided by members of small group sessions, including a statement from APC member Steve Obert who reported his small group “spent time discussing the 2009 plan and determined that the data is dated and may not be accurate for today.”

The lawsuit notes that the 2009 plan did not list the addition of a county planning department as a priority and “nothing in the 2009 plan actually recommended that Gibson County needed zoning regulations or that the county defendants should prepare a zoning ordinance.”

According to the complaint, the 2009 plan’s text does recommend review every five years and updates at least every 10 years.

The lawsuit also makes note of a conflict in terminology over whether the APC was terminated as reported in the minutes of the March 6, 2018 commissioners meeting, or whether its activities were simply suspended, as inferred in a Jan. 7, 2020 resolution commissioners adopted to resume the activities of the APC to consider adopting a comprehensive plan and zoning ordinance.

The complaint also asserts that notices of public hearing on the 2009 plan’s adoption were not given, and asserts violations of the Indiana Open Door Law regarding giving notice of meetings.

It asks the court to determine the plan was not lawfully prepared, noticed, heard, recommended, certified or approved, and as a consequence, “Gibson County is now and has been without a valid comprehensive plan” within the meaning of the state statute.

Email Andrea Howe at andrea@pdclarion.com

— Email Andrea Howe at andrea@pdclarion.com

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