Marshall County BZA approves limited appearance by county attorney and hires outside appellate counsel in Tamarac litigation

The Marshall County Board of Zoning Appeals on Feb. 11 voted to allow an attorney for the county commissioners to enter a limited appearance in the BZA's ongoing litigation with Tamarac and approved hiring outside counsel to assist with the record and briefing.

The board’s attorney, Gary Jones, told members the case was still in early procedural stages and that Tamarac had filed what he called a “change of venue” request asking the court to reassign the matter to another judge. Jones said the parties have a schedule for briefing the venue question and that compiling the record — transcripts and submitted exhibits from three hearings — will be time-consuming. “This will be a not-fast-moving process,” Jones said, adding he would be surprised if the litigation concluded this year.

Jones recommended two steps to the BZA: allow Sean Cerisi, an attorney who has appeared as an interested party on behalf of the county commissioners, to formally enter an appearance on behalf of the BZA for this litigation; and engage outside counsel with specialized experience to prepare and defend the administrative record and briefs. The board voted, by roll call, to permit Cerisi to enter the appearance for the limited purpose of the Tamarac matter. Jones then described conversations with Robert Aaron of Haller & Colvin in Fort Wayne, who provided a biographical summary and a proposed engagement letter; the board approved moving forward with hiring that firm pending any additional approvals from the county commissioners or council if needed for funding.

Jones told the board the record will include transcripts of three hearings and many documents, and he expects the record could be thousands of pages. He said staff has located transcription help but that preparing the record for filing with the court will take time and resources. Jones also explained Cerisi’s role: he works for the commissioners and is not the BZA’s attorney but could act for the BZA for this limited purpose if the BZA approved it. The board approved that request by roll call vote.

Board members discussed cost and capacity. Jones said his office is a small operation and noted commissioners had indicated a willingness to support requests for outside counsel. Several members said timely retention of specialized counsel would help the BZA meet court deadlines and handle voluminous documents.

The motions carried on roll-call votes recorded at the meeting. Jones and staff said they will coordinate with the commissioners’ office on the engagement and on preparing the formal record for the court.

At the end of his report Jones asked the board to allow Cerisi to appear and to authorize pursuing the outside counsel engagement; both proposals were approved by recorded votes.

The BZA meeting then proceeded to zoning cases on the agenda.