steve.dick@heraldbulletin.com

The Killbuck Concerned Citizens Association and JM Corp. have been at loggerheads for nearly three decades over the proposed Mallard Lake landfill. If events last week are any indication, the beat goes on. Now, it seems, both sides are feeling under the gun from the Madison County Board of Zoning Appeals.

The latest dust up stems from a Jan. 16 ruling by the Indiana Department of Environmental Management that said the agency would not appeal a court order returning the landfill operating permit to JM Corp. At the time, Sheryl Myers, then president of KCCA, said the group had obtained legal counsel and was “pursuing some interesting angles.”

One of those angles materialized on March 8 when the KCCA filed an administrative appeal with the BZA. On March 20, a legal advertisement in The Herald Bulletin said the KCCA would be airing the appeal at the BZA’s April 24 meeting. The appeal, said the notice, was for the BZA to take no action to enforce Special Use 12, which gave JM the go-ahead for the landfill in 1986.

“The recipient of Special Use 12 is proceeding with plans to operate a landfill which is substantially different than the landfill described by the recipient ... before public appearances at the Board of Zoning Appeals.”

Ralph Reed, owner of JM Corp., disagreed.

“We haven’t changed the landfill,” he said. “We plan to dig down 6 to 8 feet deeper, but the dimensions — length, height — are the same.”

Last December, Larry Whitham, an Indianapolis attorney at Whitham, Hebenstreit & Zubek LLP, sent a letter to Michael Hershman, Madison County’s planning director, asking the BZA to revoke Special Use 12 as not being consistent with its original intent, which was, KCCA maintained, a trench landfill and not the mound type.

“Because JM Corp. is not following the intent of Special Use 12, the BZA has the power, under the Madison County zoning ordinance, to vacate Special Use 12,” read Whitham’s letter.

Hershman didn’t reply, according to Whitham. More letters followed, on Jan. 26 and Feb. 8, and still Hershman didn’t reply, Whitham said.

Hershman was reached for this article but deferred all comment to the BZA attorney, Gerald Shine.

Whitham finally heard from Shine on April 17 when the BZA attorney called to say that KCCA would not be on the agenda. Shine told Whitham that the decision not to place KCCA on the agenda was made by Hershman. Whitham summed up his call with Shine in another letter to Hershman.

“I know of no legal authority under which an unelected planning director may lawfully deny a citizen of Madison County the right to file an administrative appeal. ...”

Three things then happened at Tuesday’s BZA meeting. Whitham, accompanied by Bill Kutschera, president of the KCCA, tried to speak at the end of the meeting and was told he couldn’t by Mary Jane Baker, according to Kutschera.

“It wasn’t on the agenda; it couldn’t be discussed,” Shine told The Herald Bulletin.

“I’ve never had a BZA refuse to hear an appeal,” said Whitham. “It was a sight to behold.”

Whitham asked Shine if anything had been done wrong when he petitioned to be on the agenda. “Jerry conceded to me I hadn’t done anything wrong,” said Whitham.

Last week, however, Shine told The Herald Bulletin that Whitham’s agenda petition wasn’t authorized.

“(KCCA) didn’t tell the BZA,” Shine said. “Hershman sets the agenda.”

The second thing was a request to the BZA by Shine to hire outside counsel to assist the board should legal matters include hearings at IDEM. “We don’t practice before IDEM,” said Shine. The attorney hired was Mary Solada with Bingham, McHale LLC in Indianapolis.

KCCA sees the hiring of Solada as the BZA’s way of insuring the landfill goes forward. “Why is the county going to all this expense?” wondered Kutschera.

The third thing was a statement read by Hershman at the end of the meeting. In it, he said the BZA doesn’t have jurisdiction to set aside Special Use 12 or place the KCCA appeal on the agenda because the appeal doesn’t relate to an administrative decision by the BZA.

The statement also said that JM Corp. filed a petition with IDEM on April 7 for “construction approval of a mound-type landfill system.” Based on that filing, Hershman will require JM Corp. to file an improvement location permit.

Again, Reed took issue.

“This is a renewal of the existing permit,” Reed said of the April 7 filing to IDEM. “It’s the same permit filed Sept. 23, 1986.”

Reed sees the improvement location permit as a backdoor attempt to stop the landfill. But, he added, when the permit was filed, the county had no improvement location permit. “They can’t do that,” he said.