By JUSTIN SCHNEIDER

justin.schneider@heraldbulletin.com

Opponents of the proposed Mallard Lake Landfill aim to right a wrong they say was committed 25 years ago.

The Killbuck Concerned Citizens Association, or KCCA, filed a petition for mandate against Madison County Planning Director Michael Hershman on Aug. 24. In it, the group claims that a special-use exception that cleared the way for the landfill expired in 1982 and that Hershman has failed in his duties by refusing to put the matter before the Madison County Board of Zoning Appeals.

“Our intent is that we’re trying to get this back in front of the BZA,” said KCCA president Bill Kutschera, who is named as plaintiff in the petition along with KCCA member Daniel B. Spall. “The county said our application was bogus when, in fact, it was not.”

The petition filed Friday reads, in part: “Pursuant to provisions of (Indiana Code) 34-27-3-1, this court has the jurisdiction to mandate that the planning director carry out his duties and responsibilities by docketing the KCCA’s administrative appeal and placing the matter on the agenda for hearing before the next regularly scheduled meeting of the BZA.”

The group sought to bring Hershman under scrutiny when it filed an administrative appeal on March 8, but the appeal was never heard. It was the culmination of several requests to gain an audience with the BZA that the group said went ignored.

On Dec. 15, 2006, KCCA attorney Larry Whitham submitted a letter to Hershman, requesting that Special Use No. 12 — which allowed J.M. Corp. to proceed with Mallard Lake — be revoked. Follow-up requests were made on Jan. 26 and Feb. 8, but never answered, according to the KCCA.

Hershman declined to comment on the petition. Jerry Shine, attorney for the Madison County BZA, referred the matter to Mary Solada of Indianapolis-based Bingham, McHale law firm, who represents the county in landfill-related matters.

Solada did not return a phone message left on Tuesday. Whitham said he has not spoken to Solada since the petition was filed but expects a formal response in court.

“We believe, and have maintained for a long time now, that the special use is terminated, if not automatically, then it should be referred to the planning director,” said Whitham. “The petition is to seek to have the planning director process our administrative appeal, and he has elected not to reply. A mandate is the only legal vehicle we have available to us.”

In 1978, J.M. Corp. announced plans to create a landfill in Madison County. The following year, the company purchased 154 acres at the corner of county roads 300 East and 300 North in rural Richland Township. But the project has been mired in controversy and legal battles for parts of four decades.

Issued in 1981, Special Use No. 12 allowed J.M. Corp. to create a sanitary landfill in Richland Township. In the mandate, Whitham contends that the special use should have expired the following year and cited the Madison County Zoning Ordinance, which states: “approvals granted by the board expire after one year from the date of approval, if not commenced. The board may grant one-year extensions.”

The petition also claims that the special use pertained explicitly to a trench-type landfill, not the mound-type that J.M. Corp. has pursued.

As legal challenges have come and gone throughout the years, J.M. Corp. founder Ralph Reed has been unwavering in his belief that the matter was handled correctly.

“We went through all the proper legal channels,” Reed said. “They’re following due process of law, but they’re going to run out of due process of law.”

Reed’s attorney, Ronald Fowler, has not seen the mandate as of Tuesday afternoon. He said, however, that past legal actions have targeted the Madison County planning director and have been dismissed with extreme prejudice.

“It sounds to me like they’re trying to get the same result with a different planning director, so I’m interested to see what they come up with,” Fowler said. “If their suit proves injurious to (J.M. Corp.), we will be pursuing our own legal action.”

A ruling in Marion Superior Court Environmental Division in December 2006 sent J.M. Corp.’s permit application back to the Indiana Department of Environmental Management. Sandra Flum, intergovernmental relations representative for IDEM, said the application is still pending.

But KCCA members have long believed that a hearing before the BZA is the best way to stop the landfill.

“There have been five requests of (Hershman),” Kutschera said. “Hershman, by his lack of response, has refused to put this on the BZA agenda. If you look at the planning director’s duties, if information is brought to his attention that a ruling was made based on erroneous information, he has a responsibility to hear it.”



Last we knew: On April 17, Madison County officials announced that landfill opposition group the Killbuck Concerned Citizens Association (KCCA) would not be on the agenda for the next Board of Zoning Appeals meeting, despite repeated requests.

The latest: The KCCA filed a petition for mandate against Madison County Planning Director Michael Hershman on Aug. 24. In the petition, the group claims that the special use exception for Mallard Lake has expired and Hershman has failed in his duties.

What’s next: KCCA attorney Larry Whitham said he expects a formal response from Mary Solada of Indianapolis-based law firm Bingham, McHale, who represents Madison County in landfill-related matters. Solada could not be reached for comment.