MARSHALL COUNTY — During the attorney report for the Commissioners meeting Monday morning, the Commissioners discussed and questioned the legality of the Council’s actions toward the Plan Commission and Board of Zoning Appeals (BZA) during their meeting last Thursday.
In response to an additional appropriations request made by Plan Commission Director Ty Adley, the Council approved a motion to require Adley to seek Council President Jesse Bohannon’s approval for legal and advertising expenses prior to incurring such expenses until a Solar Moratorium is placed by the Commissioners. The Council also approved the establishment of ordinances supporting their actions to be considered during the July meeting.
After being questioned over the weekend regarding the actions of the Council, watching the meeting online, and doing some preliminary research – Attorney Jim Clevenger is researching the issue more.
He noted that he is unsure how the County can tell landowners that the proposed use of their land requires a BZA hearing and approval and then make it such that the landowner can’t even seek that approval.
Attorney Clevenger is also investigating the limits of the Council’s “statutory authority” to dictate the actions of the Plan Commission or BZA by restricting funding for certain uses.
The applicant pays public hearing notice fees and the Plan Commission or BZA schedules a public hearing within a certain time frame – Attorney Clevenger questioned whether the County can take that money and not follow through with the intended purpose.
The Plan Commission or BZA does have the right to deny a request or put conditions on it – but for them to fail to advertise or schedule a hearing violates the established process. Attorney Clevenger is unaware of any state statute or law that permits the Council to do that.
Attorney Clevenger also noted that if the Plan Commission or BZA need legal advice, it is contemplated within the statute that they are allowed legal counsel.
Attorney Clevenger noted that to place such financial restrictions on the Plan Commission and BZA based on the expressed desire to stop industrial solar rather than a financial constraint also causes potential legal concern.
He indicated that he does not understand why the additional appropriations request for funds to use for legal and advertising wasn’t approved in the first place.
He added that the statutory scheme of the Plan Commission and BZA is to perform the functions of their jobs; and it appeared to him that the Council was attempting to ban solar through restricting the actions of the Plan Commission and BZA.
Attorney Clevenger informed the Commissioners that there is a current State Statute that prohibits local governments to unreasonably restrict the use of solar energy.
As he reviewed the Council’s activities he noted that they might have been “arbitrary and capricious” in their actions. He said that in his view the actions were not appropriate, but he could not advise the Commissioners as of Monday morning if the actions were actually a legal violation.
He did note that the Council’s actions are unprecedented to his knowledge. He added that there is a balance between what local government can legislate to a landowner and he anticipates that land use for energy will be an issue considered during the legislative session in 2025.
Attorney Clevenger questioned the authority of a local government to require a legal process that they deny financially. He will do more research on the appropriateness and legality of the Council’s actions.Commissioner Kevin Overmyer and Mike Burroughs voiced their desire for Attorney Clevenger to continue his investigation of the matter.
