The Marshall County Council approved a motion to require Marshall County Plan Director Ty 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.
In May, the Council tabled Adley’s request for additional appropriations in the amount of $1,350 for the Board of Zoning Appeals for printing and advertising, $1,500 for the Plan Commission for printing and advertising, and $6,000 for the Plan Commission for legal services. The request was considered again during the Council’s meeting Thursday evening.
Within the past year the amount of advertising and legal fees has increased and exceeded what was anticipated during the budget process for 2024. While applicants themselves are required to pay certain fees for their permit applications; that money goes to the General Fund and is not accessible as a line item in the Plan Director’s Budget. It is not a reciprocating fund; once advertising and legal fee funds are depleted from Adley’s annual budget; he is required to request additional appropriations.
Bohannon expressed concerns about industrial solar development. At this time, to be approved for an industrial solar project in A-1 (agriculture), an applicant would be required to appear before the Board of Zoning Appeals. There has been one application submitted for industrial solar development; it is still in the vetting process. Final approval cannot occur until the Commissioners adopt a Decommissioning Agreement and a Road Use Agreement which is currently being considered.
Bohannon asked Attorney Marcel Lebbin and Financial Consultant Steve Dalton for guidance on using the Council’s statutory powers to allow the Plan Commission and Board of Zoning Appeals to proceed with normal business while simultaneously denying the ability of industrial solar development to move forward.
Councilman Jim Masterson noted that the actions of the Council should not prevent the Plan Commission or Board of Zoning Appeals to comply with required statutes to perform the functions of their duties; regardless of personal agendas. He noted that the Council has an obligation to pay bills incurred. He added that the Plan Commission and the Board of Zoning Appeals have authority and obligations to perform certain necessary functions.
Lebbin instructed the Council that they have the authority to approve or deny additional appropriations requests.
Dalton instructed the Council that once a budget is approved for a department, it can be spent for any legal purpose of that department – the Council cannot pick and choose which legitimate business purposes to fund from that approach. One option for moving forward is for the Council to take control of those funds used for advertising and legal expenses by disbursing them from within their own budget under the Special Projects line item. That would give the Council authority, moving forward, to approve or deny each request on a case by case basis.
Auditor Angie Birchmeier instructed the Council that legal fees and advertising have always been separate line items for transparency purposes; new line items in the Council’s budget would need established under Special Projects for each category.
Dalton confirmed that the Commissioners have funds for legal fees which can also be used for any department’s legal expenses. Bohannon asked if the Council could shut down the advertising process by requiring that to be paid from the Council fund. Dalton answered, “You could definitely make it more difficult for Ty to go get money. I’m not saying it’s impossible. He might be able to find another line in the Commissioner’s fund to pay for that.”
Adley reminded the Council of Indiana Code and the requirements to advertise within designated time frames.
Vice President Tim Harman asked Adley where Marshall County was at in the process of solar. Adley confirmed that at this time, an applicant can file for an industrial solar permit; solar is not under a moratorium.
Harman advised Adley that there would most likely be unanimous consent among the Council and Commissioners to stop solar once the new elected officials take their offices next year.
Bohannon indicated that restrictive actions taken by the Council that impact the Plan Director, the Plan Commission and the Board of Zoning Appeals could be lifted should the Commissioners enact a Solar Moratorium.
Masterson questioned the legality of holding funds for advertising in escrow that have been paid by applicants; he did not want to create a challenge for the Auditor.
Bohannon repeated his request for a recommendation for the Council if the will was to block solar and battery energy storage systems without blocking other operations of business.
Dalton repeated his recommendation to create line items for print advertising and legal and proceed to approve or deny those expenses on a case by case basis.
The Council approved a motion to introduce an ordinance to transfer money from the Special Projects Fund to put in to two line items – Advertising and Legal Expenses.
Councilman Will Patterson asked if the Council could freeze the Commissioners Budget to stop any funding to be approved for solar.
Dalton informed the Council that there would be ripple effects for actions taken to limit the Commissioners budget; though it can be limited.
Masterson asked if the funding being requested for print and advertising had already been committed. Adley said, “No. This is in hopes to get us to the end of the year with what we anticipate for future cases for the citizens of Marshall County.”
Masterson asked about the legal funding. Adley answered that more legal bills are anticipated, that same amount has already been spent in four months. “I hope to not touch a dollar of it, but if I’ve spent roughly that same amount in four months I can almost bet more legal bills are coming. That also goes towards violations, cleaning up property, representing us in court over there for those different projects. So – I just – what do you want from me?”
Bohannon answered, “We want to figure out some way to stop this, Ty.”
Adley said, “I understand where you sit on solar, it’s been clear for months.”
Bohannon said, “And I think the voters made it very clear last month where they sit on it too.”
Adley said, “I’m just trying to look at the rest of our cases. You are looking at one case in 70 cases. I’m trying to figure out what the other 69 are going to do.”
Councilwoman Nicole Cox asked if there were any outstanding bills that are not paid. Adley answered not to his knowledge; he knew of an estimated $175 bill coming for July.
Bohannon said, “I don’t think our desire is to deny you the ability to serve the average person on an average project. I just think that we would be in a position that going forward where you have to come and ask us month by month for specifics. Like I said, that will go away once the Commissioners put a moratorium on it.”
Adley asked, “So you want me to personally show up every month to pay our bills?”
Bohannon said, “Yes. I hate to do that but there is a heck of a lot of people that’s really upset. I have to do what I can do.”
Harman made a motion to deny the request for the additional appropriations for the Board of Zoning Appeals and the Plan Commission. Patterson seconded the motion. The Council denied the request for additional appropriations.
Bohannon asked for the Council to consider the recommendation made by Dalton; who repeated that the Council consider an ordinance at the next meeting to transfer funding from the Council’s Special Projects line to two new lines – one for advertising and the other for legal services.
Bohannon added – in the amount of $3,000 on each line.
Councilwoman Cox said, “I so move.” Seconded by Councilman Adam Faulstich, the motion was approved.
Bohannon said, “So Ty, we are going to be considering the establishment of those funds and the transfers at the July meeting. At any point after that and we have anything urgent that needs to be done I will seriously consider calling a special meeting to make sure we get you taken care of.”
Adley asked, “How should we send bills for Council?”
Dalton said, “I think it would be more appropriate to say – how would you get approval to incur expenses. Because if you incur the expense the County would be legally required to pay it. So you might need some type of process with the President where the Plan Commission – BZA needs approval for an expense before they incur it.”
Bohannon asked if the Council was willing to empower him in that manner. A motion was made by Patterson and seconded by Faulstich to empower the President to give authorization to the Planning Department to spend on printing and advertising and legal services for the remainder of the calendar year or until a moratorium is declared by the Commissioners. The motion was approved.
Adley asked Bohannon for the best form of communication. Bohannon said, “You’ve got my cell phone number, right?”
Adley asked for clarification because he had never seen anything like this. Bohannon told Adley to give him a call, or a text and he would come see him.
“I am very sorry that you are in this position. This is not fun.” said Bohannon.
Adley reminded Bohannon of the need for prompt response in order to comply with deadlines.
Bohannon concluded, “If we’ve got to get a quorum together for a special meeting to approve something I am happy to do that. This goes away as soon as we have a moratorium.”
