County Council votes to file injunction against county's decommissioning agreement and Commissioner Overmyers conflilct of interest

Last week, the County Council reviewed a “memorandum” from Laureen White, an attorney from Hammond. Council members Nicole Cox and Deb Johnson have continued researching the industrial solar project for Marshall County and sent White two questions for her opinion. 

The first question asked was under the county’s ordinance, who must approve the decommissioning plan for Solar Energy Systems (SES)?”

Her response, the Marshall County Zoning Ordinance, states that before issuing a building permit, a decommissioning plan must be approved by the Board of Zoning Appeals and recorded with the Marshall County Recorder.  The attorney’s opinion went on to say, “While the Ordinance provides that the Commissioners must approve financial assurances and bonds, I was unable to find anywhere in the ordinance which would provide them with any purview over decommissioning agreements. Based on this information, I believe the council may request that a State Court issue a declaratory judgment that the Marshall County Decommissioning Agreement signed on September 16, 2024, is ultra vires and void ab initio.”    

The second question was asked if Commissioner Kevin Overmyer’s votes on zoning issues related to the Invenergy industrial solar project around Burr Oak was a conflict of interest.

The attorney’s response said, “As the council is aware, Mr. Overmyer has made clear his position that he does not believe these votes constitute a conflict of interest. Overmyer signed two separate conflict of interest forms in September and November 2023.  Overmyer signed these agreements prior to votes released directly to battery energy storage.”

The Indiana General Assembly enacted a specific provision in state statute about conflicts of interest concerning zoning issues.  That code says, “A member of a plan commission or legislative body is disqualified and may not participate as a member of the plan commission or legislative body in a hearing or recommendation of that commission or body concerning a legislative act as described in section 1016 of this chapter in which a member has a direct or indirect financial interest.  The commission or body shall enter in its records the fact that its member has such a disqualification.”

Attorney White states in her memorandum to the County Council, “Here, it is clear that Overmyer has a financial interest in the approval of Invenergy’s SES as this project directly affects the battery energy storage lease on his land.  Without Invenergy’s SES there is no energy to store on his land.  Despite this, Overmyer is still participating on hearings and voting on decisions regarding the Invenergy project.”

In closing, she told the County Council a complaint for declaratory judgment and injunctive relief could be filed. 

County Council attorney Marcel Lebbin told members that when they contacted Indiana Attorney General Rokita, they were referred to Attorney White. He said she’s working for other Indiana counties that have questions about energy projects.

Council president Jesse Bohannon asked who the defendant would be if the council filed a lawsuit, and Lebbin said the commissioners or maybe the building department.  He wasn’t sure. 

While the county commissioners approved the decommissioning agreement, Lebbin said the Board of Zoning Appeals must approve it before a building permit can be issued. He said the BZA and the commissioners should have hammered out the decommissioning agreement jointly; instead, the commissioners, working with a hired attorney, created it. He said that he and Council President Bohannon asked the commissioners to communicate with the council to get their input for the decommissioning agreement, but their request was disregarded. 

Lebbin said the county council could file an injunction to keep Commissioner Overmyer from voting on future decommissioning agreements for Invenergy’s Tamarack Solar Project. The court could provide guidance before the BZA eventually passes the decommissioning agreement if it differs from the agreement the commissioners signed. 

County Plan Director Ty Adley was asked if the BZA would approve the Decommissioning Agreement, and he said it would be part of the application for Invenergy’s Tamarack Solar Project.

Councilwoman Cox said Overmyer signed a contract in October 2021 for the battery storage project, and Councilman Bohannon asked if Overmyer leveraged his knowledge of the solar project when he sold the family’s farm ground at an increased value with the expectation they could get a solar lease in the future.   

Councilman Tim Harman asked where the complaint would be filed, and Lebbin said in the local courts. They only have 30 days to file after the agreement is signed, which was September 16th. 

Councilman Tim Harman moved to file an injunction, and Cox seconded the motion to proceed with court action on the Commissioner’s decommissioning agreement and Overmyer’s conflict of interest.  The vote was 7-0.