County Attorney updates commissioners of Council's lawsuit against them, Elkhart Co. Judge rules on dismissal

Marshall County Commissioner Jesse Bohannon had asked County Attorney Sean Surrisi to give them an update on the litigation the County Council filed against the County Commissioners on the Tamarack Solar Farm Project in Burr Oak during Monday’s meeting.

The Council filed a suit against the Commissioners after they passed the Decommissioning Plan, which allowed Tamarack Solar Energy to seek a variance for the industrial solar project. The Commissioners approved the plan on September 16th with a 2-1 vote, with Commissioner Klotz in opposition. 

Surrisi said the Council filed a Notice of Dismissal of the case on January 13^th.  He said, “There is a procedure under the Trial Rules that allows a party who files a lawsuit to voluntarily dismiss the case if the opposing party hasn’t yet filed an answer to the complaint or a motion for summary judgment.” 

The previous Board of Commissioners hired Ice Miller to represent them in the lawsuit. Tamarack Solar had filed a motion to dismiss the case, and the prior commissioners agreed and joined the motion. Surrisi said that the court had not yet considered the motion. He said the county council felt they could outright dismiss the case, and it would be over and done with. 

Surrisi was notified that the Judge in Elkhart Circuit Court had called a virtual hearing for February 14^th to discuss the status of the notice of dismissal and the pending motion to dismiss.  He entered an appearance on behalf of the board and attended the hearing. He said the hearing lasted about 30 minutes, and the judge was curious about the procedure of the dismissal the county council filed and the pending notice to dismiss by Tamarack. 

The County Attorney stated that the Council filed the dismissal “without prejudice," which means they could refile the lawsuit in the future. Surrisi mentioned that the judge would issue an order in the next couple of weeks. He also noted that the attorney for Tamarack Solar indicated that depending on the outcome of the judge’s decision, they might consider filing a motion for attorney fees.

Surrisi said Tamarack’s counsel sent a letter for their motion to dismiss to the council before they filed the lawsuit. Their position was that the County Council didn’t have the standing to bring the lawsuit and that it was “a baseless claim,” which Surrisi said he didn’t agree with. Tamarack’s counsel asserted the lawsuit was filed to influence the decision of the Board of Zoning Appeals in considering their application.

On February 19^th, Judge Michael Christofeno ordered that the Plaintiff’s first amended complaint for Declaratory Judgement is hereby dismissed without prejudice according to Indiana Rule of Trial Procedure 41.