Marshall County BZA reviews, modified & adds Finding of Facts for the Tamarack lawsuit

Tuesday evening, the Marshall County Board of Zoning Appeals held a special meeting to consider and enter specific Findings of Fact on the December 2024 public hearing, where the board denied the special use variance request of Tamarack Solar to permit a solar farm in the Burr Oak area. 

Hired Attorney Robert Eherenman told the BZA that following the denial, Tamarack filed a lawsuit against them. They also filed and were granted a change of venue, with the case ending up in Allen County Superior Court in Fort Wayne. On November 6^th, the court remanded the matter back to the BZA with instructions to enter specific Findings of Fact explaining its decision. 

The 20-minute meeting on Tuesday evening had three of the five board members in attendance. During their discussion, BZA members reviewed the 16-draft set of Findings of Fact and made minimal modifications and additions to detail and emphasize their decision-making.

Member Trent Bennett wanted to clarify that the county’s Comprehensive Plan calls for the preservation of farmland and open space. He said, “West Township is the county’s most open space, wooded, hunting, and state-owned ground.” His concern was that the proposed solar project would sandwich the Yellow River and have fences that would block animal movement.

BZA President Jeff Gustafson discussed the large-scale construction and questioned if someone with an autistic child or who worked nights would have to leave their home because of the constant hammering and pounding for weeks.  The attorney said they could add a finding stating that the large-scale construction of a solar farm would not be consistent with the surrounding area.       

The County’s Comprehensive Plan also discusses that rural villages, such as Burr Oak in Marshall County, should be able to grow.  Bennett said that Burr Oak will be surrounded by the project.  He said, “This would have taken every bit of land around it for no growth.  It's one of the few villages in Marshall County that has been able to maintain itself, at least a little bit.”  Bennett told the board he has a history in Burr Oak, and it used to have four gas stations.

Gustafson asked if the Finding that discussed the concern of lead and cadmium contamination was strictly for the solar panel. He wanted to add a concern with the freshly galvanized posts that can be driven as deep as 24 feet into the ground.  He said that could add concern for zinc contamination. 

Gustafson said there was testing done at Ancilla’s solar array, and he said they had high levels of lead, and he thought they only tested on the surface. He believes that contamination was from the posts and not the solar panels.   

The corrections and additions to the Findings of Fact were unanimously approved by the three members at the meeting: Trent Bennett, Jeff Gustafson, and Tim Pletcher.

Attorney Eherenman did put into the record that a question was raised by Tamarack’s lawyers on two alternate board members, and the BZA attorneys were unable to determine is there was a glitch in the paperwork appointing them, so they did not participate in the special meeting.