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Marshall County Council files Complaint for Declaratory Judgement against county commissioners, Tamarack Solar

Thursday, November 7, 2024 at 9:50 PM

By Kathy Bottorff

Wednesday afternoon South Bend Attorney Michael J. Roose, filed a Complaint for Declaratory Judgement in Marshall County Circuit Court against the Marshall County Board of Commissioners and Tamarack Solar Energy LLC.  Roose represents the Marshall County Council.

A declaratory judgment complaint is a request for a court to issue a declaratory judgment, which is binding and defines the legal rights and obligations of the parties in a dispute.  A declaratory judgment complaint is used to resolve legal uncertainty and is often filed before a lawsuit is filed, when a conflict might exist between parties' rights.  A declaratory judgment states whether parties are entitled to relief, but it doesn't order a party to act or pay damages.

The County Council brings this claim for the purpose of determining an actual controversy among the parties, the three County Commissioners and Tamarack Solar Energy LLC.

The complaint states that Commissioner Kevin Overmyer signed a contract with Swift Energy Storage LLC, also known as Tanaska on October 21, 2021, for the lease option on his land in Burr Oak for an energy storage facility.  He is currently receiving option payments under the terms of the lease and will receive additional payments if Swift exercises its option to extend the lease.

The complaint says on September 16, 2024, the County Commissioner and Tamarack entered into a Decommissioning Plan Agreement for the construction of a farm-scale solar energy project.  It was noted in the complaint the Commissioners Overmyer and Mike Burroughs voted in favor of the agreement and Commissioner Stan Klotz opposed the agreement.

The plaintiff specifically comments that the project will be constructed across a railroad from an energy substation which happens to be adjacent to Overmyer’s land that has the lease option for the energy storage facility with Tanaska.  They also pointed out that the Marshall County Zoning Ordinance states, “prior to the issuance of a building permit, for a farm-scale solar energy system, a decommissioning plan must be approved by the Marshall County Commissioners and recorded with the Marshall County Recorder, cross-referenced to the deeds to all associated project parcels.

Item number 17 of the claim states, “If solar energy systems like the project are not constructed, the economic incentive to construct energy storage facilities in Marshall County will diminish and without solar generation facilities in Marshall County, Swift Energy is unlikely to exercise its option on Commissioner Overmyer’s property.  The plaintiffs say Overmyer has an interest in the Decommissioning Plan Agreement that will result or is intended to increase his income or net worth and that he knowingly or intentionally has a pecuniary interest in the agreement, thus his agreement of the plan constitutes a violation of Indiana Code of Conflict of Interest. 

The County Council asked the court to enter a judgement declaring that the Decommissioning Plan Agreement is void and grants then all relief deemed just and proper.

While the complaint was filed in Marshall Circuit Court, Judge Surrisi has recused herself and has transferred the court hearing to Judge Sarber in Marshall Superior Court III. 

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