Conservancy Court Hearing 10.11.23

Marshall County Circuit Court

• Those present included: o Judge Palmer and his clerk

- Petitioner attorney Dave Hollenbeck and his assistant

- Mike Nate representing the petitioners

- Marshall County Attorney representing the County Drainage board

- County Surveyor

- Interested freeholders

• The Judge opened by reviewing what a conservancy is and how a conservancy is formed. o The judge noted that 20 hard copies of the same information he just described were available for anyone present to take as they leave the courtroom.

• The judge noted that the petitioners must collect, and have verified by the county auditor, 30% of the total proposed conservancy district freeholder signatures in order for a conservancy district petition to be heard.

• The judge noted that the purpose of today’s hearing is to: 

- Confirm that 30% (or more) of the signatures submitted have been verified by the county auditor.

- Confirm that the petition documents submitted are in line with all applicable Indiana state statutes.

• If these two requirements are verified to have been met, the judge will then recommend the petition go to the next step and be sent to the DNR.

• Once the DNR has received all of the petition paperwork, they will review the documentation and create a report and recommendation. 

- The DNR has four months to complete their findings.

- The DNR is required to thoroughly evaluate the petition request with all interested official parties/groups such as the drainage board.

• A public hearing either in Indianapolis or in Marshall County will be set-up by the DNR.  

- At this second hearing, the public for both opposed and in favor of the petition will be heard.

- This hearing will likely take place in February.

• Following the DNR hearing, a third court date will be set where Judge Palmer will make a final ruling. o This final hearing will likely take place in March.

• Opposing parties will have until 5 days before the last hearing to collect and present their own opposing petition if they so wish. This opposing petition requires 51% of the total freeholders to have signed in opposition to the conservancy district.

• The judge also noted that if the conservancy district were ultimately approved, the Marshall County Commissioners would appoint a five party Conservancy District Board. 

- These board positions will likely be staggered terms.

- As terms end, freeholders within the conservancy district will be able to vote in replacements to the board.

The Judge then asked Attorney Hollenbeck to provide his exhibit information. 

Mr. Hollenbeck provided the following:

• An affidavit showing that the required hearing public notices and mailings took place.

• A confirmed affidavit from the county auditor that 56.47% verified freeholder signatures have been collected and submitted.

• Attorney Hollenbeck noted to the court that because the proposed Lake of the Woods Conservancy District would be under 5,000 properties, an additional threshold requiring that the signatures collected in favor of the petition must equal 51% of the total assessed property value of the entire district. Attorney Hollenbeck then provided: o A confirmed affidavit from the county auditor indicating that the signatures collected and verified represent 52.47% of the total assessed value of the proposed district.

• The judge took an opportunity here to note that while the opposing side is still required to provide 51% of total freeholders in the districts signatures to formally oppose the petition, there is an official procedure where someone who initially signed in favor of the conservancy petition could change their mind and move over to the opposing side.

The judge then took the opportunity to read aloud the relevant portions of the Conservancy formation petition.

• During this reading the judge did call out: 

- The district would be comprised of on water lake frontage and channel freeholders only.

- The proposed Lake of the Woods conservancy district is being recommended to be split into five sub-districts so that a representative from each district could be represented on the conservancy board.

The Judge then asked the Marshall County attorney if he had anything he wanted to share or add. The attorney noted that mainly he was present to hear what was being proposed. He noted that Lake of the Woods is part of the Marshall County Drainage System and the main purpose for being interested is to ensure that nothing being planned by the potential conservancy adversely affects the overall drainage system. He noted that he and the county Surveyor would also be planning to attend the DNR hearing.

- The Marshall County Attorney also asked that Judge Palmer include in the DNR submission documents regarding the Lake of the Woods dam and the associated 1986 court order.

- Judge Palmer agreed to do so.

Attorney Hollenbeck took the opportunity to note to the Judge that the conservancy would be required to uphold any applicable Indiana Statutes that would not allow any conservancy projects to adversely affect drainage

At this time, Judge Palmer indicated that the hearing was to be closed when a participant in the back asked to be heard. The Judge allowed this.

The court participant indicated that he had information that the data and information provided with the conservancy petition had inaccuracies. The Judge noted that this kind of information should be shared at the next public hearing. The participant continued to note his concern that the signature percentages provided with the Conservancy petition had incorrect information and some invalid signatures such as duplicates and some sub-divisions being included that should not be.

The Judge responded that he and the county auditor had already gone over inaccuracies and discrepancies with the signatures and that any duplicate or unauthorized signatures were removed from the tally. Inaccurate data was also addressed and Judge Palmer indicated that with the county auditor’s thorough review and affidavit, he was confident the correct signature information was submitted.

The Judge also stated that with the noted numbers for the total conservancy, only 80 signatures would be needed to reach 30% of the total. With the approximately 120 signatures provided with the conservancy petition, it is unlikely that the 40 signatures in contention could all be incorrect.