By Robert Tomlinson
News Director
CENTREVILLE — Miscommunication between the St. Joseph County courthouse and lawyers in a major local lawsuit led to a new date being set for a key part in the case.
On Tuesday, St. Joseph County 45th Circuit Court Judge Paul Stutesman set a Tuesday, Sept. 3 date for a bench trial to determine if a permanent injunction can be issued in a lawsuit filed by Tom Lowry against Lockport and Park townships. Proceedings will begin at 8 a.m. on that day.
The date was set after lawyers for both sides admitted they were not intending to have testimony occur, even though Stutesman said he was ready to proceed with the hearing Tuesday. Eric Conn, a lawyer representing two lawyers from the Fahey Schultz Burzych Rhodes (FSBR) law office that are involved in the case, said during the hearing he had an assistant call the courthouse to find out if Stutesman was planning on holding the trial Tuesday, and was told he wasn’t.
Attorneys representing Lowry, who is also the mayor of Three Rivers, estimated that when the bench trial begins, they would need three days to make their case. Lawyers for Lockport and Park said they would need “another day on top of theirs,” making the total estimate four days for the trial.
As previously reported, Lowry is suing Lockport and Park townships seeking an injunction and invalidation of two Public Act 425 land transfer agreements involving or partially involving his property, a 37-acre parcel in Lockport Township along Buckhorn Road northeast of the Armstrong Park Sports Complex that Lowry has owned since 2021. The lawsuit was filed back in December.
Both transfers in question were between Lockport Township and Park Township, with the stated goal of the townships being to provide sewer and water service to those properties, a project that is still in the planning stages. The first transfer, which involved solely Lowry’s property, was approved by both townships in April and later rescinded prior to the first hearing on the case in December. The second one was approved in November prior to the rescindment of the first land transfer agreement, and involves the Lowry property, the Tim Avenue neighborhood south of Lovers Lane, parcels on Buckhorn Road from Lovers Lane to the City of Three Rivers border, and Meyer Trust properties west of the Tim Avenue neighborhood.
Lowry opposed both transfers, as he wished to secure a separate land transfer agreement for his property between Lockport and the City of Three Rivers for the purpose of bringing city sewer and water services to the property, which he plans to develop as multiple residential lots. Lowry had filed a referendum petition on the first transfer in Lockport Township, which he is allowed by Public Act 425 to do, in May of 2023, which would have brought the transfer up to a vote of Lockport residents. The township, however, did not honor the petition and never set an election, which was one of Lowry’s complaints in the lawsuit.
In March, a preliminary injunction was issued in the lawsuit, while also lifting a stay on Lowry pursuing annexation of his property into the City of Three Rivers through the State Boundary Commission (SBC). While a legal sufficiency hearing was held by the SBC for the annexation in February, which determined the petition filed by Lowry back in September 2023 for annexation was legally sufficient, no further action has been taken or is currently planned to be taken by the SBC regarding the situation.
Some motions were filed by both sides in the interim between March and Tuesday, including a motion to quash filed by Lockport and Park’s lawyers, and a motion for partial summary disposition filed by Lowry’s lawyers, but were denied by Stutesman at the conclusion of Tuesday’s hearing.
There were some arguments related to the case presented during Tuesday’s hearing prior to Stutesman’s ruling on the motions. Conn, the lawyer representing FSBR, argued that one of the issues related to subpoenas submitted related to the so-called “18 factors” that, according to Public Act 425, local governmental units “shall consider” when formulating a 425 agreement/contract, and that is similar to what the SBC considers when it hears arguments.
Conn argued the 18 factors were not related to the future bench trial proceedings, because of what he called a “clean, clear, unambiguous reading of the statute.” He called the argument from Lowry’s side that the 18 factors were not discussed at the public hearing in November a “sham” and “farce.”
“You look at the plain language of Act 425 itself, and it says those factors are evaluated when formulating the contract. Not with executing the contract,” Conn said.
Conn also argued that board members for Lockport and Park should not testify in the hearing, because they “speak as one board” and not as individuals, and that if the attorneys that helped draft the contract testify, it’d be “akin to finding ambiguity in a contract,” and is “not contract interpretation.” Stutesman challenged Conn on this argument that getting that testimony would be “going beyond the contract,” saying that the “whole case is a mess from beginning to end,” and he’s “going to hear the testimony of the people that drew this together.”
“I’m past the point of arguing that somehow the townships, under a new theory, didn’t have to consider the 18 factors at the time of the hearing. I’ll read the statute myself, and I don’t have all day for arguments over things that are a waste of time, in my opinion,” Stutesman said. “I want to hear testimony as to where the local unit considered those factors.”
Conn then pointed out a part of the November 425 agreement, Section 1.2, that states Park and Lockport considered the factors prior to the agreement being approved, “plus an additional four” factors.
Later, Conn argued that part of the Public Act 425 requirements includes having an “economic development project in play,” not having one be a “done deal” prior to the agreement being signed.
“What we’ve established based upon not only a read of Act 425, but case law as well … you can have a planned project and proceed under an Act 425 agreement,” Conn said.
Vince Duckworth, Lowry’s lawyer for the case, argued that Public Act 425 has been “cherrypicked” by the defendants to satisfy their arguments, and that the rest of the statute requires a “transparent process.”
“In terms of the statute, it cannot be read and cherrypicked essentially to satisfy the townships’ arguments that for some reason, when the act says, ‘when formulating the contract, local units shall consider the following factors,’ that that somehow is to be read in isolation and can be done behind closed doors with the two different townships outside the view of the Open Meetings act, when the rest of the statute requires more of a transparent process,” Duckworth said.
Duckworth also argued that the economic development project is “separate and apart” from the factors that need to be considered.
“If you’re going to have a public hearing, and you’re going to talk about the contract that’s being contemplated … what are you going to talk about if you’re not going to talk about the 18 factors?” Duckworth said. “If you’re not going to talk about whether or not the purpose of this agreement is truly for the purpose of an economic development project, it’s a hollow and meaningless process for which case law also tells us the legislature doesn’t create frameworks that are meaningless and have no purpose.”
Duckworth finished by arguing the contract hasn’t been finalized yet, and that both agreements were not executed, adding that Lowry “took advantage of the only option he had” to bring a case to circuit court, and “evaluate whether these proposed agreements meet these statutory factors.”
Conn rebutted after Duckworth’s argument that the transparency argument was a “red herring” because it’s “only required when a decision is made, not when negotiation is happening,” and that the allegations of “cherrypicking” Public Act 425 was “untrue.” He argued that he never said the townships couldn’t talk about the 18 factors during a public hearing, but that it’s “not a requirement under the Act.”
“They can be discussed, but they are not required to be discussed, like they are under the SBC. That’s where they conflate two acts completely,” Conn said. “There are sufficient remedies available to Mr. Lowry if they want to challenge these particular things. We’re not depriving anybody’s rights; we’re simply following the guidelines the legislature created for us.”
Robert Tomlinson can be reached at 279-7488 or robert@wilcoxnewspapers.com.
