Judge Michael Cook’s ruling that Argos’ rezoning ordinance is unconstitutional and void has many residents wondering if the decision is the death knell for a proposed ethanol plant.

The town had used the ordinance to change the zoning of two parcels of real estate from agricultural to heavy industrial to allow Indiana Renewable Fuels LLC to build on the southeast side of Argos.

Neighbors of the proposed plant formed a corporation and filed suit in Marshall County Circuit Court in February last year.

The suit claims the Argos Plan Commission’s actions in the rezoning were "wholly illegal, arbitrary, capricious, unreasonable, an abuse of discretion, erroneous ... contrary to state law, contrary to the Argos Land Use and Development Code, and contrary to provisions of the Indiana and United States Constitutions."

Cook, on his last day on the bench before retirement Feb. 29, issued a summary judgment in agreement with the petitioners, who include Don Mahoney, Carl E. Smith, Martha A. Smith, Timmy Allen Bailey, Peggy Lea Jones, John F. Richard and Amanda K. Richard.

Cook, in his 14-page summary judgment, said Argos "... wholly failed to comply with the Site Development Plan procedures in the LUDC (Land Use and Development Code) with regard to IRF’s ethanol facility ..."

Cook cited in his findings of fact several flaws regarding the process town officials and IRF followed to permit the rezoning. They include:

—That IRF’s zoning application "lacked most of the detailed information" required by the LUDC.

—The LUDC requires a Technical Review Committee — composed of seven individuals — to review and approve the site development plans, but Argos did not have a duly appointed TRC. Instead, Ron Gifford, town attorney, and Pam Bishop, town clerk, met Nov. 28, 2006, with Glen Bode, IRF president, and another corporation official to conduct the technical review.

No minutes or agenda were taken or kept, Cook found, making that a private meeting. It was not until Dec. 6, 2006, that the town officially designated Gifford and Bishop as the town’s TRC. The designation still did not comply with the LUDC’s mandate of a seven-person TRC, and no public meeting was held, as required.

—Cook also found that the town did not issue proper notice to "all interested parties" of a public hearing held Jan. 8, 2007, and that the notices that were mailed out failed to say that the Argos Plan Commission would "review or hear information on a proposed written commitment or a Site Development Plan." The Plan Commission decided following the Jan. 8, 2007, hearing to recommend approval of the site development plan and rezoning.

Cook also noted that Argos officials conceded in their summary judgment brief and during oral arguments that the LUDC is flawed and that its rezoning procedures violate Indiana law, making the rezoning ordinance illegal.

"Everybody’s happy," Robert Eherenman, Fort Wayne attorney representing the petitioners, said this morning in a telephone interview.

Eherenman said Argos has 30 days to appeal the judgment, but an appeal could delay construction of the ethanol plant for as long as a year and a half.

"I don’t know if they can even do a legal rezoning under their existing ordinance ...," Eherenman said, noting town officials would need to change the ordinance.

Ron Gifford, Plymouth attorney representing the town, did not comment on whether the town would appeal the summary judgment.

He did say that the town’s LUDC will need to be re-worked "if we’re going to pass rezoning for anybody ..."

Gifford noted that town officials have been working on that issue since March 2007. He said they expect to have a draft ready for the Argos Plan Commission to review "at one of our meetings in April at the latest."

Gifford said he had been in touch with the attorney for the proposed ethanol plant, but that he had not received any information that the project could now be in jeopardy.

Steve Clements, plant manager for the ethanol project, said from IRF’s office in Rochester on this morning, "Obviously, if we proceed, we would still need (for the property) to be re-zoned ..."

Clements said that he could not comment about a continuing commitment for placing a plant in Argos "at this time."

In August last year, Clements told The Tribune that IRF was "completely committed to the Argos site," but that financing and other factors had to be in place before construction could begin.

Ethanol plant supporters had told county leaders the dry mill operation would provide 40 local jobs paying $12 to $13 an hour, and required an initial capital investment of $125 million, with another $25 million in operating capital.

They asked for financial incentives of $10 million, which was rejected.

IRF became a wholly owned subsidiary of Advanced BioEnergy of Minneapolis in May 2006. Revis Stephenson, chairman, was not at his office at corporate headquarters today. A telephone message requesting comment on the judgment was not immediately returned.