City and developer to fight judge’s dismissal of SLAPP suit

Wednesday, July 15, 1998

Everyone thought Superior Court Judge Thomas W. Webber Sr. had ended a 14-month-long legal battle when he dismissed claims against Indiana environmentalists last month.

But the door was left open for the Lake Erie Land Co. and the town of Chesterton to fight the June 12 ruling, and on July 9, that's what town officials voted to do.

The Board of Zoning Appeals' 4-1 vote pumps new life into what Webber tagged an unconstitutional SLAPP (Strategic Lawsuit Against Public Participation) by the town and the developer against Charlotte Robertson and the Hoosier Environmental Council.

The environmentalists had questioned a proposed 640-acre commercial/residential development called Coffee Creek Center. When the zoning board decided in March 1997 to allow first-phase construction to begin on the $500 million project, Robertson and the HEC sought a court review of the decision.

Saying that the environmentalists' challenge was baseless and without standing, attorneys for Chesterton and for the developer filed counterclaims in April 1997. Their suit charged that Robertson and the HEC were abusing the legal system in order to delay the project and were attempting to damage the development company's reputation.

“Allowing a municipality to immediately file an abuse of process claim anytime a citizen challenged a government action would have a chilling effect on an aggrieved citizen,” the judge wrote in dismissing the counterclaims.

The attorney for HEC and Robertson, Gordon Etzler, said that he cannot believe town officials and the company are appealing. “They've never heard of the concept: 'Cut your losses and run!'” he said.

Charles Lukmann, an attorney representing the town of Chesterton, did not return phone calls.

John G. Donner, an attorney for the land company, said that it is unfair to label the situation a SLAPP suit. He said that the company has decided to fight Webber's ruling because “this is something that Robertson and the HEC started.” He declined further comment.

According to Etzler, Chesterton and the Lake Erie Land Co. contend that Webber was wrong in his decision, was too harsh in his criticism, and was wrong in saying that their counterclaim violated First Amendment speech and petition rights.

But, Etzer said, “the law is so clear on that issue. Maybe lawyers who don't understand the workings of the First Amendment” might say this is not a First Amendment case.

“Frankly in reading the decision I think this judge now understands clearly what has been going on between the parties and is very sympathetic to citizens coming before the board expressing their positions,” Etzler said.

A frustrated and disappointed Robertson said: “They don't seem to care about public opinion at all. They want to intimidate not just myself, but everybody in the community. They're trying to keep us all quiet. They're trying to discourage anybody from speaking out against this development.

“There's a vindictiveness there that I can't understand,” said Robertson, board secretary for HEC. “They're trying to distract from the underlying issues of the land deals and legal firm conflicts and change the focus from what it should be.”

Attorneys for the town and the developer can either ask Webber to reconsider his decision to throw the suits out of court or appeal directly to the state appellate court. So far it is unclear which path they will take.

Robertson said she had no idea that these courtroom confrontations would continue. “They have a bottomless pit of money. … I didn't realize that we were such a threat to this big corporation. All they have to worry about is us little fleas on their back.”