News : Not over yet: Lawyer files suit in case involving Red Shed Auto Repair

“I’m just glad it’s over,” said Dean Brown, on Jan. 27, after the Benton County Board of Adjustment had spent hours reviewing his case and hammering out an agreement between Brown and his neighbors, Gary and Jill Marlow, allowing him to run his auto repair business in the shop he built near his house on 55th Street.

Brown had appealed the Nov. 17 two-man vote by supervisors Terry Hertle and Don Frese, who rejected his application for a land use change.

Brown, however, found out last week that it’s not over.

The Marlow’s attorney, during that Jan. 27 hearing, Jennifer Zahradnik, has filed suit, not as the lawyer for the Marlows, but on her own behalf.

Attorney James Ries of Belle Plaine, who is a member of the Kollmorgen, Schlue and Zahradnik Law firm of which the plaintiff is the managing partner, filed the certiorari petition on Zahranik’s behalf. The document makes no mention of the Marlows. A certiorari petition asks a court to review the records of an inferior court or a body acting in a quasi-judicial capacity – in this case the Board of Adjustment.

The certiorari petition lists Zahradnik as the plaintiff, as a resident of Benton County, and three defendants:

1. The Benton County Board of Adjustment;

2. Benton County Dave Thompson, which the petition alleges “acted in such a manner as to coerce the Benton County Board of Adjustment into acting in a manner contrary to the standing ordinances of Benton County;” and,

3. Dean Brown, which the petition claims “acted in league with the Benton County Board of Adjustment and the County Attorney in this action.”

The petition asks that “on hearing thereof Defendant's act be annulled and decreed void, a stay of the variance issued by the Benton County Board of Adjustment in this matter be granted and that plaintiff have judgment for costs.”

"It's weird stuff," Thompson said of the Zahradnik's decision to take on the role of a plaintiff. "Its unfortunate for the Browns and Marlows, who worked together to come to an agreement with the Board of Adjustment to settle this matter."

County guidelines governing land use issues allow any taxpayer the right to appeal any related ruling in court, Thompson adds.

Also, said Thompson, the fact that he is named in the petition could mean that the county may face the cost of hiring lawyers to represent him as well as the Board of Adjustment over what could become a lengthy legal battle with many motions filed and depositions taken.

None of the other people mentioned in the petition have commented for this story.

Benton County Land Use Administrator Marc Greenlee said it is too soon to know exactly what kind of court hearing will take place, or when. While Greenlee has typically been involved in such court cases, he said it will be up to the court to determine what input it wants from him. Also, he said, previous history indicates that it could take several months or longer for the issue to get on the court calendar, and for the case to reach its legal conclusion.

Zahradnik represented the Marlows when she participated in the Feb. 4 Board of Adjustment meeting in which the details of the Jan. 27 agreement were put in writing and signed. That agreement limited Brown’s hours of operation and also included a stipulation that Brown pay 1/3 of the Marlow’s dust control costs; it allowed either side 30 days to appeal the case in court.

On that date, Zahradnik told the Board of Adjustment that the Marlows consider an agreement with conditions better than one without them.

While several county land use change decisions have gone to court in the past, this is perhaps the only case from Benton County where a Board of Adjustment ruling overturning a supervisors' vote faces a court challenge.