Judge dismisses Nickel Plate case, awards Fishers attorney fees

A judge has ordered advocacy group Save the Nickel Plate to pay the attorney costs and fees racked up by the city of Fishers to defend itself against what he ruled were "frivolous and groundless" claims in a legal fight to preserve the Nickel Plate Railroad line as a transportation corridor in Hamilton County.

Hamilton County Superior Court Judge David Najar on Wednesday dismissed claims by Save the Nickel Plate that the Fishers Board of Public Works and Safety violated state meeting laws. He also granted the board’s motion for attorney fees and costs, which Fishers said amounts to tens of thousands of dollars.

The latest ruling came in response to a lawsuit the organization filed in September regarding public meetings about the proposed Nickel Plate Trail.

The city and Mayor Scott Fadness’ re-election campaign used the ruling to call out Fadness’ primary opponent, Logan Day, who served as Save the Nickel Plate’s spokesman until late last year when he began mulling a run for office.  

“Save the Nickel Plate, led by Logan Day, and Indiana Transportation Museum have repeatedly filed meritless claims and lawsuits, multiple public access complaints, a [Department of Local Government Finance] hearing petition, three lawsuits in Indiana courts, and appeals with the Federal Surface Transportation Board—all of which have been dismissed and wasted tens of thousands of taxpayer dollars,” the city said in written statement. “After repeated dismissals at every level, this latest ruling gives finality and comes to the defense of the taxpayers who will no longer shoulder the cost of meritless claims.”

Save the Nickel Plate formed in 2017 with the goal of preserving the Nickel Plate Railroad line as a transportation corridor after Hamilton County leaders announced plans to railbank the 37.5-mile corridor through Fishers and Noblesville to build a pedestrian trail.

In September, the not-for-profit took legal action against Fishers, Noblesville and Hamilton County, saying officials violated Indiana’s Open Door law and Indiana code regarding thoroughfare projects by not giving the public a chance to speak at two meetings regarding plans for the Nickel Plate Trail.

The organization argued that meeting notices for the two meetings—one in July 2017, and the other in September—were governed by Indiana code regarding thoroughfare projects that required the board to hold a public hearing when people interested in or affected by the project could speak. The board also was required to issue a notice advertising the hearing, Save the Nickel Plate said in its lawsuit.  

The organization asked a judge to rule the boards violated the law and to void any decisions made during those meetings. It also asked to be awarded attorneys’ fees, court costs and other litigation expenses.

Immediately following the organization’s filing, the city’s attorney asked Save the Nickel Plate to drop the lawsuit because the claims had “no basis in fact or law,” according to Wednesday's ruling. 

“Taxpayers should not be forced to fund defense costs for frivolous litigation,” the city’s attorney said in a letter to Save the Nickel Plate and its counsel.

Save the Nickel Plate did not drop the lawsuit, and in January, the city filed a motion seeking attorney fees and costs claiming that Save the Nickel Plate’s complaint was frivolous, unreasonable, groundless or brought in bad faith, the ruling states.

The court held a hearing last week before issuing its order Wednesday, in which it called Save the Nickel Plate’s claims frivolous and groundless.

Fishers now has 10 days to submit an affidavit to verify the fee and cost award that will be imposed in the board’s favor. Save the Nickel Plate’s counsel, Terry Tolliver of law firm Brattain Minnix Garcia, is “jointly and severally liable for the award.”

Tyler Mendenhall, president of Save the Nickel Plate, expressed "deep disappointment" with Wednesday's ruling. 

"By ruling that (Save the Nickel Plate) must pay city of Fishers’ attorneys fees and court costs, Judge Najjar sets a dangerous precedent that undermines STNP’s First Amendment right, '… to petition the government for a redress of grievances,'" Mendenhall said.  "This ruling sends a chilling message. If one exercises the right of free speech and questions or challenges government policy, there will be court-sanctioned financial retribution. The threat would be enough to scare any citizen or public benefit corporation from making a good-faith effort to bring transparency and openness to major public policy decisions. It would likewise discourage attorneys from providing legal counsel."

The organization stands behind its claims against Fishers, he said, and it's currently exploring options for an appeal. 

Jennifer Hallowell, spokeswoman for Fadness for Fishers, said Day, who has lived in Fishers only about six months, has cost Fishers’ taxpayers thousands of dollars.

“Day used the Nickel Plate Trail proposal to build a business for himself and raise his own profile,” she said in written comments. “Logan Day has subjected Fishers’ residents to incredible misinformation and cost them thousands of dollars.”

But Day argued it’s unfair to attribute the lawsuit to him “when the legal actions were undertaken by an organization that represents 12,000 citizens who signed a petition against (the city of Fishers’) plan for the trail only.”

He criticized Fadness for accusing him of costing taxpayers money, saying Fadness did so himself when recently recommending the city council approve tax incentives for Crew Carwash.

"Fadness has no room to talk about costing taxpayers money when he gives away unnecessary tax incentives like the 10-year tax abatement and waiver of impact fees totaling nearly $1.5 million recently offered to Crew Carwash,” Day said in written comments. “An email circulated by the company in early February stated, ‘Crew is not asking for any tax incentives or money from the city.’”

The city of Fishers had recommended the city council approve tax incentives valued at $1.72 million for Crew Carwash, which plans to relocate its headquarters and build a new carwash near Interstate 69.

Hallowell said the original proposal was only for a carwash, but the new deal, and the part which is incentivized, is for the new construction of a 60,000-square-foot corporate headquarters, with Crew Carwash exponentially increasing the amount of private investment in the city.