Fairgrounds, Homeowners Have 1st Day In Court In Race Complaint

Tonight’s 600cc Micro Sprints event at the Kosciusko County Fairgrounds will proceed as scheduled, but the future of motorized racing at the Warsaw Motor Speedway remains in doubt.

Parties on both sides of a complaint to keep motorized racing from the fairgrounds met in Kosciusko County Circuit Court Thursday before Judge Michael Reed. After the 1½-hour hearing, Reed did not make a decision but took everything under advisement.

Before an injunction could be granted, the plaintiffs would have to provide a bond and Reed would have to decide on the bond amount. It could take up to five days for a bond to be issued. The attorney for the plaintiffs, Patrick Murphy, suggested a bond of less than $40,000 while the attorney for the Fair Association, Edward Hearn, suggested a bond of about $117,000.

The bond must be payable to Kosciusko County Community Fair Inc. It would be used to pay all damages and costs that might arise from the lawsuit if the Fair Association wins.

The plaintiffs in the case, listed as Merle Conner, Judith Conner, Mary Clemens and Chris Cummins, all of Warsaw, are seeking a temporary restraining order, preliminary injunctive relief and permanent injunctive relief against the defendant, Kosciusko County Community Fair Inc.

In a motion filed Wednesday with the court, the Fair requested a trial by jury for all issues. That was not addressed Thursday.

For his only witness Thursday, Murphy called Cummins, 55, of North Bayview Drive, Warsaw, to testify. Cummins said he lives five to six city blocks from the fairgrounds on the north side of Winona Lake.

In 1990, as part of a settlement to resolve a lawsuit between multiple homeowners and the Kosciusko County Fair Association Inc., restrictive covenants were agreed upon. Murphy entered the restrictive covenant into evidence.

Cummins’ father was one of the nine homeowners who filed that lawsuit. Chris bought his father’s home in 1998 and now lives in it. Cummins said he was aware of the covenant before he bought the house but bought it anyway “because I knew there wouldn’t be racing on weekends” to ruin the enjoyment of the home and he “thought it was settled.”

He recalled what the home was like before the settlement, saying it was “extremely loud. My parents would leave home on Saturday nights when they would have races. There was a lot of dust.” He said the races infringed on his family’s enjoyment of their property and the lake.

He said the Micro Sprints “are like chainsaws next to your house. The noise carries across the lake.”

Murphy asked Cummins what he did once he learned that there would be motorized races at the fairgrounds. Cummins said he and a friend got together and met with representatives of the fair. He didn’t know how serious they were, but they knew of the covenant, and he knew they had races last year. Cummins said he and his friend got together to figure out how to get the covenant enforced.

Once Cummins found this year’s event schedule on the Warsaw Motor Sports website, he said they talked to neighbors and property owners around the lake to defend their property and their enjoyment of the lake. They decided to engage Murphy as their attorney to take legal action.

When he tried to engage the Fair, Cummins said the only response he got was an email after the cease-and-desist letter was sent out, but he didn’t respond to the email because the letter had already been sent.

Murphy asked Cummins what harm has come to him because of the motorized races. Cummins replied, “First and foremost, I feel it’s your right as a homeowner not to be intruded on.” He said it infringes on his right to go outdoors and spend quality time with family and friends. Cummins said he worked hard in his life to have that property on the lake, which is an investment, and the races devalue his property.

Hearn argued that since none of the current homeowners were part of the original restrictive covenant from 1990, and that the original document did not reference any address or legal description of the homeowners’ properties, the plaintiffs didn’t have legal standing with regard to the covenant.

He made a motion to dismiss the plaintiffs’ complaint on the grounds that the plaintiffs did not prove their case and the restrictive covenant was subject to the statute of frauds because it must meet the requirement of a deed to run with the land. He argued it doesn’t run with the homeowners’ property because the covenant doesn’t reference the homeowners’ properties.

Reed denied Hearn’s motion to dismiss.

Hearn called his first witness, Yvonne Keirn, Fairlane Drive, Warsaw. She lives on the west side of the property, less than a quarter of a mile away. She said she lives closer to the fairgrounds than Cummins and the fair events do not hinder her enjoyment of her property or the lake. She has lived there since about 2008.

“We don’t let that interfere with what we want to do out there,” she said.

She said she can have conversations while the races are going on, and she didn’t have to go inside to talk. No glass or windows have shaken or shattered. She also said she can sleep with the windows open while the fair events are taking place.

Hearn then called Randall J. Shepherd, one of the fair directors. He talked about the revenue the fair would lose without the racing events. He said people travel from all over to the races, and if an event is canceled, especially last minute, it would affect future events.

Shepherd said there were multiple types of motorized events at the fair, but mufflers are required now. He said noise is controlled, and engines are smaller.

Asked specifically about the April 27-28 events, Shepherd said April 27 was a dirt drag race where racers could race whatever they wanted, from golf carts to vehicles with lawnmower motors in them. There also were lots of diesel trucks, and it was a family event. April 28 was a “Test N Tune Truck & Tractor Pull” for people to test their equipment. There was no racing.

Hearn asked how long has there been motorized racing at the fairgrounds and what has it entailed. Shepherd said there’s been racing out there for decades, beginning in 1949. He said its had truck and tractor pulls for many years, KOI drags for five or six years and more.

The restrictive covenant does allow for some forms of motorized racing, Hearn said. After 1949, he asked, was there never any motorized racing? Shepherd said he could only speak on the 15 years he’s been a part of the fair but during that time there’s always been some type of motorized racing. Events are generally only canceled because of weather.

Shepherd said the fair is honest with what it does and wasn’t trying to hamper anyone. “It’s a matter of survival,” he said.

Murphy noted the fairgrounds’ value is assessed at $5.3 million, and Shepherd said that’s correct. Hearn asked him what he meant by the races being a matter of survival. Shepherd said the fair is a nonprofit organization that can’t survive without revenue, with the building and pier rentals bringing in very little. The fair has monthly expenses of $8,000-$10,000. Because of a separate lawsuit, the fair has a $3 million expense to bring the fairgrounds up to ADA compliance.