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City violated constitution in denying refunds

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The city of Indianapolis' refusal to grant some homeowners' requests for a partial refund of Barrett Law assessments violated the Equal Protection Clause, the Indiana Court of Appeals ruled today.

In The City of Indianapolis, et al. v. Christine Armour, et al., No. 49A02-0901-CV-84, 45 homeowners in an Indianapolis subdivision sued the city seeking a refund of sewer assessments they had paid in full roughly equivalent to the amount the city's Board of Public Works voted to forgive for neighbors who were making installment payments.

The residents in the neighborhood were told their properties would be part of a sanitary sewer project funded under the Barrett Law, Indiana Code Chapter 36-9-39. The homeowners in the instant suit paid their nearly $10,000 in assessments in one lump sum. The rest of the neighborhood chose monthly installment payments. A year later, the city switched to funding sewer projects under the Septic Tank Elimination Program. As a result of this switch, the city declared any unpaid money under the Barrett Program as of Nov. 1, 2005, would be forgiven. The homeowners in the complaint had paid their assessments in full prior to this date, and the city denied refunding some of the money.

These homeowners sued for refunds, declaratory relief, or a writ of mandamus, alleging the city's decision to not refund the money violated the Equal Protection Clause. The trial court agreed and entered judgment against Indianapolis for $380,914.

The U.S. Supreme Court hasn't specifically addressed whether a municipality contravenes the Equal Protection Clause when it forgives an outstanding assessment owed by some property owners while, at the same time, it refuses to refund an equivalent amount to similarly situated property owners who have already paid the same assessment in full. But relying on Allegheny Pittsburgh Coal Co. v. County Commission of Webster Co., West Virginia, 488 U.S. 336 (1989), and Supreme Court rulings from several other states, the Court of Appeals affirmed the trial court's ruling.

The appellate judges rejected the city's arguments that the homeowners aren't similarly situated to those other owners who hadn't paid in full their assessments by Nov. 1, 2005, because the city's argument wasn't supported by legal authority, nor did it address the proper legal standard, wrote Judge Edward Najam. The city failed to show the property owners who chose to pay in installments are any different in income class than the homeowners who paid in a single lump sum.

The city's reasoning for rejecting the refunds failed to take into account the particular facts of the homeowners' cases, where they had paid from 10 to 30 times more that their similarly situated neighbors, the judge continued. The city failed to demonstrate a rational basis for the different treatment and instead offered attenuated justifications for its failure to treat the similarly situated homeowners with rough equality.

"The City cannot lawfully confer privileges upon those property owners who chose to pay their Barrett Law assessments in installments and, at the same time, impose liabilities upon those property owners within the same class who, at the City's invitation, paid their assessments in full," Judge Najam wrote.

The appellate court also rejected the city's attempt to satisfy its burden with an affidavit the chairperson of the board prepared for litigation two years later in response to the homeowners' showing of disparate treatment.

The city is required by the U.S. Constitution to refund the homeowners an amount that will place them on equal footing with their similarly situated neighbors who benefited from the city's disparate treatment, the appellate court concluded. The judges remanded with instructions to determine the appropriate amount of prejudgment interest for each homeowner.

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  1. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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