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COA affirms Avon ordinance invalid

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The Town of Avon’s attempt to regulate by ordinance a township and conservancy district’s ability to remove and sell groundwater located in a park failed because the ordinance violated Indiana law, the Indiana Court of Appeals held today.

The West Central Conservancy District was in the process of studying and attempting to provide a water supply based on the discovery of water aquifers under Washington Township’s Community Park when Avon enacted an ordinance to control and regulate taking of water from a watercourse. The ordinance gave Avon the exclusive right to control and regulate water within 10 miles of the town’s municipal limits and only the town could sell and distribute water. The ordinance defined watercourses, but the statute the ordinance relies on doesn’t mention groundwater, aquifers, or any water that is below ground.

The WCCD and township sued claiming the ordinance violated the Home Rule Act because only state agencies can regulate surface and groundwater. The trial court granted summary judgment in favor of WCCD and the township.

Avon can regulate watercourses, but its regulation in the instant case hinges on whether an aquifer is a “watercourse” under Indiana law. In Town of Avon v. West Central Conservancy District, et al., No. 32A05-1003-PL-149, the Court of Appeals upheld the lower court’s decision, finding aquifers are not considered a “watercourse” under Indiana Code Section 36-5-2-10.

“More particularly, the Park’s aquifers and groundwater are not lakes, rivers, or streams, and the definition of ‘watercourse' in Indiana Code section 36-9-1-10 necessarily includes only bodies of water like lakes, rivers, and streams. Indeed, the General Assembly would have simply used the term ‘water’ or even ‘aquifers’ or ‘groundwater’ in the Watercourse Statutes if it intended such a broad sweep,” wrote Chief Judge John Baker.

Because an aquifer is not a watercourse, Avon has no authority to restrict what the WCCD and township choose to do with the groundwater in the aquifers.

In addition, the appellate court held the Home Rule act doesn’t grant Avon the authority to regulate in accordance with its inherent police powers and the town lacks the authority to review, regulate, or impose duties on the WCCD or township’s exercise of power to sell the groundwater under the Park Resource Statute. Avon can’t interfere with WCCD and the township’s common law right to use the groundwater in its aquifers as it sees fits, wrote the chief judge.
 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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