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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. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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