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Judges: Town ordinance invalid

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The Indiana Court of Appeals declared today a Plainfield town ordinance authorizing the imposition of storm-water fees on properties outside of the town's corporate boundaries to be invalid because under Indiana Code, the town only has the authority to collect the fee within its corporate limits.

In Board of Commissioners of Hendricks County, Ind., and Daum LLC, et al. v. Town of Plainfield, et al.,  No. 32A05-0806-CV-342, Daum LLC and the Hendricks County Commissioners appealed the trial court's grant of summary judgment in favor of Plainfield in a dispute about a town ordinance regulating storm water.

In July 2006, the commissioners adopted a county ordinance that created a County Stormwater Management Board; two weeks later, Plainfield adopted a town ordinance establishing the Stormwater Department, which authorized the imposition of a storm-water fee on all property within the sewage works system service area, including those outside the corporate boundaries that used its sewer services. Daum LLC was located in Hendricks County and outside the corporate boundaries of Plainfield. Because Daum used the town's sewer system, it imposed a storm-water fee against the company.

Daum filed suit against Plainfield and the county commissioners alleging the town ordinance violated or was inconsistent with Indiana law. Hendricks County filed a cross-claim against Plainfield alleging the town ordinance was limited to property located within the corporate boundaries of Plainfield. The trial court granted Plainfield's motion for summary judgment against Daum seeking declaratory judgment the ordinance was enforceable, declared the ordinance valid, and denied Daum's and the commissioners' motions for summary judgment against Plainfield.

The Court of Appeals ruled the trial court erred in granting summary judgment in favor of the town in finding the ordinance was valid and enforceable. Plainfield didn't have standing under the Uniform Declaratory Judgment Act to file a counterclaim for declaratory judgment. While a municipality can file a declaratory judgment regarding its rights when the ordinance of another municipality or county affects those rights, the UDJA doesn't contemplate the same municipality can sue to have its own ordinance declared valid, wrote Judge James Kirsch.

The appellate court analyzed the Storm Water Act, Indiana Code Chapter 8-1.5-5; the Municipal Utilities Act, I.C. Chapter 8-1.5-3; and the Sewage Works Act, I.C. Chapter 36-9-23, to determine Plainfield has the authority to collect its storm-water fee only within its corporate limits. Hendricks County has the power to impose storm-water fees to those located outside a municipal corporate limit but within county boundaries, wrote Judge Kirsch.

The language in the Storm Water Act, "All territory in the district and all territory added to the district is considered to have received special benefits from the storm-water collection," doesn't allow Plainfield to collect a fee from Daum because this language only says a territory can be added by means of annexation. The town ordinance illegally charges a storm-water fee on property outside the corporate boundaries. The appellate court declared invalid all provisions of Plainfield's ordinance that authorize the imposition of storm-water fees on properties outside the corporate boundaries and ordered the town to return all fees paid pursuant to the town ordinance.

The Court of Appeals remanded the case to the trial court with instructions to enter summary judgment in favor of Hendricks County and against Plainfield. There is no genuine issue of material fact that Daum's property is within Hendricks County's storm water jurisdiction and is subject fees pursuant to the county ordinance, wrote Judge Kirsch.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

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  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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