ILNews

Judges: Town ordinance invalid

Back to TopE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Good riddance to this dangerous activist judge

  2. 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.

  3. 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.

  4. 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.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

ADVERTISEMENT