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Newburgh ordinance allows it to block town from providing sewer service

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The Indiana Court of Appeals Monday decided that the town of Newburgh was statutorily authorized to pass an ordinance prohibiting others from providing new sewer services to customers within four miles of its corporate boundaries.

The town of Chandler sued Newburgh in Warrick Superior Court in April 2012, trying to get the judge to say Newburgh’s ordinance couldn’t prohibit Chandler from providing new sewer services in an overlapping area. For years the two towns have been providing sewer services within the four-mile rings outside their boundaries, which somewhat overlap. In 2007, Newburgh, pursuant to I.C. 36-9-2-16, -17 and -18, passed the ordinance that gave it an exclusive license to furnish sewer service in the regulated territory.

A developer wanted to build in the regulated territory and got estimates from Newburgh and Chandler on sewer services for the subdivision. The developer chose Chandler because Newburgh’s estimate was much higher. Newburgh then sued the developer for violating its ordinance.

Chandler passed a similar ordinance six weeks after Newburgh. The trial court denied summary judgment for either town.

In Town of Newburgh v. Town of Chandler, 87A01-1305-CT-203, the appellate judges ruled in favor of Newburgh, pointing out that it was the first to pass the ordinance. Courts have long used a first-in-time rule, in the absence of other legislative direction, to resolve disputes when two municipalities possess concurrent and complete jurisdiction of a subject matter.

The statutes in question give municipalities several powers, including the ability to prohibit the furnishing of sewer services within four miles of their boundaries. In order to do so, the municipality must pass an ordinance, which Newburgh did in April 2007.

Chandler put forth several arguments as to why it should prevail, but the appellate court relied on the first-in-time rule.

Senior Judge Randall Shepard noted that Chandler and two amici curiae, the Warrick County Commissioners and the City of Boonville, may have a valid argument that Newburgh’s ordinance will chill economic development. The parties claim Newburgh only enforces the ordinance when significant sewer fees are expected, making developers hesitant to invest in projects in Newburgh’s extraterritorial areas because they worry they will be sued if they choose a cheaper sewer provider.

“Resolution of disputes like the one before us by a commission in the executive branch could likely produce more effective and efficient results. The creation of such mechanisms, however, is in the domain of the legislature and not the courts,” he wrote.

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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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