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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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