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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. Is this a social parallel to the Mosby prosecutions in Baltimore? Progressive ideology ever seeks Pilgrims to burn at the stake. (I should know.)

  2. The Conour embarrassment is an example of why it would be a good idea to NOT name public buildings or to erect monuments to "worthy" people until AFTER they have been dead three years, at least. And we also need to stop naming federal buildings and roads after a worthless politician whose only achievement was getting elected multiple times (like a certain Congressman after whom we renamed the largest post office in the state). Also, why have we renamed BOTH the Center Township government center AND the new bus terminal/bum hangout after Julia Carson?

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  4. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

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