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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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