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COA: Town can compel property to connect to sewer

April 6, 2017

A northern Indiana town was within its municipal rights to compel a property owner to connect to the municipal sewer line because the properties in question were within 300 feet of the sewer system, the Indiana Court of Appeals ruled Thursday.

In May 2001, the town of Clear Lake requested an easement for three properties owned by Hoagland Family Limited so that it could connect to the town’s new sewer system, but Hoagland denied that request. Then in 2003, the town passed an ordinance requiring all properties within 300 feet of the sanitary sewer, including each of Hoagland’s properties, to connect to the town’s sewer system.

Shortly after Hoagland filed a complaint against Clear Lake, the Steuben County town passed a resolution directing the town attorney to take legal action against residents who had not connected to the sewer system, including all three of Hoagland’s properties. Further, in 2009, the town amended its penalty ordinance to raise the penalty for failure to connect to the sewer to $500 per day per property, with no express limit.

After Hoagland failed to act on a 2010 notice ordering it to connect to the sewer system within 90 days, Clear Lake filed a complaint seeking an order requiring connection and the discontinuance of any private septic systems, as well as various fees. In response, Hoagland argued that the town’s claims were barred because they were compulsory counterclaims that should have been asserted during the previous litigation, which was eventually settled, and that the town’s notice to connect was defective and the sewer system was generally illegal.

The Steuben Circuit Court granted summary judgment to Hoagland in May 2016 and denied partial summary judgment to Clear Lake, but the Indiana Court of Appeals reversed the trial court’s decision in Town of Clear Lake v. Hoagland Family Limited Partnership, 76A05-1606-PL-1241.

Judge John Baker, writing for the panel, said that under Indiana Code section 36-9-23-30(a), a municipality may require connection to its sewage system as long as the property in question is within 300 feet of the system and is given 90 days’ notice. The crux of the case, Baker wrote, is whether Clear Lake or Hoagland has to act first in order to force Hoagland to connect, because the town concedes that a property owner cannot connect to the sewer system unless the town installs a grinder pump on the property.

State statute holds that a municipality may compel connection if there is an “available” sanitary sewer, and because the Hoagland properties were each within 300 feet of the sewer, Baker said the system is “available” to the properties. In holding that the its properties cannot connect unless Clear Lake installs a grinder pump, the judge said Hoagland is actually calling for the town to be more intrusive and dictatorial over its property by forcing the town to determine where the best location for the grinder pump is, rather than Hoagland developing a plan for itself.

Hoagland further argued that Clear Lake committed several procedural defects that prohibit its connection compulsion, but the appellate court also rejected that argument, writing that “none of Hoagland’s arguments regarding the statute of limitations, compulsory counterclaims, waiver, or invalidity of the Town’s ordinances are availing.”

Thus, the appellate panel remanded the case for the entry of partial summary judgment in Clear Lake’s favor. Additionally, the case was remanded for the determination of reasonable penalties against Hoagland.

 

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