DAVID ANDERSON, COMMISSIONER, JOE WRAY, COMMISSIONER, JOHN KENNARD, COMMISSIONER, and BOARD OF TRUSTEES, BROWN COUNTY FIRE PROTECTION DISTRICT, Appellants-Defendants
SUSANNE GAUDIN, JANET KRAMER, and RUTH REICHMANN, Appellees-Plaintiffs
APPEAL FROM THE BROWN CIRCUIT COURT. The Honorable Kathleen Tighe Coriden, Special Judge. Cause No. 07C01-1108-PL-0364.
FOR APPELLANT: KURT A. YOUNG Anderson, Wray, and Kennard Nashville, Indiana.
FOR APPELLANT: WANDA E. JONES, Jones Law Offices, Nashville, Indiana.
FOR APPELLEE: E. PAIGE FREITAG, Jones, McGlasson & Freitag, P.C., Bloomington, Indiana; WILLIAM C. LLOYD, Lloyd Law, L.L.C., Bloomington, Indiana.
VAIDIK, Chief Judge. FRIEDLANDER, J., and MAY, J., concur. VAIDIK, Chief Judge.
VAIDIK, Chief Judge
In 2007 the Brown County Commissioners enacted an ordinance establishing a county-wide fire-protection district. In 2011 the Commissioners amended the ordinance, reducing dramatically the scope of the ordinance and the powers granted to the Board of Trustees. County-resident freeholders first filed suit for declaratory judgment, and then the Commissioners and the freeholders filed cross motions for summary judgment, asking the trial court to determine whether the amended ordinance was a valid exercise of the Commissioners' authority. The trial court granted summary judgment in favor of the freeholders, finding that the amendment was a de facto dissolution of the ordinance, in contravention of the Fire District Act and this Court's opinion in Gaudin v. Austin, 921 N.E.2d 895 (Ind.Ct.App. 2010). On appeal, the Commissioners contend that the amended ordinance was a valid exercise of their authority. We affirm the trial court, finding that the " amendment" made to the ordinance amounted to a de facto dissolution, and that the Commissioners did not have the authority to amend the ordinance at all.
Facts and Procedural History
In 2007 the then-governing Brown County Board of Commissioners (" the Commissioners" ) enacted County Ordinance
No. 09-04-07-01 (" the Ordinance" ), which created the Brown County Fire Protection District (" BCFPD" or " the District" ), a municipal corporation created to provide comprehensive fire-protection and fire-prevention services throughout Brown County. Pursuant to the Ordinance, the BCFPD included all four of the townships in Brown County--Hamblen, Jackson, Van Buren, and Washington--but excluded the town of Nashville. The Ordinance states in relevant part as follows:
This ordinance does hereby establish a fire protection district for the following purposes:
(1) Fire protection, including the capability for extinguishing all fires that might be reasonably expected because of the types of improvements, personal property, and real property within the boundaries of the district.
(2) Fire prevention, including identification and elimination of all potential and actual sources of fire hazard.
(3) Other purposes or functions related to fire protection and fire prevention.
(A) These purposes and functions are to effectively have jurisdiction and govern fire services throughout the District, and shall include educational initiatives and efforts within the community for fire and hazard recognition and prevention, volunteer recruitment, proper training and working conditions for the safety of volunteers, and expeditiously establishing, implementing, supervising, and having full and proper accountability as to all applicable safety and operational standards and expectations.
(B) Responsive and best effort services, with planning and due diligence coordination, are to be provided throughout the District.
(C) The area selected for this Fire Protection District shall include all of the following: Hamblen, Jackson, Van Buren, and Washington townships . . . . and excluding only the Town of Nashville . . . .
(4) Other emergency services.
Appellant's App. p. 139-40.
The Ordinance incorporated many sections of the Fire District Act found at Indiana Code chapter 36-8-11, including the appointment of a five-member board of fire trustees, trustee's meetings, trustee's powers and duties, tax levies, and the purchase of firefighting equipment. Paragraph G(a)(1) of the Ordinance provides that the board of trustees " has the same powers and duties as a township executive . . . with respect to fire protection functions . . . ." Id. at 142. Paragraph G(a)(4) provides that the trustees " shall exercise general supervision of and make regulations for the administration of the district's affairs. This shall include establishing the authority and protocols for Incident Command." Id. And paragraph G(a)(17) authorizes trustees to " levy taxes at ...