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 T. Coriden, Special Judge. Cause No. 07C01-1108-PL-364. On Transfer from the Indiana Court of Appeals, No. 07A01-1406-PL-265.
ATTORNEYS FOR APPELLANTS: Kurt A. Young, Nashville, Indiana; Wanda E. Jones, Jones Law Offices, Nashville, Indiana.
ATTORNEY FOR AMICUS CURIAE, INDIANA ASSOC. OF COUNTY COMMISSIONERS: Mark J. Crandley, Barnes & Thornburg LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES: E. Paige Freitag, Jones, McGlasson & Freitag, P.C., Bloomington, Indiana; William C. Lloyd, Lloyd Law, L.L.C., Bloomington, Indiana.
Dickson, Justice. Rush, C.J., and Massa, J., concur. David, J., concurs in result with separate opinion. Rucker, J., dissents with separate opinion.
This appeal challenges a summary judgment ruling that a county board of commissioners lacked authority to amend an ordinance that previously established a county-wide fire protection district. We reverse.
This is the third appeal involving the Brown County Fire Protection District (" District" ). In 2007, the Brown County Board of Commissioners enacted an ordinance under the Fire District Act, Ind. Code § 36-8-11-2 et seq., establishing the District. This ordinance included all four of the county's townships and established the District for the following purposes: fire protection, fire prevention, other purposes or functions related to fire protection and prevention, and other emergency services. Appellants' App'x at 139-40. The ordinance also followed many sections of the Fire District Act, including the appointment of a five-member Board of Fire Trustees for the District. See Ind. Code § 36-8-11-12.
The Board of Commissioners' authority to establish the District was then challenged by county landowners who argued that the petition process under Indiana Code section 36-8-11-5 was the sole method in which a fire district could be created. In Sanders v. Bd. of Comm'rs of Brown Cty., 892 N.E.2d 1249 (Ind.Ct.App. 2008), trans. denied, the Court of Appeals rejected the landowners' argument and held that the Board of Commissioners had authority to create the District by ordinance under Indiana Code section 36-8-11-4. Id. at 1254.
Following the 2008 election, newly elected commissioners enacted an ordinance purporting to dissolve the District. This prompted a second legal challenge by some landowners. Although the trial court granted summary judgment to the commissioners, the Court of Appeals reversed on grounds that, because the Fire District Act identifies two methods for the establishment of a fire protection district but mentions only one method for the dissolution of a district (the petition process described in Indiana Code section 36-8-11-24), the Board of Commissioners lacked the authority to unilaterally dissolve the District by ordinance absent such petition process. Gaudin v. Austin, 921 N.E.2d 895, 899 (Ind.Ct.App. 2010) (" Gaudin I" ). We initially granted transfer thereby automatically vacating the opinion of the Court of Appeals. See Ind. Appellate Rule 58(A). We held oral argument, but because of our ensuing inconclusive 2-2 vote, the opinion of the Court of Appeals was reinstated. See Ind. Appellate Rule 58(C).
In March 2011, a few months after the decision in Gaudin I became final, the Board of Commissioners passed an amending ordinance that (a) removed a township from the District with the explanation that its earlier inclusion was ...