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Town of Clear Lake v. Hoagland Family Ltd. Partnership

Court of Appeals of Indiana

April 6, 2017

Town of Clear Lake, Appellant-Plaintiff,
v.
Hoagland Family Limited Partnership, Appellee-Defendant

         Appeal from the Steuben Circuit Court The Honorable Allen N. Wheat, Judge, Trial Court Cause No. 76C01-1006-PL-425.

          ATTORNEYS FOR APPELLANT - TOWN OF CLEAR LAKE Jeffrey P. Smith David K. Hawk Hawk, Haynie, Kammeyer & Smith, LLP Fort Wayne, Indiana.

          ATTORNEY FOR APPELLEE Jonathan O. Cress Cress Law Group P.C. Angola, Indiana Diana C. Bauer Bauer Legal LLC Fort Wayne, Indiana.

          ATTORNEYS FOR AMICI CURIAE - ASSOCIATION OF CITIES AND TOWNS AND THE INDIANA MUNICIPAL LAWYERS ASSOCIATION Nicholas K. Kile Mark J. Crandley Barnes & Thornburg LLP Indianapolis, Indiana.

          BAKER, JUDGE.

         [¶1] The Town of Clear Lake (the Town) appeals the judgment of the trial court, which granted summary judgment to Hoagland Family Limited Partnership (Hoagland) and denied the Town's motion for partial summary judgment. The trial court ruled that until the Town made its sewer system accessible through the installation of a grinder pump, it could not enforce penalties against Hoagland for failure to connect to the sewer system. Hoagland also argues that several alleged procedural errors made by the Town should preclude the Town from compelling connection to the sewer system. Finding that the Town does have the authority to compel Hoagland's connection to its sewer system and no procedural error, we reverse and remand.

         Facts[1]

         [¶2] Hoagland owns three parcels of real estate ("the properties") located in the Town. Although the Town operates a sanitary sewer system, Hoagland's properties are not connected to it and contain their own septic systems. Each of the properties are within 300 feet of the Town's sewers. In May 2001, as the Town prepared to install its sewer system, it requested an easement for each of the properties so that it could connect them to the sewer system, but Hoagland declined the request.

         [¶3] In 2003, the Town passed the following ordinance:

The owners of all houses, buildings or properties used for human occupancy, employment, recreation or other purposes situated within the town and which [sic] the property line is within 300 feet of the sanitary sewer is [sic] required at his or her expense to install suitable toilet facilities therein and to connect such facilities directly with the proper sewer in accordance with the provisions of this chapter.

         Clear Lake, Ind., Code of Ordinances § 51.51(A). The Town also adopted an ordinance mandating that "[n]o authorized[2] person shall uncover, make any connections with or opening into, use, alter, or disturb any public sewer or appurtenance thereto without first obtaining a written permit from the Town Council." Id. at § 51.52(A)(1). "[T]he owner or his or her agent shall make application on a special form furnished by the town. The permit applications shall be supplemented by any plans, specifications, or other information considered pertinent in the judgment of the Inspector." Id. at § 51.52(A)(2).

         [¶4] In April 2005, after the Town had installed its system, Hoagland filed an action alleging that the Town had inversely condemned its land by running a sewer main under Hoagland's property. This suit ended in October 2010 with a settlement between the parties.

         [¶5] Eight months after Hoagland filed the complaint against the Town, the Town passed a Resolution directing the Town's attorney to take legal action against several residents who had not connected to the sewer system; Hoagland's three properties were on the list. Appellant's App. p. 518.

         [¶6] In May 2009, the Town amended its penalty ordinance. Whereas the penalty for violation of a Town ordinance had been set at a minimum of $100 and a maximum of $1000, the new penalty for failure to connect to the sewer system was $500, per day, per property, with no express limit. CLC § 51.99(B).[3]

         [¶7] On January 12, 2010, the Town gave Hoagland notice that Hoagland must connect the properties to the Town's sewer system within ninety days:

you are hereby given notice that the Town of Clear Lake will proceed to compel connection of the above described properties to the Town of Clear Lake sewer system unless all of said properties are connected to the sewer system within ninety (90) days. You are further given notice that any use of privies, cesspools, septic tanks, or similar structures must be discontinued within ninety days (90) from today. Failure to connect to the Clear Lake sewer system within ninety (90) days may subject the Hoagland Family Limited Partnership to fines, court costs and attorney fees as allowed by Indiana Code and the Town of Clear Lake Ordinances.

         Appellant's Supp. App. p. 68. This letter also informed Hoagland that since it had been "benefit[ting]" from the sewer system to which its properties were not yet connected, the Town was also demanding immediate payment of $4, 537.38 in ...


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