Articles Posted in Municipal Law

The specificity requirements of Indiana zoning decisions were discussed in The Kroger Co. v. Plan Commission of Plainfield, 953 N.E.2d 536 (Ind. Ct. App. 2011). In that case, Kroger wanted to construct a gas station next to its retail store. Kroger submitted a zoning petition seeking approval to begin construction, but the Plan Commission denied Kroger’s petition. Kroger sought judicial review. Both parties filed motions for summary judgment, with the trial court granting the Plan Commission’s motion for summary judgment. Kroger appealed, arguing that the denial did not satisfy the specificity requirement of the Zoning Enabling Act and also arguing that the Commission’s findings were not sufficient to support the denial of Kroger’s petition to construct a gas station.
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On November 12, 2010, the Indiana Court of Appeals issued an opinion in a case affecting Indiana municipal law and Indiana utility law, Town of Avon v. W. Cent. Conservancy Dis., addressing whether an ordinance authorizing a town to regulate the sale or lease of natural resources was valid. The Court also addressed whether an aquifer was a “watercourse,” subject to the town’s regulatory authority under the Watercourse Statutes; whether the town’s ordinance was consistent with state regulation of groundwater; and whether the town interfered with the township and district’s common law right to use the groundwater in its aquifers as it saw fit.
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Harness v. Schmitt, 924 N.E.2d 162 (Ind. Ct. App. 2010) – Governmental Immunity

In a recent Indiana Municipal law case, the presence of a police officer during the service of a wrongful eviction notice did not affect the police officer’s governmental employee immunity because the officer was present for the purpose of preventing a possible breach of the peace.

Mark Harness Jr. appealed from a grant of summary judgment in favor of the Town of Winona Lake and one of its police officers, Paul Schmitt. On January 12, 2007, Hunter Carlile went to the police station to enlist the help of Paul Schmitt to serve an eviction notice on Harness as well as to change the locks on Harness’s home. At the time, Harness was purchasing the house on contract from Carlile and had possession of the home. When Carlile and Schmitt arrived at the property, Harness was not present; however, Daniel Linton was. When Linton questioned the eviction, he noticed that Schmitt placed his hand on his gun. Linton decided not to resist or challenge the eviction because he felt threatened by Schmitt. So, Linton helped Carlile remove property from the house. Carlile also changed the locks.
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On July 14, 2009, the Indiana Court of Appeals issued an opinion in a case affecting Indiana municipal law, Board of Commissioners of Hendricks County v. Town of Plainfield, addressing whether a town had proper standing to ask for declaratory judgment to validate their own ordinance. The Court also addressed whether a town may exercise storm water jurisdiction and whether the town could charge storm water fees for property that was outside the corporate boundaries of the municipality.

On July 24, 2006, the Board of Commissioners (“Commissioners”) of Hendricks County adopted Ordinance No. 2006-15 (“County Ordinance”), which created a county storm water management board pursuant to Indiana law for the purpose of managing storm water. No fee structure was adopted.

Two weeks later, the Town Council of Plainfield (“Plainfield”), a town located in Hendricks County, adopted Ordinance No. 20-2006 (“Town Ordinance”) which established a Storm Water Department for the purpose of implementing storm water conditions and engaging in operation and maintenance activities to comply with both federal and state environmental laws. The Plainfield Town Ordinance authorized the new Storm Water Department “to impose a storm water fee on all property within the sewage works system service area.” The sewage works service area was defined by the Town Ordinance to include all property within the corporate boundaries of the municipality of Plainfield, but also included any property outside the corporate boundaries of Plainfield that used Plainfield’s services.

Robert Daum owned property within Plainfield’s sewage works service area, but outside the corporate boundaries of Plainfield. Plainfield sent notice to Daum stating that he, on behalf of himself and his two businesses, Daum LLC and Daum Trucking, Inc., would have to pay a storm water fee of $182.00 per month starting on September 29, 2006, and that this amount would increase to $364.00 per month on January 1, 2007. Daum paid the monthly bill under protest starting on January 1, 2007.
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This past May, the Indiana Court of Appeals ruled on a municipal annexation case coming out of Madison County. The Indiana municipal law case dealt with whether a county board of commissioners had standing to file a complaint challenging acts of annexation by a town of land in a formerly unincorporated area of the county.

In Indiana, the statutory framework of annexation consists of three stages: Legislative adoption of an ordinance annexing of certain territory and pledging to deliver certain services within a fixed period, an opportunity for remonstrance by affected landowners, and judicial review. Without the filing of a remonstrance, a court is not authorized to grant judicial review. Pursuant to Indiana law, the following code sections specify when a remonstrance may be filed: Ind. Code 36-4-3-11 allows a remonstrance to be filed by landowners in the annexed territory, Ind. Code 36-4-3-15.5 permits owners of land within ½ mile of the annexed territory to appeal the annexation, Ind. Code 36-4-3-16 allows property tax payers within the annexed territory to file a complaint against the municipality if it fails to implement the fiscal plan associated with the annexation, and Ind. Code 36-4-3-17 allows property owners on the border of a municipality to file a petition seeking disannexation with the works board of the municipality.

This dispute began when Madison County (“Madison”) approved the Summerbrook Planned Unit Development, which was to be developed by D.B. Mann Development, Inc, (“Mann”) on June 6, 2000. Per the approval of Madison, Mann was to pay fire service fees of up to $400,000 to Green Township at the time Summerbrook went through secondary review.

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