Washington County Health Department v. White

878 N.E.2d 224, 2007 WL 4293499
CourtIndiana Court of Appeals
DecidedDecember 10, 2007
Docket88A04-0703-CV-126
StatusPublished
Cited by2 cases

This text of 878 N.E.2d 224 (Washington County Health Department v. White) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington County Health Department v. White, 878 N.E.2d 224, 2007 WL 4293499 (Ind. Ct. App. 2007).

Opinion

*225 OPINION

HOFFMAN, Senior Judge.

Respondents/Counterelaimants-Appel-lants Washington County Health Department and Mike Haddon (collectively “WCHD”) appeal the trial court’s denial of their Counterclaim for Injunctive Relief against Petitioners/Counterclaim Respondents-Appellees Jeff and Robin White (collectively “the Whites”). We reverse and remand.

WCHD raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying WCHD’s Counterclaim for Injunctive Relief.

In July of 2006, Mike Haddon, a Washington County Health Officer and employee of WCHD, noticed that two mobile homes had been placed on property owned by the Whites that is located in an unincorporated portion of Washington County. Haddon could see that people were living in the mobile homes and that there was a discharge pipe extending from the bottom of one of the mobile homes to the ground. As an employee of WCHD, Haddon knew that a permit for a septic system had not been obtained for either of the mobile homes. Haddon went onto the property and spoke with the Whites’ son, Kelly White (“Kelly”). Haddon asked Kelly if he could look at the end of the discharge pipe, and Kelly told him no. Kelly then told Haddon to leave the property, which he did.

On July 26, 2006, Haddon sent the Whites a letter stating that the WCHD, pursuant to Indiana Code § 16-20-1-23 and 410 Indiana Administrative Code 6-8.1-33, wanted to inspect their property “for conditions that transmit, generate, or promote disease_” Appellant’s Appendix at 8. In the letter, Haddon stated that he had observed a discharge pipe extending “from one trader to the ground surface. ...” Id. By a letter dated August 2, 2006, the Whites informed Haddon that they refused to allow WCHD to inspect their property.

Thereafter, on August 3, 2006, the Whites filed a petition for injunctive relief, in which they requested that WCHD not be allowed on their property without a valid search warrant. The Whites also argued that pursuant to Indiana Code § 36-7-8-3(d) and our decision in Robinson v. Monroe County, 658 N.E.2d 647 (Ind.Ct.App.1995), trans. denied, they were not required to obtain any sort of permit for their mobile homes.

Haddon then sent a Notice and Order to Comply letter to the Whites on August 4, 2006. In the letter, Haddon stated that the Whites had committed three health code violations. The first violation was of Indiana Code § 16-20-l-25(a), which provides, “A person shall not institute, permit, or maintain any conditions that may transmit, generate, or promote disease.” The second violation was of 410 IAC 6-8.1-33, which in relevant part states:

(a) The owner or agent of the owner shall obtain a written permit signed by the health officer, for construction of a residential sewage disposal system prior to:
(1) Construction of a residence or placement of a mobile home which will not be connected to a sanitary sewerage system.

Haddon last alleged that the Whites violated 410 IAC 6-8.1-31(a), which states:

No person shall throw, run, drain, seep, or otherwise dispose into any of the surface waters or ground waters of this state, or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into such water, any organic or inorganic matter from a *226 dwelling or residential sewage disposal system that would cause or contribute to a health hazard or water pollution.

The Whites were given fifteen days to correct the violations.

WCHD filed a response to the Whites’ petition for injunctive relief and a Trial Rule 12(b)(6) motion to dismiss on August 30, 2006. 1 That same day, WCHD also filed a counterclaim for injunctive relief. WCHD alleged that, despite receiving notice on August 4, 2006, the Whites had not corrected the possible sewage disposal problem on their property. Because of this, WCHD requested that the Whites “be enjoined from the use of plumbing and public water without the installation of a properly inspected sewage disposal system or septic system.” Appellant’s App. at 15. 2

The trial court held a hearing on November 29, 2006, at which both Haddon and Jeff White testified. The trial court issued an order on January 4, 2007, denying both the Whites’ and WCHD’s petitions for injunctive relief. In denying WCHD’s petition for injunctive relief, the trial court found as follows:

2. Washington County seeks to enjoin White from constructing on their realty and from using a sewage disposal system. Washington County set forth that prior to the construction of a residential sewage disposal system, a written permit is required under both the provisions of the Washington County Health Code Article 4 § 4 and 410 IAC 6-8.1-33 of the Indiana Administrative Code, both of these adopted under the authority of the Health Code contained in title 16 of the Indiana Code. White cites the Court to IC 36 — 7—8—3(d) part of the Building Code of the Indiana Codes [sic], which sets forth that County ordinances adopted with respect to ‘sanitation standards’ does not apply to private homes built by themselves and used for their occupancy. The Court finds that the trailer and any sewage disposal system attached thereto of the Whites in this case is a home built by them and is occupied as their residence. Analysis of the statutes in question would appeared [sic] to show that the intent of the Health Statutes is to authorize action to remediate an actual or imminent specific and particular risk of disease. There is no showing in this action that the condition of White’s property poses a danger to the health of either White or any other person. Whereas the building Code is intended to authorize counties to establish some standards for construction in unincorporated areas of the County, residences constructed by a [sic] owner/dweller are exempt from the prior permit provision. (see Noble County Board of Commissioners v. Fahlsing, 714 N.E.2d 1134 (1999)). In comparing these two Statutes it is the better conclusion that the Health Statute will not support a permit requirement, as such the requiring of a permit entails only the prevention of a speculative future act rather than an imminent or even demonstrated risk to health, and *227 to conclude that a permit could be required would make an annulity [sic] of the exception granted to owner/dweller granted under the Building Statute. The Court, therefore, finds that Washington County is not entitled to an injunction enjoining White from constructing a sewage disposal system on the property in question, as such Washington County’s request for an injunction is denied.

Appellant’s App. at 21-22. This appeal ensued.

WCHD contends that the trial court abused its discretion when it denied WCHD’s petition for injunctive relief.

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878 N.E.2d 224, 2007 WL 4293499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-county-health-department-v-white-indctapp-2007.