Wright v. Clay Township Regional Waste District

694 N.E.2d 1192, 1998 Ind. App. LEXIS 793, 1998 WL 270456
CourtIndiana Court of Appeals
DecidedMay 28, 1998
DocketNo. 29A05-9706-CV-240
StatusPublished

This text of 694 N.E.2d 1192 (Wright v. Clay Township Regional Waste District) 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
Wright v. Clay Township Regional Waste District, 694 N.E.2d 1192, 1998 Ind. App. LEXIS 793, 1998 WL 270456 (Ind. Ct. App. 1998).

Opinion

OPINION

STATON, Judge.

Edward and Peggy Wright appeal from an order requiring them to connect their home to the Clay Township Regional Waste District’s (“District”) sewer line. The Wrights present four issues which we restate as:

I. Whether the trial court erred by finding that the Wrights’ property was within 300 feet of a sewer line.
II. Whether the Wrights may avoid connecting to the District’s sewer by redrawing their property line.
III. Whether the Wrights were denied due process.
IV. Whether the Wrights were denied equal protection of the law.

We affirm and remand.

The Wrights own 32.5 acres divided into several tracts in Carmel, Indiana.1 The District is a duly organized waste district under Ind.Code §§ 13-3-2-1 to 2-30. The Wrights’ property is within the area controlled by the District.

Under the authority of Ind.Code § 13-3-2-10(b)(8) (1993), the District may require any owner of sewage producing property to connect to the District’s sewer'system if the property is within 300 feet of an available sanitary sewer. The District must give written notice of the demand to connect by certified mail at least ninety days before á date for connection stated in the notice. IC 13-3-2 — 10(b)(8). Too, the District requires fees of $950 for each connection and $2,100 per acre. See Ind.Code § 13-3-2-22 (1993) (allowing sewer districts to levy fees). On May 17, 1991, the District sent the Wrights notice that they were to connect to the District’s sewer. The Wrights refused to connect. Pursuant to Ind.Code § 13-3~2-10(b)(9) (1993), the trial court directed the Wrights to connect to the sewer. They appeal.

I.

Distance From Sewer Line

As noted above, the District may require the landowner of sewage producing property to connect to its sewer if the property is within 300 feet of an available sanitary sewer. IC 13-3-2-10(b)(8). The Wrights do not dispute that their property is 290.5 feet from a lateral stub that branches off from the main sewer line. However, the Wrights contend that this lateral stub is not a “sanitary sewer” within the meaning of IC 13 — 3—2—10(b)(8).

The Wrights present two equally unpersuasive arguments. First, they argue that only the main sewer line is to be considered a sanitary sewer line, and that the laterals should not be so considered. The Wrights do correctly note that “sanitary sewer” is.not defined. However, we have little difficulty concluding that a lateral sewer line, whose sole function is to convey sewage to the main sewer line, easily falls within the intended meaning of a “sanitary sewer.” To hold otherwise would be to ignore the plain and simple meaning of the term. See Clifft v. Indiana Dept. of Revenue, 660 N.E.2d 310 [1194]*1194(Ind.1995) (when interpreting statute, words are given their plain and ordinary meaning).

■ Second, the Wrights advance the interesting proposition that the lateral cannot be considered a “sanitary sewer” since it is not presently carrying sewage. It appears from the record that the only reason this lateral is not currently transporting sewage is due to the fact that no homes are yet connected to it. The lateral line was built for the sole purpose of transporting sewage. A sewer line is no less a sewer line simply because no one has yet used it. We conclude the trial court did not err when it used the lateral sewer stub to calculate the distance from the Wrights’ property to the “sanitary sewer.”

II.

Redrawing Property Line2

Next, the Wrights contend that they should be able to avoid application of the District’s ordinance by redrawing their property line in such a manner that the sewage producing property is beyond 300 feet from the lateral stub. We take no issue with this argument as a general proposition of law. The Wrights were completely free to draw their property lines as they wished, even if the sole purpose in doing so was to avoid connecting to the District’s sewer. However, once the lines were drawn within 800 feet of the District’s sewer and the District served the Wrights notice to connect, it became too late for the Wrights to undo the effects of their original property lines.

The Wrights liken their situation to a taxpayer who exerts significant effort planning financial affairs to avoid taxes. The Wrights then note that this is considered wholly appropriate behavior, and that they, therefore, should be permitted to engage in similar behavior with respect to their property lines. A plan to avoid future taxes or the future operation of an ordinance does not mean that one may act to retroactively avoid similar consequences which have already come to fruition. As astutely noted by the District:

Certainly, Wrights and all other taxpayers have the right to arrange their financial affairs to minimize the tax they will pay in the future. They and all other taxpayers do not have the right, once taxes have become due according to tax laws then in effect, to change those financial affairs to [retroactively] eliminate the obligation to pay the taxes.

Brief of Appellee at 12. Similarly, since the original property line of the sewage producing property is within 300 feet of a sanitary sewer and the District properly notified the Wrights to connect to the sewer, we conclude the trial court did not err by refusing to allow the Wrights to avoid connecting to the District’s sewer by redrawing their property lines. .

III.

Due Process

The Wrights also argue that they were denied due process. In their Appellants’ brief, the Wrights take issue with being denied an opportunity to be heard. This argument appeared to the District, and to us, to ultimately invoke issues concerning the adoption of the ordinance which required the Wrights to connect to the sewer.

However,’ in their Reply brief, the Wrights have clarified their argument as follows:

The Appellee attempts to confuse the Appellants’ position by asserting that due process was observed in the enactment of the ordinance. The enactment of the ordinance is not at issue. It is not the underlying ordinance with which the Appellants asserts [sic] their due process claim. It is with the attempt to broaden the application of the ordinance in a way not intended and without any opportunity for the Appellants to contest the Appellee’s action which deprived them of a substantial property interest, towit [sic]: requiring a connection for one house sitting in the middle of many acres located more than 300 feet from an active “sanitary sewer”, [sic] but within 300 feet (by 9.5 feet) of a lateral stub not carrying sewage.

[1195]*1195Reply Brief at 6 (emphasis added).

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Related

Clifft v. Indiana Department of State Revenue
660 N.E.2d 310 (Indiana Supreme Court, 1995)

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Bluebook (online)
694 N.E.2d 1192, 1998 Ind. App. LEXIS 793, 1998 WL 270456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-clay-township-regional-waste-district-indctapp-1998.