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Friday, September 21, 2007

Ind. Decisions - "Ruling on Charlestown sewer line overturned: Home didn't have to be connected"

Ben Zion Hershberg of the Louisville Courier Journal reports on the Court of Appeals decision yesterday in the case of Mike Perry, City of Charleston Sewer Dept. v. Jesse Ballew. Some quotes:

The Indiana Court of Appeals yesterday overturned a Clark County Circuit Court ruling that required connecting a home in the Highview subdivision to a sewer line that a developer built to the nearby Danbury Oaks subdivision. * * *

[Charlestown Mayor Mike] Hall said he didn't know yet whether the city would disconnect the home from the sewer line.

Attorney Dan Moore, who represents KBJ, said he will discuss with his clients whether to appeal to the Indiana Supreme Court. * * *

The ruling overturned yesterday involved a rental house owned by Jesse Ballew, a KBJ partner.

The house is on Locust Street in the Highview subdivision. Its septic tank had failed, according to the appeals court decision, and when Ballew asked to connect it to the Danbury Oaks line, the Charlestown Sewer Department, which treats sewage from the line, refused.

In his ruling late last year, Clark Circuit Judge Daniel Donahue said Charlestown officials "have the responsibility" to allow sewer connections for health and other reasons.

But the appeals court disagreed, saying "there is no authority clearly requiring the (Charlestown) Sewer Department to issue" a connection permit for the house. Without such a clear requirement, the judges said, Donahue shouldn't have ordered the connection.

Attorney David Lewis, who handled the appeal for Charlestown, said he doesn't expect yesterday's decision to impact the other litigation between the city and the developer. That includes a ruling by Donahue that the sewer-construction agreement between Charlestown and KBJ is invalid. Donahue issued that ruling in July, and the developer has filed a notice of appeal.

Moore said he believes the appeals court made a mistake in saying there is no clear authority requiring the city to allow the sewer connection.

There are a number of cases in which courts have held that a resident must be given access to a utility such as a sewer line if it is requested, he said.

Posted by Marcia Oddi on September 21, 2007 09:49 AM
Posted to Ind. App.Ct. Decisions