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Saturday, February 24, 2007
Ind. Decisions - "Court voids ’04 stormwater fee"
Amanda Iacone of the Fort Wayne Journal Gazette reports today on the Feb. 21st decision of the Court of Appeals in Brockmann Enterprises, LLC v. City of New Haven, et al. - see ILB entry here. From today's story:
The Indiana Court of Appeals has ruled a storm water rate the city of New Haven enacted in 2004 was illegal and is now void.That rate has been replaced, however, by another one passed in 2005.
The appellate decision, which was released earlier this week, overturns a lower-court ruling in favor of New Haven. Brockmann Enterprises, which owns property in New Haven and protested the rate, appealed the Allen Circuit Court decision last year.
Brockmann sued the city in June 2005, saying that the rate of $8.89 for non-residential property and the $5.35 per month per home fee was discriminatory and imposed unequal benefits and burdens on the same and differing classes of property, according to the initial complaint.
Brockmann sought a refund for all fees the city had collected for the storm water rate and asked that a judge find the fees unconstitutional and discriminatory and to void the fees. Brockmann also asked that the city pay the company’s attorney fees, according to the complaint.
In April 2004, New Haven city council passed an ordinance that created a storm water management board and also set the storm water rate. The money collected was intended to pay for storm water collection and disposal to comply with federal EPA clean water standards, according to the appeals court decision.
In the appeal, Brockmann argued that New Haven lacked the authority to establish the storm water rate. The court determined that New Haven did not follow the proper procedure in setting the rate. Under state law, the board of storm water management should have made a recommendation to the City Council on the rate and then asked council to approve it, according to the court’s decision.
“Here, the board was not allowed any opportunity to perform the very function for which it was created,” the decision said of the storm water management board.
The appeals court ruled the rates void and reversed the circuit court’s decision that favored the city. * * *
Cathleen Shrader, attorney for Brockmann Enterprises, said Brockmann is pleased with the decision.
Posted by Marcia Oddi on February 24, 2007 07:39 AM
Posted to Ind. App.Ct. Decisions