Sunday, January 15, 2012
Ind. Decisions - "What qualifies, under the Indiana Code, as a regulated drain?"
The Court of Appeals issued a decision in the case of Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg on Wed., Jan. 11, 2012. Braden Lammers of the Jeffersonville News & Tribune reported on the outcome in this Jan. 12, 2012 story headed "Court partially overturns ruling on drainage suit: Four-year battle between Isgrigg and drainage board may finally be finished." From the lengthy story:
JEFFERSONVILLE — You win some, you lose some.For background, see both Thursday's story and these earlier ILB entries:
That was the ruling from Indiana’s State Court of Appeals on Wednesday when it issued judgement on a case that has pit former Clark County Surveyor Bob Isgrigg against the Clark County Drainage Board and Commissioners for nearly four years.
At issue were three points relating to a 2010 ruling by then Clark County Superior Court No. 1 Judge Vicki Carmichael, on a lawsuit brought against the county by Isgrigg. In the end, Wednesday’s decision from the Court of Appeals upheld part of Carmichael’s ruling and overturned another portion of it.
Perhaps the biggest point of contention in Isgrigg’s suit was what qualifies, under Indiana Code, as a regulated drain.
The Court of Appeals overturned Carmichael’s 2010 ruling which determined drains within the Sunset Hills subdivision in Charlestown qualify as regulated drains. Furthermore the court found the drainage board was not in violation of state law when it began drainage work there in 2007 without Isgrigg’s participation, as Carmichael had determined.
Two other issues considered by the Court of Appeals stemming from the same case were also included in Wednesday’s ruling.
One of those decisions affirmed Carmichael’s ruling that the drainage board did violate state law when it removed an obstruction from Lancassange Creek without Isgrigg’s participation.
The Court of Appeals also rescinded Carmichael’s opinion that Isgrigg be awarded court costs he incurred during the three-year long lawsuit he filed. * * *
The ruling issued Wednesday agreed that the drainage board did not violate any laws for the plan it implemented in Sunset Hills.
The argument centered around whether or not the plans involved regulated drains. If there were no regulated drains, the drainage board was authorized by local ordinance and Indiana’s Home Rule Act to complete the drainage plan in the subdivision. However, if it was determined that the drainage board did exercise authority over a regulated drain in the Sunset Hills project they would have acted illegally by not allowing Isgrigg to participate in the project.
According to the ruling, a regulated drain requires an open channel and the drainage board’s evidence shows that there were no open channels in the Sunset Hills subdivision either before or after its involvement. The Indiana Code unmistakably defines a regulated drain as an “open channel.”
As a result the appeals court found, “the trial court erred when it concluded that either project was based on or resulted in the establishment of a regulated drain, and that the trial court erred when it granted summary judgment to Isgrigg with respect to the Sunset Hills project,” the ruling read.
The second portion of the ruling was affirmed in favor of Isgrigg, with the drainage board admitting it violated Indiana Code.
“Isgrigg is entitled to summary judgment as a matter of law on his claim that the drainage board acted contrary to the provisions of Indiana Code ... when it engaged in the Lancassange Creek project without the participation of the County Surveyor,” the ruling read.
As a result of the split ruling in the appeals court decision, court costs previously awarded to Isgrigg were rescinded.
- Dec. 6, 2010 - "Court rules for surveyor in drainage turf fight" and this one from Dec. 7, 2010 that includes links to documents, as well as this Dec. 11, 2010 update.
- Jan. 19, 2011 - "Clark drainage rules violate Indiana law, suit argues."
Posted by Marcia Oddi on January 15, 2012 03:12 PM
Posted to Ind. App.Ct. Decisions