Anderson v. Gaudin

• Decision Date: 12 January 2015
• Docket Number: No. 07A01–1406–PL–265.,07A01–1406–PL–265.
• Citation: 24 N.E.3d 479
• Parties: David ANDERSON, Commissioner, Joe Wray, Commissioner, John Kennard, Commissioner, and Board of Trustees, Brown County Fire Protection District, Appellants–Defendants v. Susanne GAUDIN, Janet Kramer, and Ruth Reichmann, Appellees–Plaintiffs.
• Court: Indiana Appellate Court

24 N.E.3d 479

David ANDERSON, Commissioner, Joe Wray, Commissioner, John Kennard, Commissioner, and Board of Trustees, Brown County Fire Protection District, Appellants–Defendants

v.Susanne GAUDIN, Janet Kramer, and Ruth Reichmann, Appellees–Plaintiffs.

No. 07A01–1406–PL–265.

Court of Appeals of Indiana.

Jan. 12, 2015.

Kurt A. Young, Anderson, Wray, and Kennard, Wanda E. Jones, Jones Law Offices, Nashville, IN, Attorneys for Appellant.

E. Paige Freitag, Jones, McGlasson & Freitag, P.C., William C. Lloyd, Lloyd Law, L.L.C., Bloomington, IN, Attorneys for Appellee.

OPINION

VAIDIK

, Chief Judge.

Case Summary

In 2007 the Brown County Commissioners enacted an ordinance establishing a county-wide fire-protection district. In 2011 the Commissioners amended the ordinance, reducing dramatically the scope of the ordinance and the powers granted to the Board of Trustees. County-resident freeholders first filed suit for declaratory judgment, and then the Commissioners and the freeholders filed cross motions for summary judgment, asking the trial court to determine whether the amended ordinance was a valid exercise of the Commissioners' authority. The trial court granted summary judgment in favor of the freeholders, finding that the amendment was a de facto dissolution of the ordinance, in contravention of the Fire District Act and this Court's opinion in Gaudin v. Austin, 921 N.E.2d 895 (Ind.Ct.App.2010)

.¹ On appeal, the Commissioners contend that the amended ordinance was a valid exercise of their authority. We affirm the trial court, finding that the “amendment” made to the ordinance amounted to a de facto dissolution, and that the Commissioners did not have the authority to amend the ordinance at all.

Facts and Procedural History

In 2007 the then-governing Brown County Board of Commissioners (“the Commissioners”)² enacted County Ordinance No. 09–04–07–01 (“the Ordinance”), which created the Brown County Fire Protection District (“BCFPD” or “the District”), a municipal corporation created to provide comprehensive fire-protection and fire-prevention services throughout Brown County. Pursuant to the Ordinance, the BCFPD included all four of the townships in Brown County—Hamblen, Jackson, Van Buren, and Washington—but excluded the town of Nashville. The Ordinance states in relevant part as follows:

This ordinance does hereby establish a fire protection district for the following purposes:

(1) Fire protection, including the capability for extinguishing all fires that might be reasonably expected because of the types of improvements, personal property, and real property within the boundaries of the district.

(2) Fire prevention, including identification and elimination of all potential and actual sources of fire hazard.

(3) Other purposes or functions related to fire protection and fire prevention.

(A) These purposes and functions are to effectively have jurisdiction and govern fire services throughout the District, and shall include educational initiatives and efforts within the community for fire and hazard recognition and prevention, volunteer recruitment, proper training and working conditions for the safety of volunteers, and expeditiously establishing, implementing, supervising, and having full and proper accountability as to all applicable safety and operational standards and expectations.

(B) Responsive and best effort services, with planning and due diligence coordination, are to be provided throughout the District.

(C) The area selected for this Fire Protection District shall include all of the following: Hamblen, Jackson, Van Buren, and Washington townships .... and excluding only the Town of Nashville ....

(4) Other emergency services.

Appellant's App. p. 139–40.

The Ordinance incorporated many sections of the Fire District Act found at Indiana Code chapter 36–8–11, including the appointment of a five-member board of fire trustees, trustee's meetings, trustee's powers and duties, tax levies, and the purchase of firefighting equipment. Paragraph G(a)(l ) of the Ordinance provides that the board of trustees “has the same powers and duties as a township executive ... with respect to fire protection functions ....” Id. at 142. Paragraph G(a)(4) provides that the trustees “shall exercise general supervision of and make regulations for the administration of the district's affairs. This shall include establishing the authority and protocols for Incident Command.” Id. And paragraph G(a)(17) authorizes trustees to “levy taxes at a uniform rate on the real and personal property within the district,” subject to certain limitations and special accounting procedures and administration. Id. at 143.

The Ordinance has been the subject of two previous cases: Sanders v. Board of Commissioners of Brown County,

892 N.E.2d 1249 (Ind.Ct.App.2008), trans. denied, and Gaudin, 921 N.E.2d 895. In Sanders, several freeholders³ filed an action against the Commissioners, requesting declaratory judgment that the Ordinance was void because the Commissioners lacked the statutory authority to create a fire-protection district. See

Sanders, 892 N.E.2d at 1250. This Court affirmed the trial court, holding that the Commissioners did have the authority to create the district pursuant to Indiana Code section 36–8–11–4.

Thereafter, in January 2009, the Commissioners attempted to dissolve the fire district, which led to another legal challenge by county-resident freeholders. In Gaudin, freeholders challenged the Commissioners' attempt to dissolve the fire-protection district, and this Court reversed the trial court's grant of summary judgment for the Commissioners, holding that while the Fire District Act explicitly provides in two discrete sections for establishment of a district either by ordinance or by freeholder petition, the Act sets forth only one method of dissolution—the freeholder-petition process described in Indiana Code section 36–8–11–24

—and thus the Commissioners lacked authority to unilaterally dissolve the district. See

Gaudin, 921 N.E.2d at 897–900 ; see also Ind.Code § 36–8–11–24 (“(a) Proceedings to dissolve a fire protection district may be instituted by the filing of a petition with the county legislative body that formed the district .... (b) The petition must be signed: (1) by at least twenty percent (20%), with a minimum of five hundred (500), of the freeholders owning land within the district; or (2) by a majority of those freeholders owning land within the district; whichever is less.”).

After Gaudin, in March 2011, the Commissioners amended the Ordinance. The Amended Ordinance provided in part:

WHEREAS, in September[ ] 2007, the Board of Commissioners of Brown County, Indiana, adopted Ordinance Number 09–04–07–01;

* * * * *

WHEREAS, the Board of Commissioners has reviewed, studied and considered said Ordinance;

WHEREAS, as a result of such review, study and consideration, the Board of Commissioners has concluded that parts of the area included in the district by said ordinance, particularly Hamblen Township, which has an existing fire protection district, were included in error and, as a result, the district board of trustees was improperly constituted;

WHEREAS, as a result of such review, study and consideration, the Board of Commissioners has concluded that all of the purposes for which the district was established are unnecessary, because those purposes are currently being served by other more cost-effective means;

* * * * *

BE IT THEREFORE RESOLVED that [the Ordinance] is amended to read as follows:

1. This ordinance does hereby reaffirm the establishment of the [BCFPD] ... includ[ing] Jackson, VanBuren and Washington townships ....

2. Pursuant to IC 36–8–11–4(a)(3)

, the sole purpose of the [BCFPD] shall be to conduct fire prevention education within the District ....

* * * * *

19. Upon this Ordinance as amended taking effect, all provisions of the initial pre-amendment Brown County Ordinance Number 09–04–07–01 are of no force and effect.

Appellant's App. p. 148, 155.

Thus, the Amended Ordinance dramatically reduced the overall purpose(s) of the District: from providing fire-protection and fire-prevention services to providing nothing more than “fire[-]prevention education within the District.” Id. at 155 (emphasis added). The Amended Ordinance also changed the composition of the board of trustees from five members—including a Hamblen Township representative and an “at large” member—to three members representing the three townships “actually served by the District” and outlined a procedure for appointing the new three-person board. Id. at 149. Moreover, the Amended Ordinance removed the special accounting procedures, restricted the District to levying taxes on only real property (and not personal property, as permitted in the Ordinance), and provided that “[t]he District shall seek funding through non-tax sources, such as grants and donations, to fund its activities so as to minimize or eliminate any tax impact on Brown County property owners.” Id.

In August 2011 Brown County residents and property owners (“the Freeholders”) filed a suit for declaratory judgment against the Commissioners and the Board of Trustees, seeking to set aside the amendment to the Ordinance. After mediation in September 2013, the parties agreed upon a stipulated question to be resolved by cross-motions for summary judgment presented to the trial court: “Is the amended ordinance 09–04–07–01, a valid exercise of the authority of the Brown County Commissioners?” Id. at 37. In March 2014 the trial court granted summary judgment in favor of the Freeholders. The trial court's order provided in relevant part:

A. A history of events leading to the narrow issue before the court is helpful:

* * * * *

3. Th[e Sanders v. Bd. of Comm'rs of Brown County, 915 N.E.2d 978 (Ind.2009)

] decision led opponents of the Fire District to run for office and, once elected, the majority of the [C]ommissioners voted to dissolve the Fire District. This action was challenged by other Brown County...