Dep't Of Waterworks For The Consol. City Of v. Cmty. Sch. Corp. Of Southern
Decision Date | 08 September 2010 |
Docket Number | No. 93A02-1002-EX-218,Cause No. 43744,93A02-1002-EX-218 |
Parties | DEPARTMENT OF WATERWORKS FOR THE CONSOLIDATED CITY OF INDIANAPOLIS, INDIANA, Appellant-Respondent, v. COMMUNITY SCHOOL CORPORATION OF SOUTHERN HANCOCK COUNTY, Appellee-Complainant. |
Court | Indiana Appellate Court |
ATTORNEYS FOR APPELLANT: DAVID T. MCGIMPSEY PHILLIP J. FOWLER CASEY M. HOLSAPPLE Bingham McHale LLP Indianapolis, Indiana
ATTORNEYS FOR APPELLEE: BRYAN H. BABB STEPHEN C. UNGER Bose McKinney & Evans LLP Indianapolis, Indiana
FOR PUBLICATION
APPEAL FROM THE INDIANA UTILITY REGULATORY COMMISSION
OPINION-FOR PUBLICATION
Southern Hancock School Systems (School) is scheduled to open a new intermediate school in August 2011. Pursuant to its plan, the School wants to connect a 2300-foot service pipe from an existing water main to its new facility. The Indianapolis Department of Waterworks (Water Company) denied the School's request to install a service pipe in lieu of a water main extension because the School's idea was contrary to the Water Company's rules and "good engineering practice." Appellant's Br. p. 5. This case comes before us following the Indiana Utility Regulatory Commission's (IURC) determination that the rules do not preclude the School from connecting a service pipe to its new facility from an existing main.
Appellant-respondent Water Company appeals the IURC's decision in favor of appellee-complainant School, claiming that the IURC's decision allowing the School to construct its own water service line rather than paying for a water main extension is contrary to law because the new building does not abut an existing main as required by the Water Company's departmental rules. The Water Company also asserts that the IURC's factual determinations regarding the economics of the School's decision to connect to the existing main are not supported by the evidence and that the School failed to refute the Water Company's engineering plans and water quality analysis. Concluding that the IURC properly determined that the Water Company's rules do not preclude the School from connecting its new building to an existing water main and finding no other error, we affirm.
The School is a duly organized corporation in accordance with Indiana Code section 20-26-2-4. It provides public education in and around New Palestine to nearly 3, 500 students and abides by State and local directives limiting the capital costs associated with new school construction. The attached diagram depicts the property that the School owns near the intersection of County Road 600 West (CR 600) and County Road 200 South (CR 200) in Hancock County.2
As the diagram also illustrates, two schools in the system presently receive water through a single service pipe that is connected to a water main that runs along CR 600. The School previously paid the Water Company to extend that main along CR 600 to provide it with water service.
As noted above, the School is constructing a new intermediate school on the campus that is scheduled to open in August 2011.3 In December 2008, the School requested permission from the Water Company and the sewer provider to connect the new intermediate school to separate water and sewer lines along CR 600. The sewer provider, GEM Utilities, granted the School's request, but the Water Company denied it.
The Water Company indicated that if the School desired service to the new school, it would have to pay for a second main extension along CR 200 that would run perpendicular to the existing main that extended along CR 600.4
To extend the main along CR 200, Waterworks requested a $372,485 deposit from the School. If a new main was constructed along CR 200, the School would need to add an 800-foot service pipe to reach the main. It was estimated that the addition would cost approximately $40,000, for a total cost of about $412,000. In contrast, the School could install a service pipe and connect to the existing water main on CR 600 for approximately $168,000.
On March 24, 2009, the School filed an informal complaint with the Consumer Affairs Division (CAD) of the IURC, challenging the application of the rules5 regarding its request to install the service pipe. More specifically, the School requested that it be permitted to build the 2, 300-foot service connection from CR 600 rather than pay for a main extension to its new school building along CR 200.
Appellant's App. p. 34-36. The Water Company also asserted that its proposal was not discriminatory and it was not denying water service to the school. It also added that the proposed main extension is "consistent with its Rules, good engineering practice, and public policy...." Id. at 32-33. While the Water Company also claimed in its letter that it was lowering its cost estimate for the new main to $289,000, that price did not include the $40,000 cost of the service pipe that the School would still have to pay.
Id. at 7. As a result, the IURC ordered that "[the School] shall be permitted to connect its new school to the existing main on CR 600 without delay." Id. at 9. The Water Company now appeals.
At the outset, we note that the parties dispute the standard of review that should be applied in this instance. The School points out that our Supreme Court observed in NIPSCO v. U.S. Steel Corp., 907 N.E.2d 1012, 1018 (Ind. 2009), that "questions falling within the IURC's expertise are reviewed with a high level of deference even if they involve questions of law." In contrast, the Water Company contends that because there are no issues of disputed facts and an interpretation of the Water Company's rules is involved, a de novo standard of review must apply. In other words, the Water Company asserts that we should afford no deference to the IURC's decision in this case.
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