Taylor v. Fall Creek Regional Waste Dist.

• Decision Date: 27 October 1998
• Docket Number: No. 48A02-9802-CV-195,48A02-9802-CV-195
• Citation: 700 N.E.2d 1179
• Parties: Robert G. TAYLOR, Appellant-Plaintiff, v. FALL CREEK REGIONAL WASTE DISTRICT, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1179

700 N.E.2d 1179

Robert G. TAYLOR, Appellant-Plaintiff, v. FALL CREEK REGIONAL WASTE DISTRICT, Appellee-Defendant.

No. 48A02-9802-CV-195.

Court of Appeals of Indiana.

Oct. 27, 1998.

Frank E. Gilkison, Marianne L. Vorhees, Beasley Gilkison Retherford Buckles & Clark, Muncie, William Byer, Sr., Byer & Byer, Anderson, for Appellant-Plaintiff.

Ronald E. Elberger, George T. Patton, Jr., J. Christopher Janak, Bose McKinney & Evans, Indianapolis, for Appellee-Defendant.

OPINION

HOFFMAN, Senior Judge.

Appellant-plaintiff Robert G. Taylor appeals from a grant of summary judgment in favor of Fall Creek Regional Waste District (Fall Creek) in an action establishing the validity of two ordinances adopted by Fall Creek on February 29, 1996, imposing a "capacity fee" and a "tap fee" for new connections to its sewer system. The facts relevant to our review are recited below.

Fall Creek Regional Waste District ("Fall Creek") is a duly organized and operating regional waste district, pursuant to IND. CODE § 13-26-1-1 et seq., that operates a wastewater collection and treatment system. Taylor is a developer and builder who owns real estate in two different additions connected to Fall Creek's sewage system and conveyed in fee simple from Taylor to purchasers of the tract, free and clear of any and all utility liens. Fall Creek's ordinances require Taylor to convey the sewers he constructs to the Fall Creek Regional Waste District.

Fall Creek completed the initial construction of its wastewater treatment and sewage disposal system in 1986. Although there have been improvements to the system since 1986, including the extension and installation of sewage disposal facilities necessary to serve developments such as Taylor's, a significant portion of the system constructed in 1986 is used to provide service to Fall Creek's present customers.

Fall Creek entered into four separate agreements for each phase of the initial construction. Specifically, Fall Creek had a separate agreement for the installation of the sewage collection systems in the Ingalls Basin, Pendleton Basin, and South Anderson Basin, and a separate agreement for the construction of the wastewater treatment plant. In 1986, the system was constructed to provide extra capacity for anticipated future use at a total cost of approximately $16,702,000. Due to severe environmental problems, state and federal agencies contributed grants totaling $12,002,433 on behalf of the initial customers; the remainder of the sewage system was funded by the issuance of $4,700,000 in bonds.

Since its inception, Fall Creek had in place a connection fee payable by all properties connecting to its system. In 1992, Fall Creek increased its connection charge to include the cost of availability or capacity which must be reserved for each customer connecting to Fall Creek's system.

On February 29, 1996, Fall Creek adopted Ordinance No. 96-3, entitled "Ordinance Establishing Capacity Fee." The ordinance requires the payment of a capacity fee by all individuals seeking to connect to Fall Creek's system. In part the ordinance provides:

After adoption of the Ordinance, the District shall not allow final and permanent connection to the District's sewage facilities of any real estate producing wastewater by any owner of real estate until a permit is obtained and payment has been made to the District for the appropriate capacity fee.

Ordinance No. 96-3. The purpose of the fee is to insure that new users paid for the privilege to use the facilities that are already in place.

Prior to enacting Ordinance No. 96-3, Fall Creek directed Triad Associates, Inc. to perform an analysis to determine the cost of constructing the facilities necessary to provide service to the residents within Fall Creek's service area. Triad used the original 1986 construction cost as the basis for determining the cost of the facilities necessary to provide service to Fall Creek's customers. By calculating the total cost of constructing the original collection and treatment system, and dividing the total cost by the number of customers, Triad determined the cost of facilities contributed to and used by Fall Creek's initial customers.

Each of the three Basins serviced by Fall Creek was assigned a reflective percentage of their total "hook-ups" or initial customers. Triad then prepared an itemized report summarizing the cost for the initial customers in Fall Creek's three service areas. After receiving the report, Fall Creek hired Vinton G. Dove, a certified public accountant, to calculate the capacity fees that Fall Creek could reasonably charge its customers. Dove's calculation used the cost per customer, as calculated by Triad, and subtracted from that figure what he called the "debt portion," which represented the $4,700,000 provided by bonds toward financing the project. Dove also included in his calculations a table in 5% increments, from 45% to 75% of the 1986 per capita total charges. Dove provided the table to Fall Creek because the district had previously charged its customers $2,000 in connection charges, and he considered that his calculations reflected a significant increase over the previous fee; therefore, he provided the figures so that Fall Creek could choose an equitable figure in calculating its capacity fee. Fall Creek adopted the 45% figure calculated by Dove as the individual capacity fees for the three Basins.

The residential capacity fee is based upon the amount of capacity that must be set aside to serve the typical wastewater needs of a residential dwelling unit. In the event a nonresident seeks connection, the customer is charged a pro rata share of the cost that must be set aside to serve that customer.

On February 29, 1996, Fall Creek also adopted Ordinance 96-2 entitled "Ordinance Establishing Tap Fees." This ordinance requires owners of real estate within Fall Creek's jurisdiction to pay a $400 tap fee to connect to Fall Creek's sewage facilities system after February 29, 1996. Prior to enacting the ordinance, Fall Creek established a committee, which included Dove, to outline the various tasks and costs involved in "tapping" or connecting a new customer to Fall Creek's system. Fall Creek interviewed the employees responsible for each of the outlined tasks to determine the average amount of time spent on each task. Dove then multiplied the time spent on each task by the hourly rate of the employee responsible for that task to arrive at an average cost. By adding the average costs of each task involved in the tap process, Dove determined the total average costs of the tasks involved in the tap process.

On May 9, 1996, Taylor filed a verified complaint for injunction requesting that the trial court declare invalid Ordinance No. 96-2 establishing tap fees and Ordinance No. 96-3 establishing capacity fees. Thereafter, Taylor filed a motion for summary judgment. Fall Creek filed a response and a cross-motion for summary judgment on June 12, 1997. After a hearing on the motions, the trial court granted Fall Creek's motion for summary judgment. Taylor now appeals.

Two issues are raised for our review:

(1) whether Taylor, a developer within Fall Creek's service territory, has standing to challenge Fall Creek's connection charges; and

(2) whether the trial court erred in granting summary judgment in favor of Fall Creek after determining as a matter of law that Fall Creek had the authority to impose connection charges as set forth in Ordinance Nos. 96-2 (tap fees) and 96-3 (capacity fees) and that the fees were valid.

Initially, Fall Creek contends that Taylor lacks standing to challenge the ordinances. Taylor counters that the trial court erred in considering various deposition excerpts and the purchase agreement when determining the issue of standing. Specifically, he contends that the evidence of standing was never properly designated.

Parties should clearly and succinctly state factual issues and pertinent parts of the record that are directly relevant and a brief synopsis of why facts are material in their brief or memorandum opposing summary judgment motion. Pierce v. Bank One-Franklin, NA, 618 N.E.2d 16, 19 (Ind.Ct.App.1993), trans. denied. Fall Creek properly designated the various deposition excerpts and the purchase agreement in its cross-motion for summary judgment, thereby complying with Ind. Trial Rule 56(C).

Taylor further contends that the evidence was not properly published or filed with the trial court. Taylor relies upon case law overturned by the 1991 amendments to Ind. Trial Rule 5(D). See Harvey's Indiana Practice, Vol. 3, Rules of Procedure Annotated, Second Edition, p. 196, Author's Comments, § 56.14. The 1991 amendments eliminated the requirement of a separate publication. Publication is now achieved by simply filing the depositions with the trial court. See Boss Manufacturing and Distributing, Inc. v. Steel Suppliers, Inc., 698 N.E.2d 1243, 1244, n. 1 (Ind.Ct.App.1998). Additionally, T.R. 56(C) only requires that Fall Creek designate to the court all parts of a deposition on which Fall Creek relies for purposes of its motion for summary judgment. Fall Creek designated specific excerpts and exhibits from Taylor's deposition and filed the evidence in his cross-motion for summary judgment.

The issue of standing focuses on whether the complaining party is the proper person to invoke the court's power. Shand Min. v. Clay County Board of Commissioners, 671 N.E.2d 477, 479 (Ind.Ct.App.1996), trans. denied. To have standing, a party must demonstrate a personal stake in the outcome of the law suit and be able to show that he was in immediate danger of sustaining some direct injury as a result of the conduct at issue. Id. " '[M]ore fundamentally, standing is a restraint upon this Court's exercise of its jurisdiction in that we cannot proceed where there is no demonstrable injury to the complainant before us.' " Hauer v. BRDD of Indiana, Inc., 654 N.E.2d 316, 318 ...