Town of Merrillville v. Merrillville Conservancy Dist. By and Through Bd. of Directors

• Decision Date: 13 April 1995
• Docket Number: No. 45A03-9401-CV-31,45A03-9401-CV-31
• Citation: 649 N.E.2d 645
• Parties: TOWN OF MERRILLVILLE, Indiana, Albert Wirtes as Member of the Town Council, Town of Merrillville, Lake County, Indiana, et al., Appellants-Defendants, and Merrillville Sanitary District, Appellants-Intervenors, v. MERRILLVILLE CONSERVANCY DISTRICT, acting By and Through its BOARD OF DIRECTORS, Charles E. Price and Charlene Price, Appellees-Plaintiffs, Gary Sanitary District, Independence Hill Conservancy District, Wastehaul, Inc., Intervenors.
• Court: Indiana Appellate Court

Page 645

649 N.E.2d 645

TOWN OF MERRILLVILLE, Indiana, Albert Wirtes as Member of the Town Council, Town of Merrillville, Lake County, Indiana, et al., Appellants-Defendants and Merrillville Sanitary District, Appellants-Intervenors, v. MERRILLVILLE CONSERVANCY DISTRICT, acting By and Through its BOARD OF DIRECTORS, Charles E. Price and Charlene Price, Appellees-Plaintiffs Gary Sanitary District, Independence Hill Conservancy District, Wastehaul, Inc., Intervenors.

No. 45A03-9401-CV-31.

Court of Appeals of Indiana Third District.

April 13, 1995.

Rehearing Denied Aug. 4, 1995.

Michael L. Muenich, Hand Muenich & Wilk, Highland, for appellant.

Cora M. Vaughn, Vaughn & Associates, Gary, for GSD.

Christine Miller, William Theodoros, Merrillville, for Wastehaul.

Thomas M. Greenberg, Merrillville, for IHCD.

Martin Kinney, William Touchette, Merrillville, for appellee.

OPINION

GARRARD, Judge.

This appeal arises from a dispute over the provision of sanitation services to Merrillville, Indiana. On motion for summary judgment the trial court found an ordinance passed by the town council of Merrillville regarding the creation of a sanitary district and department of sanitation to be invalid, and Merrillville appeals.

FACTS AND PROCEDURAL HISTORY

In December of 1992, the town of Merrillville, Indiana, did not have its own sanitation system. Instead, the sanitary needs of the town were met by the Merrillville Conservancy District ¹ (MCD), the Independence Hill Conservancy District (IHCD), ² and certain other semi-private utilities. Some areas of Merrillville have no sewer service at all.

On December 29, 1992, Merrillville adopted Ordinance No. 92-29, creating a department of public sanitation and a sanitary district. Relevant portions of that ordinance state:

Section 1. That Indiana Code, Title 36, Article 9, Chapter 23, as amended and supplemented be and is hereby adopted by the Town Council of the Town of Merrillville, Lake County, Indiana, so as to make said acts and all amendments and supplements thereto effective and operative as to the Town of Merrillville ... provided, however that the powers granted by said chapter ... shall be exercised, controlled and supervised by a Department of Public Sanitation established pursuant to the provisions of Indiana Code, Title 36, Article 9, Chapter 25.

(R. 24-25). The ordinance goes on to formally adopt Ind.Code § 36-9-25, to establish a board of sanitation, and to establish a sanitary district including all territory within the corporate boundaries of Merrillville and certain territory outside the town.

On January 29, 1993, the MCD filed a complaint for declaratory judgment, requesting the court to find ordinance 92-29 void. Merrillville filed a counterclaim, seeking a declaratory judgment that MCD be required to comply with an area wide plan for sanitation developed under § 201 and § 208 of the Clean Water Act and that its ordinance be declared valid.

MCD filed a motion for summary judgment on its claim and Merrillville's counterclaim. The trial court concluded that ordinance no. 92-29 was invalid when applied to the territories of MCD and IHCD, ³ that Merrillville could not control these areas or impose any sewer related taxes, and that MCD was entitled to summary judgment on Merrillville's counterclaim.

ISSUES AND DISCUSSION

The parties raise numerous issues in their briefs, which we restate as follows:

I. Whether ordinance no. 92-29 is void because of failure to comply with the mandatory provisions of Ind.Code § 36-9-23.

II. Whether ordinance no. 92-29 is void because I.C. § 36-9-25 is inapplicable to Merrillville.

III. Whether ordinance no. 92-29 is void because it violates the home rule statute.

IV. Whether the trial court erroneously granted summary judgment on Merrillville's counterclaim.

We are initially compelled to address violations of the appellate rules by MCD. MCD attempts to circumvent Ind.Appellate Rule 8.2(A)(4), which limits the length of an appellate brief to fifty pages, by assertedly incorporating by reference nearly eighty pages of previously filed briefs into its appellate brief. The appellate brief should be prepared so that each judge, considering the brief alone and independent of the transcript, can intelligently consider each question presented. Coney v. Farmers State Bank (1970), 146 Ind.App. 483, 256 N.E.2d 692, 696. The brief must be prepared so that all questions can be determined by the court from an examination of the brief without having to examine the record, because there is only one transcript to be shared among all the judges. Id. Inexplicably, MCD also expends seventeen pages of its appellate brief to discuss certain deposition testimony. First, MCD makes no effort to explain how any of this testimony is relevant to our determination of whether ordinance 92-29 is valid. ⁴ More importantly, none of this testimony was properly designated under Ind.Trial Rule 56, and it therefore cannot be considered by us on appeal.

ISSUE I

Merrillville contends that the trial court erred in granting summary judgment because municipalities are authorized to regulate sanitation systems under I.C. § 36-9-23. MCD contends that Merrillville did not properly invoke any authority granted by the statute because the town did not comply with the statute's mandatory provisions.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). Once the moving party has met its burden of proving that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law, the opponent must respond by setting forth specific facts showing a genuine issue for trial, and may not simply rest on the allegations contained in the pleadings. Adams v. Inland Steel Co. (1993), Ind.App., 611 N.E.2d 141, 143, trans. denied. At the time of the filing of the motion or response, a party shall designate to the court all parts of the evidentiary materials upon which it relies for purposes of the motion. T.R. 56(C); Daugherty v. Fuller Engineering Service Corp. (1993), Ind.App., 615 N.E.2d 476, 479. In our review we apply the same standard as the trial court and consider the facts in the light most favorable to the nonmoving party. Id.; Valley Federal Sav. Bank v. Anderson (1993), Ind.App., 612 N.E.2d 1099, 1101.

A review of the well-established rules of statutory construction is also necessary to our analysis of this case. When construing a statute to determine the intent of the legislature, words and phrases are to be given their common and ordinary meaning. Crowley v. Crowley (1992), Ind.App., 588 N.E.2d 576, 578. If the language of a statute is clear and unambiguous it is not subject to judicial interpretation. Avco Financial Services v. Metro Holding (1990), Ind.App., 563 N.E.2d 1323, 1328. However, when the language is reasonably susceptible to more than one construction, we must construe the statute to determine the apparent legislative intent. Id. Statutory provisions cannot be read standing alone; instead, they must be construed in light of the entire act of which they are a part. Deaton v. City of Greenwood (1991), Ind.App., 582 N.E.2d 882, 885. When the legislature enacts a statute, we presume it is aware of existing statutes in the same area. Inman v. Farm Bureau Ins. (1992), Ind.App., 584 N.E.2d 567, 569 n. 3. When construing an ordinance, we apply these rules of construction. Burrell v. Lake County (1993), Ind.App., 624 N.E.2d 526, 529. Ordinances should be interpreted so as to uphold their validity whenever possible. Id.

The ordinance at issue initially states that it adopts I.C. § 36-9-23 as being effective in Merrillville. This statute, titled Municipal Sewage Works, is applicable to all municipalities pursuant to I.C. § 36-9-23-1. The statute grants a municipality the power to:

1) acquire, construct, improve, operate, and maintain sewage works under this chapter;

2) acquire, by gift, grant, purchase, condemnation, or otherwise, all lands, right-of-way, and other property that are necessary for the sewage works; and

3) issue revenue bonds to pay the cost of acquiring, constructing, and improving the sewage works and property; and

4) lease sewage works from a person, an entity, a corporation, a public utility, or a unit for a term not to exceed fifty (50) years.

I.C. § 36-9-23-2. The act provides that the municipal works board shall control the acquisition construction, operation and maintenance of the sewage works, and that such powers may be transferred to a sanitary board. I.C. § 36-9-23-3, 4.

MCD concedes that the statute is applicable to Merrillville, but contends that the town failed to properly invoke this statutory authority, thereby violating the home rule statute. The home rule statute states that "[i]f there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise that power must do so in that manner." I.C. § 36-1-3-6(a). MCD asserts that Merrillville failed to follow the mandatory provisions of I.C. § 36-9-23-10: "[b]efore the construction, acquisition, or lease of any sewage works under this chapter, the municipal legislative body shall adopt an ordinance or ordinances" setting forth certain information, including a description of the works or construction plans, cost estimates, an order for the construction, acquisition or lease of the works, an estimate of fees, and an order for the issuance of revenue bonds. I.C. § 36-9-23-10(a).

We agree with Merrillville that the language of I.C. § 36-9-23 is clear and unambiguous. The chapter applies to all municipalities, and section 10 plainly states that an ordinance including the listed information is only required "before the construction, acquisition or lease of any sewage works." The ordinance before us does not purport to construct, acquire or lease sewage works; rather, it states...