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HomeMy WebLinkAboutSkyline Farm Development STATE OF INDIANA COUNTY OF CLARK BEFORE THE JEFFERSONVILLE CITY COUNCIL OBJECTION TO AN INCREASE IN THE SANITARY SEWER CONNECTION FEE TO THE JEFFERSONVILLE SANITARY SEWER SYSTEM IMPOSED BY ORDINANCE OR OTHER OFFICIAL ACTION TAKEN BY THE COMMON COUNCIL OF THE CITY OF JEFFERSONVILLE, INDIANA, SKYLINE FARM DEVELOPMENT, LLC, PETITIONERS. ) ) ) ) ) ) ) ) ) ) Cause No. PETITION OBJECTING TO SEWER RATES AND CHARGES ESTABLISHED BY ORDINANCE OR OTHER LEGISLATIVE ACTION OF THE COMMON COUNCIL OF THE CITY OF JEFFERSONVILLE~ INDIANA Comes now petitioner, Skyline Farm Development, LLC, and for its objection to the sewer rates and charges by the City of Jeffersonville, Indiana, states as follows: 1. Petitioner, Skyline Farm Development, LLC ("Skyline"), is an Indiana limited liability company with its principal office located at 2809 Millstone Court, Jeffersonville, Indiana 47130. 2. Skyline is the owner and developer of certain real estate located in the unincorporated territory of Clark County, Indiana, which real estate is platted and commonly known as Skyline Acres subdivision (the "Real Estate"). 3. Respondent, City of Jeffersonville, Indiana ("Jeffersonville"), owns and operates a sanitary sewer collection and treatment system that serves real property inside and outside of the municipal boundaries of the Jeffersonville pursuant to authority granted by IC 36-9-23, et seq. 4. The Real Estate is, or is to be, connected to and provided sanitary sewer service by the sewage works owned and operated by Jeffersonville. 5. At its regular meeting on March 15, 2004, the Jeffersonville City Council purported to enact an increase in the connection fees to the Jeffersonville sanitary sewer system for lots located outside of Jeffersonville's municipal boundaries from $1,500.00 to $3,000.00. Attached hereto as Exhibit "A" is an article that appeared in The Evening News on March 16, 2004, describing such legislative action. 6. Skyline is adversely affected by the above-described action of the Jeffersonville City Council as substantially higher connection fees will result for the undeveloped platted lots within the Real Estate, and Skyline objects to the imposition of such increased charge on the undeveloped lots within the Real Estate on the grounds stated in rhetorical paragraph 8 hereinbelow. 7. This petition is filed with the Jeffersonville City Council, as the municipal legislative body of Jeffersonville, in order to object to the rates and charges to be imposed by the official action described hereinabove pursuant to authority established by IC 36-9- 23-26.1(a). 8. The grounds for Petitioner's objections are as follows: a. Upon belief Jeffersonville failed to either publish notice of or hold a public hearing regarding the proposed connection fee increase prior te its implementation as required by IC 36-9-23-26(a)(1). The action taken by the Jeffersonville City Council in purporting to impose such increased connection fees should accordingly be stricken and declared as void in its entirety as not being in compliance with Jeffersonville's obligations under the above-referenced statute and IC 36-1-3-6. b. Upon belief Jeffersonville failed to mail notice of or hold a public hearing on the proposed connection fee increase prior to imposition of such increased fees to either the owners of vacant or unimproved property as required by IC 36-9-23- 26(a)(2), or to users of the sewage works located outside of Jeffersonville's muaicipal boundaries as required by lC 36-9-23-26(a)(3). Such notice was clearly required as a condition precedent to the imposition of the increased cormection fees. The lack of such notice deprived Skyline or its representatives of the opportunity to attend the Jeffersonville City Council meeting on March 15, 2004, at which the subject action was taken. The subject action taken by the Jeffersunville City Council should accordingly be stricken and declared as void in its entirety as not being in compliance with Jeffersonville's obligations under the above-referenced statute and IC 36-1-3-6. c. IC 36-9-23-26(d) requires a change of fees charged or to be charged by a municipally owned utility to be enacted by ordinance. An ordinance becomes effective only after it is passed by the legislative body and is signed by the presiding officer, and either approved by the mayor or passed over his veto, pursuant to the provisions of IC 36-4-6-14. Furthermore, an ordinance may not be adopted on the same day or at the same meeting at which it is introduced except upon unanimous consent of the members of the legislative body present and with the affirmative vote of at least two-thirds of its members pursuant to IC 36-4-6-13. The subject action taken by the Jeffersonville City Council should accordingly be stricken and declared as void in its entirety as not being in compliance with Jeffersonville's obligations under the above- referenced statutes and IC 36-1-3-6. d. IC 36-9-23-25 establishes the manner in which municipalities, including Jeffersonville, must establish just and equitable fees for municipal sanitary sewer service. Upon belief Jeffersonville failed to obtain the advice or opinion of any properly qualified rate consultant, utility accountant, or other similar professional to the effect that the increased connection fee on undeveloped lots located outside of Jeffersonville's municipal boundaries is reasonably needed or permitted in order to provide or establish just and equitable rates among all classes of utility customers. e. The Jeffersonville City Council failed to conduct, or cause to be conducted, any utility rate study to determine the amount of the increased connection fee in accordance with the factors enumerated in IC 36-9-23-25(d). f. The Jeffersonville City Council abused its discretion in purporting to assess the increased connection fee solely against undeveloped properties outside of the municipal boundaries of Jeffersonville, and not against utility customers or undeveloped properties within the utility's service area as a whole, as such fee is not based on any demonstrable variation in "(1) the costs, including capital expenditures, of famishing services to various classes of users or to various locations; or (2) the number of users in various locations" as required by IC 36-9-23-25(e). g. The increased connection fees to be imposed on vacant and undeveloped properties located outside of Jeffersonville's municipal boundaries constitutes a service charge or user fee greater than that "reasonably related to reasonable 4 and just rates and charges for services" to such properties in violation of IC 36-1-3- 8(a)(6), and such fee accordingly constitutes an unconstitutional revenue tax. h. The increased connection fees to be imposed on vacant and undeveloped properties located outside of Jeffersonville's municipal boundaries is, in fact, an impact fee on new development within the geographic area over which Jeffersonville exercises planning and zoning jurisdiction. However, Jeffersonville has failed to take the actions required by IC 36-7-4-1301, et seq., to properly and validly enact any such impact fees. In the event that Skyline does not obtain satisfactory relief on their objection herein, Skyline specifically reserves the right to seek declaratory relief regarding the extent that increased connection fees enacted by the action of the Jeffersonville City Council constitute an impermissible impact fee. 9. Skyline hereby demands that the Clerk-Treasurer of the City of Jeffersonville promptly file a copy of the ordinance or other written documents evidencing the actions of the Jeffersonville City Council in purporting to enact the increased connection fees described hereinabove together with this petition in the office of the Clerk of either the Clark Circuit Court or the Clark Superior Court in accordance with the provisions of IC 36-9-23-26.1. 10. Upon such filing, Skyline further requests that the applicable court set Skyline's objection for heating at the earliest possible date, which date must be within twenty (20) days after the filing of this petition with said court. The undersigned counsel is authorized to accept notice of such hearing on behalf of Petitioners. 5 WHEREFORE, petitioner, Skyline Farm Development, LLC, hereby (i) objects to the imposition of the increased connection fees by the action of the Jeffersonville City Council described hereinabove, and (ii) seek judicial review of same pursuant to the provisions of IC 36-9-23-26.1(a). Skyline further seeks to have such official action declared as void and unenforceable pursuant to such judicial review, and for the award of all other relief which is determined to be appropriate and just in the premises. 126 West Spring Street New Albany, IN 47150 (812) 945-2555 Counsel for Petitioners CERTIFICATE OF SERVICE ' ~ ~"~da of March 2004 rsuch The undersigned hereby certifies that on the ~ y , ~ date being not later than the fifth (5th) day after the legislative action that is the subject of this objection), a copy of the foregoing pleading was served by first class U.S. mail, postage prepaid, certified with return receipt requested, on Peggy Wilder, Clerk- Treasurer, City of Jeffersonville, Indiana, 501 E. Court Avenue, Jeffersonville, Indiana 47130, as agent for purposes of service on the Jeffersonville City Council. ' ' ' ' /'~f~da of March, 2004 (such The undersigned hereby certines that on the ~ y date being not later than the fifth (5th) day after the legislative action that is the subject of this objection), a copy of the foregoing pleading was served by first class U.S. mail, postage prepaid, on Leslie D. Merkley, Jeffersonville City Attorney, 538 E. Court Avenue, Jeffersonville, Indiana 47130. 6 The Jeffersonville Evening News and The New Albany Tribune Page 1 of 2 Tuesday, :l~ffer~onville~ IN 57 OF Clear NEWS SECTIONS O Front Page O Local News O Local Sports O Lifestytes O Obituaries O National News O Financial News O Health News O Archives CLASSIFIEDS 0 Classifieds 0 Employment 0 Real Estate o Transportation SERVICES O Subscribe O Place an Ad O Letter to the Editor O Guestbook SPECIAL SECTIONS ~ Calendar of Events O Marketplace O Entertainment O Town Hall O About Us SEARCH ARCHIVES advanced search SeARCU LASS! mpS Council agrees to sexually oriented business ordinance By dON REITER All the data that went into devising Jeffersonville's new ordinance regulating sexually oriented businesses would make a pretty sturdy doorstop. The casework City Attorney Les Merkley collected supporting the new ordinance filled a large cardboard box in the city council's assembly room last night, and the ordinance itself is 22 pages long. Merkley said it was necessary for the ordinance to be that long because legal definitions of what is and is not obscene need to be described in a specific manner. Officials said that because of a proposed ban on nude dancing in Louisville, business owners are going to be looking for a place to relocate that doesn't have a similar ordinance or one that is lax. "it was a situation where if we didn't deal with it, it was going to deal with us," Perkins said. The council unanimously approved the ordinance, which contained some materials Perkins admitted "made him blush." http://www.news-tribune-net/articles/2004/03/16/news/the_evening_news/news02'txt In other business: · Mayor Rob Waiz presented the council with his capita~ improvement plan, utilizing new Ioca~ tax revenues. Crowe Chizek, the accounting firm Waiz hired to help come up with the plan, said the city can expect about $1 million each year in revenue from the ~ocei taxes, which were instituted by the C~ark County Council last summer. Among the items included in Waiz's plan are $150,000 per year to fund an east end fire station; $200,000 per year for a new city hall; ~200,000 for the Ohio River Greenway Project and $150,000 for economic development. Waiz's projects estimate the fire station to cost $1.5 million and a new City Hal~ to be about $2 million. The next step is to submit the plan to County Auditor Barbara Haas by Apri~ 1. ';4" 3/19/2004 The Jeffersonville Evening News and The New Albany Tribune Page 2 of 2 Although the council approved the initial plan, Waiz said it can easily be amended. The mayor asked for input from individual members going forward. "1 think this took good v'sion,' said Councilman Ron Grooms. · The counci~ also voted to increase sewer tap-in fees for new customers ~ of the utility outside of the city limits to $3,000 from $1,500. Councilman John Perkins, who proposed the amended change, said he feels that customers outside of the city limits should pay more than those who live in Jeffersonville. Perkins likened the move to building up equity in a home or property. Ratepayers who have been faithfully paying their bills for decades and are residents of the city, he said, shouldn't have to bear the burden. The only two dissenting votes in the move were Grooms and Phil McCauley. McCauley sa d he had problems with the $3,000 figure because he believed it was arrived at arbitrarily. "We have to have justification for that figure," in case developers seek to litigate, McCauley said. "We just can't throw a figure out there, it's flying blind." But McOauley said he did believe the tap-in figures ultimately could have been increased, maybe even more than what was decided upon Monday. The expected increase in revenue from the tap-in fees will likely go toward expansion of the city's wastewater treatment plant -- or ultimately for a new plant -- over the next several years. Despite a lengthy agenda Monday that contained issues that have been the source of much discussion over the past several weeks, the Jeffersonville City Council took care of business rather quickly. "With everything we had to do, I would have thought we'd be here until 11 :$0," Councilwoman Barbara Wilson said. Instead, last night's meeting ended in an hour. 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