To avoid penalties and unwanted litigation, individuals and businesses operating private septic systems may be required to apply for permits to connect to public sanitary sewer systems to comply with the Indiana Court of Appeals’ recent interpretation of Indiana Code § 36-9-23-30 in Town of Clear Lake v. Hoagland Family Limited Partnership.
In Hoagland, Hoagland owned three parcels of real estate located within the Town of Clear Lake. Although the Town operated a sanitary sewer system, Hoagland’s properties were not connected to it and contained their own septic systems; each property was located within 300 feet of the Town’s sewers. The Town sued Hoagland claiming they had violated Indiana Code § 36-9-23-30, which permits a municipality operating a sewage system to require connection to an “available sanitary sewer system” and to order the discontinuance of the use of any private sewage system. The Town requested payment of penalties exceeding $2.9M (though the Court believed this amount unreasonable).
The issue on appeal centered on which party is required to act first – that is, whether the Town must first make connection to the system “available” by obtaining easements to Hoagland’s properties and installing the necessary grinder pumps or whether Hoagland must first apply for a permit, which would contain information useful to the Town in deciding where to put the grinder pumps, to connect to the sewer system.
The Court, favoring an interpretation that minimized costs, potential litigation, and other burdens, held municipalities may, after ninety (90) days’ written notice, order individuals and businesses which operate private septic systems located within three-hundred (300) feet of “an available sanitary sewer” to apply for permits to connect to the sewer system – even if such a connection is presently unavailable – and may assess reasonable penalties for a failure to comply with such an order.
For additional information regarding this or any related area of law, please contact attorney Shannon Frank at sfrank@KDDK.com or (812) 423-3183, or contact any member of the KDDK business, construction, government, or real estate law practice team.
About the Author
Shannon S. Frank, a Partner at Kahn, Dees, Donovan & Kahn, LLP (KDDK), in Evansville, Indiana, has more than 25 years’ experience in the practice of business law, construction law, estate planning and probate administration, health care law, and real estate law. Shannon takes prides in giving exceptional service to her clients, recognizing that relationships with clients play a significant and essential role in providing tailored and comprehensive legal advice.
