The Indiana Court of Appeals' recent opinion in Town of Clear Lake v. Hoagland Family Ltd. P'ship, No. 76A05-1606-PL-1241 (Apr. 6, 2017), doesn't really involve inverse condemnation, except in the background. But we found it interesting nonetheless, because of the way the opinion finishes up, with a plethora of potty puns.
The case involved the town's attempt to convince a local property owner to abandon his septic system, and connect to the town's sewer system. At first the town tried cajoling, bargaining, and trying to entice hook up. It laid down pipes beneath the land, it passed ordinances requiring connection. But the owner, for whatever reason, said no. Indeed (and here's the inverse condemnation connection), he sued the town for inverse condemnation when it put the pipes beneath his property (they eventually settled). Finally, the town sued those who had not connected to the sewer system, including Hoagland, and started imposing massive fines ($2.9 million by the time of the last hearing).
The trial court agreed with the owner that the town's claims should have been brought as counterclaims in his inverse condemnation action, and entered summary judgment in the owner's favor.
The Court of Appeals reversed. An order to connect to a municipal sewer system "does not, by itself, involve a 'taking." Slip op. at 7. Police power, and all that. "On the other hand, the trial court is clearly correct that connection to the Town's sewer system will eventually involve a governmental taking" because it needs something called a grinder pump, and that will be town-owned property located on Hoagland's land. Slip op. at 7. The court was torn: "We recognize that both parties have defensible interpretations of the relevant statutes and ordinances. And we acknowledge that it is every American’s birthright to be displeased at governmental orders." Slip op. at 9.
But in the end, the question boiled down to one of statutory interpretation and the question of which party was required to act first. The court held that the owner was required to make the initial move to hook up to the town's sewer system, since the system was already in place. And the property owner, not the town, controls where the grinder pump will be located. Thus, no taking. Slip op. at 10 ("Just as courts require parties to mitigate their damages in tort and contract disputes, we favor an interpretation of the law that minimizes the costs and other burdens residents will face."). And when the grinder pump is eventually installed, the town will have the obligation to pay compensation for the taking. Town wins.
But here's the good part. The opinion ends with this coda, a plea to the parties to put the crap aside and "work together" to reach an acceptable result:
We would also like to express our sincere hope that the parties can work together more amicably to achieve what is clearly the end result: at some point, after some procedure, Hoagland will connect to the Town’s sanitary sewer through a Town-provided grinder pump.This type of litigation tends to clog up the court system. Our courts are not flush with resources, and they are prone to getting backed up. When the system gets backed up, it produces unnecessary and unhealthy strains, which makes it more difficult for parties to obtain relief. And when these cases cannot be discharged, it is impossible for our court system to stay regular—and that means taxpayer resources down the drain. We can understand that, after such a long process, the parties are not overflowing with goodwill. But we hope that, before the case stalls and stagnates, they can put this big mess behind them.
Slip op. at 15-16.
We see what you did there, judges. Well done! (Too bad there was no Lucas taking alleged, so the court could talk about "wipeout" takings.)