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Appeals Court rules for G'town on annexation

Town officials say they will be able to move forward with wastewater plant

May 21, 2008
Georgetown's plan to build a wastewater treatment plant has suffered several set-backs in the last couple of years, but town officials aren't giving up and, in fact, may be on the way to breaking ground on the plant in the near future.

The town some time ago purchased 23.3 acres, known as the O'Brien property located on Old Georgetown Road near S.R. 64, to build the plant. A new access bridge was built on the property and some items were purchased for the construction of the plant.

However, the project was put on hold due to opposition from a neighboring group, Edwardsville Community Inc., when the town tried to annex the property claiming they could use land along Interstate 64 to meet contiguous requirements. Edwardsville Community Inc. filed a complaint claiming that the town could not annex the property because the property wasn't contiguous with the town and that it was not permissible to use state-owned property to meet the contiguous requirements. The group requested the court to issue an order preventing the proposed annexation, declaring the proposed annexation to be illegal, and also asked the court to award Edwardsville Community Inc. "costs associated with this action," namely, attorney and legal fees.

Before a hearing was held, however, Georgetown officials repealed its ordinances to annex the property and filed a motion to dismiss the complaints. The Edwardsville group responded by asking the court to void any action to annex the property by the town, and once again requested that the town pay the attorney and legal fees. At a hearing on those requests, the Edwardsville group asked the court to declare a 42-month moratorium on future attempts by the town to annex the property.

In December 2006, the court granted Edwardsville Community Inc. its requests for the moratorium, $6,317.50 in attorney fees and $260 in court costs. Georgetown appealed the decision to the Indiana Court of Appeals.

On May 8, the Appeals Court made public its decision, stating that the trial court erred in imposing the 42-month moratorium on future annexation attempts by Georgetown because Edwardsville's remonstrance was "facially insufficient." The decision went on to state that the trial court also erred in ordering Georgetown to pay Edwardsville costs because there was "no judgment on the merits of the remonstrance."

"Mistakes were made in the process," said Jim Montgomery, attorney for the Town of Georgetown. "For instance, in a civil suit, Indiana follows the American rule and attorney fees are not a part of the judgment. And the only thing the Edwardsville group can do now is take it to the State Supreme Court."

"We won," Georgetown Town Council President Billy Stewart said. "And we voted to go ahead with the annexation. We don't have to wait 42 months, and we won't have to pay their attorney fees."

But before the ruling was released by the Court of Appeals, Georgetown, after a failed attempt to get the county to change the zoning of the O'Brien property from Rural Residential to Residential Suburban, filed a lawsuit with the Floyd County Circuit Court, naming Floyd County, the Floyd County Plan Commission and the Floyd County Board of Commissioners as defendants. The suit, filed on March 26, asked the court to declare that municipal sewer construction is a state-regulated function not subject to local regulation under the Home Rule Act and that Georgetown may construct a wastewater treatment plant on the O'Brien property, which is outside the town but within 10 miles of its corporate boundaries.

"We're going ahead with both the suit and the annexation," Stewart said. "We don't have a choice — we have to build a wastewater treatment plant."

In August 2006, Georgetown, represented by different council members at the time, reached an agreement with New Albany, who processes Georgetown's sewage, that requires the town to build its own sewage treatment plant by Feb. 1, 2009. If a plant isn't built by that time, Georgetown could face a fine of $450,000 and an increase in sewage rates.

"If Georgetown doesn't build a plant by the required date, the rate the town pays New Albany for sewage treatment could change from wholesale to retail," Montgomery said. "That could bring an increase in sewage rates of 350 percent for the residents of Georgetown. Plus, Georgetown will lose the tap-on fees, which could add up to $800,000 a year or more."

Stewart said Georgetown is looking for an annexation attorney and plans to hold a public hearing on the town's plan.

"We don't want to raise rates, we don't want to lose the tap-on fees, and we certainly don't want to pay a $450,000 fine," Stewart said. "We're willing to be good neighbors. There shouldn't be an odor problem with this plant. It will be the only thing on the property, which will allow for a buffer zone. And we won't be treating solids, only wastewater. The solids will be treated elsewhere, as always. This is not a sludge plant. I really don't think New Albany is being unreasonable. They just want us to do what we're supposed to."

"All we lost was money," said Judy Gresham, president of Edwardsville Community Inc. "The Floyd County Zoning Board and Board of Commissioners are aware of the situation, and they'll deal with it.

"New Albany officials offered to come down on the sewage rates, and Georgetown turned them down. New Albany offered to give them more time to find a better location for the plant, and Georgetown said, 'No.'

"It's a shame the Georgetown Town Board took this stand. When they were running for office, they were against building a sewage treatment plant here. If they're good neighbors, they won't put a treatment plant in our neighborhood."

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