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Motion to dismiss heard in Shipshe sewer project lawsuit

 

A lawsuit filed by Shipshewana Lake property owners against the LaGrange County Health Department had its first day in court Friday morning as a motion to dismiss was heard before Superior Court Judge George Brown.

The lawsuit, filed in August by Robert and Dianne Fiedler, seeks to have the county health department issue a certificate verifying that their residential septic system is functioning properly.

The Fiedlers were seeking the certificate, which is one option now allowed by state law to gain exemption from a sewer system. The Fiedlers claim that the county’s health department should provide them with the certificate after they had the septic system tested and approved at their own expense.

Angola attorney Latriealle Wheat argued that the lawsuit should be dismissed as the Fiedlers did not properly serve notice to all of the parties involved, including County Health Officer Dr. Tony Pechin. She also asked for the lawsuit to be dismissed because the Fiedlers failed to name the county commissioners in the suit, as she felt that the lawsuit was challenging a county ordinance. She also noted that the issue is also pending before another court in the state. And finally, Wheat argued, the Fiedlers failed to state a claim for which relief could be granted.

Under a new state law, property owners within a utility district service area can request exemption if they meet certain criteria, among those having a septic system that is tested and certified as operation properly, and receiving a certificate to that effect from the county health department. Wheat told the court that issuing a certificate is a “discretionary decision,” and that a court order dictating that a certificate to be granted is beyond the power of the court.

“The court can make them make a decision, but can’t tell them what decision to make,” Judge Brown said.

Robert Fiedler defended his lawsuit, noting that he did not feel there were any insufficiencies in notifying all of the parties, as the department attorneys and other were aware of the lawsuit.

Fiedler admitted that they did not intend for the lawsuit to challenge a county ordinance.

As for the action pending in another state court where an appeal had been filed, Fiedler called that “a really sore point. I did not authorize anyone to act on my behalf.” The attorney that filed the appeal was not hired or paid by him, Fiedler said. “I asked him to withdraw the appeal,” Fiedler said, adding that, after a lot of correspondence, the appeal had been withdrawn.

As for failure to state a claim, Fiedler pointed out that it is a relatively new law and believes he is one of the first to utilize it. In fact, the law came into effect July 1 and the Fiedlers approached the health board at their July meeting to gain the certificate required by the law. “The legislature has not provided many guidelines,” he added.

Fiedler referred to the process of issuing a certificate as more of an administrative act. “With the test that shows the system is okay, I believe it (the certificate) becomes a clerical act,” Fiedler said.

Fiedler recalled how he and his wife attended a July 10 meeting to present the test findings and to ask for the certificate. They later received a letter dated the same day as the meeting denying the certificate. Fiedler asked that the case be allowed to continue as it would allow them to find out how the decision was made by the health board. “I’m curious as to what information they had to base the denial on,” Fiedler said, adding that, to his knowledge, as of the date of the meeting and the letter the only information they had was that the septic system was functioning properly.

Judge Brown asked if there was any exemption possible in the county’s ordinance. Fiedler responded that there is no ordinance that deals with the exemption and that the county’s ordinance dates back to 1985, which precedes the establishment of the utility district. “There is no ordinance mirroring the state law or how to deal with an exemption,” Fiedler said. “It’s a very murky law.”

Judge Brown also posed the question of does the state law modify the county’s ordinance or can the county ordinance be more restrictive? “The state law says wherever you are, you don’t have to hook up to the operating system, but the county ordinance forces him to hook up,” Judge Brown observed.

Wheat agreed that if the case goes forward, that could be discussed, but did not see that as part of the motion to dismiss.

“Without the provision in the law, we would be forced to hook into the system,” Fiedler said.

The question was also raised if the distances set by the county (within 500 feet of a line to connect) was only showing how large the “net” goes to connect for those who can’t prove an exemption.

Judge Brown noted that he would try to make a decision on the motion within 30 days, but acknowledged that, due to the holidays, it could be slightly longer than that.