Sellersburg, Clark County and Covered Bridge in court

Clark County

Discussion

January 27, 2010

Incorporation vs. annexation rulings again delayed

By BRADEN LAMMERS The News and Tribune Wed Jan 27, 2010, 09:45 PM EST

A court hearing was held Wednesday morning in the ongoing legal fight between the town of Sellersburg, Covered Bridge subdivision and now the Clark County Commissioners over the respective efforts to incorporate and annex residents of Covered Bridge.

Perry McCall, attorney for Sellersburg, on Jan. 15 filed a complaint alleging the commissioners did not have jurisdiction to hear the incorporation petition because the town’s annexation effort was already under way and the petition approved did not meet the statutory requirements outlined for Covered Bridge to become an independent town.

In addition, a judgment for declaratory relief — along with a preliminary injunction filing that was denied — was filed in November had still not been ruled on.

But the expectation that some resolution would come out of Wednesday’s hearing quickly disappeared as the attorneys for each side muddled through procedural matters.

A new problem has surfaced, as it did during the first hearing, that action must occur before any harm can be argued, and therefore no legal argument can be made until after that action has commenced.

“That was the dilemma that the town of Sellersburg had last time,” said Superior Court No. 2 Judge Jerry Jacobi, referring to the ruling on declaratory relief being delayed until the commissioners approved the petition for incorporation. “This is exactly where we were a month ago. We were waiting to see what the county commissioners would do with the incorporation ordinance.”

In this case, the action is the annexation of Covered Bridge and surrounding areas by the town of Sellersburg, which is in its 90-day remonstrance period.

“It probably becomes actionable only after the annexation has been completed,” said Greg Fifer, attorney for the commissioners, referring to the complaint filed Jan. 15.

To add confusion to the proceedings, McCall brought up the argument that there is believed to be an enforceable contract between Sellersburg and the residents of Covered Bridge that they will not attempt to remonstrate because of an agreement signed in 1993. Residents signed that in trade for sewer service from the town.

Because of the timing and the new lawsuit filed, McCall, Andrew Wright, attorney for Covered Bridge, and Fifer agreed to dismiss the first suit.

However, it is expected the attorneys will not appear in court again in the short-term, because Wright will need time to file a counter-claim over the jurisdictional issue McCall raised and they may be forced to wait until the end of Sellersburg’s remonstrance period — which will conclude at the end of March.

“It sounds like the more we talk about this, the more difficult, quite frankly, it appears to be to be able to decide to dismember part of the legal issues away from a position we can actually see,” Jacobi said. “Everything kind of goes back to the annexation.”

Time also must be granted to allow Covered Bridge to join the suit because the commissioners were the only entity named in the complaint filed in January, which Wright’s counter-claim will achieve.

Other issues remaining, include Covered Bridge’s pre-existing contract not to remonstrate, which effort — incorporation or annexation — was first in time and whether or not the standards were met regarding services to be provided to Covered Bridge via interlocal agreements.

Each attorney stated that they did not want to slow the effort down, but despite their desire to keep the proceedings moving along, it will be stalled while the adjoining complaint is filed and the annexation effort continues to play out.

The attorneys will meet following the filing of Wright’s counter-claim to determine a date in which they can reconvene for initial proceedings or a trial. No specific date has been set.