SELLERSBURG — Covered Bridge homeowners have asked the Indiana Court of Appeals to take another look at a ruling that it issued in July.

Indiana’s Court of Appeals affirmed a ruling from Clark County Circuit Court No. 2 that the town of Sellersburg was “first in time” in beginning its annexation proceedings and that a waiver signed in the 1990s by the developer was valid, limiting the number of residents that could be considered when filing a remonstrance against annexation.

The ruling effectively allowed the town of Sellersburg to move forward with its annexation plans.

But a request to grant a rehearing and clarify the court’s published opinion was filed by Bryan Babb, attorney for Covered Bridge, last Friday.

Sellersburg began the effort to annex the golf community more than four years ago, which includes Covered Bridge and the Willows of Covered Bridge subdivisions, Sterling Oaks and property along Allentown Road, a total of 1,852 acres.

Issues surrounding the initial annexation effort included an error by the town to send notices to those affected by the annexation and a public hearing set for August 2008 that was never held. In the time it took to reissue the annexation ordinance, the town attempted to negotiate with homeowners of Covered Bridge, and before Sellersburg sent out a corrected list, Covered Bridge initiated its own legal action to incorporate into an independent town. In addition, Covered Bridge residents also filed a remonstrance action against Sellersburg’s annexation. But Sellersburg argued that many of the signatures on the remonstrance were invalid because of a waiver signed by the subdivision developers, and subsequently the homeowners, that kept them from filing the action in exchange for sewer service from the town.

The aforementioned agreement has become the source of a second lawsuit against Sellersburg, as well as the reason Babb is asking the appeals court to take a second look.

In his filing Babb cited the appeals court ruling that, “Although it is true that Sellersburg was unable to produce a written contract, it did produce evidence indicating that the remonstrance waiver provisions in the subdivisions’ restrictions and covenants were inserted at Sellersburg’s insistence in exchange for allowing the developers to connect to its sewer system and that the waiver provisions were recorded within the landowners’ chain of title.”

He claimed the court determined that Indiana Code was complied with, but noted Sellersburg’s position was that the “remonstrance waivers did not apply to residents as a matter of statutory law, but instead applied ‘contractually’ pursuant to the covenants.”

Babb claimed Sellersburg cannot comply with a statute that it says does not apply in this case.

In addition, the “contract” that was in place sparked a second lawsuit against the town.

A claim was filed in early August by 21st Century Developers Inc. and Robert Lynn Co. Inc. against the town seeking compensation for additional sewer service that was at the heart of the remonstrance waiver in the case against Covered Bridge.

Attorney Greg Fifer, who is representing 21st Century and Robert Lynn, said if the agreement was in place that kept the subdivision from remonstrating, it also had to include a reimbursement plan with the developers. He said under Indiana law, waivers of the right to remonstrate against annexation can only be valid and enforceable against the property owners if the town enters into an agreement with the developer for the extension of sewer service to the subdivision where the developer fronts all of the cost. The town then collects a pro-rata fee — or fair share fee — from subsequent connectors to be paid to the developer as reimbursement for the cost of building excess capacity.

As a result, he said Sellersburg now owes the developers more than $700,000.

When the Sellersburg Town Council was presented with the proposal from 21st Century Developers Inc. and Robert Lynn Co. Inc. in 2001, it unanimously voted down the reimbursement agreement.

The date the agreement was voted down may lend some credence to another argument Babb offered.

He cited that, according to the agreements between the developers and Sellersburg, the town would not try to annex the subdivision for 10 years.

“If that is true then Sellersburg breached its agreement because Sellersburg initiated its annexation in June of 2008, which is less than 10 years from when the last set of covenants and restrictions was record[ed] in 2000,” he wrote.

However, Babb said previously the facts from Fifer’s suit are not part of the rehearing requested before the court of appeals.

A message left Friday afternoon for attorney Perry McCall, who represented Sellersburg in the annexation suit, was not returned as of press time.