SELLERSBURG —
When the town of Sellersburg recently prevailed in the annexation fight over Covered Bridge subdivision, it may have opened itself up to another lawsuit.
A claim was filed last week 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.
“When they won the remonstrance case ... that’s what gave rise to the claim,” said Attorney Greg Fifer, who is representing 21st Century and Robert Lynn.
Sellersburg, in its argument against a remonstrance action by the residents of Covered Bridge and The Willows, said there was an agreement in place that in exchange for sewer service, the residents of the subdivisions would not fight a future annexation by the town. However, Fifer said if the agreement was in place that kept the subdivision from remonstrating, it also had to include a reimbursement plan with the developers.
“The only way they could have waivers is if they had an agreement with us,” he said. “The only vehicle that can make that work is a sewer reimbursement agreement.”
According to Fifer, 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 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.
The pro-rata or “fair share” fee would have allowed 21st Century and Robert Lynn to collect from other developers when they tapped into the sewer system. But when the Sellersburg Town Council was presented with the proposal in 2001, it unanimously voted down the reimbursement agreement.
Sellersburg Attorney Jake Elder agreed that minutes from a 2001 meeting reflect that vote.
“There [are] minutes from a 2001 meeting in which the builders and the attorney all asked the council for the pro-rata share, wanting them to take a vote on it,” he said. “They voted 5-0, back in 2001, that we were not going to enter into a contract for a pro-rata share. And that in essence is what the claim alleges.
“Our position is there is no written contract that states the town would pay any pro-rata share,” Elder said. “The lawsuit is insinuating that there is an implied contract that existed. As of right now, we haven’t seen any documentation of a contract with everyone’s signatures on it stating that the town would be responsible for reimbursement for the sewer extension service.”
Fifer claimed that when the town decided not to enter into the agreement, it resulted in the remonstrance waivers being rendered invalid. But the town argued in the trial court case and appeals court case the residents of Covered Bridge had no right to remonstration because of an agreement that was in place with the developers.
“[Sellersburg] can’t claim the remonstrance waiver when they knew they had rejected it,” Fifer said. “There was no way they did not know they were misrepresenting this to the trial court and court of appeals.”
Despite the vote taking place more than a decade ago, Fifer said the time in which the developers had to file the lawsuit didn’t begin until seven years later when Sellersburg claimed the remonstrance agreement, triggering the statute of limitations.
“I think the key date becomes when they asserted the contract existed,” he said.
According to a claim filed in Clark County Circuit Court No. 1, 21st Century and Robert Lynn spent about $900,000 in constructing the sewer extension. The excess capacity that remained available for the sewer system totaled 46 percent, or about $415,000 of the construction costs. In addition, Fifer is seeking interest on that amount, which equals about $365,000, or a total of $779,000 be paid to the developers by the town.
In addition, the action against the town may impact the ongoing legal battle with Covered Bridge.
“Those remonstrators might seek a rehearing,” Fifer said in light of the complaint filed.
Attorney for Covered Bridge Bryan Babb said he was in the process of seeking rehearing in the court of appeals on behalf of his clients, but no decision had been made on whether or not Covered Bridge will seek a transfer to the Indiana Supreme Court.
Despite the new suit filed against Sellersburg, Babb said “that is not part of our record.”
The deadline to file the request for a rehearing must be made before Friday.
Recent Local News
Claiming contract existed may cost Sellersburg
Two developers make more than $700K claim against town
- Recent Local News
-
-
Emergency officials stage bus wreck, gas spill at FCHS
A school bus had turned over after being struck by a gas tanker, and as the truck leaked chemicals, emergency crews rushed in to try and rescue the kids who were trapped inside.
Thankfully Friday’s crash scene was only a simulation, but for Floyd County emergency officials, it was an important test to prepare them for a real life scenario. -
Fun Faces At Clarksville Field Day
-
35th annual Starlight Strawberry Festival May 25
When Joe Huber and Daisy Book were looking for a way to honor local strawberry farmers in the area, they probably had no idea that 35 years later, their idea would attract nearly 10,000 visitors each year.
But that is exactly what organizers are expecting on Saturday, May 25, at the 35th annual Strawberry Festival held at St. John the Baptist Catholic Church in Starlight. -
Rinpoche’s journey to Indiana remarkable
Considering his tumultuous past, Arjia Rinpoche still smiles a lot. During a talk he gave Thursday at a Louisville’s Festival of Faiths presentation to celebrate the arrival of the Dalai Lama, the Buddhist monk grinned and chuckled as he told the tale of his remarkable life.
-
Floyd County Nutrition Coalition hands out 1,000 tomato plants
The organization recently handed out 1,000 free tomato plants in the community, as several groups participated in the effort including HOPE Southern Indiana, Floyd Memorial Hospital and Health Services and the Floyd County Health Department.
- INDOT to close lane of I-65 at 52-mile marker for repairs
- BRIEFS: May 18-19, 2013
-
“Caution Light’ the economic forecast for rest of year in Southern Indiana
Southern Indiana has made progress since the employment dip at the depths of the latest recession, but there’s still some catching up to do, Indiana University Southeast economic expert Uric Dufrene said Friday.
-
“Caution Light’ the economic forecast for rest of year in Southern Indiana
Southern Indiana has made progress since the employment dip at the depths of the latest recession, but there’s still some catching up to do, Indiana University Southeast economic expert Uric Dufrene said Friday.
-
POLICE: New Albany mother killed two children, then herself
New Albany Police Chief Sherri Knight said severe mental illness is what led to New Albany resident Jaime Clutter to drown her two children, then herself, in Falling Run Creek on March 13. The bodies were found where the creek runs through Binford Park.
- Henryville playground to be built Saturday
-
Five times four: Five Floyd County schools get Four Star designation; one in Clark County gets nod
- Aquatic center design gets council nod
- Chautauqua Festival set for this weekend
-
Helping out His Holiness: Woman takes on busy task of coordinating Dalai Lama’s events
- More Recent Local News Headlines
-
