GREENDALE ANSWERS DCRSD'S LETTER TO SDRSD

GREENDALE ANSWERS DCRSD'S LETTER TO SDRSD

August 8, 2007


Frank G. Kramer
Ewbank & Kramer
114 West High Street
Lawrenceburg, IN 47025-1905 VIA FACSIMILE
Re: Dearborn County Regional Sewer District July 20, 2007 correspondence to South Dearborn Regional Sewer District
Dear Frank:

The City of Greendale was provided with a copy of your letter dated July 20, 2007 addressed to Matthew P. Zerbe. Given the misinformation that seems to be circulating regarding Greendale’s position with respect to certain sewer issues, Greendale asked me to relate to you it’s position with respect to the allegations made in your letter.

At the outset, however, I want to reiterate Greendale’s position with respect to sewers in Dearborn County in general. Greendale agrees with the goal of the Dearborn County Regional Sewer District (“DCRSD”) – to sewer Dearborn County. However, Greendale believes we should sewer Dearborn County in the most efficient and economical way possible. In addition, Greendale believes the burden to sewer Dearborn County should, as much as possible, be borne by those in need of sewer (e.g., real estate developers, new home builders and buyers, redevelopment commissions wanting to invest in sewer infrastructure to attract business development) rather than the good citizens of Dearborn County. This has always been Greendale’s position. Any position Greendale has taken on a sewer issue has been the result of the consistent application of these philosophical policy beliefs. Neither the Mayor nor any other elected or appointed official in Greendale harbors any “ill will” toward the DCRSD (or Aurora or anyone else for that matter) as Mr. Hankins, Chairman of the DCRSD, is reported in the Dearborn County, IN – Public Forum blog to have stated at the DCRSD’s August 2, 2007 meeting.

It is entirely appropriate that Greendale should concern itself with what Dearborn County and the DCRSD is trying to do with respect to sewers. The citizens of Greendale are citizens of Dearborn County and are, therefore, regularly affected by what Dearborn County does. For example, if Dearborn County increases real estate taxes, the citizens of Greendale pay higher real estate taxes. Likewise, Greendale has an obligation to keep a watchful eye on how Dearborn County spends its citizens’ money, including money it spends for sewers.

With respect to the allegations in your letter, I disagree with your opinion that the South Dearborn Regional Sewer District (“SDRSD”) cannot legally serve outside the corporate boundaries of Aurora, Greendale and Lawrenceburg. This statement is demonstrably incorrect. While it is true that the original order forming SDRSD defines its geographic boundaries as the corporate limits of those municipalities, SDRSD’s statutory authority extends beyond those boundaries. Specifically, Ind. Code § 13-26-1-1[1] provides that a district may be organized for the purpose “to provide for the collection, treatment and disposal of sewage inside and outside the district.” (Emphasis added). Furthermore, a district such as SDRSD may “[c]onstruct, acquire by purchase or otherwise, operate, lease, preserve and maintain works considered necessary to accomplish the purposes of the district’s establishment within or outside the district,” and it may “[h]old, encumber, control, acquire by donation, purchase or condemnation, construct, own, lease as lessee or lessor, use and sell interests in real and personal property or franchises within or outside the district.” Ind. Code § 13-26-5-2(12) and (13) (emphasis added). These various authorizations make clear that a district such as SDRSD may own and operate facilities and collect and treat wastewater outside the district boundaries, and Ind. Code § 13-26-5-2(7) then authorizes a district to “[f]ix, alter, charge and collect reasonable rates and other charges in the area served by the district’s facilities.”

I also disagree with your opinion that the area outside the corporate boundaries of the three municipalities is served by DCRSD. This statement is untrue both as a matter of fact and of law. First, DCRSD’s territorial boundaries only extend to “unincorporated areas currently unserved by municipal providers.” Minutes of Dearborn County Commissioners (Nov. 15, 2005). Second, DCRSD does not own a sewage treatment plant, and it has no means of treating any sewage. DCRSD owns no sewage facilities whatsoever and so it serves nowhere. Significantly, Ind. Code § 13-26-5-7 (which you cited elsewhere in your letter) actually forbids DCRSD from exercising any powers under Ind. Code Art. 13-26 until it first contracts for the treatment of its sewage. Finally, and perhaps most importantly, Ind. Code § 13-26-5-2(22) authorizes SDRSD to exercise its powers “without obtaining the consent of other eligible entities.” The definition of eligible entity includes a “county, city, town, township, conservancy district, or other municipal corporation.” Ind. Code § 13-11-2-62. Indiana Code § 13-26-2-10(a) confirms that a regional district is a “municipal corporation.” The sum of these provisions is that a regional district unquestionably has the authority to provide service outside its boundaries and it may do so even within the boundaries of another regional district without that other regional district’s consent.[2]


Lastly, I disagree with your opinion that Ind. Code § 13-26-5-7 (“Section 7”) prohibits DCRSD from entering into the contract for sewage treatment that Greendale offered DCRSD last summer.[3] As noted previously, the import of Section 7 has apparently escaped DCRSD because, without such a contract, DCRSD is legally powerless to do anything with respect to sewage collection within it boundaries. Nevertheless, Section 7 does not require that the contract be with an entity that owns a treatment plant. The contract must be with an entity that owns and operates “facilities for . . . sewage . . . disposal, recovery or treatment.” (Emphasis added). Greendale owns facilities consisting of a collection system and it has secured contractual rights for treatment. It therefore owns facilities for sewage disposal, recovery or treatment, and DCRSD would have been authorized under Section 7 to avail itself of the contract offered by Greendale. Had DCRSD done so, it would not be in its present situation, which is without authority to exercise any of its statutory powers.

Although Greendale’s position with respect to various sewer issues may be different from those of DCRSD, such differences are exclusively the result of apparently differing philosophical policy beliefs, not any perceived “ill will.” Again, we agree that sewering Dearborn County is the right thing to do but think it should be done in the most efficient and economical way possible. If Greendale’s policy choices are wrong or if Greendale’s position with respect to any sewer issue is inconsistent with its policy choices, we invite and welcome you, DCRSD or anyone else for that matter to show us why. This is not a challenge; rather, it is an invitation to engage in a respectful debate of philosophical policy issues and the practical implementation of policy. We allow that we are not infallible and are quite willing to recognize a better way. We simply want what is best for the citizens of Greendale and Dearborn County and are happy to do anything we can, consistent with our fiduciary duty to the citizens of Greendale, to help sewer Dearborn County.

Very truly yours,



Richard A. Butler

RAB:pm
[1] SDRSD was formed under prior law. Pursuant to Ind. Code § 13-26-3-1, SDRSD is still “considered to be a district under this article,” and “acts of the board of directors are valid if permitted by this article.” Ind. Code § 13-26-3-1.
[2] SDRSD’s authority to provide service within the DCRSD territory is not affected by the decision of the Indiana Supreme Court in City of North Vernon v. Jennings Northwest Reg. Utils, 829 N.E.2d (Ind. 2005). That case arises under the Home Rule Act and holds that an entity which is subject to the Home Rule Act (a unit) may be limited in its authority to extend service within a district boundary after the district has been formed. Even if DCRSD was not denied the authority to proceed with its powers since it has no treatment capacity, a regional district is not a “unit” and is therefore not subject to the Home Rule Act and the holding of this decision.
[3] It appears this contention may be moot, as DCRSD rejected Greendale’s offer.