Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 1 of 14

ATTORNEYS FOR APPELLANT

John D. Papageorge

Steven C. Shockley

Taft Stettinius & Hollister LLP

Indianapolis, Indiana

Kelley A. Karn

Casey M. Holsapple

Duke Energy Business Services LLC

Plainfield, Indiana

ATTORNEYS FOR AMICUS CURIAE –

INDIANA ENERGY ASSOCIATION

Robert L. Hartley

Maggie L. Smith

Frost Brown Todd LLC

Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE –

INDIANA CHAPTER NATIONAL 

ASSOCIATION OF WATER 

COMPANIES, INC.

Nicholas K. Kile

Barnes & Thornburg LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Daniel L. Taylor

J. Kent Minnette

Taylor, Chadd, Minnette, 

Schneider & Clutter, P.C.

Crawfordsville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 2 of 14

Duke Energy Indiana, LLC,

Appellant,

v.

Town of Avon, Indiana,

Appellee.

August 24, 2017

Court of Appeals Case No.

93A02-1704-EX-780

Appeal from the Indiana Utility

Regulatory Commission

The Honorable David E. Ziegner, 

Presiding Commissioner

The Honorable Aaron A. Schmoll, 

Sr., Administrative Law Judge

Cause No.

44804

Najam, Judge.

Statement of the Case

[1] In June of 2016, Duke Energy Indiana, LLC (“Duke”) filed a complaint against 

the Town of Avon (“Avon”) with the Indiana Utility Regulatory Commission 

(“IURC”). In its complaint, Duke disputed Avon’s authority to order Duke to 

remove, at Duke’s own cost, utility poles, power lines, and other equipment

located either on land owned by Avon or in Avon’s rights-of-way. However, 

prior to Duke filing its complaint with the IURC, Avon had filed a complaint 

for declaratory judgment against Duke in the Hendricks Circuit Court on the 

same questions. The IURC dismissed Duke’s complaint out of deference to the

jurisdiction of the Hendricks Circuit Court. Duke appeals that dismissal and 
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 3 of 14

raises two issues for our review,1 but we consider only the following dispositive 

issue: whether Indiana law establishes exclusive jurisdiction in the IURC over 

the subject matter of the parties’ complaints. We hold that Indiana law 

establishes that exclusive jurisdiction. Accordingly, we reverse the IURC’s 

dismissal of Duke’s complaint and remand for further proceedings.

Facts and Procedural History

[2] Duke is an Indiana company that distributes, furnishes, and sells retail electric

service to more than 800,000 Hoosiers. As such, Duke is an “electricity 

supplier” and a “public utility” under Indiana law. Appellant’s App. Vol. II. at 

7. In 2014, Avon informed Duke that Avon intended to construct road and 

trail improvements near the intersection of County Road 625 East and U.S. 

Highway 36 in Hendricks County. Avon’s project required Duke to relocate 

certain utility poles, power lines, and other equipment (collectively referred to 

as the “facilities”) that was owned by Duke but located either on land owned by 

Avon or in Avon’s rights-of-way. 

[3] On February 26, 2015, the Avon Town Council passed Ordinance No. 2015-03, 

enacted as Section 4-9-4-122(E) of the Avon Town Code (“the Ordinance”). 

The Ordinance shifted the costs of the relocation expenses associated with 

 

1

 The Indiana Energy Association and the Indiana Chapter National Association of Water Companies, Inc. 

join Duke’s appeal as amici curiae. We thank the amici for their informative brief.
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 4 of 14

Duke’s facilities and required Duke to pay for that relocation.2 A violation of 

the Ordinance would result in a fine of $500 per day.

[4] In February of 2016, Duke informed Avon that Duke would not comply with 

the Ordinance because, according to Duke, the Ordinance was unreasonable

and contrary to Indiana law. As such, on May 23, Avon filed a complaint for 

declaratory and injunctive relief in the Hendricks Circuit Court against Duke.

In its complaint, Avon alleged that Indiana law requires a utility provider that 

must relocate facilities to accommodate a municipal improvement to do so 

without reimbursement from the municipality. Accordingly, Avon requested 

the Hendricks Circuit Court to enter a declaratory judgment that “Indiana law 

does not require Avon to reimburse Duke for the relocation costs incurred” by 

Duke for Avon’s improvements. Id. at 19. Avon further asked the court to 

enjoin Duke from refusing to comply with Avon’s demands.

 

2

 In particular, the Ordinance states as follows:

Relocation of public utilities. If it is necessary for public utilities located on public streets or 

in the town’s rights-of-way to be relocated because of a town road project, street project, 

sidewalk project, trail project or other project, or any combination thereof, the owner of 

the public utility facilities will relocate the facilities at the owner’s expense at a time and 

place determined by the town. The town will provide to the owner written notice, at least 

60 days prior to the date by which the relocation must be completed, of the new location 

of the facilities and the time for completion. If the owner fails to relocate the public 

utility facilities as directed by the town, the town will have the right to relocate the public 

utility facilities. If the town exercises its right to relocate the facilities, the owner will 

reimburse the town for the cost of the relocation within 30 days of the receipt by the 

owner of a notice of the cost of relocation. If the owner fails to reimburse the town for 

these costs, the town has the right to collect these costs by exercise [of] any available legal 

remedy, including but not limited to a money judgment for the costs incurred by the 

town.

Avon, Ind., Code § 4-9-4-122(E) (2016).
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 5 of 14

[5] Thereafter, on June 24, Duke filed a motion to stay in the Hendricks Circuit 

Court and a complaint with the IURC. In its complaint, Duke alleged as 

follows:

4. [Duke’s] Argument. Statutory and case law provide that 

public utilities shall relocate their utility facilities at their own 

expense only if (a) they are located in the public right-of-way and 

(b) are in the way of a general road improvement project, e.g., a 

general widening or modification of the paved surface of the 

roadway for the benefit of the vehicular traveling public and not 

for the benefit of an adjoining landowner or another member of 

the traveling public, e.g., municipal utility facilities, municipal 

trails, or public utilities, etc. Because this case concerns a “multiuse trail,” it is [Avon’s] responsibility to pay for the relocation of 

[Duke’s] facilities . . . .

5. Applicable Statutes and Regulations. The [IURC] has 

jurisdiction over this matter pursuant to Ind. Code § 8-1-2-

101(a)(1). The statute provides that the [IURC] shall set a 

hearing upon a Complaint by a utility that a municipal ordinance 

or determination is unreasonable. The statute further states 

that[,] if the [IURC] finds the contested ordinance or 

determination to be unreasonable, such ordinance or 

determination shall be void. . . .

Id. at 9. Duke thus requested the IURC to find the Ordinance unreasonable 

and void and to declare that Duke “is not required under Indiana law to 

relocate its facilities for [Avon’s] multi-use trail unless and until [Avon] agrees 

to reimburse [Duke] for its costs with such relocation . . . .” Id. at 10.

[6] On August 2, two presiding officers with the IURC “decline[d] to set a 

procedural schedule at this time” because “an action involving the same general 
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 6 of 14

subject matter was filed in Hendricks County prior to being filed with the 

[IURC].” Id. at 27. The officers instead ordered Duke to provide a timely 

status report to update the IURC on the status of the matter in the Hendricks 

Circuit Court.

[7] Meanwhile, the Hendricks Circuit Court set a hearing on Duke’s motion to 

stay, but, on August 9, the parties submitted an Agreed Order to the Hendricks 

Circuit Court, which the court accepted. According to the Agreed Order:

6. The parties have reached an agreement regarding the 

preliminary issues raised by Avon’s request for injunctive relief 

and [Duke’s] motion for a stay that provides:

6.1 Avon will tender to the Court within ten days of the 

entry of this order the full estimated relocation costs in the 

amount of $103,455.97, and the Clerk will hold these 

funds until the Court conducts a hearing on Avon’s 

complaint . . . and determines whether these funds should 

be paid . . . to [Duke] or returned to Avon . . . .

6.2 Avon will execute and deliver to [Duke a] Utility 

Relocation Agreement, but Avon reserves its right to 

present evidence to the Court and to continue to seek 

declaratory relief that the relocation agreement is invalid;

6.3 [Duke] will deliver to Avon the required utility 

relocation work plan, Avon will execute it and return a 

fully executed copy to [Duke], and [Duke] shall relocate its 

utility facilities pursuant to the Work Plan on or before 

December 1, 2016;

* * *
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 7 of 14

6.6 On August 2, 2016, the [IURC] declined to 

schedule a hearing on [Duke’s] complaint because this 

case, which involves the same general subject matter, was 

filed by Avon before [Duke] filed its complaint with the 

IURC. [Duke] intends to seek an attorneys’ conference 

before the IURC to address the IURC August 2, 2016[,] 

Order. Following the attorneys’ conference with the 

IURC, the parties will provide a report to this Court 

concerning any need for a stay of these proceedings. By 

entering into this agreement, [Duke] does not waive any 

rights to obtain a ruling on the Verified Complaint filed 

with the IURC regarding the reasonableness of Avon’s 

ordinance. Because of the parties’ agreement, there is no 

need for a hearing on Avon’s request for injunctive relief 

or [Duke’s] request for a stay.

Id. at 33-34.3

[8] The next day, Duke moved for an attorneys’ conference with the IURC. In that 

motion, Duke asserted that, “[b]ecause [Duke] has directly challenged the 

reasonableness of an ordinance, this matter comes within the IURC’s 

mandatory jurisdiction.” Id. at 28. Avon opposed Duke’s motion and asserted 

that “the Hendricks Circuit Court has valid subject matter jurisdiction over this 

matter and these issues.” Id. at 37.

[9] On September 30, the IURC presiding officers entered an order in which they 

denied Duke’s request for an attorneys’ conference and again instructed Duke 

 

3

 Entering into the Agreed Order permitted Avon to receive federal funds for its improvement project.
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 8 of 14

to provide timely status reports on the proceedings in the Hendricks Circuit 

Court. According to that September 30 Order:

The [O]rdinance is devoid of any fee requirement, and[,] as such, 

does not raise questions that would be more appropriately 

addressed to the [IURC] given its specific expertise in making 

determinations concerning the reasonableness of rates and 

charges . . . . Instead, the reasonableness of the [O]rdinance is a 

general legal question that may be raised to the trial court . . . . 

Id. at 44. Duke appealed the September 30 Order to the full Commission of the 

IURC. The full Commission agreed with the September 30 Order and, further, 

dismissed Duke’s complaint without prejudice. In particular, the full 

Commission stated as follows:

The legality of Avon Town Ordinance 2015-03 is the subject of 

the Hendricks County Action, and[,] as such, Commission 

involvement in a pending trial court matter would be 

inappropriate. Accordingly, we affirm the Presiding Officers’ 

September 30, 2016[,] Docket Entry. Further, absent an 

agreement between Duke and [Avon], subject to the trial court’s 

approval, to forego further proceedings related to [Avon’s] 

request for declaratory relief and to transfer the matter to the 

Commission, it is unnecessary to maintain this Cause on the 

Commission’s docket. Accordingly, this Cause is dismissed 

without prejudice.

Dismissal Order at 2. This appeal ensued.
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 9 of 14

Discussion and Decision

[10] Duke appeals the IURC’s conclusion that it lacks jurisdiction over Duke’s 

complaint. “‘To the extent the issue turns on statutory construction, whether 

an agency possesses jurisdiction over a matter is a question of law for the 

courts.’” Walczak v. Labor Works-Ft. Wayne LLC, 983 N.E.2d 1146, 1152 (Ind. 

2013) (quoting Ind. Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.3d 839, 844 

(Ind. 2003)). That is, the issue of “statutory construction . . . on the question of 

[an agency’s] jurisdiction . . . lies squarely within the judicial bailiwick.” Id. at 

1153. “[W]hen all of the issues presented” in a complaint “fall within the 

exclusive jurisdiction of the relevant administrative or regulatory agency,” our 

trial courts lack “subject matter jurisdiction over th[e] case.” Austin Lakes Joint 

Venture v. Avon Utils., Inc., 648 N.E.2d 641, 646 n.5 (Ind. 1995).

[11] As the Indiana Supreme Court has explained:

[W]hen we construe any statute, our primary goal is to effectuate 

legislative intent. Shepherd Props. Co. v. Int’l Union of Painters & 

Allied Trades. Dist. Council 91, 972 N.E.2d 845, 852 (Ind. 2012). 

We presume the General Assembly intended the statutory 

language to be applied logically and consistently with the 

statute’s underlying policy and goals, id., and we avoid 

construing a statute so as to create an absurd result. St. Vincent 

Hosp. & Health Care Ctr. Inc. v. Steele, 766 N.E.2d 699, 704 (Ind. 

2002).

Id. Further:

The General Assembly created the Indiana Utility Regulatory 

Commission primarily as a fact-finding body with the technical 
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 10 of 14

expertise to administer the regulatory scheme devised by the 

legislature. United Rural Elec. Membership Corp. v. Ind. & Mich. 

Elec. Co., 549 N.E.2d 1019 (Ind. 1990); See Ind. Code § 8-1-1-5 

(2008). The Commission’s assignment is to insure that public 

utilities provide constant, reliable, and efficient service to the 

citizens of Indiana. Ind. Bell Tel. Co. v. Ind. Util. Regulatory 

Comm’n, 715 N.E.2d 351, 354 n.3 (Ind. 1999). The Commission 

can exercise only power conferred upon it by statute. United 

Rural Elec. Membership Corp., 549 N.E.2d at 1021.

N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012, 1015 (Ind. 2009).

[12] Indiana Code Section 8-1-2-115 (2017) states as follows with respect to the 

obligations of the IURC to enforce the law:

The commission shall inquire into any . . . violation of the statutes 

of this state or the ordinances of any city or town by any public 

utility doing business therein . . . and shall have the power, and it 

shall be its duty, to enforce the provisions of this chapter, as well as all 

other laws, relating to public utilities . . . .

(Emphases added.) Section 101(a)(1) of that Chapter states that a municipal 

council shall have the power:

To determine by ordinance the provisions, not inconsistent with 

this chapter or IC 8-1-11.1, upon which a public utility . . .

occupies the areas along, under, upon, and across the streets, 

highways, or other public property within such municipality or 

county, and such ordinance or other determination of such 

municipality or county executive shall be in force and prima facie 

reasonable.
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 11 of 14

I.C. § 8-1-2-101(a)(1). However, Section 101(a)(1) continues: “Upon 

complaint made by such public utility . . . the commission shall set a hearing, as 

provided in sections 54 to 67 of this chapter, and if it shall find such ordinance 

or other determination to be unreasonable, such ordinance or other 

determination shall be void.” Id.

[13] We hold that Section 101(a)(1) and Section 115 unambiguously establish 

exclusive jurisdiction in the IURC to hear Duke’s complaint on the validity of 

the Ordinance. Section 115 explicitly says that it “shall be [the IURC’s] duty” 

to “enforce . . . all . . . laws[] relating to public utilities.” I.C. § 8-1-2-115. 

Section 115 further expressly directs the IURC to “inquire into 

any . . . violation” of a local ordinance by a public utility. Id. (emphasis added).

And Section 101 specifically contemplates disputes between towns and utilities 

regarding access to rights-of-way or other access to public property by a utility. 

I.C. § 8-1-2-101(a)(1). Accordingly, Indiana law directs that the subject matter 

of the dispute between Avon and Duke be decided by the IURC.

[14] We acknowledge the IURC’s assessment that, at least at this point in the 

proceedings, the subject matter of the parties’ dispute appears to be in the 

nature of a “general legal question” rather than one that requires “specific 

expertise” to resolve. Appellant’s App. Vol. II at 44. Nonetheless, the 

Ordinance directly affects a public utility, and if the IURC did not have 

exclusive jurisdiction to consider the operation, effect, and enforceability of 

such ordinances then Indiana’s public utilities would be forced to engage in a 

multitude of disputes over local ordinances throughout the State with no clear 
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 12 of 14

guidance either to the utilities or the municipalities. Section 101(a)(1) and 

Section 115 place the resolution of all such disputes with the IURC. 

[15] Indeed, as amici curiae explain:

There are sound public policy reasons why the General Assembly 

has declared the [IURC] to be the exclusive arbiter of 

enforceability of ordinances affecting utility services. The 

General Assembly has established a uniform system for the 

regulation of utilities. The [IURC] has both the fact-finding 

expertise and the broader non-local focus necessary to balance 

competing interests and determine when a local entity’s 

imposition of costs on a public utility exceeds the bounds of 

reasonableness.

An examination of Avon’s ordinance illustrates why the [IURC] 

must be the entity to determine the reasonableness of that 

ordinance. The [O]rdinance shifts onto public utilities all costs to 

relocate utility facilities, without considering the broader public 

interests of utility customers. It empowers Avon to determine 

unilaterally both the facilities to be moved and their new 

location, with no constraints on the exercise of that authority and 

without any need to (i) consider new impacts on service[] or (ii) 

balance costs and benefits or provide procedures for considering 

less costly alternatives.

The [O]rdinance contains no provisions to ensure that any new 

location Avon designates is legal and feasible under the myriad 

of federal and state laws and regulations that public utilities must 

follow in siting and constructing their facilities. And it permits 

Avon to give only sixty days-notice . . . with no consideration of 

factors that may prevent utilities from complying within that 

time, such as weather, design constraints, availability of 

materials, feasibility, compliance with federal and local law, 

acquisition of legal rights, etc.
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 13 of 14

The [IURC’s] strong understanding of the public interest and its 

demonstrated expertise in administering the regulatory schemes 

in which utilities operate are essential to a fair evaluation of local 

ordinances that impact utilities. The [IURC] must be the entity 

to determine the reasonableness of the Avon ordinance[] and all 

other ordinances affecting utility services across this State.

Amici Curiae Br. at 6-7. We agree. Accordingly, we reverse the IURC’s 

dismissal of Duke’s complaint.

[16] Duke further asks that we remand with instructions that the IURC “set a 

hearing,” Appellant’s Br. at 43, on Duke’s complaint in accordance with 

Section 101(a)(1)’s language that, upon complaint, the IURC “shall set a 

hearing, as provided in sections 54 to 67 of this chapter.” But Section 61(a) of 

that Chapter, to which Section 101(a)(1) refers and which expressly applies to 

complaints filed by public utilities, states that “[a]n order . . . may be entered by 

the commission without a formal public hearing” or that the IURC “may . . . on 

its own motion require a formal public hearing.” I.C. § 8-1-2-61(a) (emphases 

added).4 That is, Section 101(a)(1) compels the IURC here to hold a hearing 

only as provided in Section 61(a), and, on this record, Section 61(a) leaves the 

decision to hold a hearing in the IURC’s discretion. As such, we decline to 

instruct the IURC to hold a hearing at this time, and we remand only with 

 

4

 Section 61(a) also states that the IURC “shall” hold a formal public hearing “upon a motion filed” by 

various entities, but no such motion has been filed at this time. I.C. § 8-1-2-61(a).
Court of Appeals of Indiana | Opinion 93A02-1704-EX-780 | August 24, 2017 Page 14 of 14

instructions that the IURC proceed in a manner not inconsistent with this 

opinion.

[17] Reversed and remanded with instructions.

Kirsch, J., and Brown, J., concur.