FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:

DALE W. ARNETT LAURA L. MASER

Winchester, Indiana Beers Mallers Backs & Salin, LLP

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

HENRY WAGLER, BARB WAGLER, and )

HENRY & BARB WAGLER, LP, )

)

Appellants-Defendants, )

)

vs. ) No. 02A03-1206-PL-269

)

FORT WAYNE-ALLEN COUNTY )

DEPARTMENT OF HEALTH, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ALLEN CIRCUIT COURT

The Honorable Thomas J. Felts, Judge

Cause No. 02C01-0906-PL-79

January 31, 2013

OPINION - FOR PUBLICATION

CRONE, Judge
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Case Summary

Henry and Barb Wagler built their home in an unincorporated area of Allen County 

and had their own septic systems installed. The Fort Wayne-Allen County Department of 

Health (“the Department”) petitioned for injunctive relief and moved for summary judgment, 

claiming that the Waglers were required to obtain a construction permit from the Department 

prior to installing their septic systems. The Waglers filed a cross-motion for summary 

judgment, claiming a statutory exemption from the permit requirement. The trial court 

entered summary judgment for the Department.

On appeal, the Waglers renew their statutory exemption argument. We conclude that 

the statute is inapplicable and therefore affirm the trial court.

Facts and Procedural History

The relevant facts are undisputed. The Waglers built their home in an unincorporated 

area of Allen County. Their limited partnership, Henry & Barb Wagler, LP, owns the home. 

In June 2008, the Waglers installed two septic systems on their property; one serves the main 

residence and the other serves a ranch house. Allen County Code Section 10-4-4-1 provides 

that a construction permit must be obtained from the Allen County health commissioner

“prior to the commencement of any excavation, construction, modification or addition to any 

existing or new private sewage disposal system.” The Waglers did not obtain a permit for 

their septic systems. The Department received a complaint about the Waglers’ failure to 

obtain a permit and attempted to resolve the matter administratively, to no avail.
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In June 2009, the Department filed a complaint against the Waglers and their limited 

partnership for injunctive relief and damages based on their failure to obtain a permit. The 

Department filed a motion for summary judgment. The Waglers filed a cross-motion for 

summary judgment, claiming that they were exempt from the permitting requirement 

pursuant to Indiana Code Section 36-7-8-3, which we address below. After a hearing, the 

trial court entered summary judgment for the Department. This appeal ensued.

Discussion and Decision

The Waglers contend that the trial court erred in granting the Department’s summary 

judgment motion. Our standard of review is well settled:

When reviewing the grant or denial of summary judgment, this Court applies 

the same legal standard as a trial court: summary judgment is appropriate 

where no designated genuine issues of material fact exist and the moving party 

is entitled to judgment as a matter of law. The standard of review is not altered

by cross motions for summary judgment on the same issues. A party appealing 

the denial of summary judgment carries the burden of persuading this Court 

that the trial court’s decision was erroneous. Moreover, when the material 

facts are not in dispute, our review is limited to determining whether the trial 

court correctly applied the law to the undisputed facts; and, if the issue 

presented is purely a question of law, we review the matter de novo. In 

addition, our standard of review is not changed by the trial court’s entry of 

findings of fact and conclusions thereon. Although the findings and 

conclusions provide valuable insight into the trial court’s decision, they are not 

binding upon this Court.

C.M.L. ex rel. Brabant v. Republic Servs., Inc., 800 N.E.2d 200, 202 (Ind. Ct. App. 2003) 

(citations omitted), trans. denied (2004).

As mentioned earlier, the Waglers claim that they are exempt from the permit

requirement pursuant to Indiana Code Section 36-7-8-3, which reads in pertinent part as 

follows:
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(a) The legislative body of a county having a county department of 

buildings or joint city-county building department may, by ordinance, adopt 

building, heating, ventilating, air conditioning, electrical, plumbing, and 

sanitation standards for unincorporated areas of the county. These standards 

take effect only on the legislative body’s receipt of written approval from the 

fire prevention and building safety commission.

(b) An ordinance adopted under this section must be based on 

occupancy, and it applies to:

(1) the construction, alteration, equipment, use, occupancy, location, 

and maintenance of buildings, structures, and appurtenances that are on 

land or over water and are:

(A) erected after the ordinance takes effect; and

(B) if expressly provided by the ordinance, existing when the 

ordinance takes effect;

....

(c) The rules of the fire prevention and building safety commission are 

the minimum standards upon which ordinances adopted under this section 

must be based.

(d) An ordinance adopted under this section does not apply to private 

homes that are built by individuals and used for their own occupancy.

The Waglers argue that because they built their own home, the “sanitation standards” 

mentioned in subsection (a) of the statute do not apply to them pursuant to subsection (d), 

and thus the septic system permitting requirement of Allen County Code Section 10-4-4-1

does not apply to them.

We disagree. The rules of the fire prevention and building safety commission, found

in Title 675 of the Indiana Administrative Code (“IAC”), do not govern the installation of 
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septic systems.1 That subject matter is governed by Title 16 of the Indiana Code and Title 

410 of the IAC. See, e.g., Ind. Code § 16-19-3-4 (“(a) The executive board [of the state 

department of health] may, by an affirmative vote of a majority of its members, adopt 

reasonable rules on behalf of the state department [of health] to protect or to improve the 

public health in Indiana. (b) The rules may concern but are not limited to the following: ... 

(3) The disposition of excremental and sewage matter.”); 410 IAC 6-8.1-33 (“The owner or 

agent of the owner shall obtain a written permit, signed by the [local] health officer, for 

construction of a residential sewage system prior to: (1) Construction of a residence or 

placement of a mobile home which will not be connected to a sanitary sewerage system.”).2 

Allen County Code Section 10-4-4-1 is consistent with this rule. In sum, then, Indiana Code 

Section 36-7-8-3 does not apply.

We reached the same conclusion in Washington County Health Department v. White, 

878 N.E.2d 224 (Ind. Ct. App. 2007), trans. denied (2008), on which the trial court relied in 

granting the Department’s summary judgment motion. In that case, the Whites placed two 

mobile homes on their property in an unincorporated area of the county and failed to obtain a 

 

1

 In support of its summary judgment motion, the Department pointed out that “[t]he Plumbing Codes 

at 675 IAC, Article 16 do not cover sewer, septic system, or other ‘sanitary’ installations. The plumbing code 

addresses the appropriate means for a structure to be connected to such installations, but does not govern septic 

installations.” Appellants’ App. at 162 (affidavit of Allen County Building Department Commissioner David 

O. Fuller). We note that Title 675 of the IAC does not contain a separate “sanitation” code.

2

 410 IAC 6-8.1-33, which was in effect when the Waglers installed their septic systems, was repealed 

with the rest of Rule 6-8.1 effective January 1, 2011. It appears that 410 IAC 6-8.1-33 has been superseded by 

410 IAC 6-8.3-53 (“(a) For any dwelling or place of residence that will not be connected to a sanitary sewerage 

system, the owner or agent of the owner shall obtain a written construction permit, signed by the health officer, 

for construction of a residential on-site sewage system prior to the: (1) start of construction of a residence 

....”).
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permit for their sewage discharge system. When the county health department asked to 

inspect their property, the Whites petitioned for injunctive relief and claimed that, pursuant to 

Indiana Code Section 36-7-8-3(d), “they were not required to obtain any sort of permit for 

their mobile homes.” Id. at 225. The health department also petitioned for injunctive relief. 

The trial court denied both petitions.

On appeal, the health department argued that Indiana Code Section 36-7-8-3(d) was 

inapplicable “because the Whites did not build the mobile homes placed on the property.” Id. 

at 228. We agreed with the health department on this point and then observed,

In a way, the question whether the Subsection (d) exception applies is a 

sidetrack to the fundamental issue here, which is whether the Whites must 

comply with the requirements of Indiana’s Health Code (“Health Code”) 

contained in Title 16 of the Indiana Code. We have already determined that 

the Whites do not fall within the Subsection (d) exception, and because of this, 

we conclude that they are bound to comply with the Health Code regulations, 

specifically, 410 IAC 6–8.1–33, which required them to obtain a permit for a 

sewage disposal system prior to placing the mobile homes on their property. 

As such, the trial court abused its discretion by denying [the health 

department’s] petition for injunctive relief.

However, even if we had determined that the Whites satisfied the 

Subsection (d) exception, they still would have been required to comply with 

the Health Code regulations. The trial court took a contrary position. It 

viewed the Subsection (d) exception as a global exception that exempts 

individuals not only from the requirements set out in Indiana Code § 36-7-8-3, 

but also the requirements of the Health Code. The trial court’s view of the 

scope of the Subsection (d) exception is too broad.

In Robinson [v. Monroe County, 658 N.E.2d 647 (Ind. Ct. App. 1995),

clarified on reh’g, 663 N.E.2d 196 (1996), trans. denied (1996)], we noted that

Subsection (d) represents an exception to the safety-oriented 

requirements set forth elsewhere in the statute [Indiana Code § 

36-7-8-3] and thus is contrary to the purpose of the statute. That 

is, exempting an individual from the requirements of obtaining 
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authorization for proposed construction and subjecting the 

completed work to inspection and approval prior to permitting 

occupancy of the building runs contrary to the goal of ensuring 

safe buildings.

658 N.E.2d at 650-51. In questioning why the Subsection (d) exception was 

created, we pointed out that

[i]n its early stages, this country’s frontier was moved westward 

by pioneers who moved onto land and built houses made from 

the materials at hand. Since then, home owning has become an 

essential facet of the “American dream”. It may be argued that 

ordinances such as those contemplated by IC 36-7-8-3, which 

establishes construction specifications and require permits and 

inspections for residential construction projects, interfere with 

the ability of some individuals to build their own home and thus 

to pursue the American dream.

Id. at 651. We determined that

exempting a person who wishes to build his own house from the 

requirements imposed pursuant to IC 36-7-8-3 of complying 

with construction specifications and obtaining permits allows 

that person to build a house even though he may not possess the 

skills or equipment to comply with technical specifications, and 

allows him to do so even if he is not able to afford to pay others 

to do the work.

Id. Nevertheless, we concluded that the Subsection (d) exception “only creates 

an exemption from the requirements set out in [Indiana Code § 36-7-8-3] and 

does not provide a similar exemption from the requirements set out in [Indiana 

Code § 36-7-8-4] concerning minimum housing standards and related 

ordinances.” Id. at 652.

We agree with the Robinson court’s conclusion that the Subsection (d) 

exception is a limited exception only exempting an individual from the 

requirements of Indiana Code § 36-7-8-3. The Health Code and Indiana Code 

§ 36-7-8-3 regulate different subject matters. The reasons discussed in 

Robinson for exempting an individual from the requirements of Indiana Code §

36-7-8-3 do not apply with regard to exempting an individual from the 

requirements of the Health Code. The trial court erred in concluding that an 

individual who satisfies the Subsection (d) exception is exempt from the 
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Health Code requirements. The Whites were required to obtain a permit for a 

sewage disposal system prior to placing the mobile homes on their property. 

See 410 IAC 6-8-1-33(a)(1). Therefore, the trial court abused its discretion 

when it denied [the health department’s] petition for injunctive relief.

Id. at 229-30.

In this case, the Waglers’ counsel, who also represented the Whites, contends that the 

White court erred in concluding that Indiana Code Section 36-7-8-3(d) “does not apply with 

regards to exempting individuals from the requirements of the Health Code.” Appellants’ Br. 

at 3. For the reasons given above, we disagree and therefore affirm the trial court’s ruling.

Affirmed. 

KIRSCH, J., and MATHIAS, J., concur.