Court of Appeals of Indiana | Opinion 76A05-1606-PL-1241 | April 6, 2017 Page 1 of 16

ATTORNEYS FOR APPELLANT –

TOWN OF CLEAR LAKE

Jeffrey P. Smith

David K. Hawk

Hawk, Haynie, Kammeyer

& Smith, LLP

Fort Wayne, Indiana

ATTORNEYS FOR AMICI CURIAE –

ASSOCIATION OF CITIES AND TOWNS

AND THE INDIANA MUNICIPAL

LAWYERS ASSOCIATION

Nicholas K. Kile

Mark J. Crandley

Barnes & Thornburg LLP

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Jonathan O. Cress

Cress Law Group P.C.

Angola, Indiana

Diana C. Bauer

Bauer Legal LLC

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Town of Clear Lake,

Appellant-Plaintiff,

v.

Hoagland Family Limited 

Partnership,

Appellee-Defendant

April 6, 2017

Court of Appeals Case No.

76A05-1606-PL-1241

Appeal from the Steuben Circuit 

Court

The Honorable Allen N. Wheat, 

Judge

Trial Court Cause No.

76C01-1006-PL-425
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Baker, Judge.

[1] The Town of Clear Lake (the Town) appeals the judgment of the trial court, 

which granted summary judgment to Hoagland Family Limited Partnership 

(Hoagland) and denied the Town’s motion for partial summary judgment. The 

trial court ruled that until the Town made its sewer system accessible through 

the installation of a grinder pump, it could not enforce penalties against 

Hoagland for failure to connect to the sewer system. Hoagland also argues that 

several alleged procedural errors made by the Town should preclude the Town 

from compelling connection to the sewer system. Finding that the Town does 

have the authority to compel Hoagland’s connection to its sewer system and no 

procedural error, we reverse and remand.

Facts1

[2] Hoagland owns three parcels of real estate (“the properties”) located in the 

Town. Although the Town operates a sanitary sewer system, Hoagland’s 

properties are not connected to it and contain their own septic systems. Each of 

the properties are within 300 feet of the Town’s sewers. In May 2001, as the 

Town prepared to install its sewer system, it requested an easement for each of 

the properties so that it could connect them to the sewer system, but Hoagland 

declined the request.

 

1 We held oral argument on March 10, 2017, in Indianapolis. We thank both parties and amicus for their 

excellent and informative oral advocacy.
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[3] In 2003, the Town passed the following ordinance:

The owners of all houses, buildings or properties used for human 

occupancy, employment, recreation or other purposes situated 

within the town and which [sic] the property line is within 300 

feet of the sanitary sewer is [sic] required at his or her expense to 

install suitable toilet facilities therein and to connect such 

facilities directly with the proper sewer in accordance with the 

provisions of this chapter.

Clear Lake, Ind., Code of Ordinances § 51.51(A). The Town also adopted an 

ordinance mandating that “[n]o authorized[

2

] person shall uncover, make any 

connections with or opening into, use, alter, or disturb any public sewer or 

appurtenance thereto without first obtaining a written permit from the Town 

Council.” Id. at § 51.52(A)(1). “[T]he owner or his or her agent shall make 

application on a special form furnished by the town. The permit applications 

shall be supplemented by any plans, specifications, or other information 

considered pertinent in the judgment of the Inspector.” Id. at § 51.52(A)(2).

[4] In April 2005, after the Town had installed its system, Hoagland filed an action 

alleging that the Town had inversely condemned its land by running a sewer 

main under Hoagland’s property. This suit ended in October 2010 with a 

settlement between the parties.

 

2 We question whether the drafters of the ordinance intended to refer to “unauthorized” persons.
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[5] Eight months after Hoagland filed the complaint against the Town, the Town 

passed a Resolution directing the Town’s attorney to take legal action against 

several residents who had not connected to the sewer system; Hoagland’s three 

properties were on the list. Appellant’s App. p. 518.

[6] In May 2009, the Town amended its penalty ordinance. Whereas the penalty 

for violation of a Town ordinance had been set at a minimum of $100 and a 

maximum of $1000, the new penalty for failure to connect to the sewer system 

was $500, per day, per property, with no express limit. CLC § 51.99(B).3

[7] On January 12, 2010, the Town gave Hoagland notice that Hoagland must 

connect the properties to the Town’s sewer system within ninety days:

you are hereby given notice that the Town of Clear Lake will 

proceed to compel connection of the above described properties 

to the Town of Clear Lake sewer system unless all of said 

properties are connected to the sewer system within ninety (90) 

days. You are further given notice that any use of privies, 

cesspools, septic tanks, or similar structures must be discontinued 

within ninety days (90) from today. Failure to connect to the 

Clear Lake sewer system within ninety (90) days may subject the 

Hoagland Family Limited Partnership to fines, court costs and 

attorney fees as allowed by Indiana Code and the Town of Clear 

Lake Ordinances.

 

3 A previous zoning administrator of the Town, David Gardiner, testified that “it sure looked like” the Town 

had a “get Hoagland policy.” Appellant’s App. p. 557.
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Appellant’s Supp. App. p. 68. This letter also informed Hoagland that since it 

had been “benefit[ting]” from the sewer system to which its properties were not 

yet connected, the Town was also demanding immediate payment of $4,537.38 

in back charges for each property, or a total of $13,612.14. Id.

[8] After Hoagland did not take any action, the Town filed a complaint in which it 

asked for an order requiring connection, sewer charges that Hoagland allegedly 

should have been paying plus a further ten percent penalty pursuant to local 

ordinance, $500 per property per day for each day Hoagland remained 

unconnected, an order requiring the discontinuance of any private septic 

systems, and attorney fees and costs. In its answer, Hoagland argued that the 

Town’s claims were barred because they were compulsory counterclaims that 

should have been asserted during the previous litigation involving inverse 

condemnation, that the Town’s notice to connect was defective, and that the 

sewer system was generally illegal.

[9] After competing motions for summary judgment and hearings on those 

motions, on May 4, 2016, the trial court granted summary judgment to 

Hoagland and denied it to the Town. The Town stipulated that Hoagland 

cannot complete a connection to the sewer system without the presence of 

grinder pumps, that the Town has not installed any grinder pumps through 

which Hoagland could connect to the sewers, and that the Town had not 

commenced any eminent domain proceedings to put grinder pumps on 

Hoagland’s property. The trial court noted that the Town’s claimed penalties 

had exceeded $2.9 million by the time of the last hearing. It ruled that 
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Hoagland’s compelled connection with the Town’s sewer system would involve 

a taking of land and that, under Article One, Section 21 of the Indiana 

Constitution, the Town could not proceed until it had assessed and tendered 

just compensation to Hoagland. The Town now appeals.

Discussion and Decision

[10] When reviewing an entry of summary judgment, the Court of Appeals stands in 

the shoes of the trial court, applying the same standards in deciding whether to 

affirm or reverse. AutoXchange.com, Inc. v. Dreyer & Reinbold, Inc., 816 N.E.2d 

40, 47 (Ind. Ct. App. 2004). Thus, on appeal this Court determines whether 

there is a genuine issue of material fact and whether the trial court correctly 

applied the law. Id. The entry of summary judgment will be reversed where the 

law has been incorrectly applied to the facts. Markey v. Estate of Markey, 38 

N.E.3d 1003, 1006 (Ind. 2015).

[11] Indiana Code section 36-9-23-30(a) permits a municipality operating a sewage 

system to require connection to the system and to order the discontinuance of 

the use of any private sewage system. The only limitations on the exercise of 

this power are that there must be “an available sanitary sewer within three 

hundred (300) feet of the property line of the affected property” and that the 

municipality gives the property owner ninety days’ notice. I.C. § 36-9-23-30(b). 

Municipalities may enforce “reasonable penalties” against a person failing to 

make a connection, and a court “shall” assess court costs and reasonable 

attorney fees against the property owner. Id. at -30(c); -30(d).
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I. Eminent Domain 

[12] Although the trial court’s ruling depended in part on the law of eminent 

domain, a government order to connect a property to a sewer system does not, 

by itself, involve a “taking.” As the United States Supreme Court has held, “It 

is the commonest exercise of the police power of a state or city to provide for a 

system of sewers, and to compel property owners to connect therewith. And 

this duty may be enforced by criminal penalties.” Hutchinson v. City of Valdosta, 

227 U.S. 303, 308 (1913); see Alperstein v. Three Lakes Water & Sanitation, 710 

P.2d 1186, 1189 (Colo. Ct. App. 1985) (“Numerous state courts have followed 

[the Supreme Court’s] holding that personal notice and a hearing are not 

required prior to ordering connection to a public sewer system”).

[13] On the other hand, the trial court is clearly correct that connection to the 

Town’s sewer system will eventually involve a governmental taking; Robert 

Hull, the Superintendent of the Town, explained, “You cannot hook to our 

system without a grinder pump.” Appellant’s App. 512. The Town’s 

ordinances make clear that the grinder pumps will be owned and operated by 

the Town, not the property owner. CLC § 51.62. It is well settled that the 

Town will need to conduct eminent domain proceedings in order to obtain an 

easement on which to place the grinder pump. E.g., Loretto v. Teleprompter 

Manhattan CATV Corp., 458 U.S. 419, 426 (1982) (“We conclude that a 

permanent physical occupation authorized by government is a taking without 

regard to the public interests that it may serve”).
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[14] The dispute between the parties centers on whether the Town or Hoagland has 

to act first. Hoagland points to the language in the Indiana Code: the Town is 

only permitted to order connection if there is “an available sanitary sewer.” I.C. 

§ 36-9-23-30(a) (emphasis added). Without availability, the Town has no 

authority to compel connection. Town Superintendent Hull agreed in a 

deposition that without a grinder pump on the property, “the Town’s sanitary 

system would be unavailable to that property owner.” Appellant’s App. p. 508.

Likewise, Town Council member Alan Korte “agree[s] that the town sanitary 

sewer system is unavailable to the Hoagland Family Limited Partnership 

property without the installation of the grinder pump . . . .” Id. at 488. 

Hoagland argues that summary judgment was appropriately granted in its favor 

because the undisputed evidence, including the precise testimony of Town 

officials, shows that until the Town builds a grinder pump, the sewer system is 

not available.

[15] The Town counters that its January 2010 letter, which explicitly ordered 

connection to its sewer system, implicitly ordered Hoagland to apply for a 

permit to connect to the sewer system. Such an application will contain 

information useful to the Town in deciding where to put grinder pumps. “Until 

such action is taken by the property owner, the size, location, and necessity of 

easements cannot be determined.” Appellant’s Br. p. 10. The Town further 

asserts that, depending on the plans submitted by Hoagland, the three 

properties might be served by a single grinder pump; therefore, the Town argues 

that it cannot be forced to first obtain the easements for the grinder pumps 
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because it cannot know where to place the easements. The Town also suggests 

that Hoagland’s properties might be served by grinder pumps located on other 

properties.4

[16] Ordinances are treated as if they stand on the same footing as an act of the 

legislature; therefore, the rules applying to statutory construction apply equally 

to ordinances. Lutz v. City of Indianapolis, 820 N.E.2d 766, 770 (Ind. Ct. App. 

2005). The primary rule of statutory construction is to ascertain and give effect 

to the intent of the drafters, and the plain language of the statute (or ordinance) 

is the best evidence of the drafters’ intent. Id. All words must be given their 

plain and ordinary meaning unless otherwise indicated. City of Indianapolis v. 

Campbell, 792 N.E.2d 620, 624 (Ind. Ct. App. 2003).

[17] We recognize that both parties have defensible interpretations of the relevant 

statutes and ordinances. And we acknowledge that it is every American’s 

birthright to be displeased at governmental orders. Ultimately, however, we 

believe that the Town’s interpretation of the law is correct. The word 

“available” in the statute can only be read to refer to a working sanitary system. 

Because it is undisputed that the Town is operating a working sanitary system, 

there was an “available” sanitary sewer within 300 feet of the properties, and 

 

4 Hoagland argues that this final contention was never presented to the trial court, that the Town stipulated 

that it would eventually need to put a grinder pump on Hoagland’s property, and that therefore the Town is 

estopped from pursuing this particular line of reasoning. Because our conclusion would not change based on 

how this argument is decided, we decline to address it.
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therefore the Town has the statutory authority to order Hoagland to connect to 

it.

[18] While Hoagland is understandably not happy about the prospect of 

disconnecting a septic system for which it paid and installing a lateral line to 

reach the sewer system it does not want to use, its reading of the law would 

require the Town to be more intrusive and dictatorial. In the name of defending 

its property rights from the overreaching Town, Hoagland is demanding that 

the Town take absolute control over where the grinder pump will be placed and 

where it will need to run its lateral line to meet the grinder pump.

[19] The Town does not know where sewage will exit the Hoagland homes; if the 

Town were to place the grinder pump based on its own whim, it would likely 

cost Hoagland (and other residents in a similar position) even more money to 

accommodate the Town’s placement. Under the Town’s reading, Hoagland 

can propose the most cost-effective method of extending the lateral lines and the 

Town will accommodate Hoagland by placing the grinder pump where 

Hoagland deems most convenient. Indeed, we find it highly likely that, if the 

Town or other governmental entities were to attempt to dictate the placement of 

grinder pumps on residents’ properties, such actions would lead to a significant 

amount of litigation in which residents would ask courts to allow them to 

engage in precisely the type of process the Town is currently proposing. Just as 

courts require parties to mitigate their damages in tort and contract disputes, we 

favor an interpretation of the law that minimizes the costs and other burdens 

residents will face.
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[20] Hoagland argues that the Town is attempting to find an end run around the 

requirement to pay just compensation for a governmental taking of property. 

We do not find this argument persuasive. To be clear, Hoagland was perfectly 

within its rights to reject the Town’s request to voluntarily donate an easement 

on which to place the grinder pumps. Nor is Hoagland required to accept any 

offer of compensation the Town may put forth for an easement on its property. 

Hoagland has the right to force the Town to initiate eminent domain 

proceedings, through which a court with the aid of assessors will ensure that the 

Town pays just compensation for the physical occupation of the grinder pump 

on the property.

[21] In sum, because the Town is operating a functioning sanitary sewer within 300 

feet of the properties, there is an “available” sewer under the meaning of 

Indiana Code section 36-9-23-30(a). Accordingly, the Town has the authority 

to compel Hoagland’s connection to the sewer system. Finally, the Town’s 

proposed process—having Hoagland submit an application with plans and 

schematics of the easiest and most convenient method of extending a lateral 

line to the sewer—is more economical and less burdensome than Hoagland’s 

proposal of forcing the Town to take property and ask questions later. Partial 

summary judgment should have been awarded to the Town on this issue.
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II. Alleged Procedural Defects

[22] Hoagland argues that the Town committed several procedural defects that 

prohibit the Town from compelling Hoagland’s connection to the sewer system, 

now or at any point in the future.

[23] First, Hoagland argues that the trial court’s grant of summary judgment can be 

affirmed based on the statute of limitations. It points to a public notice given to 

Hoagland, telling it to connect to the sewer system by December 1, 2004. 

Appellant’s App. p. 668. When municipalities are attempting to judicially 

enforce an ordinance, such an action must be brought within two years of the 

alleged conduct. Ind. Code § 36-1-6-3; 34-28-5-1.

[24] We do not find this argument persuasive: Hoagland’s violation of the 

municipal ordinance has occurred every day since he was ordered to connect to 

the sewer system, and is occurring right now. It is well settled that right now is 

within the two-year statute of limitations.

[25] Second, Hoagland argues that all of the Town’s claims in the present suit 

should be barred under Indiana Trial Rule 13(A) as unpled compulsory 

counterclaims. It argues that the Town was fully aware of its claim against 

Hoagland for not connecting to the sewers when it filed its answer in the inverse 

condemnation case on August 4, 2005. Hoagland says that both cases arose 

from the same transaction or occurrence, that the present claim was mature 

within the time of pleading, that there were no third parties over whom the trial 
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court lacked jurisdiction, and that the initial claim has been reduced to 

judgment. Estate of McCullough, 492 N.E.2d 1093, 1095-96 (Ind. Ct. App. 1986).

[26] A counterclaim is only compulsory where it arises from the same aggregate set 

of operative facts as the opposing party’s claim. Hilliard v. Jacobs, 927 N.E.2d 

393, 401 (Ind. Ct. App. 2010). Here, the only commonality between the two 

cases is that they involve sewers. We retain the hope that most of these 

situations can be resolved without resorting to litigation, and we hesitate to 

encourage municipalities to sue their residents so that their claims will not be 

barred later. Hoagland’s argument is unavailing.

[27] Third, Hoagland argues that several of the Town’s statements and 

representations resulted in the waiver of its claims. It points to an August 2001 

letter in which the Town stated, “If your easement is not signed by October 1, 

2001, your property will be excluded from the Initial Project.” Appellant’s 

App. p. 623. Hoagland also points to several letters in which the Town 

described the eminent domain process. Hoagland argues that by not exercising 

its powers of eminent domain long ago, the Town “excluded” him from the 

project and cannot now compel him to join.

[28] Hoagland neglected to quote the very next sentence in the Town’s August 2001 

letter: “In the future you will be required to connect to the wastewater system 

at your own expense . . . .” Id. The Town’s representations were fairly 

straightforward; Hoagland could choose to join the sewer system from its 

initiation or be required to join later. We find no waiver.
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[29] Finally, Hoagland argues that the amended penalties ordinance, CLC § 51.99, 

was not properly passed and therefore cannot be enforced. The ordinance bears 

a date of April 13, 2009, but was not published in a local newspaper until May 

21, 2009, past the thirty-day limit set by statute. Ind. Code § 36-5-2-10; Ind. 

Code § 5-3-1-2(h). Further, Hoagland argues that the language in CLC § 

51.99(B)(1), “when legally required to do so,” is ambiguous and vague, such 

that it would be an unconstitutional basis for punishment.

[30] The Town highlights the testimony of the Clerk-Treasurer, who stated that 

while the ordinance has April 13, 2009, written on it, this was a scrivener’s 

error. Appellant’s App. p. 1425-26. There is a wealth of other evidence 

indicating that, in fact, the ordinance was passed, after several readings, on 

May 11, 2009, which renders the May 21, 2009, publication timely. There are 

notations on the ordinance regarding the readings of the ordinance, town 

council minutes, and a notice of a public hearing in the local paper, all of which 

show a publication date of May 11 rather than April 13. Id. Finally, we find 

that the phrase, “when legally required to do so,” has an obvious meaning 

when combined with the previous sentence regarding “the town . . . 

compel[ling] connection by any property producing sewage or similar waste to 

the sewer system . . . .” CLC § 51.99(B). The Town’s penalty ordinance was 

properly promulgated.

[31] In short, none of Hoagland’s arguments regarding the statute of limitations, 

compulsory counterclaims, waiver, or invalidity of the Town’s ordinances are 
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availing. None render summary judgment in Hoagland’s favor appropriate or 

partial summary judgment in the Town’s favor inappropriate.5

III. Future Proceedings

[32] Because the trial court ruled in Hoagland’s favor, it never reached the issue of 

penalties, which will need to be determined on remand. While the issue is not 

squarely before us, we would be remiss if we did not make a few comments.

[33] Although the Town is authorized by statute to establish and enforce penalties 

against those refusing to connect to its sewer system, this authority is not 

unlimited; the Town is only authorized to establish “reasonable penalties for 

failure to make a connection . . . .” I.C. § 36-9-23-30(c) (emphasis added). Any 

penalty set above a reasonable amount is unauthorized, unlawful, and 

unenforceable. Because the issue is not before us, we cannot rule on what

penalty would qualify as “reasonable,” but we have little difficulty saying that a 

penalty of $2.9 million is nowhere near it. Such a penalty is confiscatory, most

likely unconstitutional, and will not be countenanced.

[34] We would also like to express our sincere hope that the parties can work 

together more amicably to achieve what is clearly the end result: at some point, 

 

5 Hoagland requests that we award it damages and attorney fees under Indiana Appellate Rule 66. We are 

always hesitant to grant such a request, lest we chill the exercise of litigants’ right of appeal. We are even 

more hesitant where the claim is made against the winning side—Hoagland’s request is denied.
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after some procedure, Hoagland will connect to the Town’s sanitary sewer 

through a Town-provided grinder pump.

[35] This type of litigation tends to clog up the court system. Our courts are not 

flush with resources, and they are prone to getting backed up. When the system 

gets backed up, it produces unnecessary and unhealthy strains, which makes it 

more difficult for parties to obtain relief. And when these cases cannot be 

discharged, it is impossible for our court system to stay regular—and that 

means taxpayer resources down the drain. We can understand that, after such 

a long process, the parties are not overflowing with goodwill. But we hope that, 

before the case stalls and stagnates, they can put this big mess behind them.

[36] The judgment of the trial court is reversed and remanded with instructions to 

award partial summary judgment to the Town and for further proceedings 

consistent with this opinion.

Mathias, J., and Pyle, J., concur.