News and Tribune

February 26, 2013

New Albany, Floyd County awaiting decision on fringe case

By DANIEL SUDDEATH
daniel.suddeath@newsandtribune.com

NEW ALBANY — A motion for summary judgment has been filed in the case of the New Albany Plan Commission versus the Floyd County Plan Commission, as the sides are awaiting a judge to rule on which entity will have control of what is known as the two-mile fringe area. 

Greg Fifer, an attorney retained by the city for the case, filed the motion Friday in Floyd Circuit Court. The motion cites state statutes and previous legal cases that Fifer said back up New Albany’s claim to retain zoning control of the fringe area. 

The focal points of Fifer’s argument are that New Albany provides sewer service to the fringe area and that Floyd County has a population of less than 95,000. 

Fifer said state law clearly explains that a municipal plan commission may at any time exercise or reject jurisdiction over an area within two miles of the city’s corporate boundary if the county has a population of less than 95,000 and if municipal services are provided to the fringe area. 

In this case, fringe residents and businesses rely on New Albany for wastewater service. 

Additionally, Fifer said the city satisfied the state requirements for zoning control by adopting a comprehensive plan for the fringe area in 1999. 

“Unless there’s a law out there I can’t find, I think both the facts and the law are on the side of the city,” Fifer said Monday. 

The disagreement heightened last year when the Floyd County Commissioners and county plan commission approved assuming control of the two-mile fringe area. 

County officials cited a lack of representation for fringe residents and issues such as drainage among their reasons for wanting to take authority of the area. 

Rick Fox, attorney for the county commissioners, is still listed as the county counsel on the case though he recently took a leave of absence pending the result of a charge of operating a vehicle while intoxicated. 

A phone message left for Fox Monday hadn’t been returned as of press time. 

Among his motions, Fox has requested the court dismiss the case. 

During past interviews with the News and Tribune, county officials have cited a portion of Indiana Code, section 36-7-4-205, that asserts a municipal plan commission may not exercise jurisdiction over a fringe area if a county adopts a comprehensive plan and ordinance for the property unless the county approves. 

But the same section also states a city or town in a county with a population of less than 95,000 may assume territorial jurisdiction of planning if it provides a municipal service. 

Fifer — who said there are documents suggesting the city began overseeing the fringe area as far back as 1958 — believes the statute clearly states a municipality like New Albany can execute authority without the county’s permission. 

“This has been in effect, the ability to assert this jurisdiction, since at least 1971,” he said. 

The city has continued to operate under the belief it holds the zoning authority over the fringe area and will continue to do so until a judge rules otherwise, Fifer continued. 

Unless the county waives the time period, a judge can’t rule on the summary judgment until 30 days after it was filed, or March 25. 

A hearing date on other motions has been slated for March 8, and the location of the proceedings has been moved to Scott County. Judge Robert Duvall accepted the duty of special judge in the case, and the hearings will be held in Scott Circuit Court.