HOPE — An appeal regarding the decision three months ago by the Hope Town Council to deny two petitions to disannex properties has been filed in Bartholomew Circuit Court.
Court proceedings stemming from the petition filed by John and Barbara Harker, as well as co-plaintiff Michael Hawkins, remain in the early stages. Hearings so far have focused on obtaining certified transcripts of the town council’s hearings where the subject was discussed.
Indianapolis attorney Andrew M. Sumerford, who represents Hawkins and the Harkers, is also asking Bartholomew County Auditor Pia O’Conner to prepare a list of disannexed properties from township, municipal and state records no later than Aug. 1.
Last winter, the Harkers and another couple, David and Kelly Ellis, requested disannexation from the town council. Both couples claim they are forced to pay special stormwater management fees, assessment fees and property taxes to the town without getting anything in return. Neither of the properties have no platted streets, improved streets, sidewalks, municipal water, municipal sewer or other infrastructure supplied by the town, the plaintiffs claim.
The Harkers purchased the 33.78 acres of pasture land in question in 2011. Two years later, they made their first effort to stop paying the stormwater management fees. John Harker told the council he has been paying $20,737 in stormwater assessment fees annually, but instead of benefits, his property has been damaged by considerable discharges of water from adjacent parcels.
The Ellis family purchased their historic home at 15241 E. Jackson Road about 12 years ago, and had invested a considerable amount of money into renovations and improvements. But after a well on their property developed an issue, David Ellis said he approached Hope Utilities Superintendent David Clouse about extending municipal water to his residence.
Clouse told him the project would be too costly for just one residence, Ellis said. Clouse told the council on Feb. 13 that the Indiana Department of Environmental Management would not approve the extension because it would lead to stagnant water at the end of the line.
In their original petitions, the two families stated they wanted their land and/or home removed from Hope’s property taxes. They were also seeking a refund of previously paid stormwater fees to the greatest extent permitted by law.
Although the council advertised in February that another public hearing would be held March 6, no public testimony was heard on that date and no discussion was allowed. Instead, council president Ohmer Miller immediately called for a vote and the requests for disannexation were unanimously denied.
When attorney Andrew M. Sumerford asked Miller the reasons for voting down the petitions, Miller’s response was: “I don’t feel like I want to open up that can of worms right now.”
But council member Shannon Pittman said the decision was based on evidence presented and what is best for the town.
After the meeting, David Ellis, who said he was being forced to pay $400 a month in property taxes by living within the town limits, announced his intentions to sell his property. Three weeks later, on March 27, the 2,176 square foot home and surrounding land was sold to Hawkins by the Ellis family.
He joined with the Harkers in filing an appeal to the council’s decision in Bartholomew Circuit Court on April 5.
During a 2013 effort by the Harkers to address their grievances, the town council reportedly voted to recommend the couple either pursue disannexation or petition to have the land rezoned to agricultural, so they would only have to pay the minimum assessment of $36 a year.
But John Harker claims he never received those recommendations. The retired Hope dentist also said that when he made another effort for assessment relief in 2016, he again received no response from the town.
Other agricultural parcels within the town limits have had their stormwater assessment reduced to the minimum of $36, Sumerford stated at both the February meeting and in the court petition.
In response, Columbus attorney Alex Whitted, who is representing the town of Hope, said the petition is barred under the doctrines of waiver, estoppel, and/or unclean hands.
In layman’s terms, Whitted is saying the petition contains a combination of misrepresentations of fact, as well as a change in a long-established understanding. He claims it would be unfair to the town if the court rules in the favor of Hawkins and Harker.
Whitted also argues that Hawkins lacks standing to be a plaintiff in the petition. The Columbus attorney also says legal paperwork was not filed in a timely fashion, and the petitioners failed to full exhaust their administrative remedies.
In the town’s response to the new petition, Whitted argued it is “frivolous, unreasonable, groundless and was brought and pursued in bad faith.”
The town is asking Harker and Hawkins to pay attorney and court costs. Whitted is the attorney for Hope in this case because town attorney Scott Andrews represents the Flat Rock-Hawcreek Schools. John Harker is a member of the board of trustees for the Hope-area schools.
Claims made in filing a lawsuit represent only one side of the case and may be contested in later court action.
