Attorneys for Appellant Attorneys for Appellee
Mark R. Waterfill Larry J. Kane
Cynthia M. Kirk Katherine L. Shelby
Indianapolis, Indiana Indianapolis, Indiana
Indiana Supreme Court
Worman Enterprises, Inc.,
Appellant (Plaintiff below),
The Boone County Solid Waste
Appellee (Defendant below).
Appeal from the Boone Superior Court, No. 06D01-0011-CP-390
The Honorable Ora A. Kincaid, III, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 06A01-0206-CV-202
March 9, 2004
We hold that the board of a solid waste management district is not
subject to the strict prohibition on ex parte communications that applies to a
court or an administrative agency acting in a purely adjudicatory role.
Factual and Procedural Background
The Boone County Solid Waste Management District (District) was created pursuant to Indiana
Code Article 13-21. That Article authorizes the District, inter alia, (1) to
develop and implement a district solid waste management plan; (2) to otherwise do
all things necessary for the reduction, management, and disposal of solid waste; and
recovery of waste products from the solid waste stream; and (3) to adopt
resolutions that have the force of law. Ind. Code § 13-21-3-12 (2002).
Wormans facility processes trees, brush, leaves, grass, and dirt and sells the
resultant mulch. Worman also processes concrete and bricks and sells the resultant
At some point before September 1998 the District sued Worman, claiming that Wormans
facility was an illegal and unpermitted site. In that month, the District
adopted Resolution 98-3, prescribing certain requirements for the permitting and operation of solid
waste facilities and clean fill sites within the Boone County Solid Waste Management
District. Worman and the District then settled the lawsuit on October 6,
1998. The parties agreed, among other things, that Worman would submit a
permit application for a Long-Term Clean Fill Processing and Recycling Facility. The
lawsuit was to be dismissed only when the permit issued to Worman contained
terms mutually acceptable to Worman and the District. On July 28, 1999,
Worman submitted its application. The Board received comments on the application at
its July and September public meetings. Outside of the public hearings, Board
members viewed the site and engaged in conversations with citizens who were interested
in Wormans permit.
After its October 11, 2000, meeting, the Board issued Worman a Long-Term Clean
Fill and Recycling Permit. Worman then returned to court arguing that the
District did not have the authority to issue the permit and that the
permitting process was unlawful because of ex parte communications between the Board and
private citizens. Worman also contended that even if the permitting process was
lawful, certain conditions imposed by the permit were illegal. The District successfully
moved for summary judgment. On appeal, the Court of Appeals held that
the District, as a matter of law, has the authority to regulate Wormans
facility, but that genuine issues of material fact existed concerning the propriety of
ex parte communications during the permit process. Accordingly, summary judgment was inappropriate.
This Court granted transfer.
The standard of review of a grant or denial of a motion for
summary judgment is the same as that used in the trial court: summary
judgment is appropriate only where the designated evidence shows there is no genuine
issue of material fact and the moving party is entitled to a judgment
as a matter of law. All facts and reasonable inferences drawn from those
facts are construed in favor of the nonmoving party. Corr v. Am.
Family Ins., 767 N.E.2d 535, 537-38 (Ind. 2002) (citing Bemenderfer v. Williams, 745
N.E.2d 212, 215 (Ind. 2001)).
I. The Districts Authority over Solid Waste
Worman argues that because the conduct regulated in the permit is regulated by
the Indiana Department of Environmental Management (IDEM), the Districts power to regulate Wormans
facility is preempted. Ind. Code § 36-1-3-8(a)(7) (1998). The Home Rule Act
significantly expanded the powers of units of local government, but expressly prohibited regulation
by local agencies of conduct already regulated by a state agency. Id.
Worman points out that the Indiana Department of Environmental Management regulates solid
and hazardous waste in Indiana pursuant to Indiana Code section 13-19-3-1. Worman
argues that IDEM routinely inspects Wormans facility, so the Home Rule Act bars
regulation by the District because IDEM regulates Wormans facility. The Court of
Appeals held that the Home Rule Acts prohibitions do not apply to the
District because the District is not a governmental unit to which the Home
Rule Act applies. I.C. § 36-1-3-1. As the Court of Appeals noted,
a unit is defined in the Home Rule Act as a county, municipality,
or township. I.C. § 36-1-2-23. Though the District is none of these,
Worman argues that because the members of the Board are executive officials of
Boone County, as required by statute, I.C. § 13-21-3-6(a),
the District is an
arm of the County and is therefore a unit of local government.
We conclude that the Home Rule Act does not prohibit solid waste management
districts from regulating solid waste. The districts are not technically units as
the Home Rule Act uses that term. Not all solid waste management
districts are coterminous with a county. The statute governing solid waste management
districts permits counties to join to form a single solid waste management district.
I.C. § 13-21-3-1. If a county chooses to designate itself as a
county solid waste management district or if the county fails to join or
designate itself, the county will be designated by the IDEM commissioner as a
county solid waste management district. Id. The Boone County Solid Waste Management
District was established for Boone County either by designation or by default.
Further, the statute expressly grants solid waste management districts specific powers that counties
already possess, such as the power to adopt resolutions with the force of
law and the power to sue and be sued. I.C. § 13-21-3-12.
If the District were the same as the county, these grants of power
would be surplusage. The Districts Board includes executive officials of municipalities within
the District as well as executives of county government. I.C. § 13-21-3-5(a).
Thus, although the District is coterminous with Boone County, and in that sense
the County itself is designated as the District, the Districts governance is not
the same as the Countys.
Perhaps more importantly, even if the District is viewed as the County and
therefore a unit, the specific grant of authority in the Solid Waste Management
District Act governs over the general terms of the Home Rule Act.
Ind. Dept Natural Res. v. Newton County, 802 N.E.2d 430, 433 (Ind. 2004).
The statute creating and governing Districts specifically grants authority to regulate solid
waste, I.C. § 13-21-3-12, and calls for the districts to collaborate with IDEM
to deal with solid waste issues. See I.C. § 12-21-5-1 (Each district shall
adopt and submit to the [IDEM] commissioner for approval a district solid waste
management plan.). If the Home Rule Act precluded solid waste management districts
from regulating this conduct because IDEM regulates the conduct, then there would be
no purpose to solid waste management districts at all. In sum, the
District is not precluded by the Home Rule Act because it is separate
in organization and power from Boone County and enjoys express authority to regulate
II. Ex Parte Communications
On several occasions while Wormans permit was pending, members of the Board communicated
with public citizens about the permit. For example, one member of the
Board spoke with citizens who called her home with specific complaints about Wormans
facility. Citizens also approached that member at the post office and grocery
store to discuss the Worman facility. Another member viewed the site through
binoculars from a neighbors home. Worman argues that these communications between members
of the Board and private citizens regarding its permit application constituted impermissible ex
parte communications that prejudiced the Board against Wormans application and violated Wormans due
process rights. The trial court disagreed and granted the Districts motion for
summary judgment. The Court of Appeals reversed, concluding that the Boards action
was adjudicatory in nature and that there was a genuine issue of material
fact whether the Board made these communications with the public known and whether
those communications influenced the permitting process.
Blacks Law Dictionary defines ex parte communications as a generally prohibited communication between
counsel and the court when opposing counsel is not present. Blacks Law Dictionary
597 (7th ed. 1999). As this definition suggests, ex parte communications most
often become an issue if a judge communicates outside the courtroom without disclosing
those communications to everyone involved. These communications are prohibited. See Ind.
Judicial Conduct Canon
3(B)(8); see, e.g., In re Kern, 774 N.E.2d 878, 879
(Ind. 2002) (judge participated in improper ex parte communications when he communicated with
and aided a father in a custody dispute without the knowledge of the
mother); Garrard v. Stone, 624 N.E.2d 68, 70 (Ind. Ct. App. 1993) (even
testimony by a family therapist could not cure the error when a trial
judge initiated communication with the therapist without informing either party). Due process
may be denied if the parties are not given the opportunity to hear
and comment on all of the evidence considered in their case. See
Majors v. State, 773 N.E.2d 231, 234 (Ind. 2002). For the same
reason, reliance on ex parte communications is not allowed in administrative hearings of
an adjudicatory nature. State Bd. of Tax Commrs v. Oliverius, 156 Ind.
App. 46, 54, 294 N.E.2d 646, 651 (1973). Worman contends that Boards
permitting process was adjudicatory and therefore the conversations between members of the Board
and the public constituted ex parte communications. Worman posits that whether the
Board was biased by these communications is an issue of fact that must
be reserved for at trial.
Wormans argument proceeds from a misunderstanding of the permit process. Ex parte
communications are impermissible in adjudicatory settings, but they are widely accepted and even
expected in legislative settings. We think that the Board is not an
adjudicatory body for these purposes and its permitting process is not analogous to
the adjudicatory function of a court. The Board is a local agency
composed mostly of locally elected officials. I.C. § 13-21-3-5. By statute,
the Board is made up of officials from the county executive, the county
fiscal body, the executives of cities in the District, and members of the
legislative bodies of cities in the District. Id. These officials, by
the nature of their executive or legislative positions, are expected to be open
and respond to the concerns of their constituents. The permitting process is
not subject to the Administrative Orders and Procedures Act (AOPA) because the District
does not have statewide jurisdiction. I.C. §§ 4-21.5-2-3; 4-21.5-1-3. Agencies subject
to the federal Administrative Procedure Act, 5 U.S.C. §§ 551, et. seq. (2000),
are governed by an explicit statutory prohibition against ex parte communications in adjudicatory
proceedings. 5 U.S.C. § 557(d)(1). But even those agencies, if engaged in
permitting or licensing, perform something of a hybrid function, and communications with industry
officials or others knowledgeable on the policy issues presented by a license applicant
may be appropriate. See Louisiana Assn of Indep. Producers & Royalty Owners
v. FERC, 958 F.2d 1101 (D.C. Cir. 1992); Kenneth Culp Davis & Richard
J. Pierce, Jr. Administrative Law Treatise § 8.4 (3d ed. 1994). Here,
although the permitting process has some aspects of adjudication, it is not purely
adjudicatory. Rather, the permitting process has characteristics of both legislative and adjudicatory
roles, and is most analogous to licensing, a hybrid function properly subject to
less restrictive processes than court or administrative adjudication. See Frank E. Cooper,
State Administrative Law 483 (1965) (Licensing activities constitute a distinctive genre, partaking of
the characteristics both of rule making and adjudication.).
District members are local officials who are expected to receive citizen input in
a less formalized manner than a court proceeding.
See footnote The statute does not
purport to convert this Board into judges subject to judicial standards, and includes
no restriction on their contacts. Accor
dingly, we do not find the permitting
process fatally flawed by these contacts with the public or independent investigations by
members. If the legislature chooses, it may impose more restrictions on the
Districts permitting process. In the absence of a legislative declaration that Board
members are not to engage in ex parte communications, we believe the Board
is sufficiently distinct in composition and function that it is not subject to
the prohibitions against ex parte communications that apply to administrative agencies under AOPA
and to courts under the Code of Judicial Conduct.
III. Challenged Permit Conditions
In addition to challenging the general authority of the District to regulate its
facility and challenging alleged ex parte communications between members of the District and
members of the public, Worman challenges several specific conditions of its permit.
As an initial matter, the District contends these claims are waived. Letters
from Wormans attorney to the District state that various conditions in the permit
are acceptable. The District argues that these statements constitute a waiver of
challenges to these provisions.
See footnote The District also argues that Worman is estopped from
challenging those conditions because the le
tters invited the District to issue a permit
containing those conditions.
Worman responds that the letters the District cites were written in an attempt
to reach a compromise regarding the permit pursuant to the settlement agreement of
the first lawsuit. In that lawsuit the District had sued Worman for
operating its facility without a permit. The parties settled, agreeing that Worman
would submit a permit application. The settlement agreement provided: The parties agree
that if and when permits as referred to above have been issued to
Worman with terms and conditions mutually acceptable to the District and Worman, then
and only then shall the parties dismiss with prejudice the pending lawsuit.
Worman reasons that the communications between Worman and the District during the permitting
process were part of efforts to consummate the settlement and are therefore inadmissible
pursuant to Indiana Evidence Rule 408. That Rule provides that evidence of
conduct or statements in negotiations is not admissible to prove liability, invalidity of
a claim, or amount of a claim. Although Worman stated that conditions
in a draft permit were acceptable in the context of trying to reach
an agreement, we take this to be nothing more than an indication that
a proposed resolution of one issue was acceptable if a package could be
agreed upon. Worman and the District never agreed upon a permit with
all of the terms of the final permit at issue here. The
purpose of Evidence Rule 408 is to promote candor by excluding admissions of
fact or law. Interim negotiating concessions are in that category. As
a result, these statements are not admissible into evidence to prove, as the
District tries to do, that Worman has waived them.
A. Permit condition B: Asphalt
Worman first challenges permit provision B which restricts recycling of asphalt at the
facility. This permit condition provides, [a]sphalt will be accepted only in reasonable
quantities limited to use for on-site road construction. Worman argues that there
is a dispute as to the meaning of this condition and that it
should be allowed to accept asphalt for recycling purposes. Worman points out
that, in his deposition, the Districts Administrator said that he believed that in
addition to the use of asphalt for on-site construction, asphalt recycling would be
allowed at Wormans facility. Worman asserts that because this statement conflicts with
the language of the permit, a genuine issue of material fact exists as
to the meaning of the permit terms. The Administrator does not have
the power to alter the permit by his recollection of it. The
terms of the permit are binding and are clear that asphalt should be
used only for on-site road construction. There is no issue for trial
The District promulgated Resolution 98-3 to provide itself and those it regulates with
guidelines for permitting and operating solid waste facilities and clean fill sites.
Worman argues that there is a genuine issue of material fact as to
whether the District has authority under Resolution 98-3 to limit the use of
asphalt to on-site uses because the Resolution makes no express mention of asphalt.
The Resolution requires a permit application to include a description of the
type of material to be processed at the facility and [a] detailed description
of all processes used in the handling, sorting, processing, and transportation of the
waste . . . . The Resolution also contains a provision requiring
the District to review, among other things, whether the permit application satisfies the
requirements of the Resolution. If the application is complete, the District is
directed to grant the permit with whatever conditions that are necessary to assure
compliance with the Resolution. This framework makes clear that permits will be
granted based on the information given in the application. In its original
application, Worman did not list asphalt as a type of material it would
receive, but did explain that it would use asphalt for on-site construction and
roads. Worman did not describe any other use for asphalt at the
facility. In its amended application, Worman included asphalt as a material that
would be accepted, but did not describe any use for asphalt other than
for on-site construction and roads. The Districts Resolution requires a description of
all uses of material in a permit application. The only use of
asphalt Worman described in its permit application was on-site road construction. The
restriction on the use of asphalt was therefore consistent with the Districts permit
application and with Resolution 98-3.
Permit Condition B: Dimension Lumber
Worman also challenges the permit condition prohibiting the handling of dimension lumber.
The application says, Wormans does not accept . . . normal board lumber
. . . . The District argues that normal board lumber is
the same as dimension lumber and because Wormans permit application said it would
not take normal board lumber, the District properly prohibited dimension lumber. Worman
does not define dimension lumber except to say that it is different from
normal board lumber. Websters Dictionary defines dimension as wood or stone cut
to pieces of specified size. Merriam-Websters Collegiate Dictionary 325 (10th ed. 1993).
This is a common enough definition of dimension lumber and is equivalent
to common usages of the term board lumber. Worman has not raised
a genuine issue of material fact as to its definition and whether it
can be excluded from the permit.
Worman also argues that this permit provision is unconstitutionally vague because of lack
of clarity of the term dimension lumber. Due process requires that standards
should be written with sufficient precision in order to give fair warning as
to what the agency will consider in making its decision. Union Tank
Car, Fleet Operations v. Commr of Labor, 671 N.E.2d 885, 889 (Ind. Ct.
App. 1996). The test to be applied in determining whether an administrative
agency regulation can withstand a challenge for vagueness is whether it is so
indefinite that persons of common intelligence must necessarily guess at its meaning and
differ as to its application. Taylor v. Ind. Family & Soc. Servs.
Admin., 699 N.E.2d 1186, 1192 (Ind. Ct. App. 1998) (quoting Ind. State Ethics
Commn v. Nelson, 656 N.E.2d 1172 (Ind. Ct. App. 1995)). Because dimension
lumber has a common, generally accepted usage, cut to pieces of a specified
size, this condition is specific enough to satisfy due process.
Permit Conditions C.9 and D.1: Fire Suppression and Dust Control
Permit condition C.9 calls for the use of fire suppression techniques and condition
D.1 requires the facility to prevent dust from blowing off of the property
onto other land. Worman argues that these conditions generally apply to composting
facilities and because Wormans facility does not compost, these conditions are not applicable
to its facility. Whether the facility composts or not, Section 2-5(d)(7) of
Resolution 98-3 states that a permit application must contain a description of the
applicants proposed procedures for controlling dust and fire. The provision grants the
District the authority to condition its permit on Wormans proper treatment of these
problems. Indeed, Wormans application includes a section describing its fire prevention procedures.
There is no issue for trial here.
Permit Condition A.8: Lack of Compliance as Basis for Revocation of Permit
Worman next challenges the permit provisions that reserve the Districts right to revoke
the permit if Worman fails to comply with its requirements. Worman challenges
these conditions on the ground that the Resolution does not define a material
violation and because the permit cites lack of compliance, not material violation as
basis for revocation. The term material appears in innumerable statutes, and revocation
for material violation of conditions seems self-evidently within the Districts authority. This
contention is frivolous.
E. Permit Condition D.3: Odors
Worman argues that permit condition D.3 is beyond the scope of the Resolution
and unconstitutionally vague. This condition states Odors will be controlled by processing
materials quickly minimizing the amount of time odor causing materials are kept in
piles and by introducing woodchips/or [sic] leaves into green material and maintaining aerobic
conditions. Section 9-6(a) of Resolution 98-3 provides, Vectors, dust, odors, and noise
must be controlled at all times at the facility so that they do
not constitute a nuisance or a health hazard. The District may impose
permit provisions that are reasonable to assure compliance with the Resolution, and the
Resolution contemplates the prevention of odor problems. Nor is the provision unconstitutionally
vague or overbroad. Worman focuses on the requirement that processing is to
be accomplished quickly and argues that this term is impermissibly vague because there
is no specific time that materials are to be kept at the facility.
Worman points out that a member of the District expressed concern that
excessively large piles of material at the facility were not in compliance with
the Resolution or the permit. We agree that the provision does not
impose any specific time constraint on the processing of materials. The provision
is in implementation of the Resolution requirement that odors not become a nuisance
or health hazard. It is subject to this standard. To be
sure, one may debate what constitutes a nuisance but the District is not
required to anticipate all means by which this activity could constitute an unreasonable
risk to the health or convenience of others. Worman also argues that
this provision of the permit is not applicable to its facility because it
does not currently have an odor problem. If that is the case,
this condition would have no effect, but that does not render it invalid.
Permit Condition A.7: Closure Plan
Worman challenges permit condition A.7 which says, the applicant will submit a closure
plan by April 01, 2001 and will include procedures to be used to
remove materials for sale or distribution. Worman claims that this provision is
outside the scope of the Resolution. Section 10-1 of the Resolution states,
A closure plan similar to that provided for in 329 IAC 10-37 may
be required by the Board for clean fill sites, solid waste processing facilities
and incinerators where the proposed solid waste storage or handling practices may pose
a threat to human health and the environment . . . .
Worman points to testimony of the Districts Administrator that shutting down the facility
would pose no danger to health. But Wormans application admits that the
nature of the site is such that a fire hazard is possible.
This invokes the Resolutions provision for closure plans of facilities that may pose
a danger to health or the environment.
Permit Condition A.1 and A.9
Permit conditions A.1 and A.9 were challenged as beyond the scope of the
Resolution, but Worman did not elaborate this argument on appeal, so it is
waived. Ind. Appellate Rule 46(A)(8)(a); see also, Woodruff v. Klein, 762 N.E.2d
223, 229 (Ind. Ct. App. 2002).
H. Permit Conditions A.2, A.6, and D.2: Conditions within the Jurisdiction of other
Worman argues that certain permit provisions are improper because they lie within the
exclusive jurisdiction of other governmental bodies. Worman says that because violation of
permit provisions might result in revocation of the permit, the provisions amount to
an attempt to enforce regulations subject to the exclusive jurisdiction of state agencies.
First, condition A.2 provides, the Applicant shall construct adequate ingress and egress lanes
on Zionsville Road by April 01, 2001 in order to comply with conditions
of the BZA special exception. Worman argues that this is an attempt
to regulate that which is in the exclusive jurisdiction of the Board of
Zoning Appeals. The District points to Section 2-5(b)(12) of its Resolution and
argues, Although the District may not have the authority to enforce the requirements
of the special exception granted by the BZA, the District clearly has the
authority to require Worman to submit verification of proper zoning status. We
Next, permit condition A.6 requires Worman to submit a storm water management plan
in accordance with IDEM and Indiana Department of Natural Resources requirements. Worman
challenges this condition as within the exclusive jurisdiction of IDEM and DNR.
The District admits that Worman has complied with this condition and this issue
therefore is moot.
Last, Worman challenges permit condition D.2 which states that Compliance with appropriate Occupational
Safety & Health Administration (OSHA) and Indiana Occupational Safety & Health Administration (IOSHA)
noise standards will be required to minimize noise levels. Section 2-5(d)(7) of
the Resolution provides that a permit application should describe procedures for controlling noise.
The District imposed this permit provision to provide a standard by which
noise will be measured for purposes of enforcing its Resolution, which expressly allows
for noise control. We see no reason why the District may not
adopt standards to protect the general public that are drawn from other agencies
whose concern is, as in OSHA, a more limited constituency.
IV. Wormans Equal Protection and Equal Privileges Rights
Worman also objects to certain provisions of the permit arguing that these provisions
violate its rights under the equal protection clause of the United States Constitution
and the equal privileges provision of the Indiana Constitution. Quoting Phelps v.
Sybinsky, 736 N.E.2d 809, 818 (Ind. Ct. App. 2000), trans. denied, that states,
The equal protection clause guarantees that similar individuals will be dealt with in
a similar manner by the government, Worman argues that because certain conditions of
its permit are not identical to counterpart provisions in other permits issued by
the District, a genuine issue of material fact exists as to whether the
District has violated its rights under the Equal Protection Clause of the United
States Constitution. Wormans argument misses the point. In the same paragraph
of Phelps cited by Worman, the Indiana Court of Appeals went on to
explain that the Equal Protection Clause does not reject the governments ability to
classify persons or draw lines in the creation and application of laws, but
it does guarantee that those classifications will not be based on impermissible criteria
or arbitrarily used to burden a group of individuals. Id. Essentially,
disparate treatment by the government, unless involving protected classes of individuals, must have
a rational basis.
Many of Wormans equal protection arguments fail because Worman has not shown any
actual disparate treatment. For example, Worman argues permit condition A.4, which requires
documentation of the flow of material through the facility, has not been included
in other permits issued by the District. The District responded that substantially
similar provisions have been included in other permits. In fact, some contain
the exact language used in Wormans permit. Condition C.7 requires Worman to
document that it has recorded the permit for a clean fill processing and
recycling facility in the Recorders Office. The only difference between this provision
in Wormans permit and similar provisions in other permits cited by the District
is the designation of the facility as a clean fill and recycling facility.
The other facilities are different types of facilities and they are so
designated. Condition D.3 of Wormans permit requires Worman to control odor and
condition D.5 requires it to control litter. The District again points out
that other permits it has issued contain the same or substantially similar terms.
Worman also argues generally that other permits for clean fill facilities do not
provide specific guidelines with respect to fire, dust, odor, or noise, but instead
are more generally required to address any nuisance created. Worman is correct
that it has been treated differently than other permittees, but the permits to
which Worman points were issued before passage of Resolution 98-3. Nothing in
the Equal Protection Clause precludes government from imposing new requirements. City of
New Orleans v. Dukes, 427 U.S. 297, 304 (1976) (failed
equal protection challenge
to a grandfather clause that exempted certain businesses from new regulations). Worman
also points to permits for similar facilities that do not require a closure
plan, as required by Wormans permit. The District explains that the other
facilities at issue either do not accept organic mater
ials or bury them, so
the facilities do not create the fire hazard presented by Wormans facility.
Finally, Worman argues that other permits do not contain Wormans exceptions for asphalt
and dimension lumber. But those exceptions are based on Wormans permit application.
All of these differences are grounded in a rational basis.
A separate analysis is required under the Equal Privileges Clause of the Indiana
Constitution, but we reach the same result.
Article 1, Section 23 of the Indiana Constitution imposes two requirements upon statutes
that grant unequal privileges or immunities to differing classes of persons. First, the
disparate treatment accorded by the legislation must be reasonably related to inherent characteristics
which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly
applicable and equally available to all persons similarly situated. Finally, in determining whether
a statute complies with or violates Section 23, courts must exercise substantial deference
to legislative discretion.
Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).
Worman has failed to show disparate treatment in many of the permit conditions,
so the Equal Privileges Clause analysis ends for those conditions. As to
the others, the different treatment accorded Worman is reasonably related to differences between
Wormans facility and the other permittees. As a result, Worman has failed
to raise a genuine issue of material fact supporting its claim that its
Equal Protection or Equal Privileges rights have been violated.
We affirm the trial courts grant of summary judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Indiana Code section 13-21-3-14(a) provides, with certain exceptions, . . . the
powers of a district do not include the following . . . .
Effective July 1, 2003, subsection (a) was amended to add a new subsection
(5) that reads: The power to issue permits for an activity that is
already permitted by a state agency, except as provided by statute. The
parties have advanced no arguments based on this amendment, which became effective after
the decision of the Court of Appeals in this case, and we express
no opinion as to its effect.
Footnote: The Districts Board of Directors consists of two people from the county
executive, one person from the county fiscal body, the executive of the largest
city or town in the county, one person who is either the executive
of or a member of the legislative body of a different city or
town, and, inexplicably, one add
itional member from the membership of the county executive.
I.C. § 13-21-3-5(a).
The District claims Worman has waived its right to challenge provisions A.1,
A.2, A.4, A.6, C.7, C.9, D.1, D.2, D.3 and D.5.