Jennifer Nelson for www.theindianalwyer.com

The Indiana Supreme Court issued two cases dealing with the same issue Thursday: whether a tax sale could be used to collect unpaid sewer bills. The justices ruled it could and reversed judgment in favor of the homeowners.

In both cases, In Re: The Carroll County 2013 Tax Sale: Twin Lakes Regional Sewer District v. Richard C. Ray and Patricia A. Alford, et al., 08S04-1402-MI-97, and In Re: The Carroll County 2012 Tax Sale: Twin Lakes Regional Sewer District v. Steven E. Hruska, Virginia Hanna, et al., 08S02-1402-MI-78, the trial court granted landowners’ requests to remove their properties from the list of properties subject to tax sale. The landowners were delinquent in paying fees and penalties owed to the Twin Lakes Regional Sewer District, and the sewer district perfected liens against the properties. The Carroll County treasurer and auditor ordered the properties sold at a tax sale to satisfy the unpaid bills.

The central issue in this case is the interpretation of the last sentence of the lien foreclosure prohibition clause in I.C. 13-26-14-4: “A lien under this chapter that is the only lien on a property may not be foreclosed.” Another issue is whether that clause applies to prohibit a tax sale when the sewer bill lien is the only lien on a property, as is the case in these two matters.

The sewer district argued that clause doesn’t apply to tax sales; the landowners say the plain meaning of “foreclosed” applies broadly to encompass both a traditional real estate foreclosure as well as a tax sale.

Four sections of I.C. 36-9-23 explain how a municipality may collect unpaid and delinquent sewer bills. And while those sections expressly authorize the county treasurer to collect assessed sewer fees in the manner of collecting delinquent property taxes, which includes resort to a tax sale, these sections do not define sewer fee collection liens as “tax liens” or refer to a “tax sale” as a “lien foreclosure,” Justice Brent Dickson wrote in Ray.

“We conclude that a tax sale does not fall within the regional sewer district lien foreclosure prohibition,” he wrote. “We recognize the landowners’ earnest opposition to their property being subject to regional sewer district fees and their belief that the legislature’s enactment of the lien foreclosure prohibition clause provided them with immunity in the absence of other liens. We must be guided, however, by the language enacted and thus find that, while it precludes the foreclosure of assessed regional sewer district fee liens when such liens are the only liens on a property, this preclusion does not extend to collection of such fees and charges by tax sale.”

The cases are remanded for further proceedings.

The American Bar Association’s Section of Environment, Energy and Resources (“Section” or “SEER”) awarded the Air Quality Committee, chaired by Jackson Kelly PLLC attorney, Gale Lea Rubrecht, the Section’s “Best 2013-2014 Environmental Committee” certificate of recognition at the Section’s 22nd Fall Conference.

According to the American Bar Association, the award recognizes “outstanding achievements” by committees. The Air Quality Committee distinguished itself and earned the award by providing strong leadership, active engagement of members, including cultivation of new committee leaders, steady production of membership benefits, successful innovation in projects or products, engagement with Section leaders and other committees and timely fulfillment of administrative requirements.

Rubrecht, Of Counsel in Jackson Kelly’s Charleston, West Virginia, office practices in the Firm’s Environmental Practice Group. She has more than 30 years of experience in energy and environmental law, appellate advocacy, litigation and alternative dispute resolution. She represents manufacturers, coal companies, petroleum refineries, trade organizations, banking institutions, real estate developers, development authorities, landowners and other clients in state and federal energy and environmental law, with particular focus on national air quality regulatory issues, brownfields remediation and redevelopment, and solid and hazardous waste compliance.

Rubrecht is active in the American Bar Association Section of Energy, Environment, and Resources. In addition to being the chair for the Section’s Air Quality Committee, she serves as the U.S. EPA Headquarters Editor for the Section’s Air Quality Committee Newsletter. Rubrecht also serves as the West Virginia contributing author to the American Bar Association’s Brownfields: A Comprehensive Guide to Redeveloping Contaminated Property and Institutional Controls books. She is a member of the Editorial Board of the American Bar Association Section of Energy, Environment, and Resource’s magazine, Natural Resources & Environment.

Rubrecht is involved in environmental affairs at the local and state levels. She chairs the West Virginia Chamber of Commerce’s Waste Subcommittee and is a member of the Advisory Team to the West Virginia Brownfields Assistance Center at Marshall University. She is also a member of the Board of Directors of the West Virginia Chapter of the Air & Waste Management Association. Rubrecht is a member of the American Arbitration Association’s Roster of Neutrals for environmental cases and volunteers as a mediator for Settlement Week Alternative Resolution by Mediation in Kanawha County, West Virginia.

Client Focus, Industry Insight, National Reputation. Jackson Kelly PLLC is a national law firm with more than 200 attorneys located in twelve offices throughout Pennsylvania, Ohio, West Virginia, Kentucky, Indiana, Colorado and the District of Columbia. With a focus on companies working in and around the energy industry, the Firm works with its clients to help resolve their operating challenges by teaming to develop and implement strategies that minimize risks, quickly and effectively. Focusing on clients’ industry-specific needs, the Firm serves a wide variety of corporate and public clients and enjoys a national reputation in business, labor and employment, litigation, government contracts, tax, safety and health, permitting, natural resource and environmental law. The Firm’s clients and peers recognize its commitment to providing superior client service as Jackson Kelly has repeatedly been selected as a Go-To Law Firm for the Top 500 Companies in the U.S. and is regularly named to BTI’s Client Service A-Team.