FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
DALE W. ARNETT LAURA L. MASER
Winchester, Indiana Beers Mallers Backs & Salin, LLP
Fort Wayne, Indiana
FILED
Jan 31 2013, 9:13 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
HENRY WAGLER, BARB WAGLER, and )
HENRY & BARB WAGLER, LP, )
)
Appellants-Defendants, )
)
vs. ) No. 02A03-1206-PL-269
)
FORT WAYNE-ALLEN COUNTY )
DEPARTMENT OF HEALTH, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Thomas J. Felts, Judge
Cause No. 02C01-0906-PL-79
January 31, 2013
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Henry and Barb Wagler built their home in an unincorporated area of Allen County
and had their own septic systems installed. The Fort Wayne-Allen County Department of
Health (“the Department”) petitioned for injunctive relief and moved for summary judgment,
claiming that the Waglers were required to obtain a construction permit from the Department
prior to installing their septic systems. The Waglers filed a cross-motion for summary
judgment, claiming a statutory exemption from the permit requirement. The trial court
entered summary judgment for the Department.
On appeal, the Waglers renew their statutory exemption argument. We conclude that
the statute is inapplicable and therefore affirm the trial court.
Facts and Procedural History
The relevant facts are undisputed. The Waglers built their home in an unincorporated
area of Allen County. Their limited partnership, Henry & Barb Wagler, LP, owns the home.
In June 2008, the Waglers installed two septic systems on their property; one serves the main
residence and the other serves a ranch house. Allen County Code Section 10-4-4-1 provides
that a construction permit must be obtained from the Allen County health commissioner
“prior to the commencement of any excavation, construction, modification or addition to any
existing or new private sewage disposal system.” The Waglers did not obtain a permit for
their septic systems. The Department received a complaint about the Waglers’ failure to
obtain a permit and attempted to resolve the matter administratively, to no avail.
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In June 2009, the Department filed a complaint against the Waglers and their limited
partnership for injunctive relief and damages based on their failure to obtain a permit. The
Department filed a motion for summary judgment. The Waglers filed a cross-motion for
summary judgment, claiming that they were exempt from the permitting requirement
pursuant to Indiana Code Section 36-7-8-3, which we address below. After a hearing, the
trial court entered summary judgment for the Department. This appeal ensued.
Discussion and Decision
The Waglers contend that the trial court erred in granting the Department’s summary
judgment motion. Our standard of review is well settled:
When reviewing the grant or denial of summary judgment, this Court applies
the same legal standard as a trial court: summary judgment is appropriate
where no designated genuine issues of material fact exist and the moving party
is entitled to judgment as a matter of law. The standard of review is not altered
by cross motions for summary judgment on the same issues. A party appealing
the denial of summary judgment carries the burden of persuading this Court
that the trial court’s decision was erroneous. Moreover, when the material
facts are not in dispute, our review is limited to determining whether the trial
court correctly applied the law to the undisputed facts; and, if the issue
presented is purely a question of law, we review the matter de novo. In
addition, our standard of review is not changed by the trial court’s entry of
findings of fact and conclusions thereon. Although the findings and
conclusions provide valuable insight into the trial court’s decision, they are not
binding upon this Court.
C.M.L. ex rel. Brabant v. Republic Servs., Inc., 800 N.E.2d 200, 202 (Ind. Ct. App. 2003)
(citations omitted), trans. denied (2004).
As mentioned earlier, the Waglers claim that they are exempt from the permit
requirement pursuant to Indiana Code Section 36-7-8-3, which reads in pertinent part as
follows:
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(a) The legislative body of a county having a county department of
buildings or joint city-county building department may, by ordinance, adopt
building, heating, ventilating, air conditioning, electrical, plumbing, and
sanitation standards for unincorporated areas of the county. These standards
take effect only on the legislative body’s receipt of written approval from the
fire prevention and building safety commission.
(b) An ordinance adopted under this section must be based on
occupancy, and it applies to:
(1) the construction, alteration, equipment, use, occupancy, location,
and maintenance of buildings, structures, and appurtenances that are on
land or over water and are:
(A) erected after the ordinance takes effect; and
(B) if expressly provided by the ordinance, existing when the
ordinance takes effect;
….
(c) The rules of the fire prevention and building safety commission are
the minimum standards upon which ordinances adopted under this section
must be based.
(d) An ordinance adopted under this section does not apply to private
homes that are built by individuals and used for their own occupancy.
The Waglers argue that because they built their own home, the “sanitation standards”
mentioned in subsection (a) of the statute do not apply to them pursuant to subsection (d),
and thus the septic system permitting requirement of Allen County Code Section 10-4-4-1
does not apply to them.
We disagree. The rules of the fire prevention and building safety commission, found
in Title 675 of the Indiana Administrative Code (“IAC”), do not govern the installation of
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septic systems.1 That subject matter is governed by Title 16 of the Indiana Code and Title
410 of the IAC. See, e.g., Ind. Code § 16-19-3-4 (“(a) The executive board [of the state
department of health] may, by an affirmative vote of a majority of its members, adopt
reasonable rules on behalf of the state department [of health] to protect or to improve the
public health in Indiana. (b) The rules may concern but are not limited to the following: …
(3) The disposition of excremental and sewage matter.”); 410 IAC 6-8.1-33 (“The owner or
agent of the owner shall obtain a written permit, signed by the [local] health officer, for
construction of a residential sewage system prior to: (1) Construction of a residence or
placement of a mobile home which will not be connected to a sanitary sewerage system.”).2
Allen County Code Section 10-4-4-1 is consistent with this rule. In sum, then, Indiana Code
Section 36-7-8-3 does not apply.
We reached the same conclusion in Washington County Health Department v. White,
878 N.E.2d 224 (Ind. Ct. App. 2007), trans. denied (2008), on which the trial court relied in
granting the Department’s summary judgment motion. In that case, the Whites placed two
mobile homes on their property in an unincorporated area of the county and failed to obtain a
1
In support of its summary judgment motion, the Department pointed out that “[t]he Plumbing Codes
at 675 IAC, Article 16 do not cover sewer, septic system, or other ‘sanitary’ installations. The plumbing code
addresses the appropriate means for a structure to be connected to such installations, but does not govern septic
installations.” Appellants’ App. at 162 (affidavit of Allen County Building Department Commissioner David
O. Fuller). We note that Title 675 of the IAC does not contain a separate “sanitation” code.
2
410 IAC 6-8.1-33, which was in effect when the Waglers installed their septic systems, was repealed
with the rest of Rule 6-8.1 effective January 1, 2011. It appears that 410 IAC 6-8.1-33 has been superseded by
410 IAC 6-8.3-53 (“(a) For any dwelling or place of residence that will not be connected to a sanitary sewerage
system, the owner or agent of the owner shall obtain a written construction permit, signed by the health officer,
for construction of a residential on-site sewage system prior to the: (1) start of construction of a residence
….”).
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permit for their sewage discharge system. When the county health department asked to
inspect their property, the Whites petitioned for injunctive relief and claimed that, pursuant to
Indiana Code Section 36-7-8-3(d), “they were not required to obtain any sort of permit for
their mobile homes.” Id. at 225. The health department also petitioned for injunctive relief.
The trial court denied both petitions.
On appeal, the health department argued that Indiana Code Section 36-7-8-3(d) was
inapplicable “because the Whites did not build the mobile homes placed on the property.” Id.
at 228. We agreed with the health department on this point and then observed,
In a way, the question whether the Subsection (d) exception applies is a
sidetrack to the fundamental issue here, which is whether the Whites must
comply with the requirements of Indiana’s Health Code (“Health Code”)
contained in Title 16 of the Indiana Code. We have already determined that
the Whites do not fall within the Subsection (d) exception, and because of this,
we conclude that they are bound to comply with the Health Code regulations,
specifically, 410 IAC 6–8.1–33, which required them to obtain a permit for a
sewage disposal system prior to placing the mobile homes on their property.
As such, the trial court abused its discretion by denying [the health
department’s] petition for injunctive relief.
However, even if we had determined that the Whites satisfied the
Subsection (d) exception, they still would have been required to comply with
the Health Code regulations. The trial court took a contrary position. It
viewed the Subsection (d) exception as a global exception that exempts
individuals not only from the requirements set out in Indiana Code § 36-7-8-3,
but also the requirements of the Health Code. The trial court’s view of the
scope of the Subsection (d) exception is too broad.
In Robinson [v. Monroe County, 658 N.E.2d 647 (Ind. Ct. App. 1995),
clarified on reh’g, 663 N.E.2d 196 (1996), trans. denied (1996)], we noted that
Subsection (d) represents an exception to the safety-oriented
requirements set forth elsewhere in the statute [Indiana Code §
36-7-8-3] and thus is contrary to the purpose of the statute. That
is, exempting an individual from the requirements of obtaining
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authorization for proposed construction and subjecting the
completed work to inspection and approval prior to permitting
occupancy of the building runs contrary to the goal of ensuring
safe buildings.
658 N.E.2d at 650-51. In questioning why the Subsection (d) exception was
created, we pointed out that
[i]n its early stages, this country’s frontier was moved westward
by pioneers who moved onto land and built houses made from
the materials at hand. Since then, home owning has become an
essential facet of the “American dream”. It may be argued that
ordinances such as those contemplated by IC 36-7-8-3, which
establishes construction specifications and require permits and
inspections for residential construction projects, interfere with
the ability of some individuals to build their own home and thus
to pursue the American dream.
Id. at 651. We determined that
exempting a person who wishes to build his own house from the
requirements imposed pursuant to IC 36-7-8-3 of complying
with construction specifications and obtaining permits allows
that person to build a house even though he may not possess the
skills or equipment to comply with technical specifications, and
allows him to do so even if he is not able to afford to pay others
to do the work.
Id. Nevertheless, we concluded that the Subsection (d) exception “only creates
an exemption from the requirements set out in [Indiana Code § 36-7-8-3] and
does not provide a similar exemption from the requirements set out in [Indiana
Code § 36-7-8-4] concerning minimum housing standards and related
ordinances.” Id. at 652.
We agree with the Robinson court’s conclusion that the Subsection (d)
exception is a limited exception only exempting an individual from the
requirements of Indiana Code § 36-7-8-3. The Health Code and Indiana Code
§ 36-7-8-3 regulate different subject matters. The reasons discussed in
Robinson for exempting an individual from the requirements of Indiana Code §
36-7-8-3 do not apply with regard to exempting an individual from the
requirements of the Health Code. The trial court erred in concluding that an
individual who satisfies the Subsection (d) exception is exempt from the
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Health Code requirements. The Whites were required to obtain a permit for a
sewage disposal system prior to placing the mobile homes on their property.
See 410 IAC 6-8-1-33(a)(1). Therefore, the trial court abused its discretion
when it denied [the health department’s] petition for injunctive relief.
Id. at 229-30.
In this case, the Waglers’ counsel, who also represented the Whites, contends that the
White court erred in concluding that Indiana Code Section 36-7-8-3(d) “does not apply with
regards to exempting individuals from the requirements of the Health Code.” Appellants’ Br.
at 3. For the reasons given above, we disagree and therefore affirm the trial court’s ruling.
Affirmed.
KIRSCH, J., and MATHIAS, J., concur.
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