Department of Waterworks for Consolidated City of Indianapolis v. Community School Corp. of Southern Hancock County

RILEY, Judge,

dissenting with separate opinion.

I respectfully disagree with the majority's opinion in the resolution of this case. As acknowledged by the majority, "the question here involved the IURC's interpretation of its rule, the Water Company's rules, and the reasonableness of a water service connection;" the facts are not disputed. Op. p. 885. Thus, as we are faced with the interpretation of a rule, I take issue with the majority's application of a *891"multiple tiered review" focused on the facts and with a "high level of deference" to the IURC's decision. See Op. pp. 884, 885-86. Instead, relying on the majority's precedent, I find the following passage to be more applicable to the question at hand:

[AJn agency action is always subject to review as contrary to law, but this constitutionally preserved review is limited to whether the Commission stayed within its jurisdiction and conformed to the statutory standards and legal principles involved in producing its decision, ruling or order.

U.S. Steel, 907 N.E.2d at 1016 (quoting Citizens Action Coalition of Indiana v. NIPSCO, 485 N.E.2d 610, 612-13 (Ind.1985)).

Turning to the disputed rule-the Water Company's Rule 7(J)-I would conclude that the IURC misinterpreted the rule and therefore exceeded its jurisdiction. As noted by the majority, Rule 7(J) provides that

A service pipe which is irregularly located shall, at [the Water Company's] expense, be relocated and connected to a new main abutting the premises when subsequently installed for other purposes. [The Water Company] shall not be under any obligation to permit connection or to supply service to any customer whose premises does not abut a main.

While this rule standing on its own might be considered ambiguous, the rule becomes very clear when read together with the specific definitions of its terms. In particular, "premise" is defined as "the whole or part of a dwelling, building, or structure owned, leased, or operated by a single legal entity located on a single parcel or contiguous parcels of real estate." (Appellant's p. 120). Additionally, "each lot or service building will be considered a premise, and therefore, served by a separate service pipe." 100). (Appellant's App. p.

Under the undisputed facts before us, the new intermediate school is constructed on its own parcel within the school corporation's campus. As far as I can discern, this new construction is not attached to any existing building but is an independent structure at the far end of the campus. Mindful of the rule and its accompanying definitions, the new school should be considered a "premise," pursuant to Rule 7(J), and thus it would be appropriate to require the School to pay for a new main extension.