                                                                              FILED
                                                                         Dec 27 2018, 8:44 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANTS –                                ATTORNEYS FOR APPELLEE
NORTHCREST R.V. PARK, BARBEE                              Eric M. Blume
LANDING MOBILE HOME PARK,                                 Larry L. Barnard
AND KUHN LAKE LAKESIDE RESORT                             Andrew D. Boxberger
Bette J. Dodd                                             Carson LLP
Joseph P. Rompala                                         Fort Wayne, Indiana
Tabitha L. Balzer
Lewis & Kappes, P.C.                                      ATTORNEY FOR INTERVENOR
Indianapolis, Indiana                                     Donald J. Tribbett
                                                          Tribbett Law Office
ATTORNEYS FOR APPELLANT – PINE                            Logansport, Indiana
BAY RESORT
Jeffery A. Earl
Danville, Indiana
Robert M. Glennon
Danville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018                        Page 1 of 21
      Northcrest R.V. Park, Barbee                              December 27, 2018
      Landing Mobile Home Park,                                 Court of Appeals Case No.
      Kuhn Lakeside Resort, and Pine                            18A-EX-1243
      Bay Resort,                                               Appeal from the Indiana Utility
      Appellants-Complainants,                                  Regulatory Commission
                                                                The Honorable James F. Huston,
              v.                                                Chairman
                                                                The Honorable Sarah E. Freeman
      Lakeland Regional Sewer                                   The Honorable David E. Ziegner
      District,                                                 The Honorable David Ober,
                                                                Commissioners
      Appellee-Respondent,
                                                                The Honorable Lora L. Manion,
      and                                                       Administrative Law Judge
                                                                IURC Cause No.
      Indiana Regional Sewer District                           44973
      Association,

      Appellee-Intervenor.



      Najam, Judge.


                                        Statement of the Case
[1]   Northcrest R.V. Park, Barbee Landing Mobile Home Park, Kuhn Lakeside

      Resort, and Pine Bay Resort (collectively, “the Mobile Home Parks”) appeal

      the decision of the Indiana Utility Regulatory Commission (“IURC”) in favor

      of the Lakeland Regional Sewer District (“the Sewer District”). The Mobile

      Home Parks raise two issues for our review, but we find the following issue

      dispositive: whether the IURC lacked jurisdiction to determine whether the

      Sewer District had erred when the Sewer District classified the Mobile Home

      Parks as “mobile home courts” rather than as “campgrounds” in the course of


      Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018                 Page 2 of 21
      the Sewer District’s exercise of its ratemaking authority. We hold that the

      IURC lacked jurisdiction to review that issue, and, as such, the IURC properly

      entered summary judgment for the Sewer District and dismissed the Mobile

      Home Parks’ complaints. Thus, we affirm.


                                  Facts and Procedural History
[2]   The Sewer District is a regional sewer district in Kosciusko County, and the

      Mobile Home Parks are each located in the Sewer District’s service area. In

      2015, the Sewer District enacted Ordinance No. 2015-02 (“the ordinance”),1

      which provided in relevant part as follows:


              Section 1. Unless the context specifically indicates otherwise, the
              meaning of the terms used in this ordinance shall be as follows:


                                                       ***


                       b. “Campground” shall mean any real property that is set
                       aside and offered by a Person for direct or indirect
                       remuneration of the owner, lessor, or operator thereof for
                       parking or accommodation of Recreational Vehicles, tents,
                       camper trailers, camping trucks, motor homes, and/or
                       similar shelters that are not designed for permanent or
                       year-round occupancy.


                                                       ***




      1
        The Sewer District subsequently enacted several ordinances that amended Ordinance No. 2015-02, but it is
      undisputed that each subsequent ordinance maintained the original definitions as relevant here.



      Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018                         Page 3 of 21
                       m. “Mobile Home” shall mean a residential structure that
                       is transportable in one or more sections, is thirty-five (35)
                       feet or more in length with the hitch, is built on an integral
                       chassis, is designed to be used as a place of human
                       occupancy when connected to the required utilities,
                       contains the plumbing, heating, air conditioning, and/or
                       electrical systems in the structure, and is constructed so
                       that it may be used with or without permanent foundation.


                       n. “Mobile Home Court” shall mean a parcel of land
                       containing two or more spaces, with required
                       improvements and utilities, used for the long-term
                       placement of Mobile Homes.


                                                       ***


                       t. “Recreational Vehicle” shall mean a travel trailer, park
                       model, collapsible trailer, truck-mounted camper, or motor
                       home. A “Recreational Vehicle” is not a “Mobile Home.”


      Appellants’ App. Vol. IV at 80-82. The Sewer District then implemented

      different rates based on, as relevant here, whether it had classified a property as

      a campground or as a mobile home court. See, e.g., Appellants’ App. Vol. VIII

      at 61-62.


[3]   The Sewer District did a site inspection of each of the Mobile Home Parks.

      According to that site inspection, one property “had 45 mobile homes and one

      recreational vehicle”; another “had 28 mobile homes”; a third “had 12 mobile

      homes, two recreational vehicles[,] and one empty lot”; and the fourth “had at

      least 22 mobile homes and at least three recreational vehicles.” Appellants’


      Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018         Page 4 of 21
      App. Vol. II at 90. Based on that information, the Sewer District classified each

      of the Mobile Home Parks as mobile home courts. Some of the Mobile Home

      Parks asked the Sewer District to reconsider their classifications, which requests

      the Sewer District denied in August and September of 2015.


[4]   None of the Mobile Home Parks filed a petition for declaratory judgment

      asking a court to review the ordinance’s definitions. Instead, in late 2015 and

      early 2016, several of the Mobile Home Parks filed complaints with the IURC,

      in IURC Cause Number 44798 (“the first IURC action”), asking the IURC to

      review their classifications under the ordinance. However, the IURC dismissed

      those complaints without prejudice on the ground that they were not yet ripe as

      the Sewer District had not yet billed any of the Mobile Home Parks.

      Appellants’ Addend. at 8;2 see also Ind. Code § 13-26-11-2.1 (2018).


[5]   Shortly thereafter, the Sewer District issued its first bills to the Mobile Home

      Parks at the rates established for mobile home courts, at which time the Mobile

      Home Parks filed their complaints against the Sewer District with the IURC in

      Cause Number 44973 (“the second IURC action”). In their complaints, the

      Mobile Home Parks again challenged their classifications under the ordinance



      2
        Indiana Appellate Rule 50(A)(2)(h) directs appellants to include in their appendices “any record material
      relied on in the brief unless the material is already included in the Transcript.” And Indiana Appellate Rule
      22(C) requires “[a]ny factual statement” by a party to be “supported by a citation” to “an Appendix” or to
      “the Transcript or exhibits.” If such a statement is additionally supported by material included in an
      addendum to a brief, the party’s citation should be “to the Appendix or Transcript and to the Addendum to
      Brief.” Ind. Appellate Rule 22(C) (emphasis added). Here, the Mobile Home Parks have included the
      documents from the first IURC action as well as the Kosciusko Superior Court’s July 2017 order only in an
      addendum to their briefs and not also in their appendices, which is contrary to our appellate rules.



      Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018                             Page 5 of 21
      as mobile home courts rather than as campgrounds.3 Meanwhile, the Sewer

      District moved for declaratory judgment in the Kosciusko Superior Court on

      the ground that the ordinance definitions were a lawful exercise of the Sewer

      District’s authority. The Kosciusko Superior Court stayed the declaratory

      judgment proceeding during the pendency of the second IURC action.


[6]   In November of 2017, the Mobile Home Parks and the Sewer District moved

      for summary judgment in the second IURC action. On May 16, 2018, the

      IURC entered summary judgment for the Sewer District. In its order, the

      IURC rejected the Sewer District’s argument that the IURC lacked subject

      matter jurisdiction to review the Sewer District’s classification of the Mobile

      Home Parks. Instead, the IURC concluded that, because Indiana Code Section

      13-26-11-2.1 permits the IURC to review specific billing disputes between

      regional sewer districts and “campgrounds,” the IURC had “implicit

      jurisdiction to adjudicate whether a regional sewer district has properly

      classified [an entity] as a campground . . . .” Appellants’ App. Vol. II at 40-41

      (capitalization removed).


[7]   Nonetheless, the IURC also concluded that Indiana law “does not authorize

      the [IURC] to approve or revise regional sewer district ordinances regarding

      customer rates and classifications” but that, instead, the IURC only “has




      3
        Later, the Indiana Regional Sewer District Association (“IRSDA”) moved to intervene in the second
      IURC action, which the IURC permitted. The IRSDA has also filed a brief in this appeal in support of the
      Sewer District.



      Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018                         Page 6 of 21
      authority to resolve billing disputes” under Indiana Code Section 13-26-11-2.1.

      Id. at 44. In light of that conclusion, the IURC decided that the Sewer District

      had “acted within its legal authority to adopt rates and to make classifications.”

      Id. at 46-47. The IURC also concluded that the Mobile Home Parks “did not

      apply the requirements in [the Sewer District’s] definition of Campground to

      their properties” in support of their motions for summary judgment; as such,

      the IURC found that, insofar as it had the authority to determine the question,

      the Mobile Home Parks had failed to support their classification disputes with

      designated evidence. Id. at 47. The IURC then entered summary judgment for

      the Sewer District and “dismissed” the Mobile Home Parks’ complaints. Id. at

      48. This appeal ensued.


                                      Discussion and Decision
                                             Standard of Review

[8]   The Mobile Home Parks appeal the IURC’s entry of summary judgment for the

      Sewer District. “This Court reviews summary judgments de novo.” Erie Indem.

      Co. v. Estate of Harris, 99 N.E.3d 625, 629 (Ind. 2018). Summary judgment is

      appropriate only when the designated evidence shows that there is no genuine

      issue of material fact and that the moving party is entitled to judgment as a

      matter of law. Id. (citing Ind. Trial Rule 56(C)). We may affirm the IURC’s

      decision on summary judgment “on any theory or basis supported by the

      record.” See Markey v. Estate of Markey, 38 N.E.3d 1003, 1006-07 (Ind. 2015).




      Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018    Page 7 of 21
[9]    This appeal turns on whether the Indiana General Assembly has conferred

       jurisdiction on the IURC to review the Sewer District’s classifications of its

       users. “‘To the extent the issue turns on statutory construction, whether an

       agency possesses jurisdiction over a matter is a question of law for the courts.’”

       Walczak v. Labor Works-Ft. Wayne LLC, 983 N.E.2d 1146, 1152 (Ind. 2013)

       (quoting Ind. Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 844 (Ind.

       2003)). That is, the issue of “statutory construction . . . on the question of [an

       agency’s] jurisdiction . . . lies squarely within the judicial bailiwick.” Id. at

       1153.


[10]   As the Indiana Supreme Court has explained:


               [W]hen we construe any statute, our primary goal is to effectuate
               legislative intent. Shepherd Props. Co. v. Int’l Union of Painters &
               Allied Trades. Dist. Council 91, 972 N.E.2d 845, 852 (Ind. 2012).
               We presume the General Assembly intended the statutory
               language to be applied logically and consistently with the
               statute’s underlying policy and goals, id., and we avoid
               construing a statute so as to create an absurd result. St. Vincent
               Hosp. & Health Care Ctr. Inc. v. Steele, 766 N.E.2d 699, 704 (Ind.
               2002).


       Id. at 1154.


                             The Sewer District’s Broad and Exclusive
                         Authority to Classify Users Under the Indiana Code

[11]   Regional sewer districts are the entities responsible for setting the rates and

       charges necessary for the collection, treatment, and disposal of sewage in their

       regions. I.C. § 13-26-11-8; see also Appellants’ App. Vol. VI at 230-31. Regional

       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018        Page 8 of 21
       sewer districts are empowered by statute to base their rates and charges for each

       user “on a combination of . . . factors,” namely: the number of connections at a

       premises; the amount of water used; the number and size of outlets; the

       “amount, strength, or character of sewage discharged”; the size of the sewer

       connections; whether a given premises has been or will be required to pay

       separately for the cost of any facilities of the regional sewer district; and any

       “other factors” the regional sewer district “determines is necessary to establish

       nondiscriminatory, just, and equitable rates or charges.” I.C. § 13-26-11-2. A

       regional sewer district’s rates and charges to its users must by law “produce

       sufficient revenue” for the operation of the regional sewer district, and rates and

       charges that fail to do so “are unlawful.” I.C. § 13-26-11-9.


[12]   Pursuant to their ratemaking authority, Indiana Code Section 13-26-11-4

       authorizes regional sewer districts, in the “exercise [of] reasonable discretion,”

       to adopt nonuniform rates and charges that correspond with

       “classifications . . . based upon variations in the costs of furnishing the services,

       including capital expenditures required, to various classes of users . . . .” In

       other words, our legislature has committed to regional sewer districts the

       authority to define “various classes of users” within the district. I.C. § 13-26-11-

       4. That authority is inexorably intertwined with a regional sewer district’s

       ratemaking authority. See I.C. §§ 13-26-11-2, -4.


[13]   We have previously recognized that a regional sewer district’s use of an

       ordinance to define and classify a user as a “mobile home court rather than a

       campground . . . falls under its ratemaking authority.” Yankee Park Homeowner’s

       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018       Page 9 of 21
       Ass’n, Inc. v. LaGrange Cty. Sewer Dist., 891 N.E.2d 128, 130-31 (Ind. Ct. App.

       2008), trans. denied. Indeed, the definitions of “mobile home court” and

       “campground” at issue in Yankee Park were substantially similar to the Sewer

       District’s definitions here. See id. at 132-33. And, in the more-than-ten years

       since this Court’s decision in Yankee Park, the Indiana General Assembly has

       not amended the relevant provisions of the Indiana Code to either supersede

       our analysis or to define “campground” for our regional sewer districts. Cf.

       Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., 53 N.E.3d 1160, 1163-64 (Ind.

       2016) (stating that the Court would not reconsider prior judicial holdings and

       would instead apply the doctrine of legislative acquiescence in light of the

       “considerable time” that had passed since the prior holdings without statutory

       amendment) (quotation marks omitted). Our opinion in Yankee Park informs

       our disposition of the instant appeal.


[14]   Although Section 13-26-11-4 leaves defining classes of users to the discretion of

       regional sewer districts, Indiana Code Section 13-26-11-2 (“Section 2”) states

       that, when a regional sewer district levies a rate or charge against a

       “campground,” the following occurs:


               (b) A campground . . . may be billed for sewage service at a flat
               rate or by installing, at the campground’s . . . expense, a meter to
               measure the actual amount of sewage discharged by the
               campground . . . into the sewers. If a campground . . . elects to
               be billed by use of a meter:


                        (1) the rate charged by a board [of trustees of a regional
                        sewer district] for the metered sewage service may not

       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018         Page 10 of 21
                 exceed the rate charged to residential customers for
                 equivalent usage;


                                                 ***


        (c) If a campground . . . does not install a meter under subsection
        (b) and is billed for sewage service at a flat rate . . . :


                 (1) each campsite at the campground may not equal more
                 than one-third (1/3) of one (1) resident equivalent unit;


                                                 ***


        (d) The board may impose additional charges on a
        campground . . . under subsections (b) and (c) if the board incurs
        additional costs that are caused by any unique factors that apply
        to providing sewage service for the campground . . . , including,
        but not limited to:


                 (1) the installation of:


                          (A) oversized pipe; or


                          (B) any other unique equipment;


                 necessary to provide sewage service for the
                 campground . . . ; and


                 (2) concentrations of biochemical oxygen demand (BOD)
                 that exceed federal pollutant standards.




Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018    Page 11 of 21
[15]   We also note that Indiana Code Section 13-26-11-13 establishes a procedure by

       which “the lesser of fifty (50) or ten percent (10%) of the ratepayers of the

       district may file a written petition objecting to the initial rates and charges”

       established by a regional sewer district’s initial ratemaking ordinance. The

       regional sewer district’s order on such a petition may then be appealed to an

       Indiana trial court with jurisdiction over the district. I.C. § 13-26-11-13(h).

       Indiana Code Section 13-26-11-15 establishes a similar procedure of

       administrative and judicial review of a regional sewer district’s ordinance, but

       the procedure established in that section is expressly limited to “an ordinance

       increasing sewer rates and charges at a rate that is greater than five percent (5%)

       per year, as calculated from the rates and charges in effect from the date of the

       district’s last rate increase . . . .” That is, the procedure outlined in Section 13-

       26-11-15 is limited to petitions to review certain increases over previously

       established rates and charges. However, neither Section 13-26-11-13 nor

       Section 13-26-11-15 prohibits a user from seeking declaratory relief from a

       regional sewer district’s ordinance. See, e.g., Yankee Park, 891 N.E.2d at 130.


                         The IURC’s Highly Limited Authority to Review
                            Specific Assessments and Charges Levied by
                        a Regional Sewer District Against a “Campground”

[16]   The IURC is


               primarily . . . a fact-finding body with the technical expertise to
               administer the regulatory scheme devised by the legislature.
               United Rural Elec. Membership Corp. v. Ind. & Mich. Elec. Co., 549
               N.E.2d 1019 (Ind. 1990); See Ind. Code § 8-1-1-5 (2008). The
               [IURC’s] assignment is to insure that public utilities provide
       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018         Page 12 of 21
               constant, reliable, and efficient service to the citizens of Indiana.
               Ind. Bell Tel. Co. v. Ind. Util. Regulatory Comm’n, 715 N.E.2d 351,
               354 n.3 (Ind. 1999). The [IURC] can exercise only power
               conferred upon it by statute. United Rural Elec. Membership Corp.,
               549 N.E.2d at 1021.


       N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012, 1015 (Ind. 2009). It is

       well established that, “if the power to act has not been conferred by statute” to

       the IURC, “it does not exist. . . . Accordingly, any doubt about the existence of

       authority must be resolved against a finding of authority.” S.E. Ind. Nat. Gas Co.

       v. Ingram, 617 N.E.2d 943, 947 (Ind. Ct. App. 1993) (citations omitted).


[17]   Indiana Code Section 13-26-11-2.1 (“Section 2.1”) is narrowly drawn and

       authorizes the IURC to conduct a limited review of certain rates and charges

       levied by a regional sewer district against a “campground.” In particular,

       Section 2.1 states:


               (b) This section applies to an owner or operator of a
               campground . . . who disputes:


                        (1) that the campground is being billed at rates charged to
                        residential customers for equivalent usage as required by
                        section 2(b)(1) of this chapter;


                        (2) the number of resident equivalent units determined for
                        the campground under section 2(c) of this chapter; or


                        (3) that any additional charges imposed on the
                        campground under section 2(d) of this chapter are
                        reasonable or nondiscriminatory.


       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018       Page 13 of 21
                                                        ***


               (e) In any case in which the basic monthly charge for a
               campground’s sewage service is in dispute, the owner or operator
               shall pay, on any disputed bill issued while a review under this
               section is pending, the basic monthly charge billed . . . . If the
               basic monthly charge paid while the review is pending exceeds
               any monthly charge determined by the [IURC] . . . the board
               shall refund or credit the excess amount paid to the owner or
               operator. If the basic monthly charge paid while the review is
               pending is less than any monthly charge determined by the
               appeals division or [IURC] . . . the owner or operator shall pay
               the board the difference owed.


                                                        ***


               (h) The right of a campground owner or operator to request a
               review under this section is in addition to the right of the
               campground owner or operator to file a petition under section 15
               of this chapter [relating to certain increases in previously
               established rates and charges] as a freeholder of the district . . . .


       As with Section 2, Section 2.1 leaves “campground” undefined. See I.C. §§ 13-

       26-11-2, -2.1.


                                The IURC Incorrectly Read Section 2.1
                              as a Grant of Jurisdiction to the IURC over
                              the Sewer District’s Classification of Users

[18]   The Mobile Home Parks filed their complaints with the IURC against the

       Sewer District on the theory that they were “campgrounds” under Section 2.1,

       even though they were not campgrounds under the Sewer District’s ordinance.

       According to the Mobile Home Parks on appeal, “the lack of statutory
       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018       Page 14 of 21
       definition [of ‘campground’ in Section 2.1] mandates . . . that the [IURC]—not

       the regional sewer district—must define ‘campground’ for purposes of

       determining whether a regional sewer district’s charges comport with the

       statute.” NBK Complainants’ Br. at 26. The Mobile Home Parks assert that,

       “to hold otherwise . . . effectively nullifies the [IURC’s] statutory duty [under

       Section 2.1] to review rate disputes and would lead to absurd results.” Id. The

       Mobile Home Parks also assert that, under a broad dictionary definition of

       “campground,” they have standing under Section 2.1 to petition for IURC

       review of their assessed rates and charges, even though the Mobile Home Parks

       have not been classified as campgrounds by the Sewer District in the first

       instance and have no campground-related rates and charges to dispute.


[19]   In its response, the Sewer District argues that, under Section 2 and Indiana

       Code Section 13-26-11-4, it has exclusive jurisdiction over the definition and

       classification of its users for ratemaking purposes, and nothing in Section 2.1

       confers jurisdiction on the IURC to review those definitions. In its order on

       summary judgment, the IURC appeared to conclude both that it had

       jurisdiction to interpret “campground” under Section 2.1—and, thus, to impose

       its own definition on regional sewer districts—and also that the IURC was

       required to defer to the Sewer District’s lawfully enacted definition.


[20]   We agree with the Sewer District’s reading of the relevant statutes. The

       statutory responsibility for the classification of users of a regional sewer

       district’s services is committed to the regional sewer districts, not to the IURC.

       I.C. § 13-26-11-4. Section 2 then sets out in detail numerous factors a regional

       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018      Page 15 of 21
       sewer district may take into account in setting rates and charges for each class

       of its users. I.C. § 13-26-11-2. And Section 2.1 is in pari materia with the Sewer

       District’s ratemaking authority. Statutes that are in pari materia “relat[e] to the

       same subject matter” and, as such, “should be construed together to produce a

       harmonious statutory scheme.” Campbell Haufeld/Scott Fetzer Co. v. Johnson, 109

       N.E.3d 953, 958 (Ind. 2018) (quotation marks omitted). Section 2.1 is expressly

       premised on rates and charges levied against campgrounds under Section 2; that

       is, Section 2.1 operates in tandem with Section 2 and the rest of the Indiana

       Code’s conferral of ratemaking power on a regional sewer district.


[21]   Indeed, Section 2.1(b) is narrowly drawn and grants to the IURC the authority

       to hear appeals from campgrounds over rates and charges levied by a regional

       sewer district only in three highly limited circumstances. First, the IURC may

       review a dispute brought by a metered campground as to whether a regional

       sewer district has properly billed the campground “at rates charged to

       residential customers for equivalent usage as required . . . .” I.C. § 13-26-11-

       2.1(b)(1). Second, the IURC may review a dispute from a campground that is

       billed at a flat rate and asserts that a regional sewer district has improperly

       determined “the number of resident equivalent units” for billing purposes. I.C.

       § 13-26-11-2.1(b)(2). And, third, the IURC may review a dispute brought by a

       campground regarding an “additional charge,” which regional sewer districts

       may bill specifically to campgrounds in certain circumstances, on the ground

       that such charge is unreasonable or discriminatory. I.C. § 13-26-11-2.1(b)(3).




       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018     Page 16 of 21
[22]   None of those three bases for IURC review touches on any of the other

       numerous and expressly identified factors a regional sewer district may consider

       under Section 2 in setting rates or charges. Rather, the three limited bases for

       IURC review under Section 2.1 are simply claims of an incorrect billing

       process. Indeed, each scenario under Section 2.1 is premised on a regional

       sewer district having already classified a user as a campground and then

       improperly assessed or charged the user as a campground. It is that assessment

       or charge, not the classification, that is then the basis for IURC review.


[23]   Other provisions of the Indiana Code support the Sewer District’s reading of

       the statutory scheme. Namely, each of the three bases for IURC review under

       Section 2.1 requires the user to initially pay the bill in dispute and then be

       refunded if the appeal to the IURC is successful. I.C. § 13-26-11-2.1(e). This

       process requires an assessment or charge to a user the regional sewer district has

       already classified as a campground to have previously occurred. Similarly,

       subsection (h) of Section 2.1 states that IURC review under that statute is “in

       addition” to administrative and judicial review “under section 15”—as noted

       above, Indiana Code Section 13-26-11-15 relates exclusively to certain increases

       in established rates. It does not relate to initial ratemaking, which is when

       classifications are most likely to be first defined, even if subsequent ordinances

       adopt the previously established definitions. See I.C. § 13-26-11-13 (providing

       for administrative and judicial review from initial ratemaking ordinances). In

       other words, the statutory scheme reflects the clear intent of the General

       Assembly to give the IURC jurisdiction to engage in limited review of certain


       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018     Page 17 of 21
       billing disputes, nothing more, between regional sewer districts and

       campgrounds.


[24]   The Mobile Home Parks conflate the authority of regional sewer districts to

       enact ordinances that classify users with the IURC’s authority to review specific

       billing disputes. Indeed, under the Mobile Home Parks’ argument, each and

       every user in a regional sewer district would have standing to seek IURC review

       of a regional sewer district’s classifications, and thus its rates, so long as that

       user takes some broad act that qualifies as “camping.” See, e.g., NBK

       Complainants’ Br. at 36-38. This reasoning is backwards. IURC review under

       Section 2.1 is limited to users who have already been classified as campgrounds

       by a regional sewer district and then improperly billed in one of three specific

       ways; it does not apply to users who claim to have been improperly classified

       and thus never properly billed at all.


[25]   Moreover, the Mobile Home Parks’ reasoning would confer jurisdiction on the

       IURC under Section 2.1 to redefine a regional sewer district’s classifications

       without considering the myriad of factors that a regional sewer district

       considers under Section 2, which is contrary to the ratemaking directives

       established in the Indiana Code. If the General Assembly had intended for

       Section 2.1 to confer jurisdiction on the IURC to define, review, or otherwise

       interject itself into a regional sewer district’s classifications and corresponding

       ratemaking discretion, we think the General Assembly would have plainly said

       so. See, e.g., S.E. Ind. Nat. Gas Co., 617 N.E.2d at 947. And this conclusion is



       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018       Page 18 of 21
       consistent with the legislative silence following our decision in Yankee Park. See

       Myers, 53 N.E.3d at 1163-64.


[26]   Still, on appeal the Mobile Home Parks substantially rely on language from the

       IURC’s dismissal order in the first IURC action. In particular, in that order the

       IURC opined that it might have the authority under Section 2.1 to impose a

       definition of “campground” on regional sewer districts. But that language was

       obvious dicta as it had no bearing on the decision to dismiss due to the absence

       of any billing at the time. As such, it was not binding on the IURC in the

       second IURC action, let alone on this Court now.


[27]   The Mobile Home Parks further assert that subsection (i) of Section 2.1

       authorizes the IURC to promulgate rules in furtherance of the authority

       conferred on the IURC under that statute. The Mobile Home Parks reason that

       that rule-making authority means the IURC can use Section 2.1 to impose a

       definition of “campground” on regional sewer districts. This argument is a

       nonstarter. The IURC’s authority under Section 2.1 to promulgate rules in

       furtherance of the statute cannot be expanded to promulgate rules that would

       supersede the statute.


[28]   We hold that the IURC erred when it concluded that it had jurisdiction under

       Section 2.1 to independently define a “campground” for purposes of

       ratemaking by regional sewer districts. The Indiana Code expressly commits

       the authority to define a regional sewer district’s classes of users to the

       discretion of the ratemaking authority, the regional sewer district. I.C. § 13-26-


       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018         Page 19 of 21
       11-4. The IURC is then authorized to review only certain expressly limited

       assessments or charges levied by a regional sewer district against a user already

       classified as a campground by the regional sewer district. I.C. § 13-26-11-2.1.

       Insofar as the IURC concluded below that it has jurisdiction to consider

       whether a complainant is a “campground” for purposes of standing to seek

       IURC review under Section 2.1, we hold that that review is limited to simply

       determining whether the complainant has been billed as a campground by the

       regional sewer district. As a reviewing body, the IURC may not “substitute its

       own judgment for the municipality’s discretionary authority . . . .” Bd. of Dirs. of

       Bass Lake Conservancy Dist. v. Brewer, 839 N.E.2d 699, 701 (Ind. 2005) (quotation

       marks omitted).


[29]   Here, the Mobile Home Parks were not classified as campgrounds by the Sewer

       District. Accordingly, they lacked standing to petition the IURC for review

       under Section 2.1, and their request to have the IURC review their classification

       as mobile home courts is not within the scope of jurisdiction conferred by the

       General Assembly on the IURC in Section 2.1. If the Mobile Home Parks are

       dissatisfied with the Sewer District’s narrow definition of “campground” in the

       ordinance, they may be able to seek declaratory relief. See, e.g., Yankee Park, 891

       N.E.2d at 130; see also Appellants’ App. Vol. VI at 232 (“If a [regional sewer

       district] is to face a challenge to its billing classifications or rates, it is imperative

       that such a challenge be singular and occur as soon as reasonably practical after

       billing classifications are made.”). However, Section 2.1 does not provide them

       with an end-run around our prior holding in Yankee Park that substantially


       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018          Page 20 of 21
       similar definitions adopted by another regional sewer district were “rational”

       and “not arbitrary or capricious.” Id. at 134-35. As such, we affirm the IURC’s

       entry of summary judgment for the Sewer District and dismissal of the Mobile

       Home Parks’ complaints.


[30]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-EX-1243 | December 27, 2018   Page 21 of 21
