Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP82-928C -- Cale J. Holder, Judge.
Before BAUER and FLAUM, Circuit Judges, and WYATT, Senior District Judge.*fn*
FLAUM, Circuit Judge. The district court in this case held that Indiana law prohibited the town of Cumberland, Indiana, from enforcing its building code and collecting building permit fees. For the reasons stated below, we affirm.
In 1969, the Indiana legislature reorganized local government within Marion County, Indiana. Under the statute, commonly known as Uni-Gov, the city of Indianapolis became a "consolidated city" whose territory encompassed the entire county, except for the territory of "excluded cities." Excluded cities are those cities with a population over 5,000 persons. The consolidated city does include "included towns," which are those towns with a population under 5,000 persons. The town of Cumberland, Indiana, is partially in Marion County and partially in Hancock County. It has a population of approximately 4,000. Thus the part of Cumberland that is in Marion County is an included town and within the consolidated city of Indianapolis.
The general provisions of Uni-Gov restrict the power of included towns to enforce town ordinances:
he powers of all included towns . . . located in whole or in part within the boundaries of the consolidated city . . . shall be unchanged by this act, except that no such town . . . shall have the right to . . . enforce a regulation or ordinance within the county which is in conflict with or permits a lesser standard than any ordinance of the consolidated city which is also applicable.
Ind. Code § 18-4-4-6, repealed by Acts 1980, P.L. 212, § 10(c) (current version at Ind. Code § 36-4-2-5(a)).
The Indiana home rule statute also governs the powers allowed to the consolidated city and included towns. That statute allows municipal units to exercise both all powers granted by statute and "all other powers necessary or desirable in the conduct of its affairs, even though not granted by statute." Ind. Code § 26-1-3-4(b). The statute allows a unit to exercise its powers to the extent that such power has not been expressly granted to another entity. Ind. Code § 36-1-3-5.
State statutes establish an Administrative Building Council (ABC) with the authority to adopt rules, standards, and regulations for construction. Ind. Code § 22-11-1-1 et seq. The ABC has adopted a code for residences. Local regulation is expressly permitted, however, provided that the ABC code is used as a basis for the local regulations. Ind. Code § 22-11-1-19(b). The statute provides that "city ordinances may go into more detail if desired, or may contain more stringent requirements, provided the same do not conflict with any rule or order of the [ABC]. . . ." Id.
Under Uni-Gov, the consolidated city of Indianapolis has the right to regulate building construction within its boundaries through inspection and permit requirements. The statute established a Division of Buildings to have and exercise all powers granted by statute or ordinance to carry out that function. However, the last paragraph of that section of the statute provides: "Nothing contained in this section shall be construed to limit or diminish any powers of any excluded city or included town under applicable law, respecting the subject matter of this section." Ind. Code § 18-4-8-6, repealed by Acts 1981, P.L. 17, § 29.*fn1
The consolidated city of Indianapolis regulates construction within its boundaries through the city building code.*fn2 It enforces the city building code by requiring persons to obtain building permits, pay fees for permits, and allow inspections of the construction. The town of Cumberland has adopted the city building code as its town building code.*fn3 The town also enforces the building code by requiring permits, fees, and inspections. Thus, both Indianapolis and Cumberland regulate construction within the Marion County portion of Cumberland. Any person wishing to construct buildings within the Marion County portion of Cumberland must obtain permits, inspections, and pay fees to both Indianapolis and Cumberland.
Plaintiff Ryan Homes, Inc. is the owner and developer of 181 lots located in the Marion County portion of Cumberland. At the time Ryan filed its complaint in this action, it had started construction on fifty-five lots and had obtained building permits from the consolidated city of Indianapolis at a total cost of $4,752.00. At that time, Ryan had also obtained forty-nine permits from the town of Cumberland at a total cost of $7,962.50.*fn4
Ryan filed suit in district court, asserting three grounds for relief. Count I alleged that, under Indiana law, only one municipal unit could regulate construction. Ryan requested a declaration as to whether Indianapolis or Cumberland was the proper unit to require permits; it also requested an injunction against the unauthorized municipal unit and a refund of the fees ...