Plaintiff-appellant Charles Williams brought this class action against defendant-appellee City of Indianapolis Department of Public Works (the City) to challenge the procedures by which the City places liens for sewer user fees on real property held by absentee landlords. We affirm.
Williams raises several issues for our review, which we restate as follows. First, whether placing a lien on real property is a deprivation of property requiring adherence to constitutional norms of procedural due process. Second, whether the City is required to terminate water service to delinquent users. Third, whether the City provided adequate statutory notice of liens to the plaintiff class. Fourth, whether the City complied with the statutory mandate to forward final bills to sewer users after a change of address.
In January 1988, the City sent notice to absentee landlords which stated that collection proceedings would be commenced for delinquent sewer user fees. After a series of meetings between the Landlord's Association and City representatives, it was determined that collection proceedings would be limited to closed accounts of more than $25.00.
In April 1988, the City again sent notice to the landlords, stating that a lien would be placed against their property if delinquent accounts were not paid. Williams filed this action on June 28, 1988. On July 1, 1988, the City placed liens on those properties whose delinquent accounts were not paid.
In January of 1989, the City sent post-lien notice to the landlords, and in March of 1989, the City certified the liens to the Marion County Auditor for inclusion on the landlords' November 1989 property tax bills.
I. CONSTITUTIONALITY OF LIEN PROCEDURES
IND. CODE 36-9-23-32 and IND. CODE 36-9-25-11 prescribe that sewer user fees constitute a lien against the realty on which the fees are assessed. Williams argues that the statutory lien process is a deprivation of property requiring due process notice and an opportunity to be heard under the Fourteenth Amendment to the United States Constitution. An act of the General Assembly bears a strong presumption of constitutionality, Dague v. Piper Aircraft Corp. (1981), 275 Ind. 520, 418 N.E.2d 207, and Williams has failed to overcome that presumption here.
It is well settled that a municipality's lien against property for utility fees is not a deprivation or taking of property and that, therefore, the requirements of due process are inapplicable. Dunbar v. City of New York (1920), 251 U.S. 516, 40 S.Ct. 250, 64 L.Ed. 384. Cook v. City of Enterprise (1983), 233 Kan. 1039, 666 P.2d 1197. See also Spielman-Fond, Inc. v. Hanson's Inc. (D.Ariz. 1973), 379 F.Supp. 997, aff'd. (1974), 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208. In Spielman-Fond, the court held that the filing of a mechanic's lien is not the taking of a significant property interest requiring adherence to due process requirements. In reaching its conclusion, the court stated:
Id. at 999. Similarly, the plaintiffs here retain the ownership of their property and their ability to alienate it. The liens do not amount to a taking.
Under IND. CODE 36-9-23-33(h)
First, nothing in the record reveals that any of the plaintiffs' properties have been sold, so they do not have a cause of action at the present time. Second, Williams did not present this argument to the trial court. He may not present it for the first time on appeal. City of Evansville v. Old State Utility (1990), Ind. App., 550 N.E.2d 1339. Third, before a tax sale is held, IND. CODE 6-1.1-24-4 requires notice of an impending sale to the delinquent owner and IND. CODE 6-1.1-24-4.7 grants an opportunity for hearing, thus providing compliance with due process standards.
II. SERVICE TERMINATION
Williams argues the City is mandated by IND. CODE 36-9-25-11 and IND. CODE 36-9-25-11.5 to terminate sewer and water service to delinquent users, thereby reducing the landlords' liability, regardless of any other remedies pursued. We disagree.
IND. CODE 36-9-25-11(i)
IND. CODE 36-9-25-11.5 provides:
Section 11.5(a), like Section 11(i), contains the permissive word "may". Moreover, Section 11.5 as a whole provides an alternative to the remedies available to the City under Section 11, and its subsection (c), while containing the mandatory word "shall", applies only if the sanitation board decides to pursue the termination remedy under subsection (a). It is apparent, then, that the decision to terminate water service, like the decision to terminate sewer service, is discretionary.
III. STATUTORY NOTICE PROVISIONS
Williams argues next that the notice sent by the City to the landlords was deficient for want of statutory compliance. He first claims the City failed to comply with the terms of IND. CODE 36-9-23-32(c), which provides:
We note here that Williams is appealing a negative judgment, which we will reverse only if contrary to law. Beneficial Mortgage Co. v. Powers (1990), Ind. App., 550 N.E.2d 793. We will reverse a negative judgment as contrary to law only if the evidence is without conflict, and all reasonable inferences to be drawn from the evidence lead to but one conclusion and the trial court has reached a different conclusion. Id. We will affirm the specific findings and conclusions of the trial court unless they are clearly erroneous, and we will neither reweigh the evidence nor judge the credibility of witnesses. Id.
The trial court in this case was presented with conflicting evidence as to whether the notice requested by some of the plaintiffs under IND. CODE 36-9-23-32(c) was sent in a timely fashion. Williams's argument here is merely a request that we reweigh this conflicting evidence. We decline the invitation.
Williams also argues the City did not send the post-lien notice required by IND. CODE 36-9-23-33(c). The trial court specifically found that the notice sent by the City in January 1989 was a post-lien notice. Record at 251. Moreover, any allegation of lack of actual notice of the filing of the liens is refuted by the fact that Williams filed a motion for preliminary injunction to block certification of the liens for inclusion on the plaintiffs' tax bills from the Department of Public Works to the County Auditor. Record at 254. On the whole, we are satisfied the trial court's findings and conclusions were not clearly erroneous, and we affirm the conclusion that Williams and the other plaintiffs received adequate post-lien notice.
IV. FINAL BILLS
IND. CODE 36-9-23-12.5, effective April 16, 1985, mandates: "Whenever a sewer user moves to a different residence from the one being supplied sewer service, but within the same municipality, the sewer utility shall forward the user's final sewer bill to the new address." Williams contends the City failed to comply. The only evidence in support of Williams's argument, however, concerned a user who changed addresses in 1982, before the statute was enacted. Record at 657-58. Williams's argument is wholly without merit: the City was obviously under no duty to comply with a statute before its enactment.
The trial court is in all things affirmed.
RATLIFF, C.J., and ROBERTSON, J., concur.