Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW. HAMILTON, District Judge. In the past, the State of Indiana required state government approval, in the form of what was often called a certificate of need, before a new hospital could be built or an existing hospital could be substantially expanded. The state repealed that requirement in 1987 and allowed market forces of supply and demand to replace the certificate of need regulatory process. Pub.L. No. 194-1987, § 9, 1987 Ind. Acts 2270 (repealing Ind.Code §§ 16-1-3.7-1 to -12). The central issue in this case is whether a county government in Indiana may now impose on its own a new requirement for county approval of hospital construction or expansion. Under a federal statute protecting religious freedom, a more specific question is whether such a county requirement may be applied to a hospital operated by a religious order in furtherance of its mission to héal the sick. The case was tried to the court on October 4 and 5, 2005 on an expedited schedule with the agreement of the parties. The court now states its findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. Substance rather than the court’s label shall govern whether a matter is. treated as. a finding of fact or a conclusion of law. As explained below, the court finds that the new Morgan County ordinance imposing first a limited moratorium and then a county approval requirement on hospital construction in the county is preempted by Indiana’s Home Rule Act. The court also finds that the ordinance is not preempted by the federal Sherman Act, does not at least on its face violate plaintiffs rights under the federal Religious Land Use and Institutionalized Persons Act known as RLUIPA, and does not violate Indiana zoning laws. Findings of Fact The parties in this case operate the only two hospitals in Morgan County, Indiana. Plaintiff Sisters of St. Francis Health Services, Inc. (“St.Francis”) operates a hospital in Mooresville. It has brought this action against defendants Morgan County, the county’s Board of Commissioners, and the Board of Trustees of Morgan Hospital & Medical Center (“Morgan Hospital”), which operates a hospital in Martinsville. On April 18, 2005, the Commissioners passed Ordinance 4-1-6, titled the “Morgan County Ordinance for Health Facilities Planning and an Equitable Assessment for Uninsured Care” (“the Ordinance”). The Ordinance imposes a limited moratorium on the construction of specified health care equipment and facilities within the county until December 31, 2005. After that date, the Ordinance requires the Commissioners to approve construction of such facilities. The Ordinance took effect immediately upon passage. When the Ordinance took effect, St. Francis was planning a $40 million expansion project of its hospital in Mooresville. The project has been stalled by passage of the Ordinance with its two-stages of regulation: first the 2005 moratorium, and then the more permanent approval process taking effect on January 1, 2006. The Ordinance provides an exception to the moratorium for applicants who could “demonstrate sufficient need” according to criteria discussed below. St. Francis has not submitted an application for an exception but instead filed this suit. St. Francis alleges that the Ordinance violates the Sherman Antitrust Act, 15 U.S.C. § 1, the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Indiana Home Rule Act, Indiana Code § 36-1-3-1 et seq., and Indiana zoning laws. Morgan Hospital and St. Francis compete with one another in the delivery of health care services in Morgan County, Indiana. Morgan Hospital is an agency of the Morgan County government. Jt. Ex. 1 at 1; Ex. 9. Morgan Hospital was created by the Board of Commissioners of Morgan County, Indiana. Jt. Stip. Fact ¶ 7. Morgan Hospital is operated by its own Board of Trustees, the members of which are appointed by the Board of Commissioners. Id., ¶¶ 8 & 9. The Commissioners guaranteed a loan issued in 2002 to finance a multi-million dollar expansion of Morgan Hospital. Ex. 265. Morgan Hospital provides inpatient, outpatient, and emergency room services. It also provides a range of related health care services that include cancer treatment, orthopedic services, kidney dialysis, cardiac catheterization, emergency room, and laboratory services. Id., ¶¶ 13-16. Plaintiff Sisters of St. Francis Health Services, Inc. (“St.Francis”) is a not-for-profit corporation sponsored and controlled by the Sisters of St. Francis of Perpetual Adoration, a religious congregation of women in the Roman Catholic Church. Jt. Stip. Facts ¶¶ 2 & 3. St. Francis’s Hospital-Mooresville is one of three hospital campuses that St. Francis operates in south-central Indiana. Id., ¶ 27. St. Francis does not require its employees to subscribe to the Catholic faith, but it requires that all employees perform their jobs in accordance with the “Ethical and Religious Directives for Catholic Health Care Services.” Jt. Ex. 53; Jt. Ex. 67. Employees must also be willing to abide by the mission and values of the Sisters of St. Francis of Perpetual Adoration. Sister Jane Marie Klein, Chairperson for the Board of St. Francis, testified that an important aim of St. Francis Hospital— Mooresville is to carry out what the sponsoring Sisters of St. Francis believe to be their healing ministry. The Ordinance had its origins in the fall of 2004 when Morgan Hospital officials presented to the County Commissioners a version of the Ordinance that would have imposed a two year moratorium on health care facility construction in the county. Jt. Stip. Fact ¶¶ 18, 19. Tom Laux, CEO of Morgan Hospital, provided the original draft to Pete Foley, counsel for Morgan County. P. Foley Dep. at 16-17. Morgan Hospital representatives publicly presented the early draft of the Ordinance at a meeting of the Board of Commissioners on November 15, 2004. Jt. Stip. Fact ¶ 19; Jt. Ex. 4. Keith Jewell, Executive Director of St. Francis Hospital — Mooresville, spoke against enactment of a moratorium at the meeting. Jt. Ex. 8 at 23-40. After public comment, the Commissioners decided to table the proposal. Jt. Stip. Fact ¶ 19: Jt. Ex. 8 at 55. In January 2005, Ralph Foley, counsel for Morgan Hospital, wrote to Steven Harris, counsel for St. Francis, addressing the issue of the proposed moratorium. Foley described Morgan Hospital as “a unit of county government” and expressed Morgan Hospital’s interest in collaborating with St. Francis to solve the parties’ disagreement over enactment of a moratorium. Foley wrote: “For example, we could have a limited moratorium that would benefit both St. Francis and Morgan Hospital, should St. Francis not further duplicate Morgan [Hospitales services.” Jt. Ex. 9. Writing back on behalf of St. Francis, Harris declined, .explaining that since the two hospitals could be considered competitors, such agreements could violate antitrust laws. Jt. Ex. 10. Attorney Ralph Foley is also a member of the Indiana House of Representatives. During the 2005 session of the General Assembly, he introduced House Bill 1494, which would have permitted a county executive to adopt an ordinance requiring health care facilities to obtain county approval before building a new health care facility.. Jt. Ex. 11; Jt. Stip of Fact ¶ 37. The-bill was amended and approved by the House Committee on -Public Health but died without a vote by the full House of Representatives. Jt. Stip. Fact ¶ 38. After House Bill 1494 died, Morgan Hospital’s effort to prevent St. Francis— Mooresville from expanding then returned to the County Commissioners. At a public meeting on April 18, 2005, the Commissioners again addressed the proposed moratorium. Id. ¶ 17; Jt. Ex. 17. Because the Foley, Foley & Peden law firm represented both Morgan Hospital and Morgan County, the meeting’s discussion on the moratorium began with a conflict waiver by the Commissioners. Jt. Ex. 17 at 1-2. Representatives from both Morgan Hospital and St. Francis made presentations at the meeting. See Jt. Ex. 17. In his presentation on behalf of Morgan Hospital, Ralph Foley noted that Morgan Hospital is a branch of the county government, id. at 17, and he spoke specifically about St. Francis in advocating passage of the Ordinance: [The Ordinance] has exceptions for the existing private specialty hospital. And Morgan Hospital would continue to accept St. Francis because they do fine work. But it keeps duplicating a lot of the same services that Morgan [Hospital] has as a full service hospital. Id. at 13-14. Foley acknowledged the antitrust implications of direct collaboration between Morgan Hospital and St. Francis: There is a problem in collaboration. I was asked why don’t you work these things out together? Why don’t you get together? I think they are correct when they inform me that we cannot collude or violate antitrust laws, but we can all come before the County as a result of an ordinance and make our case clear as to our medical facilities. Id. at 14. Representatives of St. Francis spoke in opposition to the Ordinance. Id. at 30-49. The Commissioners voted to amend the draft - in several respects and then passed the Ordinance unanimously, to take effect immediately. Jt. Ex. 17 at 66-76. The Board of Commissioners, elected by the residents of Morgan County, is responsible for enforcing the Ordinance. Jt. Stip. Fact ¶¶ 20 & 21. On October 3, 2005, one day before trial, the Commissioners voted to amend the Ordinance further. The court addresses the Ordinance as it exists now, noting the effects of amendments as needed. The Ordinance begins with several “Whereas” paragraphs that explain its purpose. These provisions emphasize Morgan County’s interest in Morgan Hospital: WHEREAS, the Board of Commissioners of Morgan County ... are charged with the responsibility for the viability of [Morgan Hospital] as a County agency offering [a] full service hospital and medical services to all citizens of Morgan County regardless of their ability to pay; and WHEREAS, the County of Morgan is bound by its endorsement of bonds or other debt of [Morgan Hospital] in its quest to provide for complete and progressive medical care and services to all citizens of Morgan County regardless of their ability to pay; and ‡ ‡ ‡ $ WHEREAS, the continued viability and financial performance of [Morgan Hospital] is of paramount importance to all citizens, and all parties desire that [Morgan Hospital] continue to be viable without the requirement of taxpayer - subsidy.... Jt. Ex. 1 at 1. The Ordinance asserts that Morgan Hospital “is significantly disadvantaged” for two reasons: (1) its “provision of a disproportionate share of the County’s responsibility to ensure healthcare to all its citizens regardless of their ability to pay,” and (2) its limited access to capital that could be used to support expansion. Id. The Ordinance asserts that private capital investments in health facilities that duplicate those offered by public facilities may be both unnecessary and harmful to public facilities. Id. The Ordinance also states the Commissioners’ intent to “effect health policy that provides appropriate access to health care for all citizens of Morgan County while not creating disproportionate financial burdens” on Morgan Hospital. Id. These opening paragraphs also evidence the Commissioners’ intent to initiate studies of the heálth care environment in Morgan County. Id. Section 2 of the Ordinance declares “a moratorium on the construction of new Covered Healthcare Equipment and Facilities” in Morgan County. Entities specifically covered by the Ordinance include “hospital emergency rooms and acute inpatient services,” “hospital outpatient services,” “a cancer treatment facility,” “a cardiac catheterization facility,” a “specialty hospital,” or any “facility that duplicates a service provided by Morgan Hospital and Medical Center,” among others. Jt. Ex. 1 at 2. Section 3 provides several exceptions, both by category and by creation of a procedure for seeking a specific exception: This ordinance shall not apply to: * * * * # * (b) The replacement or repair of a building or equipment due to an earthquake or severe adverse weather conditions or due to normal wear and tear. (c) A County governmental health care program. As used in this Ordinance “County governmental health care program” means a program that provides health care facilities, equipment, or other benefits that is owned or operated by the Morgan County Public Health Department or the Morgan .County Emergency Management Agency. ‡ ‡ ‡ $ (e) A new health service constructed by an existing hospital facility located in Morgan County that will not duplicate an existing health service available in the County. :jí íJí * $ ij: H: (g) An applicant may petition the Commissioners for an exception to this moratorium if the applicant can demonstrate sufficient need- for the program or facility according to the criteria in Section 7(f) of this Ordinance. Jt. Ex. 1 at 3; Jt. Ex. 268. Section 7 provides that after the expiration of the moratorium on December 31, 2005, new covered health care facilities may not be built in Morgan County without the approval of the Commissioners. Jt. Ex. 1 at 4. Section 7 defines a “health care facility” as including a hospital licensed under Indiana law, an ambulatory outpatient surgical center, any other facility providing health care services that is licensed by the Indiana Department of Health, and any health care facility that exceeds either “two hundred thousand ($200,000) in planned construction costs” or “one thousand five hundred (1,500) square feet.” Id. at 5. Section 7(f) provides factors to.be considered in deciding whether to approve an application for a new health care facility. These are also the factors relevant to a request for an exception to the 2005 moratorium under Section 3(g): 1. The impact ,of the new health care facility on the county residents’ ability to access new and high quality health care services. 2. The current availability of alternative, less costly, or more effective means to satisfy the goals of the'new health care facility. 3: The immediate and long term financial feasibility of the new health care facility. 4. The impact of the new health care facility on health care costs and the charges for other health care facilities in the county, 5. The fiscal impact on - other health care facilities' in the county. 6. The availability of -resources for the new health care facility, including management and personnel. 7. The new health cafe facility’s economic impact on the county, including the creation of new jobs. 8. The capacity of health care facilities located in the county to improve the quality, of health care services and to respond to customer preferences. 9. The effect of competition on the efficient use of health care resources and providing quality health care. 10. The contribution of the new health care facility in‘serving the county’s - medically underserved population, including low income persons, minorities, the disabled, and the elderly. Id. at 5-6. The Ordinance purports to exempt the Commissioners’ approval or disapproval of an application from judicial review, save only for non-compliance with the terms of the Ordinance itself. Section 8 of the Ordinance provides a severability clause stating that in the event that any portion of the Ordinance is found invalid, any remaining provisions that may be given effect would remain unaffected by or would be severed from the invalid provisions. Section 4, entitled “Penalties,” provides that Morgan County may enforce the Ordinance by injunction in a Morgan County court against anyone who applies for licen-sure to a governmental agency of jurisdiction in violation of the Ordinance. Id. at 3. As originally passed, the Ordinance posed an obvious problem under Indiana’s Home Rule Act because it purported to prohibit those subject to the Ordinance from applying to state government agencies for any needed approvals or licenses without the county’s permission. The amendment on the eve of trial amended Section 4(b) of the Ordinance to allow an applicant to pursue state licensure or other governmental approvals while the county process moves forward. Jt. Ex. 268. The penalty section also provides for a civil penalty against those who violate the Ordinance, Jt. Ex. 1 at 3-4, though the Commissioners’ testimony at trial indicates that they have not developed a civil fee schedule. Beyond what is provided in the amended Ordinance about the application procedure under Sections 7(f) or 3(g), Morgan County has developed no additional written definitions, forms, procedures or guidelines for the approval process. Commissioner Voyles testified that the Commissioners might take into account factors not listed in Section 7(f) in assessing an application under the Ordinance. Voyles also testified that he believed himself not to be qualified to' evaluate information submitted in an application under at least the first factor in Section 7(f), but that the Commissioners were likely to hire a consultant to help with the process. The Commissioners have not made any plans for hiring such a consultant and have not sought bids for such a service. Commissioner Voyles testified that he was unable to estimate how long the application process might take. Commissioner Quyle testified that he was aware of organizations or individuals that might provide such a consulting service. St. Francis has incurred costs and entered into an agreement for completion of architectural and construction plans for the renovation and expansion of its hospital services at the St. Francis — Mooresville Hospital. Jt. Stip. Fact ¶ 22. Jewell testified that in 2003 and 2004, St. Francis hired consultants to evaluate both the need for and financial implications of its plans for expansion. Jt. Exs. 74, 104, 215. This information shaped St. Francis’s plan for its expansion project. St. Francis considers the information presented by its consultants, as well as project descriptions or related documents, to be confidential, competitively sensitive information, and it reveals such information only as necessary. To prevent competitors from using such information, St. Francis prefers not to reveal information for expansion projects until shortly before construction. St. Francis’s board of directors previously approved spending $2.1 million for architectural drawings and site preparation for the planned expansion. In March 2005, St. Francis signed a contract with an architectural firm to begin the plans. Jt. Ex. 105. In September 2005, St. Francis’s board approved, the 2005 expansion project, which was an extension of the 2004 expansion project. The entire area upon which St. Francis plans to build lies within the town of Mooresville, a fact that is relevant to Indiana zoning laws. As a result of the Ordinance, St. Francis altered its expansion plans. The changes have hindered the expansion by affecting preparations for construction and staff recruitment. Robert Brody, CEO of the Central Indiana Region of St. Francis, testified that the Ordinance has “cast a shroud of doubt” over the expansion because the expansion hinges on the approval of the County, which complicates the planning process. St. Francis has not applied for an exception to the 2005 moratorium under Section 3(g) of the Ordinance, nor has St. Francis applied for Board approval of its expansion plans under Section 7(f). St. Francis has not yet taken steps to inquire about the application process for an exception. St. Francis admits that some of its plans for the expansion project would not require an approval from the Commissioners, but it claims that the expansion is a unified plan, so that St. Francis will not undertake any part of the expansion if it is not permitted to build the entire project. In making its internal decision to go forward, St. Francis undertook a careful review of the need for and appropriateness of the planned expansion. See Jt. Ex. 73. Some of the information that it used to perform this evaluation is available publicly, such as from the Indiana State Hospital Association. St. Francis, through its own investigations and other information available to it, already possessed information relevant to the factors listed in Section 7(f) for evaluating the need for new hospital facilities in Morgan County. Conclusions of Law I. Jurisdiction and Procedural Matters This court has original jurisdiction of St. Francis’s federal claims under 28 U.S.C. §§ 1331, 1337(a), and 1343(a)(4), and supplemental jurisdiction over St. Francis’s state law claims under 28 U.S.C. § 1367. In response to the complaint, defendant Morgan Hospital filed a motion to dismiss St. Francis’s claims against it under Rule 12(b)(6) of the Federal Rules of Civil Procedure. All defendants filed a joint Rule 12(b)(1) motion to dismiss St. Francis’s RLUIPA claim as not ripe and a Rule 12(b)(6) motion to dismiss St. Francis’s Sherman Act claim. As discussed below, the court has found based on the evidence at trial that the RLUIPA claim is ripe as a facial challenge to the Ordinance. The court did not reach a firm conclusion as to whether the Sherman Act claim was suitable for dismissal on the pleadings under Rule 12(b)(6). Because the case presents questions of significant public interest and urgency affecting the delivery of hospital-based health care in Morgan County, the court chose not to delay the expedited trial while the motions to dismiss were under consideration. Even if the court had granted a motion to dismiss, St. Francis would have been entitled to an opportunity to file an amended complaint, resulting in further delay. See Barry Aviation Inc. v. Land O’Lakes Municipal Airport Comm’n, 377 F.3d 682, 687 (7th Cir.2004) (reversing dismissal and denial of leave to amend: “The better practice is to allow at least one amendment regardless of how unpromising the initial pleading appears because except in unusual circumstances it is unlikely that the court will be able to determine conclusively on the face of a defective pleading whether plaintiff actually can state a claim.”), citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed.1990). The motions to dismiss are hereby deemed denied. II. The Sherman Act Section 1 of the Sherman Act states: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. A horizontal agreement between competitors to allocate the market is a per se violation of Section 1. United States v. Topco Associates, Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). St. Francis contends that the Ordinance is preempted by Section 1 of the Sherman Act on the theory that the Ordinance compels St. Francis to enter into a horizontal conspiracy to allocate the market. for health care in Morgan County. Rice v. Norman Williams Co., 458 U.S. 654, 102 S.Ct. 3294, 73 L.Ed.2d 1042 (1982), states the test for determining whether a state law is preempted by the Sherman Act: Our decisions in this area instruct us, therefore that a state statute, when considered in the abstract, may be condemned under the antitrust laws only if it mandates or authorizes -conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute. Such condemnation will follow under § 1 of the Sherman Act when the conduct contemplated by the statute is, in all cases a per se violation. 458 U.S. at 661, 102 S.Ct. 3294. The same test applies to the acts of a local government like Morgan County. Fisher v. City of Berkeley, 475 U.S. 260, 265, 106 S.Ct. 1045, 89 L.Ed.2d 206 (1986). A. Direct Competition The central question is whether the Ordinance compels a conspiracy to allocate the market for hospital health services in Morgan County. The evidence shows that St. Francis and the defendants should be deemed direct competitors for hospital-based health -care services in Morgan County. St. Francis — Mooresville and Morgan Hospital are direct competitors. The Board of Commissioners and Morgan Hospital agree that their relationship gives them the kind of “complete- unity of interest” that prevents them from being viewed as separate entities conspiring between themselves under Sherman Act § 1. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). At the same time, these defendants argue they should not be considered a single entity that competes directly with St. Francis — Mooresville. This position is undermined by its internal inconsistency. Morgan Hospital is an agency of the county. Jt. Ex. 1 at 1. Morgan Hospital was created by an act of the Board of Commissioners. Jt. Stip. of Fact ¶ 7. Though Morgan Hospital is governed by its own Board of Trustees, the Trustees are appointed by the Commissioners. Id. ¶¶ 8 & 9. The Commissioners are responsible for the viability of Morgan Hospital. Jt. Ex. 1 at 1. To this end, the Commissioners may bind the county to guarantee payment of Morgan Hospital’s debts, as they did in 2002. Id.; Jt. Ex. 265. Under Indiana law, Morgan County must exercise its eminent domain power to acquire real property for hospital purposes at Morgan Hospital’s request. Jt. Stip. of Fact ¶ 11; Ind.Code § 16-22-3-25. Morgan County may provide financial support to Morgan Hospital through either appropriations from the county’s general fund or a tax levy. Jt. Stip. of Fact ¶ 10; Ind.Code § 16-22-3-27(a). As a result, Morgan County has a significant interest in maintaining the economic viability and independence of Morgan Hospital. See Jt. Ex. 1 at 1 (“the continued viability and financial performance of [Morgan Hospital] is of paramount importance to all citizens, and all parties desire that [Morgan Hospital] continue to be viable without the requirement of taxpayer subsidy”). In fact, the county and Morgan Hospital were so closely allied that during depositions in this case, the defendants asserted they were a “joint enterprise” such that communications between them through their attorneys (who are partners in the same firm) were protected by the attorney-client privilege. The evidence demonstrates that defendants have a unity of interest that warrants their treatment as a single entity for the purposes of St. Francis’s Sherman Act claim. Because Morgan Hospital and St. Francis are direct competitors, it is appropriate to treat Morgan County itself as a direct competitor of St. Francis. B. State Action Immunity In Parker v. Brown, 317 U.S. 341, 350-51, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the Supreme Court held that because the Sherman Act was not intended to restrain state action, principles of federalism barred application of the Act to state actions that would otherwise violate the Act. Because local governments are not sovereigns, they do not enjoy the same autonomy under the Parker doctrine. City of Lafayette v. Louisiana Power and Light Co., 435 U.S. 389, 411-12, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (plurality opinion). The anti-competitive act of a local government is exempt from the reach of the Sherman Act by the state action doctrine only where the government is acting in accord with a clearly articulated state policy to “displace competition with regulation or monopoly public service.” Id. at 413, 98 S.Ct. 1123 (plurality opinion); Town of Hallie v. City of Eau Claire, 471 U.S. 34, 40, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Fuchs v. Rural Electric Convenience Co-op. Inc., 858 F.2d 1210, 1214 (7th Cir.1988). To establish such a clearly articulated policy to displace competition, the state need not compel the anti-competitive conduct; nor must the state explicitly say that it expects or allows a local government to engage in such conduct. City of Eau Claire, 471 U.S. at 42, 105 S.Ct. 1713; Fuchs, 858 F.2d at 1214. A state may deemed to have adopted a clearly articulated policy to replace competition with regulation. where the anti-competitive conduct of a local government is a foreseeable result of a state’s grant of power to it. City of Eau Claire, 471 U.S. at 42, 105 S.Ct. 1713; Fuchs, 858 F.2d at 1214. It is well established, though, that a general grant of “home rule” power to govern local affairs is not sufficient to demonstrate a state policy to replace competition. Community Communications Co. v. City of Boulder, 455 U.S. 40, 55, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982) (rejecting claim that home rule legislation was sufficient to authorize local ordinance restricting competition in cable television service). City ofEau Claire illustrates the type of clear expression needed. Several Wisconsin towns sued the City of Eau Claire under the Sherman Act for using its monopoly over sewage treatment to gain a monopoly over both sewage collection and transportation. The city’s sewage treatment facility was the only one of its kind in the market available to the towns. Instead of providing sewage treatment to the towns, the city provided treatment only to individual-landowners in areas within the towns if a majority of the individuals in such areas voted to have their homes annexed by the city and to use the city’s sewage treatment and transportation services. 471 U.S. at 36-37, 105 S.Ct. 1713. The Supreme Court found that the state of Wisconsin had provided the clearly articulated policy warranting exemption of the city’s actions by the state action doctrine based on: (1) a staté statute granting the city the power to “construct, add to, alter, and repair sewage systems” and to describe its area of service; (2) a state statute allowing a city operating a public utility to define the limits of its service in unincorporated areas and relieving the city of aiiy obligation to provide services outside the defined area; and (3) a state statute permitting the state’s Department of Natural Resources to require that a city’s sewage system be accessible for use by nearby towns, but provided that such an order would be void if such a territory refused to be annexed to the city. Id. at 41, 105 S.Ct. 1713. The Court found that the state contemplated the anti-competitive effects of the city’s actions, which were a foreseeable result of the powers it granted to the city, so that the state action doctrine protected the city from Sherman Act liability. Id. at 42, 105 S.Ct. 1713. The issue here is whether Indiana has expressed a similarly “clearly articulated policy to replace competition” in providing hospital-based health care services by granting Morgan County any power that would foreseeably result in anti-competitive conduct. Defendants argue that the power to restrain competition among health care providers is found in the following statute: A [county] may provide medical care or other health and community services to persons and may impose restrictions upon persons or animals that might cause other persons or animals to be injured or contract diseases. A [county] may also establish, aid, maintain, and operate hospitals. Ind.Code § 36-8-2-5. Defendants hang their state action immunity argument on the verb “aid” in the statute. By providing Indiana counties with the ability to “aid” county-owned hospitals, defendants argue, Indiana must have contemplated that counties would engage in conduct that restrains competition in hospital and other health care services. Def. Tr. Br. at 22. For two reasons, Indiana’s grant of authority to “aid” a county hospital falls well short of the clear articulation shown by the Wisconsin policy reflected in the state’s grant of authority to define the area of a city’s sewage treatment service in City of Eau Claire. First, the state statutes in City of Eau Claire spoke directly to the conduct and effects at issue by specifically allowing the city to define its service area and by allowing the city to bar access to city sewage facilities if an area refused to be annexed. The word “aid” alone is far too general to show such approval in the present case. Second, Indiana has expressly adopted a state policy in favor of competition in delivery. of health care services. No comparable state policy was present in City ofEau Claire. The Indiana Code provision delegating the responsibility for health planning and resources development to the State Department of Health requires that in doing so, the agency must “foster competition.” Ind.Code § 16-30-1-1. State law also provides: The state department shall consider the following factors in assessing the health needs of the citizens and communities of Indiana: # * * * ‡ * The competitive factors of the free enterprise system, with the goal of encouraging competition and efficiency in the utilization of health resources. Ind.Code § 16-30-2-2(6). Morgan County’s argument that the general power to “aid” a county hospital demonstrates a policy allowing counties to restrain health care competition cannot be reconciled with Indiana’s clearly articulated policy in favor of competition in health care markets. Because Indiana has clearly stated a preference for competition in health care, Morgan County’s actions to protect Morgan Hospital from competition are not the foreseeable result of the grant of power to “aid” a county hospital. Morgan County’s Ordinance is not protected by the state action doctrine. C. Contract, Combination, or Conspiracy There can be no liability under Section 1 of the Sherman Act in the absence of a conspiracy, agreement, or other concerted action by separate entities to restrain trade. 15 U.S.C. § 1; Fisher v. City of Berkeley, 475 U.S. at 266-67, 106 S.Ct. 1045; Copperweld, 467 U.S. at 768, 104 S.Ct. 2731. St. Francis has failed to prove the kind of concerted action required for a Section 1 violation. St. Francis does not argue that Morgan Hospital and Morgan County engaged in a conspiracy with each other in violation of Section 1. Rather, St. Francis argues that its own compliance with the Ordinance would establish the required joint action among competitors. Under this argument, requiring St. Francis to comply with the Ordinance by seeking the approval of its competitor — Morgan County itself — for its expansion amounts to an agreement to allocate the market in violation of Section 1. PI. Tr. Br. at 9. The facts of the present case are análo-gous to those presented in Fisher v. City of Berkeley, in which a group of landlords alleged that Berkeley’s enactment of a rent control ordinance compelled a conspiracy to fix prices. 475 U.S. at 263, 264, 106 S.Ct. 1045. In Fisher, the Supreme Court made clear that enactment of and compliance with a local ordinance,' even if the effect is to restrain trade, does not amount to a conspiracy for Sherman Act purposes. Acknowledging that the same agreement on rental price ceilings would have been a per se violation of the law if it had been undertaken by private parties, the Court explained: A restraint imposed unilaterally by government does not become concerted-action within the meaning of [Section 1 of the Sherman Act] simply because it has a coercive effect upon the parties who must obey the law. The ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy.... There is no meeting of the minds here. The owners of residential property in Berkeley have no more freedom to resist the city’s -rent controls than they do to violate ' any other local ordinance enforced by substantial sanctions. Id. at 267, 106 S.Ct. 1045 (citations omitted). Under the reasoning of Fisher, any application for approval of hospital expansion by Morgan County would amount to no more than obedience to the regulatory commands of a local government. See also Massachusetts Food Ass’n v. Massachusetts Alcoholic Beverages Control Comm’n, 197 F.3d 560, 564-66 (1st Cir.1999) (holding that a state statute limiting the number of liquor store licenses per owner to three amounted not to a conspiracy but was unilateral governmental action); Englert v. City of McKeesport, 872 F.2d 1144, 1150 (3d Cir.1989) (“It is well settled, however, that a restraint established through unilateral action by the government is not transformed into concerted action merely because the government enforces it.”). Without the requisite “meeting of the minds” no conspiracy can be demonstrated. Fisher, 475 U.S. at 267, 106 S.Ct. 1045. St. Francis seeks to distinguish this case from Fisher by arguing that because Morgan County and its Board of Commissioners share a unity of interest with Morgan Hospital, the county has acted not as a government but as a market participant in direct competition with private hospitals like St. Francis. Because of this position as a direct competitor, St. Francis argues, Morgan County should not be deemed to have the kind of “ordinary relationship” between government and the governed that existed between the City of Berkeley and the plaintiff landlords in Fisher. Essentially, St. Francis urges the court to find what amounts to a market participant exception to Fisher’s unilateral action rule. This effort to distinguish Fisher is not persuasive for two reasons. First, the facts here are simply not distinguishable from those in Fisher. The Berkeley ordinance in Fisher had an exception from its rent control ceiling for any “government-owned units,” presumably including its own. See id. at 262, 270 n. 2, 106 S.Ct. 1045. The clear implication is that Berkeley was just as much a market participant or direct competitor to the plaintiff landlords as Morgan County is to St. Francis in this case. Second, St. Francis has not offered any controlling or persuasive authority supporting a market participant exception to Fisher. The Supreme Court has entertained the idea of a market participant exception to the state action doctrine, but has not adopted the exception. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 379, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) (stating that “with the possible market participant exception, any action that qualifies as state action is ipso facto ... exempt from antitrust laws.’ ”) (citation omitted). The Supreme Court has recognized that the aims of local governments acting as market participants may be difficult to distinguish from those of private actors: [T]he economic choices made by public corporations in the conduct of their business affairs, designed as they are to assure maximum benefits for the community constituency, are not inherently more likely to comport with the broader interests of national economic well-being than are those of private corporations acting in furtherance of the interests of the organization and its shareholders. City of Lafayette, 435 U.S. at 403, 98 S.Ct. 1123. The Court explained that such local government action can undermine the purposes of the Sherman Act: These units may, and do, participate in and affect the economic life of this Nation in a great number and variety of ways. When these bodies act as owners and providers of services, they are fully capable of aggrandizing other economic units with which they interrelate, with the potential of serious distortion of the rational and efficient allocation of resources, and the efficiency of free markets which the regime of competition embodied in the antitrust laws is thought to engender. If municipalities were free to make economic choices counseled solely by their own parochial interests and without regard to their anticompetitive effects, a serious, chink in the armor of antitrust protection would be introduced at odds with the comprehensive national policy Congress established. Id. at 408, 98 S.Ct. 1123. The facts.of the present case show such dangers. The Ordinance clearly reflects an anti-competitive purpose, to protect Morgan Hospital from unwelcome competition from St. Francis— Mooresville. The Ordinance also accomplishes an anti-competitive result that the two hospitals could not accomplish legally on their own. However, under the controlling Supreme Court reasoning in Fisher, St. Francis has not shown that compliance with the Ordinance could be treated as a conspiracy in violation of the Sherman Act. Because the evidence does not show that the Ordinance constitutes or compels a conspiracy within the meaning of Section 1 of the Sherman Act, St. Francis’s claim under the Sherman Act fails. III. Religious Freedom The Religious Land Use and Institutionalized Persons Act bars local governments from imposing land use restrictions that substantially burden religious exercise unless the governments can show the restriction is the least restrictive means for furthering a compelling governmental interest. 42 U.S.C. § 2000cc(a)(l). St. Francis contends that the Morgan County Ordinance violates RLUIPA because it burdens the religious exercise of providing health care at the St. Francis — Moores-ville hospital. Defendants contend that St. Francis is not entitled to relief under RLUIPA because (a) the claim is not ripe, (b) the Ordinance does not impose a substantial burden on religious exercise, and (c) St. Francis’s hospital enterprise is not a religious exercise protected by RLUIPA at all. A.. Ripeness Morgan County argues that the RLUIPA claim is not ripe, because St. Francis has refused to apply for a an exception to the moratorium as provided for in Section 3(g). Morgan County cites Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir.2005), for the proposition that for a- land use claim under RLUIPA to be ripe, a plaintiff must demonstrate a final decision from the state by “submitting at least one meaningful application for a variance.” 402 F.3d at 348, citing Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 190, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Without such evidence of a final decision indicating how a plaintiff may use its property, the Second Circuit explained, a reviewing court cannot know precisely how the contested regulation applies to the plaintiffs land. Murphy, 402 F.3d at 348. The court also explained that requiring plaintiffs to submit an application for review by the entity implementing the contested land use regulation might better develop a full record for review and provide the parties an avenue for resolution without resort to federal court. Id. The court also emphasized that requiring application would serve federalism concerns. Id. Applying this policy, the Second Circuit vacated the district court’s injunction against enforcement of a cease and desist order where the plaintiff had neither appealed the order nor sought a variance. Id. at 345, 352. The finding of no ripe claim in Murphy was based on facts that are not present in this case. Under the procedures applicable in Murphy, the Second Circuit found no immediate injury where an application for a variance from the cease and desist order would have automatically stayed its enforcement. Id. at 351. In this case, an application to the Commissioners would not have suspended the moratorium as applied to St. Francis. Also, the Murphy court found that the failure to apply for a variance left the record significantly undeveloped on important issues, such as whether the enforcement of the order was discriminatory. Id. at 351-52. Such analysis may well be sound on the facts in Murphy, where the only substantial burden alleged by plaintiffs was the requirement that they cease to hold large prayer gatherings at their home. Id. at 345-46. In this case, however, St. Francis has argued and has presented evidence that the exception application procedure itself is ill-defined, vague, and imposes a substantial burden on St. Francis’s plans for expansion, including effects on its construction schedule and recruitment of personnel. The Murphy court explained that the “Williamson County ripeness test is a fact-sensitive inquiry that may, when circumstances- warrant, be applicable to various types of land use challenges.” Id. at 350. The present circumstances do not warrant application of the Williamson County exhaustion requirement. The circumstances here are most analogous to the Seventh Circuit’s decision in Triple G Landfills, Inc. v. Board of Commissioners of Fountain County, 977 F.2d 287 (7th Cir.1992), in which the plaintiff challenged a county ordinance that imposed a moratorium on construction of landfills. Judge Dillin of this court and the Seventh Circuit both found that plaintiff Triple G’s constitutional and state home rule and zoning claims were ripe even where Triple G had not applied for a variance from the contested ordinance. Rather than applying the Williamson County exhaustion requirement, the Seventh Circuit applied the traditional ripeness test by determining (1) “whether the relevant issues [were] sufficiently focused so as to permit judicial resolution without further factual development”; - and (2) “whether the parties would suffer any hardship by the postponement of judicial action.” Id. at 289. Applying this two-pronged test, the court found that Triple G’s challenge to a county ordinance restricting the location for landfill development to five unsuitable areas was ripe even where Triple G had not yet filed a permit application! Id. at 289-90. The court explained that the Williamson County test was designed for regulatory takings claims and emphasized that Triple G “mount[ed] a facial attack on the ordinance itself, not a challenge to a particular administrative decision reached thereunder.” Id. at 289. As in Triple G Landfills, and as distinct from Murphy, St. Francis is bringing a facial challenge to the Ordinance itself. By bringing such a facial challenge, St. Francis faces a tougher burden on the merits, but whether St. Francis’s claim is persuasive on the merits is not the point on the ripeness issue. The claim that forcing St. Francis to go through the exception process would itself impose a substantial burden on its religious exercise is ripe. The issues in the present case are focused sufficiently to permit judicial resolution without further factual development. St. Francis has also met its burden in showing sufficient harm posed by the Ordinance to show a ripe case or controversy. In Triple G Landfills, the court emphasized that the practical effect of the ordinance was to preclude' any landfill construction anywhere in Fountain County. The court also found that delay of review of the ordinance was likely to cause a significant harm to Triple G where the prohibited action, developing a landfill, “entail[ed] considerable expense and advance planning, including preparation of the state permit application and arduous work at the proposed site.” Id. The same reasoning applies to plans for expansion of a hospital. As the evidence shows, the St. Francis plan also requires substantial and expensive planning, recruitment, and site preparation, all of which have been stopped or slowed by the Ordinance. Also, the vagueness of the procedures under the Ordinance imposes some burden on St. Francis’s expansion plans anywhere in Morgan County. Accordingly, St. Francis’s facial challenge to the Morgan County Ordinance under RLUIPA is ripe for decision. B. The Merits Under RLUIPA RLUIPA prevents a government entity from imposing a land use regulation that substantially burdens the religious exercise of any person, religious assembly, or religious institution unless such a regulation is the least restrictive means of furthering a compelling government interest. 42 U.S.C. § 2000cc(a)(l). As the plaintiff, St. Francis carries the burden of demonstrating that the Ordinance (1) is a land use regulation (2) that substantially burdens (3) St. Francis’s religious exercise. On the merits, St. Francis has failed to establish that the Ordinance imposes a “substantial burden” within the meaning of RLUIPA on either the work at its Mooresville hospital its planned expansion of the facility. The Seventh Circuit has twice examined what constitutes a “substantial burden” under RLUIPA. In Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir.2003), the plaintiff churches sought locations throughout the Chicago area. They claimed that Chicago’s zoning scheme substantially burdened their religious exercise. Affirming the district court’s grant of summary judgment in favor of the city, the Seventh Circuit articulated the “substantial burden” test: We therefore hold that, in the context of RLUIPA’s broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility rendering- religious exercise — including the use of real property for the purpose thereof within the regulated jurisdiction generally — effectively impracticable. Id. at 761. Because the zoning regulations imposed only “ordinary difficulties” associated with finding a location that were typical to any person, business, or other entity, the court found no substantial burden. Id. To find otherwise, the court explained, would be to interpret RLUIPA as favoring religious institutions by providing them an “outright exemption from land-use regulations.” Id. at 762. The Seventh Circuit revisited the substantial burden issue in Saints Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir.2005). The plaintiff church purchased a tract of land and filed an application with the defendant city for permission to rezone a piece of the property from “residential” to “institutional” to allow construction of a new church building. Id.' at 898. In response to the city’s concerns that the tract could be developed by another institutional entity should the church sell the property, the church modified its application to include a proposal that the parcel be limited to church-related uses by a “planned unit development ordinance” (“PUD”) agreement. Id. Despite the church’s efforts, and in the absence of any proof that a PUD agreement would dissolve if the land were sold by the church, the defendant city council rejected the church’s modified application. The city then suggested that the church engage in additional efforts, which demonstrated that the city, rather than seeking to raise its valid concerns, was merely “playing a delaying game” to prevent the development. Id. at 899. The Seventh Circuit found that the city’s actions imposed a substantial burden on the church’s religious exercise. The court emphasized that “the Church in [this] case doesn’t argue that having to apply for what amounts to a zoning variance to be allowed to build in a residential area is a substantial burden.” Id. at 900. Rather, the city had imposed a substantial burden on the church by forcing it either to deal with the city’s unexplained and ongoing delay tactics or to look for another parcel, even after the church had resolved the eity’s supposed concerns. Id. Such an unjustified burden was sufficient to be “substantial.” Id. St. Francis argues that the Ordinance places a substantial burden on the religious exercise of carrying out its healing mission at its Mooresville hospital. For purposes of this analysis, the court assumes without deciding that St. Francis’s planned expansion would fall within the “religious exercise” protected by RLUIPA. The evidence shows, however, that the burden.imposed by the mere enactment of the Ordinance is not substantial. St. Francis has not submitted an application to the Commissioners for a variance. The only burden presently imposed by the Ordinance would be having to apply for the permit, having to submit potentially confidential business information to the Commissioners, and facing the possible rejection of its application. Though this uncertainty and additional effort does inconvenience St. Francis, it does not rise to the level of a substantial burden as demonstrated by Civil Liberties for Urban Believers and City of New Berlin. The evidence shows, after all, that St. Francis has already carried out its own thorough and careful study of the planned expansion, and it has already gathered a great deal of information needed to address the relevant factors under the Ordinance. It is possible, of course, that in actual practice, the Commissioners could apply the Ordinance so as to impose substantial and even onerous burdens. But St. Francis has chosen to bring a facial challenge. The court may not speculate now about how the Ordinance might be applied in the future. St. Francis argues that its present circumstances are analogous to those in City of New Berlin, but this case is readily distinguishable. The plaintiff church in City of New Berlin had submitted multiple applications and modified its proposal to address the city’s stated concerns. St. Francis has not yet submitted its first application for an exception or for approval from the Commissioners. Most important, the court in City of New Berlin found that the city had engaged in deliberate and unjustified delay. St. Francis has not shown such conduct in this case. The burdens on St. Francis are more comparable to those rejected by the court in Civil Liberties for Urban Believers, the ordinary inconveniences and challenges of submitting a permit application that are faced by any non-religious entity. Interpretation of the substantial burden provision to prohibit every regulation limiting any use of property for religious purposes would render the word “substantial” meaningless. See Civil Liberties of Urban Believers, 342 F.3d at 761. Also, St. Francis’s argument would effectively exempt any religious-based health care facility from otherwise valid certificate of need laws, which would seem to be a sweeping and unwarranted exemption. RLUIPA does not grant churches a blanket exemption from zoning laws, after all. Id. at 762. St. Francis has not proved its facial challenge to the Ordinance under RLUIPA. The court does not reach the question whether the Ordinance is a land use regulation or whether St. Francis’s expansion amounts to a “religious exercise” under RLUIPA. IV. Claims Under Indiana Law This court has supplemental jurisdiction over St. Francis’s Indiana law claims under 28 U.S.C. § 1367(a). The disposition of St. Francis’s federal claims, even after trial, gives the court discretion either to retain or relinquish jurisdiction over the supplemental claims. 28 U.S.C. § 1367(c)(3). Defendants argue that the court should relinquish jurisdiction because St. Francis’s remaining claims raise “novel or complex issues of state law.” See 28 U.S.C. § 1367(c)(1). However, as shown below, the state law issues presented by St. Francis’s Home Rule Act claim, at least, are sufficiently well-defined to warrant this court’s exercise of supplemental jurisdiction. The Supreme Court has taught that “when deciding to exercise supplemental jurisdiction, ‘a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity.’ ” City of Chicago v. International College of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997), quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Federal jurisdiction over supplemental state law claims is particularly appropriate in situations where the federal judicial investment in the supplemental claim is substantial. Wright v. Associated Insurance Cos., 29 F.3d 1244, 1252 (7th Cir.1994), citing Graf v. Elgin, Joliet and Eastern Ry. Co., 790 F.2d 1341, 1347-48 (7th Cir.1986) (“Judicial economy, the essential policy behind the modern doctrine of pendent jurisdiction which Gibbs created, supports the retention of pendent jurisdiction in any case where substantial judicial resources have already been committed, so that sending the case to another court will cause a substantial duplication of effort.”). Although this case has not been pending long, this court has devoted substantial resources to it by taking it to trial promptly. Relinquishing jurisdiction so that the parties could start over in the state courts would not serve the purposes of judicial economy, convenience, fairness, or comity. In addition, there is a substantial public interest in the prompt resolution of this case -to address health care needs in Morgan County. In, light of these considerations, and the clarity of at least the home rule issue, this is an appropriate case to retain jurisdiction over the state law claims. See Miller Aviation v. Milwaukee County Board of Supervisors, 273 F.3d 722, 731-32 (7th Cir.2001) (finding district court abused discretion by relinquishing jurisdiction over state law claims after investing substantial resources over several years to decide and dismiss the federal claims, and remanding to district court to consider state law claims in first instance); Triple G Landfills, Inc. v. Board of Commissioners of Fountain County, 977 F.2d 287, 291-92 (7th Cir.1990) (affirming district court’s exercise of jurisdiction over pendent state law zoning claim without reaching Home Rule Act claim or federal constitutional claims); Pro-Eco, Inc. v. Board of Commissioners of Jay County, 956 F.2d 635, 638-39 (7th Cir.1992) (affirming district court’s -exercise of jurisdiction over pendent state law zoning claim requiring interpretation of Home Rule Act without reaching federal claim). A. Indiana Home Rule Act St. Francis has shown that the Morgan County Ordinance exceeds the limits on local government powers provided by Indiana’s Home Rule Act, Ind.Code §§ 36-1-3-1 to -9. The Ordinance attempts to regulate conduct over which the Board of Commissioners and the county have no authority. Enacted by the state legislature in 1980, the Home Rule Act abrogated the traditional rule that local government powers were limited to only those expressly granted by state statute. City of Gary v. Indiana Bell Telephone, Co., 732 N.E.2d 149, 153 (Ind.2000). The statute grants local government units “all powers that they need for effective operation of government as to local affairs.” Ind.Code § 36-1-3-2. Toward this end, “Any doubt as to the existence of a power of a unit shall be resolved in favor of its existence.” Ind.Code § 36-l-3-3(b). The Home Rule Act’s broad grant of authority nevertheless imposes important limits. Counties may not exercise powers that are expressly denied by a state statute or that are expressly granted to another entity. Ind.Code § 36-l~3-5(a)(l) & (2). Most relevant here, the preemption provision of the Home Rule Act specifically withholds from counties the power to “regulate any conduct that is regulated by a state agency, except that which is expressly granted by statute.” Ind.Code § 36-1-3-8(a)(7). The Article governing the Home Rule Act defines the term “regulate” to include licensing, inspecting, or prohibiting. Ind.Code § 36-1-2-15. Thus, despite a generally permissive state policy in favor of local authority, Indiana law specifically provides that a local government seeking to regulate conduct licensed, inspected, or prohibited by the state may do so only where expressly allowed by statute. Ind.Code § 36-1-3-8(a)(7). For present purposes, the most relevant application of the home rule preemption provision was in Triple G Landfills, Inc. v. Board of Commissioners of Fountain County, 774 F.Supp. 528 (S.D.Ind.1991). In Triple G Landfills, the district court granted summary judgment in favor of the plaintiff finding that a similar ordinance was invalid where it exceeded any possible grant of authority to the county, either express or impli