Annexation Ordinance F-2008-15 v. City of Evansville

955 N.E.2d 769, 2011 Ind. App. LEXIS 1799, 2011 WL 4600430
CourtIndiana Court of Appeals
DecidedOctober 6, 2011
DocketNo. 82A05-1102-PL-84
StatusPublished
Cited by12 cases

This text of 955 N.E.2d 769 (Annexation Ordinance F-2008-15 v. City of Evansville) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Annexation Ordinance F-2008-15 v. City of Evansville, 955 N.E.2d 769, 2011 Ind. App. LEXIS 1799, 2011 WL 4600430 (Ind. Ct. App. 2011).

Opinion

OPINION

BRADFORD, Judge.

Appellants-Petitioners (hereinafter “Re-monstrators”) appeal the trial court’s order denying their motion to correct error and dismissing their challenge to the proposed annexation of certain parcels of land by Appellee-Respondent the City of Evansville (“the City”). We affirm.

FACTS AND PROCEDURAL HISTORY

On September 19, 2008, the City filed City of Evansville, Indiana Ordinance Number F-2008-15 (“Annexation Ordinance”) with the City Clerk. The City provided notice via publication in the Evansville Courier & Press on October 7, 2008, and to the affected landowners by certified mail on October 8, 2008, that it intended to annex certain parcels of land as outlined in the Annexation Ordinance. On December 15, 2008, the City held a public hearing regarding the Annexation Ordinance. The City subsequently amended the Annexation Ordinance (“Amended Annexation Ordinance”) on January 26, 2009, to reduce the amount of territory contained in the proposed annexation, and adopted the Amended Annexation Ordinance. On March 13, 2009, the Amended Annexation Ordinance was published.

The Remonstrators filed a combined remonstrance petition and complaint for declaratory relief on May 20, 2009. On October 23, 2009, the City filed a motion to dismiss the Remonstrators’ challenge to the proposed annexation, claiming that the trial court lacked subject matter jurisdiction over the Remonstrators’ petition because the Remonstrators had failed to secure the required number of signatures in support of their remonstrance and that the Remonstrators could not pursue declaratory relief. On or about February 1, 2010, the Remonstrators responded to the [773]*773City’s motion to dismiss, asserting that they had secured the required number of signatures in support of their remonstrance, and filed a motion for partial summary judgment. On May 13, 2010, the parties stipulated that October 8, 2008, would be the fixed date “for determination of parcel numbers and assessed valuation ■within the annexed area for determination of participating owners by number or assessed value as required by [Indiana Code section] 36-3-4-ll(a).” Appellee’s App. p. 117. Following the entry of the stipulation, both parties submitted supplemental briefs and evidence in support of their respective positions.

On October 14, 2010, the trial court dismissed the remonstrance and entered partial summary judgment in favor of the City in the declaratory judgment action. Both the City and the Remonstrators subsequently requested that the trial court reconsider its October 14, 2010 ruling.1 On January 21, 2011, the trial court granted the City’s motion to reconsider, denied the Remonstrators’ request that the trial court reconsider its prior ruling, dismissed the Remonstrators’ declaratory judgment action for lack of jurisdiction, and entered final judgment against the Remonstrators and for the City. This appeal follows.

DISCUSSION AND DECISION

I. Indiana Annexation Law

A. Background Information

Indiana adopted its first annexation statute in 1824. City of Carmel v. Certain Sw. Clay Tp. Annexation Territory Landowners, 868 N.E.2d 793, 796 (Ind.2007). “Indiana’s annexation laws have evolved over time, but the object of annexation has remained the same: ‘to permit annexation of adjacent urban property.’ ” Id. (quoting Rogers v. Mun. City of Elkhart, 688 N.E.2d 1238, 1242 (Ind.1997)). “The statutory framework has also retained the same three stages: ‘(1) legislative adoption of an ordinance annexing of certain territory and pledging to deliver certain services within a fixed period, (2) an opportunity for remonstrance by affected landowners, and (3) judicial review.’ ” Id. (quoting City of Hobart v. Chidester, 596 N.E.2d 1374, 1375 (Ind.1992)).

With respect to the effect annexation has on the interests of landowners, the Indiana Supreme Court has held as follows:

[N]o property is taken from the owner, by annexation, no private right of the owner is affected; the act simply changes the property and its owner, in their civil relation to certain public authority. This power the State has the right to exercise, directly or indirectly, within constitutional limits, at any time.
Stilz v. City of Indianapolis, 55 Ind. 515, 523 (1877).
In short, “annexation of territory to a city is not a taking of the property, nor does it deprive any person of his property.” Taggart v. Claypool, 145 Ind. 590, 596, 44 N.E. 18, 20 (1896). Property owners therefore have no vested interest in the maintenance of municipal boundaries at any particular location. Forks v. City of Warsaw, 257 Ind. 237, 273 N.E.2d 856 (1971), cert. denied, 409 U.S. 841, 93 S.Ct. 39, 34 L.Ed.2d 80 (1972).

Bradley v. City of New Castle, 764 N.E.2d 212, 215 (Ind.2002).

[774]*774B. Standard of Review

The General Assembly has delegated part of its power to re-establish and change governmental unit boundaries to local legislatures. Id. at 216 (citing Perry Twp. v. Indplis. Power & Light Co., 224 Ind. 59, 64 N.E.2d 296 (1946)). Thus, annexation is an essentially legislative function. Id. at 215 (citing Rogers, 688 N.E.2d at 1239). It is subject to judicial review only as provided by statute. Rogers, 688 N.E.2d at 1242; City of Carmel, 868 N.E.2d at 797. Therefore, a remon-strator’s challenge to annexation is not a regular lawsuit, but rather a special proceeding that the General Assembly may control. Bradley, 764 N.E.2d at 215.

There are only two methods of challenging annexation by a municipality. Chem. Waste Mgmt. of Ind., LLC v. City of New Haven, 755 N.E.2d 624, 631 (Ind.Ct.App.2001). “The first, remonstrance, ‘is the exclusive manner for landowners [of the annexation area] to obtain relief from annexation proceedings.’ ” Id. (quoting Deaton v. City of Greenwood, 582 N.E.2d 882, 885 (Ind.Ct.App.1991)). “The second, a declaratory judgment suit, is ‘available only to taxpayers of the annexing city.’ ” Id. (quoting Deaton, 582 N.E.2d at 885).

Indiana Code sections 36-4-3-11 through -13 establish requirements for remonstrances, give trial courts authority to hear and enter judgment on remonstrances, and direct courts to order annexation provided that the city meets specified requirements on matters such as contiguity and has adopted a fiscal plan showing that it will provide municipal services to the annexed area that are equivalent to those enjoyed by residents in similar areas of the municipality. Bradley,

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955 N.E.2d 769, 2011 Ind. App. LEXIS 1799, 2011 WL 4600430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/annexation-ordinance-f-2008-15-v-city-of-evansville-indctapp-2011.