Remonstrators’ victories are short-lived

In a string of reversals from the Indiana Court of Appeals, the judiciary seems to be saying that if a municipality indicates it will need the additional territory at some point in the future, then that is enough to allow an annexation to move forward.

Cities and towns had moved quickly to stake claims to unincorporated land prior to the Indiana Legislature amending the state’s annexation statute in 2015. During the 2014 and 2015 sessions, lawmakers took steps toward prohibiting involuntary annexations but instead opted to give a little more power to remonstrators.

Anticipating the Statehouse was going to prevent them from annexing new territory, many municipalities passed ordinances to expand their domains. Landowners remonstrated against the annexation attempts by Fortville, Whitestown and Boonville. At the trial court level they were successful, but in the Court of Appeals their fortunes changed.

The appellate panels ruled in all three actions that the lower courts had too narrowly construed the statutory language of “reasonably near future.” Judges in the Court of Appeals held that municipalities do not have to present ongoing or planned projects for the annexed territory to satisfy Indiana Code 36-4-3-13(c).

Writing for the court in Town of Fortville v. Certain Fortville Annexation Territory Landowners, 30A01-1410-MI-442, Judge John Baker contended that making municipalities present plans for development would result in bad policy and hurt both the areas inside and outside the city limits.

“To allow the trial court’s order to stand would be to hold that a city – if it does not have impending plans to build on land that it seeks to annex – must sit and watch the land be used and developed in ways that might harm or impede its future plans for urban management of the land … ,” Baker wrote in the July 2 opinion.

Thrasher Buschmann & Voelkel P.C. attorney Stephen Buschmann, representing the landowners fighting the Fortville annexation, filed a petition to transfer. Accompanying his brief, he asked for permission to cite a memorandum decision which was the one recent case where the Court of Appeals affirmed the remonstrators, The City of Sullivan v. North American Latex Corp., et al., 77A01-1401-PL-11.

The Supreme Court denied the motion.

Buschmann also argued that the standard of “reasonably near future” was set in the decades-old Court of Appeals decision in Abell v. City of Seymour, 275 N.E.2d 547 (1971). Although the appellate panel allowed the annexation to go forward, the opinion noted the city presented plans to construct a new school on the property within a five-year window.

Also, he pointed to the time limit established in Senate Enrolled Act 330, which amended the state’s annexation statute. The Legislature included a provision to allow cities and towns to claim unincorporated land for economic development. However, the language mandates the project start within 12 months after the annexation ordinance is adopted and be completed within three years.

Contiguous requirement

Another section of the state’s annexation statute reached the Indiana Supreme Court on Sept. 23 as Zionsville and Whitestown argued over Perry Township.

A key point in the dispute is whether Zionsville’s border is adjacent to Perry Township. Indiana Code 36-4-3-13(b) holds that the territory to be annexed must be contiguous to the municipality. Whitestown contended Zionsville does not meet the statutory requirement, but Zionsville countered that as a result of its 2010 reorganization, it does comply with the statute.

Four justices of the Indiana Supreme Court heard arguments in the Town of Zionsville v. Town of Whitestown and Angel Badillo, 06A01-1410-PL-432, to determine if it will grant transfer. Justice Steven David did not participate in the case.

Boone Superior Court granted summary judgment to Whitestown, but the Indiana Court of Appeals reversed in June 2015. The Court of Appeals found that when Zionsville reorganized in 2010 with Eagle and Union townships, its border expanded to the area where it assumed the township services.

The justices seemed skeptical of Zionsville’s argument.

Referring to the Court of Appeals finding, Mark Crandley, attorney at Barnes & Thornburg LLP, began explaining that Zionsville had reorganized with two townships, Eagle and Union.

Justice Dickson interrupted, “But it did not annex.”

“Correct,” Crandley replied, “although the municipal border of Zionsville moved up to all the unincorporated parts of Eagle and Union townships.”

Crandley then argued that Zionsville’s corporate limits do touch a portion of Perry Township.

“… There’s another type of border at issue and this is what the Court of Appeals looked at,” he said. “We are mandated to provide townships services and to do so within Whitestown itself. We have no choice in this matter and we do it tax free.”

Chief Justice Loretta Rush countered, “But for providing the township services, you have no adjacency?”

“No, I would disagree with that your honor,” Crandley responded.

“How do you have adjacency other than if you don’t use the vestiges of what used to be Eagle Township,” Rush asked. “… I’m looking at the map in the record and I just don’t see it.”

Crandley renewed Zionsville’s second adjacency argument that there is more than 150 feet of corporate limits between the town and Perry Township.

Justice Mark Massa interjected, “You’re saying there is contiguity?”

“Absolutely,” Crandley answered.

“Geographical, physical, real contiguity? … Of more than 150 feet?” Massa continued.

Pointing to a map included in his transfer brief, Crandley replied, “But if we’re only going to consider the corporate limits of the town of Zionsville … that is more than 150 feet. That is the town of Zionsville’s corporate border.”

During his rebuttal argument for Whitestown, Stephen Unger, attorney with Bose McKinney & Evans LLP, disputed Zionsville’s corporate limits extend to Perry Township. He described the area in question as a vestige of the former township that was eliminated when Zionsville reorganized. Zionsville, he said, provides township services but has not extended its municipal boundary.

Earlier, Unger also challenged Zionsville’s reliance on the Indiana Government Modernization Act of 2006 to support its attempt to reorganize with Perry Township. Unger said the act was designed to eliminate inefficient layers of government, and it was not intended to land lock a municipality.

“This creates an untenable position for local government,” Unger told the court. “That it opens the door to land grabbing that has nothing to do with local government efficiency.”

Future fights

Buschmann sees the annexation activity as being a product of the moves in the Legislature. The possibility of involuntary annexation being prohibited started a “race for territory,” he said, as cities are trying to claim certain areas before other cities take the same parcels.

More battles are brewing, he said. Other annexation cases, including three he has, are heading to the courts.•