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Fight Against Brownsburg Annexation v. Town of Brownsburg

Court of Appeals of Indiana

May 15, 2015

Fight Against Brownsburg Annexation, et al., Appellants-Plaintiffs,
v.
Town of Brownsburg, Indiana, et al., Appellees-Defendants

Page 799

Appeal from the Hendricks Superior Court. The Honorable David H. Coleman, Judge. Cause No. 32D02-1310-PL-109.

FOR APPELLANTS: Gregory W. Black, Gregory W. Black, P.C., Plainfield, Indiana.

FOR APPELLEES: David E. Wright, Kevin D. Koons, Kroger, Gardis & Regas, LLP, Indianapolis, Indiana.

Najam, Judge. Baker, J., and Friedlander, J., concur.

OPINION

Page 800

Najam, Judge.

Statement of the Case

[¶1] This appeal involves the statutory process remonstrators must follow when opposing an annexation ordinance. That process begins with the filing of a remonstrance petition under Indiana Code Section 36-4-3-11(a), which requires in relevant part that the petition: (1) include the signatures of at least sixty-five percent of the landowners in the annexed territory; (2) be filed within ninety days after the ordinance is published; (3) be accompanied by a copy of the ordinance; and (4) state the reason why the annexation should not take place. Indiana Code Section 36-4-3-11(b) then requires that the trial court determine whether the remonstrance has the necessary signatures. " In determining the total number of landowners of the annexed territory and whether signers of the remonstrance are landowners, the names appearing on the tax duplicate for that territory constitute prima facie evidence of ownership." Id. If the court determines that the remonstrance is sufficient, it shall schedule a hearing on the merits of the remonstrance. I.C. § 36-4-3-11(c).

[¶2] Here, after the Town of Brownsburg (" Brownsburg" ) introduced an ordinance to annex 4,461 acres north of the town, several affected landowners formed a group called Fight Against Brownsburg Annexation (" FABA" ) and filed a remonstrance petition with the trial court. Brownsburg moved to dismiss the petition under Trial Rule 12(B)(1) and 12(B)(6), and, following a hearing, the trial court dismissed the remonstrance petition for lack of subject matter jurisdiction. In this appeal, we consider whether the trial court erred both when it dismissed the petition under Trial Rule 12(B)(1) and when it concluded that FABA had failed to obtain a sufficient number of signatures in support of its remonstrance petition.

[¶3] We reverse and remand for further proceedings.

Facts and Procedural History

[¶4] On March 7, 2013, the Town Council of Brownsburg (" Town Council" ) introduced Annexation Ordinance Number 2013-06 (" the annexation ordinance" ), which proposed the annexation of 1,193 parcels located on 4,461 acres north of Brownsburg. The Town Council also adopted a fiscal plan for the annexation on that date. On April 9, FABA began gathering signatures for a remonstrance petition.[1] On May 16, the Town Council held a public hearing on the annexation plan and held additional public hearings regarding zoning issues in June. On July 11, the Town Council amended the fiscal plan and adopted[2] the annexation ordinance.

Page 801

[¶5] On October 7, FABA filed a written remonstrance and petition for declaratory judgment in the trial court. Attached to the remonstrance, FABA included the signatures of the owners of 808[3] out of the 1,193 parcels to be annexed, or approximately sixty-seven percent of the owners of land in the annexed territory. Brownsburg moved to dismiss the remonstrance for lack of subject matter jurisdiction under Trial Rule 12(B)(1) and failure to state a claim upon which relief can be granted under Trial Rule 12(B)(6). In particular, Brownsburg alleged that FABA had not obtained the signatures of sixty-five percent of affected landowners as required by statute. In relevant part, Brownsburg claimed that FABA was required to obtain the signatures of every co-owner of parcels owned by more than one person, which it had failed to do, and that FABA had obtained signatures prior to the adoption of the annexation ordinance, which, Brownsburg alleged, was in contravention of the statutory scheme.[4] Following a hearing, the trial court dismissed the remonstrance petition for lack of subject matter jurisdiction under Trial Rule 12(B)(1). This interlocutory appeal ensued.[5]

Discussion and Decision

Introduction

[¶6] The annexation of land by municipalities is governed by [Indiana Code Section] 36-4-3-1 to [Indiana Code Section] 36-4-3-22. City of Muncie v. Lowe, 705 N.E.2d 528, 530 (Ind.Ct.App. 1999), trans. denied. Generally, the annexation process formally begins when a municipality adopts an ordinance annexing territory pursuant to either [Indiana Code Section] 36-4-3-3 or [Indiana Code Section] 36-4-3-4. Id. The legislative adoption of the ordinance is followed by an opportunity for remonstrance by affected landowners and judicial review. City of Hobart v. Chidester, 596 N.E.2d 1374, 1375 (Ind. 1992). A remonstrance abates the culmination of the annexation pending a review by the courts and places upon the municipality the burden of sustaining the annexation in the courts as provided by statute. City of Indianapolis v. Wynn, 239 Ind. 567, 576, 157 N.E.2d 828, 833 (1959). At the remonstrance hearing, the burden is on the municipality to demonstrate its compliance with the annexation statutes. In re Matter of Annexation Ordinance No. X-07-91 ( Blackhawk Annexation), 645 N.E.2d 650, 652 (Ind.Ct.App. 1995), trans. denied.

Fuehrer v. Storm (In re Remonstrance Appealing Ordinance Nos. 98-004, 98-005, 98-006, 98-007 and 98-008, of Town of Lizton), 769 N.E.2d 622, 634 (Ind.Ct.App. 2002).

Standard of Review

[¶7] The standard of appellate review for Trial Rule 12(B)(1) motions to

Page 802

dismiss is a function of what occurred in the trial court. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). If the facts before the trial court are not in dispute, then the question of subject matter jurisdiction is purely one of law. Id. Under those circumstances no deference is afforded the trial court's conclusion because " appellate courts independently, and without the slightest deference to trial court determinations, evaluate those issues they deem to be questions of law." Id. (quoting Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000)). Thus, we review de novo a trial court's ruling on a motion to dismiss under Trial Rule 12(B)(1) where, as here, the facts before the trial court are undisputed. Id. As a general proposition, the party challenging subject matter jurisdiction carries the burden of establishing that jurisdiction does not exist. Id. at 404.

Subject Matter Jurisdiction

[¶8] Before we turn to the substantive arguments raised on appeal, we must first address the trial court's conclusion that it lacked subject matter jurisdiction over FABA's remonstrance petition. The question of subject matter jurisdiction entails a determination of whether a court has jurisdiction over the general class of actions to which a particular case belongs. Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000). The statute at issue in this appeal is Indiana Code Section 36-4-3-11, which provides in relevant part as follows:

(a) Except as provided in section 5.1(i) of this chapter and subsections (d) and (e), whenever territory is annexed by a municipality under this chapter, the annexation may be appealed by filing with the circuit or superior court of a county in which the annexed territory is located a written remonstrance signed by:
(1) at least sixty-five percent (65%) of the owners of land in the annexed territory; or
(2) the owners of more than seventy-five percent (75%) in assessed valuation of the land in the annexed territory.
The remonstrance must be filed within ninety (90) days after the publication of the annexation ordinance under section 7 of this chapter, must be accompanied by a copy of that ordinance, and must state the reason why the annexation should not take place.
(b) On receipt of the remonstrance, the court shall determine whether the remonstrance has the necessary signatures. . . .

(Emphasis added). Because the statute expressly provides that a party may file a remonstrance petition " with the circuit or superior court of a county in which the annexed territory is located," there is simply no question that the trial court here has subject matter jurisdiction over FABA's petition. Id. Still, this court has previously held that a Trial Rule 12(B)(1) motion to dismiss for lack of subject matter jurisdiction is a proper vehicle to challenge a remonstrance petition under Indiana Code ...


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