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Certain Tell City Annexation Territory Landowners v. Tell City

Court of Appeals of Indiana

March 30, 2017

Certain Tell City Annexation Territory Landowners, Appellants-Petitioners,
v.
Tell City, Indiana, Appellee-Respondent.

         Appeal from the Perry Circuit Court Trial Court Cause No. 62C01-1407-MI-319 The Honorable William E. Weikert, Special Judge

          Attorney for Appellants Stephen R. Buschmann Thrasher Buschmann & Voelkel, P.C. Indianapolis, Indiana

          Attorneys for Appellee Matthew M. Price Gregory A. Neibarger Jessica Whelan Bingham Greenebaum Doll LLP Indianapolis, Indiana

          Pyle, Judge.

         Statement of the Case

         [¶1] This case concerns the statutory question of what constitutes a necessary signature on a remonstrance petition for purposes of challenging a city's proposed land annexation. The Appellants/Petitioners, Certain Tell City Annexation Territory Landowners ("Property Owners"), filed a remonstrance petition ("Remonstrance Petition") challenging a proposed annexation of their land by Tell City ("The City"). The trial court dismissed the Remonstrance Petition, holding that it did not contain the necessary signatures because many of the Property Owners' signatures were not compliant with statutory requirements.

         [¶2] On appeal, the Property Owners argue that the trial court misinterpreted the statutory requirements for remonstrance petitions and erred in dismissing the Remonstrance Petition. We agree that the trial court misinterpreted and added additional statutory requirements, and we find that the Petition did contain the necessary signatures. Therefore, the trial court erred in dismissing the Petition. We reverse and remand for further proceedings.

         [¶3] We reverse and remand.

         Issues

Whether the trial court erred when it dismissed the Property Owners' Remonstrance Petition.

         Facts

         [¶4] On April 7, 2014, the City adopted Ordinance No. 1074, in which it proposed to annex 1, 776.4 acres of surrounding land (collectively, "Annexation Territory") into its corporate limits. Pursuant to Indiana law, owners of land in an annexation territory may remonstrate against an annexation by filing a written remonstrance and petition bearing the signatures of:

(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.

Ind. Code § 36-4-3-11(a). The Property Owners challenged the City's proposed annexation by filing such a petition, the Remonstrance Petition, with the trial court on July 8, 2014. Each real estate parcel was allocated a dedicated page within the Remonstrance Petition, and each parcel's page listed the parcel's number and address; the Property Owner's name as it appeared on the parcel's property tax duplicate; and a statement that the Property Owner intended to remonstrate against the annexation. Each page also included a line for the Property Owner's signature, a line for the Property Owner to print his or her name, and a line for the date the Property Owner signed the page. In total, 438 Property Owners signed the Remonstrance Petition.

         [¶5] On May 12, 2015, after a pre-trial conference with the parties, the trial court ordered the Auditor of Perry County ("the Auditor") to review the Remonstrance Petition and evaluate whether it contained the necessary signatures for the Property Owners to have standing to remonstrate against the annexation.[1] Pursuant to the order, the Auditor was supposed to "create a Schedule of the parcels in the Annexation Territory using the names of the Owner(s) appearing on the tax duplicates for each of those parcels" and to "compare the Remonstrance Petitions . . . to the names on the Schedule." (The City's App. 39). The Auditor was also supposed to "make a notation for each parcel" regarding "whether a remonstrance petition, compliant with the provisions of [Indiana Code §] 36-4-3-11(b) [had] been filed."[2] (The City's App. 39-40). If the Auditor determined that a "Remonstrance Petition was filed for a particular parcel that [was] not compliant with the provisions of [Indiana Code §] 36-4-3-11(b), " the Auditor was required to "make a notation on the Schedule as to the reasons the Petition [was] not deemed compliant." (The City's App. 40).

         [¶6] The Auditor reviewed the Annexation Territory and Remonstrance Petition and filed a schedule ("Schedule") with the trial court as ordered. As documented in the Schedule, the Auditor found that there were 637 total parcels in the Annexation Territory and that 145 of the 438 signatures in the Remonstrance Petition did not comply with Indiana Code § 36-4-3-11(b). Based on these findings, only 45% of Property Owners in the Annexation Territory had signed the Remonstrance Petition and complied with Indiana Code § 36-4-3-11(b). The Auditor's reason for finding 145 signatures non-compliant was that they did not "exactly match any of the names listed on the tax duplicate such that the signatures may not comply with Indiana law." (The City's App. 37). For example, one person had signed as "Joe" instead of "Joseph, " and some people had added middle initials. Also, some of the non-compliant signatures were those of trustees and authorized representatives of corporations who had signed on behalf of their trusts and/or corporations.

         [¶7] At the agreement of the parties, the trial court next ordered the Auditor to revise and supplement the Schedule to include the assessed value for each parcel in the Annexation Territory, as well as the total assessed value of the Annexation Territory. The Auditor filed a revised schedule ("Revised Schedule") including these valuations. According to the Revised Schedule, the total value of the property owned by the Property Owners was not more than 75% of the total value of the Annexation Territory, as was required for standing to challenge the annexation pursuant to the property value prong of Indiana Code § 36-4-3-11(a).

         [¶8] Subsequently, on September 21, 2015, the Property Owners filed a memorandum objecting to the Auditor's Revised Schedule. In their objection, the Property Owners argued that: (1) the Auditor's interpretation that the Property Owners' signatures on the Remonstrance Petition had to exactly match their names on their tax duplicates was arbitrary because no such standard was required by the remonstrance statute; (2) the Auditor had included parcels in the Annexation Territory that did not belong in the Territory; and (3) the Auditor had improperly counted state-owned parcels in the Annexation Territory as forty-eight separate parcels rather than one single parcel. In support of this third argument, the Property Owners cited American Cold Storage v. City of Boonville, 977 N.E.2d 19 (Ind.Ct.App. 2012), in which this Court found that separate parcels acquired by the State for right-of-way on a state highway should be counted as a single parcel for purposes of an annexation remonstrance. Adjusting for these alleged errors, the Property Owners contended that there were 591, rather than 637, total parcels in the ...


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