Certain Tell City Annexation Territory Landowners, Appellants-Petitioners,
Tell City, Indiana, Appellee-Respondent.
from the Perry Circuit Court Trial Court Cause No.
62C01-1407-MI-319 The Honorable William E. Weikert, Special
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,
of the Case
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.
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.
We reverse and remand.
Whether the trial court erred when it dismissed the Property
Owners' Remonstrance Petition.
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
(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.
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. 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." (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).
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.
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).
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 ...