Certain Home Place Annexation Territory Landowners, Appellants-Petitioners,
City of Carmel, Indiana, Appellee-Respondent.
from the Hamilton Superior Court No. 29D03-0502-MI-169 The
Honorable Matthew C. Kincaid, Special Judge
Attorney for Appellants Stephen R. Buschmann Thrasher
Buschmann & Voelkel, P.C. Indianapolis, Indiana
Attorneys for Appellee Douglas C. Haney City of Carmel
Carmel, Indiana Bryan H. Babb Stephen C. Unger Bose McKinney
& Evans LLP Indianapolis, Indiana
In 2005, Certain Home Place Annexation Territory Landowners
("Landowners") successfully challenged an
annexation attempt by the City of Carmel
("Carmel"). We reversed the trial court's
decision. City of Carmel v. Certain Home Place Annexation
Territory Landowners, 874 N.E.2d 1045, 1046 (Ind.Ct.App.
2007), trans. denied. The case was remanded for a
determination as to whether Landowners carried their burden
of proof under Indiana Code § 36-4-3-13(e) (2004), which
affords a separate avenue to challenge annexations. The trial
court ruled in favor of Carmel, concluding that Landowners
failed to prove that fire protection was adequately furnished
by a provider other than Carmel. On appeal, Landowners raise
one issue, and Carmel raises several cross-appeal issues. We
find Landowners' issue dispositive, that is: whether
Landowners failed to prove that fire protection was being
adequately furnished by a provider other than Carmel. We
and Procedural History
Carmel is located in Clay Township, Hamilton County. Home
Place, the area sought to be annexed by Carmel, is located
adjacent to Carmel in unincorporated Clay Township. The
general boundaries of Home Place are 99thStreet to
the south, Pennsylvania Street to the west, 111th
Street to the north, and Westfield Boulevard to the east. On
July 2, 2004, the Common Council of the City of Carmel
("Council") introduced Ordinance No. C-264 for the
purpose of annexing Home Place. On November 15, 2004, the
Council unanimously passed the ordinance.
On February 18, 2005, the Landowners filed a petition for
remonstrance against the annexation. A hearing was held on
July 7 and 8, 2005. On October 4, 2005, the trial court
issued findings of fact and conclusions of law granting the
remonstrance on grounds the City failed to adequately
establish the method of financing the planned services that
were to be provided to Home Place after annexation.
See Ind. Code § 36-4-3-13(d)(2). Carmel
appealed. On October 17, 2007, we reversed the trial
court's decision, concluding that "Carmel met its
burden of proving the statutory prerequisite that the fiscal
plan must show '[t]he method or methods of financing the
planned services.'" City of Carmel, 874
N.E.2d at 1046.
The matter was remanded to the trial court to determine
whether Landowners carried their burden of proof as to
Indiana Code § 36-4-3-13(e), which provides grounds by
which remonstrators can prevail in preventing annexation. On
remand, the parties twice agreed to hold the matter in
abeyance for periods totaling six years. Following a change
of judge, expiration of the agreed abeyance periods, and an
attorney's conference, the trial court set a procedural
schedule for briefing and for arguments. The trial court held
a hearing on the matter on May 9, 2016. It did not entertain
new evidence but instead reviewed the matter based on a paper
record of the original evidence. On May 17, 2016, it issued
findings of fact and conclusions of law upholding annexation.
The court determined that under Indiana Code §
36-4-3-13(e)(2)(A)(i), Landowners failed to establish that
fire protection was adequately furnished by a provider othe
than the municipality seeking annexation, that is, Carmel.
Landowners now appeal.
When, as here, the trial court enters findings of fact and
conclusions of law, "we review issues of fact for
sufficiency of the evidence and look to the record only for
evidence favorable to the judgment." City of Fort
Wayne v. Certain Southwest Annexation Area Landowners,
764 N.E.2d 221, 224 (Ind. 2002). We set aside findings and
judgments only when they are clearly erroneous. Id.
As always, we review questions of law de novo. Id.
Annexation is subject to judicial review only so far as the
General Assembly has authorized it by statute, and the larger
object of the annexation statute is, as it has always been,
to permit annexation of adjacent urban territory. City of
Carmel v. Certain Southwest Clay Tp. Annexation Territory
Landowners, 868 N.E.2d 793, 797 (Ind. 2007) (quotation
omitted). Annexation "is essentially a legislative
function." City of Fort Wayne, 764 N.E.2d at
224. Therefore, courts play only a limited role in
annexations and must afford the municipality's
legislative judgment substantial deference. Id.
Indiana Code § 36-4-3-13 lists the prerequisites for
annexation, and the municipality bears the burden of showing
that it has complied with these statutory conditions.
City of Carmel, 868 N.E.2d at 797-798. If the
municipality meets the requirements of Subsections
13(b) or 13(c) and Subsection
13(d), the court must order the annexation to
proceed, subject to the remonstrators' ability to
establish all of the grounds listed in Subsection 13(e).
Id. However, Subsection 13(e)(2) provides grounds by
which remonstrators can prevail in preventing annexation,
that is, by establishing all of the elements listed in the
subsection. The subsection specifically provides that the
trial court must order a proposed annexation not to take
place if all of the conditions set forth in clauses (A)
through (D) exist in the territory proposed to be annexed.
The subsection reads as follows:
(e) At the hearing under section 12 of this chapter, the
court shall do the following:
* * * * *
(2) Order a proposed annexation not to take place if the
court finds that all of the following conditions exist in the
territory proposed to be annexed:
(A) The following services are adequately furnished by a
provider other than the municipality seeking the
(i) Police and fire protection.
(ii) Street and road maintenance.
(B)The annexation will have a significant financial impact on
the residents or owners of land.
(C)The annexation is not in the best interests of the owners
of land in the territory proposed to be annexed as set ...