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Certain Home Place Annexation Territory Landowners v. City of Carmel

Court of Appeals of Indiana

October 31, 2017

Certain Home Place Annexation Territory Landowners, Appellants-Petitioners,
v.
City of Carmel, Indiana, Appellee-Respondent.

         Appeal 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

          BROWN, JUDGE.

         [¶1] 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 affirm.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         Discussion

         [¶5] 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.

         [¶6] 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.

         [¶7] 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)[1] or 13(c)[2] and Subsection 13(d)[3], 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 annexation:
(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 ...

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