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Town of Brownsburg v. Fight Against Brownsburg Annexation

Court of Appeals of Indiana

April 5, 2018

Town of Brownsburg, Indiana, Town Council of Brownsburg, Indiana, and Jeanette M. Brickler, Appellants/Cross-Appellees,
v.
Fight Against Brownsburg Annexation, et al., Appellees/Cross-Appellants.

          Appeal from the Hendricks Superior Court The Honorable Heather Welch, Special Judge Trial Court Cause No. 32D02-1310-PL-109

          Thomas F. Bedsole Maggie L. Smith Frost Brown Todd LLC Indianapolis, Indiana Attorneys for Appellants/Cross-Appellees

          Gregory W. Black Gregory W. Black, P.C. Plainfield, Indiana Attorney for Appellees/Cross-Appellants

          Brown, Judge.

         [¶1] The Town of Brownsburg, Indiana, Town Council of Brownsburg, Indiana, and Jeanette M. Brickler (collectively "Brownsburg") appeal the trial court's entry of judgment against them and in favor of Fight Against Brownsburg Annexation ("FABA"), which finds that Brownsburg did not meet its burden under Indiana's annexation statute and that, accordingly, the annexation may not proceed. We revise and restate the issue as whether the trial court's findings and judgment that Brownsburg did not satisfy its requirements are clearly erroneous. We affirm.

         Facts and Procedural History

         [¶2] On July 11, 2013, Brownsburg adopted Ordinance No. 2013-06 (the "Annexation Ordinance") to annex approximately 4, 462 acres (the "Annexation Area") outside of Brownsburg's corporate boundaries. On October 7, 2013, FABA, a political action committee created to oppose the annexation, filed a Remonstrance and Petition for Declaratory Judgment and Damages. On November 12, 2015, Brownsburg filed a Motion to Dismiss the Petition for Declaratory Judgment and Damages and Brief in Support of the Motion to Dismiss. On December 14, 2015, FABA filed a Brief in Opposition to Brownsburg's Motion to Dismiss, and on May 31, 2016, the court held a hearing on the motion.

         [¶3] On June 1, 2016, Brownsburg filed a Motion for Partial Summary Judgment, Designation of Evidence in Support of Partial Summary Judgment, and a supporting Brief. On June 28, 2016, FABA filed in response a Brief in Opposition to Brownsburg's Motion for Partial Summary Judgment and a Designation of Evidence. On July 7, 2016, Brownsburg filed a Motion to Strike Certain Evidence Designated in Opposition to Motion for Partial Summary Judgment and a supporting memorandum of law, to which FABA responded on July 12, 2016.

         [¶4] On July 11, 2016, the court granted Brownsburg's motion to dismiss the petition for declaratory judgment, finding that "FABA's claims will be addressed and fully adjudicated in the remonstration proceedings" and that "there are no set of facts under which FABA could be granted relief under a declaratory judgment." Appellee's Appendix Volume 2 at 27-28. On August 11, 2016, the court issued an order granting in part and denying in part Brownsburg's motion to strike evidence designated in opposition to the motion for partial summary judgment and also granting in part and denying in part its motion for partial summary judgment. The court granted summary judgment "on the issue of whether [Brownsburg] is the 'Provider Unit' for providing the fire protection services for the Annexation Area." Appellants' Appendix Volume 5 at 179.

         [¶5] On August 16, 17, and 18, 2016, the court held a bench trial and on November 16, 2016 entered its "Findings of Fact, Conclusions of Law, and Order on [FABA's] Petition for Remonstrance". Id. at 237. On December 13, 2016, Brownsburg filed a motion to correct error and, on January 24, 2017, the court granted the motion and entered its "Amended Findings of Fact, Conclusions of Law and Order on [FABA's] Petition for Remonstrance, " finding in favor of FABA and against Brownsburg. Appellants' Appendix Volume 2 at 31. The court found that Brownsburg had not met its burden under §§ 36-4-3-13(b) or (c), and that the annexation may not proceed.

         Discussion

         [¶6] When, as here, the trial court enters findings of fact and conclusions, our standard of review is well-settled:

We may not set aside the findings or judgment unless they are clearly erroneous. In our review, we first consider whether the evidence supports the factual findings. Second, we consider whether the findings support the judgment. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. A judgment is clearly erroneous if it relies on an incorrect legal standard. We give due regard to the trial court's ability to assess the credibility of the witnesses. While we defer substantially to findings of fact, we do not defer to conclusions of law. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment.

State v. IBM, 51 N.E.3d 150, 158 (Ind. 2016) (internal quotations and citations omitted). In order to determine that a finding or conclusion is clearly erroneous, an appellate court's review of the evidence must leave it with the firm conviction that a mistake has been made. Town of Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016) (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)).

         [¶7] 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 Sw. 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 v. Certain Sw. Annexation Area Landowners, 764 N.E.2d 221, 224 (Ind. 2002). Therefore, courts play only a limited role in annexations and must afford the municipality's legislative judgment substantial deference. Id.

         [¶8] However, as the Indiana Supreme Court has reminded us recently, that

does not mean a trial court's role is to sustain blindly an annexation decision simply because it is the product of legislative decision-making. Rather, the court is obligated to ensure the annexing municipality has "not exceeded its authority and that the statutory conditions for annexation have been satisfied." Chidester [v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994)]; accord Bradley v. City of New Castle, 764 N.E.2d 212, 216 (Ind. 2002) ("The trial court's role is to decide whether the municipality has operated within its authority and satisfied the statutory conditions for annexation."); City of Aurora [v. Bryant, 165 N.E.2d 141, 145 (Ind. 1960)] ("The court is . . . simply given the power to determine, in the event there is a remonstrance filed, whether certain conditions imposed by the statute are met.").

Town of Fortville, 51 N.E.3d at 1198.[1]

         [¶9] Ind. 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 either Subsections 13(b)[2] or 13(c)[3], and also Subsection 13(d)[4], the court must order the annexation to proceed unless the remonstrators establish that all of the conditions set forth in clauses Subsection 13(e)(2)(A) through (D) exist in the territory proposed to be annexed.[5]

         [¶10] Because Brownsburg had the initial burden to establish compliance with the requirements of Ind. Code § 36-4-3-13, it is appealing from a negative judgment.

A judgment entered against a party who bore the burden of proof at trial is a negative judgment. On appeal, we will not reverse a negative judgment unless it is contrary to law. To determine whether a judgment is contrary to law, we consider the evidence in the light most favorable to the appellee, together with all the reasonable inferences to be drawn therefrom. A party appealing from a negative judgment must show that the evidence points unerringly to a conclusion different than that reached by the trial court.

Town of Cedar Lake v. Certain Cedar Lake 2014 Annexation Territory Landowners, 85 N.E.3d 643, 655 (Ind.Ct.App. 2017) (internal quotations and citations omitted), trans. denied.

         [¶11] Brownsburg argues that it has met the requirements of Subsections 13(b) through (d) and that the proposed annexation should be allowed to proceed since FABA cannot establish the requirements of Subsection 13(e). Specifically, Brownsburg contends that the trial court erred in holding that Brownsburg failed to satisfy Subsection 13(b)(2)(B)'s subdivision requirement and in concluding that its evidence failed to establish Subsection 13(c) requirements that the Annexation Area is "needed and can be used . . . in the reasonably near future."

         [¶12] FABA contends that the trial court did not err as a matter of law in concluding that Brownsburg failed to prove the subdivision requirements and that the court did not err in finding that Brownsburg failed to prove that the Annexation Area was needed and could be used for its development in the reasonably near future. Specifically, it argues that the trial court properly applied the plain meaning of the word "subdivided" to the facts of the case because the term is left undefined in the annexation statute and that Brownsburg does not "need" the vast Annexation Area and instead "wants" it for the additional tax revenue because the town has not run out of room and a large amount of "undeveloped/underdeveloped land" exists within its current boundaries. Appellee's Brief at 30.

         [¶13] To the extent that Brownsburg's arguments challenge the court's findings other than those regarding the requirements of Subsections 13(b) through (d) and that FABA raises arguments on cross-appeal, we need not address them.[6] Rather, we find an analysis of Subsections 13(b) and (c) to be dispositive.

         A. Subsection 13(b): Sixty Percent Subdivided

         [¶14] We begin by addressing Brownsburg's argument that it satisfied its subdivided requirement. Brownsburg argues that its expert, using six different methods, produced twelve different "percentage calculations" of the relative division of the land in the Annexation Area, nine of which demonstrated a sixty percent or more subdivided Annexation Area. Appellants' Amended Brief at 38. In insisting that the subdivision determination can be based on parcels or tracts, Brownsburg argues that nothing in Indiana law requires that only "actual acreage" be considered, refers to the Indiana Supreme Court's interpretation of "subdivided" in Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1241 (Ind. 1997), likens the case here to this Court's recent decision in American Cold Storage NA v. City of Boonville, 42 N.E.3d 1027 (Ind.Ct.App. 2015), trans. denied, and points to the Hendricks County and Brownsburg Subdivision Control Ordinances to claim that both ordinances expressly reference "parcels, " and not acreage, when defining subdivision. Appellants' Amended Brief at 40-41.

         [¶15] At trial, Brownsburg stipulated that it was pursuing only the second prong under Ind. Code § 36-4-3-13(b)(2), or that "[s]ixty percent (60%) of the territory is subdivided." Ind. Code § 36-4-3-13(b)(2)(B) (2012) (subsequently amended by Pub. L. No. 228-2015 § 19, eff. July 1, 2015). Both Brownsburg and FABA presented evidence with respect to the extent that the Annexation Area is subdivided.

         [¶16] Brownsburg Senior Planner, Jonathan Blake, testified that he was asked by the council and town manager to make a determination on the percentage of the Annexation Area that was subdivided and that he developed six different scenarios when looking at the term subdivided to analyze the Annexation Area. His first method of analysis considered only traditional subdivision plats which were formally recorded - i.e. where a document was recorded with the county recorder and auditor's office for purposes of creating new parcels or tracts - and associated rights-of-way[7] and resulted in a scenario where 957 tracts (66.74%) and 780 acres (17.5%) of the Annexation Area would be considered subdivided. His second method considered all recorded subdivision plats, associated rights-of-way, and metes and bounds[8] legal descriptions of properties within the Annexation Area, except quarter-quarter sections, [9] and resulted in a scenario where 1, 326 tracts (92.5%) and 3, 440 acres (77.1%) of the Annexation Area would be considered subdivided. When asked why his second method included metes and bounds legal descriptions, Blake testified that historically and presently property in different parts of the state was and is transferred using the metes and bounds legal description, which usually begins at a section corner or a quarter-quarter corner and then "starts tracing out property if you follow the calls within the description." Transcript Volume 1 at 40.

         [¶17] Blake's third method considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area, except those describing the parent tracts[10] remaining after a portion of the property is divided off, and resulted in a scenario where 1, 322 tracts (92.2%) and 1, 669 acres (37.4%) of the Annexation Area would be considered subdivided. His fourth method considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area, except those creating less than three portions from a quarter-quarter section, and resulted in a finding that 1, 327 tracts (92.5%) and 3, 198 acres (71.7%) of the Annexation Area would be considered subdivided.

         [¶18] Blake's fifth method considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area broken into two or more lots or other divisions of land, and resulted in a scenario where 1, 350 tracts (94.1%) and 3, 804 acres (85.3%) of the Annexation Area would be considered subdivided. His sixth method considered all recorded subdivision plats, associated rights-of-way that went along the subdivisions and where the annexation bordered a county road right-of-way taking in both sides, and metes and bounds legal descriptions of properties within the Annexation Area broken into two or more lots or other divisions of land, but excluding any tract of land larger than twenty acres, and resulted in a scenario where 1, 296 tracts (90.3%) and 1, 810 acres (40.5%) of the Annexation Area would be considered subdivided. When asked why his sixth method excluded all tracts greater than twenty acres, Blake testified that Hendricks County's zoning subdivision controller provided at the time of the annexation an exemption for subdivision of land greater than twenty acres. Id. at 48.

         [¶19] The court also admitted Petitioner's Exhibit 8, an April 2014 Municipal Survey by the Indiana Advisory Commission on Intergovernmental Relations that states that "the approximate percentage of each type of land use within the annexation area prior to annexation" was "Agricultural 76.88%, Commercial .02%, Industrial 0%, Residential 21.50%, Municipally-owned property 0%, [and] Institutional 1.60%." Exhibits Volume 3 at 188. During his cross-examination, Blake was shown Petitioner's Exhibit 8 and, when asked "in the event [that the Annexation Area] is like 76.88% agricultural how can it be subdivided to a degree greater than 60%? How does that make any sense, " he answered that "we didn't ...


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