Daw v. Hancock County Assessor

          PETITIONERS APPEARING PRO SE: NANCY A. DAW STEPHEN L. HOBACK Indianapolis, IN

          ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR. ATTORNEY GENERAL OF INDIANA ZACHARY D. PRICE WINSTON LIN MEREDITH B. MCCUTCHEON DEPUTY ATTORNEYS GENERAL Indianapolis, IN

          ATTORNEY FOR INTERVENOR: MARK J. CRANDLEY BARNES & THORNBURG LLP Indianapolis, IN

          ATTORNEYS FOR AMICI CURIAE ACCELERATE INDIANA MUNICIPALITIES AND INDIANA MUNICIPAL LAWYERS ASSOCIATION, INC.: THOMAS K. DOWNS PHILIP A. WHISTLER MARK J. RICHARDS DEREK R. MOLTER KAREN E. ARLAND ICE MILLER LLP Indianapolis, IN

          ATTORNEYS FOR AMICI CURIAE ASSOCIATION OF INDIANA COUNTIES, INC. AND HANCOCK COUNTY, INDIANA: THOMAS K. DOWNS PHILIP A. WHISTLER MARK J. RICHARDS DEREK R. MOLTER KAREN E. ARLAND ICE MILLER LLP Indianapolis, IN

          ORDER ON INTERVENOR'S PETITION FOR REHEARING

          Thomas G. Fisher, Senior Judge.

         On December 5, 2018, this Court affirmed, in part, the Indiana Board of Tax Review's final determination in the above-captioned matter. See Daw v. Hancock Cty. Assessor, 116 N.E.3d 1 (Ind. Tax Ct. 2018). In its opinion, the Court held that it had subject matter jurisdiction over the annexation and storm water claims of Nancy A. Daw and Stephen L. Hoback, the Co-Trustees of the Sagacious Sentinel Sycamore Revocable Trust, because both claims raised defenses to the collection of a tax (i.e., the Town of McCordsville's storm water charges). See id. at 4-8. The Town of McCordsville (the "Town") subsequently intervened and filed a Petition for Rehearing pursuant to Rule 63(B) of Indiana's Rules of Appellate Procedure ("Petition"). The Town's Petition presents three issues that the Court restates as: 1) whether the Town's storm water charges are actually a tax; 2) whether the Co-Trustees' annexation claim is barred; and 3) whether the Co-Trustees' storm water claim is timely. The Court, having reviewed the Petition and the response thereto, grants rehearing with respect to Issues 2 and 3 only.^[1]

         Whether the Co-Trustees' annexation claim is barred?

         In its Petition, the Town claims that the Court erred in remanding the Co-Trustees' annexation claim to the Indiana Board for further proceedings because "there are no [statutory] grounds on which the [Co-Trustees] can challenge the annexation at this point." (See Intervenor's Pet. Reh'g at 10.) The Co-Trustees respond that their annexation claim is authorized by Indiana's general annexation law, statutes, and case law. (See Pet'rs' Br. Resp. Intervenor's Pet. Reh'g ("Pet'rs' Resp. Br.") at 45-47.)

         Annexation is an essentially legislative function that is subject to judicial review only as provided by statute. Bradley v. City of New Castle, 764 N.E.2d 212, 215 (Ind. 2002) (citation omitted). There are only two methods of challenging a town's annexation. See Deaton v. City of Greenwood, 582 N.E.2d 882, 885 (Ind.Ct.App. 1991). The first method, remonstrance, serves as "the exclusive manner for landowners [of the annexation area] to obtain relief from annexation proceedings." Id. The second method, a declaratory judgment suit, is "available only to taxpayers of the annexing [town]." Id.

         The Co-Trustees have conceded that they did not seek judicial review of the Town's annexation by means of the remonstrance process. (See Pet'rs' Resp. Br. at 46.) Rather, the Co-Trustees seek relief pursuant to a declaratory judgment suit under Indiana Code § 34-14-1-2. (See Pet'rs' Resp. Br. at 46.) The Co-Trustees, however, are not entitled to institute such an action because it generally is available to taxpayers of the annexing town only, not landowners of the annexation area, like the Co-Trustees. See Deaton, 582 N.E.2d at 885. This method of relief is also unavailable to the Co-Trustees because they have not alleged that their land was not contiguous to the Town's boundaries or that the Town failed to implement a fiscal plan. See Matter of Annexation Proposed by Ordinance No. X-02-93, 652 N.E.2d 878, 879-80 (Ind.Ct.App. 1995), trans. denied.

         Nonetheless, the Co-Trustees maintain that the holding in Town of Reynolds v. Board of Commissioners of White County, 62 N.E.3d 394, 396 (Ind.Ct.App. 2016) authorizes their declaratory judgment suit. (See Pet'rs' Resp. Br. at 46-47.) An excerpt from that case itself indicates, however, that it does not provide the authorization the Co-Trustees seek:

In City of Boonville I, we concluded that "[w]hile the adjacent property owners technically have title to the centerline of the public roadways, they do not have the right to construct, lay out, alter, vacate, maintain, or otherwise control the roadways. Those powers are given to government entities." Thus, it follows that . . ., the governmental entity which, prior to annexation, had the responsibility for maintaining a roadway bordering an annexed parcel should be treated as the owner of said roadway for purposes of challenging annexation by another governmental entity. Therefore, said governmental entity would undoubtedly have an interest in protecting its rights relating to the roadway.

Town of Reynolds v Bd. Comm'rs White Cty., 62 N.E.3d 394, 400 (Ind.Ct.App. 2016) (citation and footnote omitted). The Trustees have not provided any binding authority that expands the holding of that case. (See Pet'rs' Br. at 47 (citing cases from another jurisdiction).) Therefore, the ...