NANCY A. DAW, STEPHEN L. HOBACK, Co-Trustees of Sagacious Sentinel Sycamore Revocable Trust, Petitioners,
HANCOCK COUNTY ASSESSOR, Respondent, and The Town of McCordsville, Intervenor.
PETITIONERS APPEARING PRO SE: NANCY A. DAW STEPHEN L. HOBACK
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
G. Fisher, Senior Judge.
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
the Co-Trustees' annexation claim is barred?
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.)
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
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.
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 ...