Abell v. City of Seymour

• Decision Date: 06 December 1971
• Docket Number: No. 2,No. 1270A255,1270A255,2
• Citation: 28 Ind.Dec. 101,150 Ind.App. 163,275 N.E.2d 547
• Parties: Joseph H. ABELL, Luella M. Abell, et al., Appellants, v. CITY OF SEYMOUR, Appellee
• Court: Indiana Appellate Court

Page 547

275 N.E.2d 547

150 Ind.App. 163

Joseph H. ABELL, Luella M. Abell, et al., Appellants, v. CITY OF SEYMOUR, Appellee.

No. 1270A255.

Appellate Court of Indiana, Division No. 2.

Dec. 6, 1971.

Roger L. Pardieck, Montgomery & Pardieck, Seymour, Donald E. Bowen, Indianapolis, for appellants.

John M. Lewis, Seymour, for appellee.

HOFFMAN, Chief Justice.

This appeal arises from a proceeding in which the City of Seymour, Indiana, sought to annex certain land.

Three issues are presented by this appeal:

First. Whether the findings as set forth by the trial court are sufficient to satisfy Acts 1955, ch. 269, § 3, p. 720, § 48--702 (Burns 1963). ¹

Second. Whether the trial court's conclusion as to the six determinants are supported by sufficient evidence.

Third. Whether the admission into evidence of certain expert testimony was contrary to law.

The facts of this case are as follows:

On or about January 22, 1968, the City of Seymour, Indiana, sought to annex certain territory by its Ordinance No. 1526. Such ordinance was duly aodpted by the Common Council of Seymour and was approved by the Mayor. Such ordinance was also published once each week for two consecutive weeks in the Seymour Daily Tribune.

Thereafter remonstrators-appellants duly and timely filed their remonstrance as owners of land in such annexed territory.

Having determined this remonstrance to be sufficient, the trial court held a hearing pursuant to § 48--702, supra, which reads, in part, as follows:

'The judge of the court shall, upon the date fixed, proceed to hear and determine such appeal without the intervention of jury, and shall, without delay, give judgment upon the question of such annexation according to the evidence which either party may introduce. Such evidence demonstrating the presence of the following conditions shall be considered the primary determinants of the annexation's merit:

(a) The annexation is in the best interests of the city and of the territory sought to be annexed.

(b) The area is urban in character, being an economic and social part of the annexing city.

(c) The terms and conditions set forth in the ordinance are fair and just.

(d) The city is financially able to provide municipal services to the annexed area within the reasonably near future.

(e) The area sought to be annexed, if undeveloped, is needed for development of the city in the reasonably near future.

(f) The lines of the annexation are so drawn as to form a compact area abutting the municipality.'

Subsequently the trial court entered its 'Judgment and Findings of Fact and Law' which reads, in pertinent part, as follows:

'5. That at upon the hearing of such appeal, the evidence demonstrated the presence of the primary determinant that the annexation is in the best interests of the city and of the territory sought to be annexed.

'6. That at upon the hearing of such appeal, the evidence demonstrated the presence of the primary determinant that the area in (is) urban in character, being an economic and social part of the annexing city.

'7. That at upon the hearing of such appeal, the evidence demonstrated the presence of the primary determinant that the terms and conditions set forth in the ordinance are fair and just.

'8. That at upon the hearing of such appeal, the evidence demonstrated the presence of the primary determinant that the city is financially able to provide municipal services to the annexed area within the reasonably near future.

'9. That at upon the hearing of such appeal, the evidence demonstrated the presence of the primary determinant that the area sought to be annexed, if undeveloped, is needed for development of the city in the reasonably near future.

'10. That at upon the hearing of such appeal, the evidence demonstrated the presence of the primary determinant that the lines of the annexation are so drawn as to form a compact area abutting the municipality.

'And as conclusions of law upon the facts, the Court states:

'1. That the law is with the City of Seymour;

'2. That accordingly, notwithstanding the remonstrance, the annexation as proposed in Ordinance #1526, City of Seymour, should take place.

'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Court that the following described territory, situate in Jackson County, Indiana, to-wit:

(Here follows description of real estate.)

and as described in Ordinance #1526, Council Bill #31, (1967) City of Seymour, as duly adopted and approved January 22, 1968, be, and it is hereby, annexed to the City of Seymour, Indiana.'

Subsequently, the remonstrators filed their motion to correct errors, which asserts the issues discussed below.

First. On appeal, the first issue argued by appellants is whether the findings set forth by the trial court are sufficient to satisfy the provisions of § 48--702, supra. Appellants argue that special findings of fact are required under the authority of Carlton et al. v. Bd. of Zoning Appeals (1969), 252 Ind. 56, 245 N.E.2d 337, 16 Ind.Dec. 704. Carlton involved a review of a decision of the Board of Zoning Appeals of the City of Indianapolis. This Board is an administrative agency. Furthermore, the statute upon which Carlton is based expressly provides that the Zoning Board shall make special findings of fact to support its determination.

The instant case is readily distinguishable from Carlton. We are not here concerned with review of an administrative decision. To the contrary, we are concerned with an appeal from the judgment of the trial court. The reasoning of Carlton is not here applicable, nor is there found in the annexation statute any requirement whatsoever that special findings of fact be made. We, therefore, conclude that appellants' arguments as to this issue are erroneous. This being the sole issue preserved as to the findings of the trial court, we need not consider further the sufficiency of such findings as special findings of fact.

Second. The second issue raised by the appellants is whether the decision of the trial court as to the presence of the six primary determinants is supported by sufficient evidence and is contrary to the evidence. In reviewing these contentions this court cannot, and will not, weigh the evidence. For appellants to prevail there must be a complete failure of proof with regard to the determinant at issue. In Smith et al. v. Incorp. Town of Culver, Ind., (1968), 249 Ind. 665, at 667, 234 N.E.2d 494, at 496, our Supreme Court stated as follows:

'We do not on appeal weigh and consider the evidence to determine whether or not the appellee-town has 'established' all the primary determinants in a case of annexation. We may only consider the evidence most favorable to the finding of the town board, (Common Council) with all reasonable inferences to be drawn therefrom. If there is a conflict in the evidence before the trial court, the decision of the town board (Common Council) must stand as to the facts.' See also: Baker v. City of South Bend, St. Joseph County (1971), Ind.App., 268 N.E.2d 623, 25 Ind.Dec. 304 (transfer denied).

In respect to whether the determinants are supported by sufficient evidence, appellants first argue that there is no evidence to show the territory sought to be annexed is urban in character.

91 C.J.S. Urban p. 512, defines 'urban' in the following manner:

'(I)t has been indicated that property will not always be regarded as urban merely because it lies within the limits of a city, and a locality will be considered to be urban if the houses and improvements partake of the character of a city or town, and are mainly occupied by persons engaged in city pursuits.'

This statement seems to give a proper definition to the word 'urban' as found in § 48--702(b), supra, as follows:

'The area is urban in character, being an economic and social part of the annexing city.'

When viewed most favorably to the appellee, the evidence as to whether the area sought to be annexed is urban in character shows that one of the residents of the area works in the City of Seymour. Some residents attend church and social activities in the city. Some have children attending Seymour schools. Most trade regularly with Seymour merchants. Other of the residents operate private businesses in their homes and at least to some extent rely on trade from within the city limits. Also, testimony of the City Building Commissioner and the Mayor stated that the surrounding areas have been absorbed by the city's growing residential, educational and business needs.

We, therefore, conclude that there was ample evidence from which the trial court could have found that the area was urban in character, being an economic and social part of the annexing city.

Appellants next argue that there is no evidence in the record to satisfy the requirement of § 48--702(c), supra, that 'the terms and conditions set forth in the ordinance are fair and just.' This court was faced with this same contention in In re Ordinance No. 464 v. City of Jasper (1961), 133 Ind.App. 1, 176 N.E.2d 906 (transfer denied, 242 Ind. 475, 179 N.E.2d 749), wherein this court held that the 'fair and just' determinant of § 48--702, supra, must be read in conjunction with the pertinent portion of Acts 1955, ch. 269, § 1, p. 720, § 48--701 (Burns 1963), which reads:

'The terms and conditions applicable to any such annexation may relate to any matter reasonably and fairly calculated to render such annexation just and equitable both to the city, its property owners and inhabitants, and to the annexed territory, its property owners and inhabitants, including, but not restricted to, such matters as (a) postponing the effective date of such annexation, (b) impounding in a special fund in whole or in part the municipal property taxes to be imposed upon the annexed territory after annexation shall take effect, in such amount and for such period of time, not to exceed three (3) years, as said common council may determine, and using such impounded taxes solely for...