Adams v. City of Ft. Wayne
| Decision Date | 21 July 1981 |
| Docket Number | No. 3-879A229,3-879A229 |
| Citation | 423 N.E.2d 647 |
| Parties | Mr. and Mrs. Robert N. ADAMS, Mr. and Mrs. Donald F. Tobin, Mr. and Mrs. Louis H. Till, Mr. Richard Fenton, Mr. and Mrs. Frank E. Simms, Sr., Mr. and Mrs. Charles Netterfield, and Bass-Leesburg Road Civic Association, Inc., Plaintiffs-Appellants, v. CITY OF FORT WAYNE, Northside Finance Corp., Northside Realty Corp., William J. Hefner, Ronald Huguenard, Jean Huguenard, and Fort Wayne City Plan Commission, Defendants-Appellees. |
| Court | Indiana Appellate Court |
Margaret M. Noteman, M. Robert Benson, Sowers & Benson, Fort Wayne, for plaintiffs-appellants.
Daniel K. Leininger, J. Philip Burt, John E. Hoffman, Fort Wayne City Atty., Fort Wayne, for defendants-appellees.
The appellants (complainants) are essentially property owners who reside in the areas of, but not within, certain tracts of land which were rezoned and annexed by the City of Fort Wayne. They commenced suit for declaratory judgment, injunction and damages. The complaint was dismissed in response to the city's TR 12(B)(6) motion and complainants appeal.
Annexation
After several parties filed a petition for voluntary annexation with the Common Council of Fort Wayne, the council passed Annexation Ordinance X-02-78 on July 25, 1978. The annexation covered sixty (60) acres of land, the major portion of which was owned by Northside Realty Corp.
In Count One of their complaint, the complainants attacked the 60 acre annexation as "illegal, invalid, and void," and sought a declaratory judgment to that effect, as well as an injunction prohibiting the city from further action on the annexation. The trial court dismissed this section of the complaint, asserting that the appellants lacked standing to challenge the annexation. We agree.
Initially, it should be clearly understood that the appellants are not challenging the annexation as statutory remonstrators. 1 However, we have held that remonstrators are not the only plaintiffs with standing to challenge an annexation. In Montagano v. City of Elkhart (1971), 149 Ind.App. 283, 271 N.E.2d 475, the court noted that in some cases, taxpayers of an annexing city may challenge an annexation under the Uniform Declaratory Judgment Act, provided the suit be brought on behalf of all the taxpayers:
"As a public right the plaintiff together with the rest of the taxpayers which he represents would clearly have a right, but not an unqualified right."
However, in this case it is apparent the complainants did not attempt to bring the action "in a representative capacity" on behalf of their fellow taxpayers. 2 Rather, they brought it only on behalf of themselves. As the court said in Montagno, supra, taxpayers in an individual capacity have no standing to challenge an annexation:
"... (I)t would seem that the 'right' of the taxpayers as a personal right would be insufficient to establish standing."
Furthermore, a showing that a taxpayer owns property adjacent to a proposed annexation does not elevate his capacity to challenge the annexation beyond that shared by other taxpayers in the annexing community.
Therefore, the trial court properly concluded that the complainants in this action, suing only as individual taxpayers and adjoining landowners, had no standing to challenge the annexation.
Despite this, we believe the trial court should have given the complainants an opportunity to amend their complaint and bring it as a class action before it dismissed the case.
TR 17(A)(2) specifically provides:
"No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time after objection has been allowed for the real party in interest to ratify the action, or to be joined or substituted in the action."
As noted in W. Harvey, 2 Indiana Practice at 334:
So while we believe the trial court correctly determined that the complainants had no standing as individual taxpayers to challenge Fort Wayne's annexation, it should have permitted them an opportunity to amend their complaint and bring the action on behalf of all taxpayers. See Bowen v. Sonnenburg (1980), Ind.App., 411 N.E.2d 390.
Even so, we find the court's judgment should be affirmed. An examination of the complaint, confirmed by the complainants' argument on appeal, reveals that the only assertion of patent illegality is that the land in question allegedly does not have a resident population equal to three persons for each acre annexed, nor is it allegedly zoned for commercial, business or industrial uses or at least 60% subdivided.
The complainants rely upon Pitts v. Mills (1975), 165 Ind.App. 646, 333 N.E.2d 897 and the provisions of IC 18-5-10-32 in making this assertion. Their factual claim, however, even if true, is insufficient. In Pitts the First District held that this statute which applies to annexation by towns mandated that any annexation by a town meet the requirements therein set forth. The key language of the statute was its opening proviso:
"Town annexation shall not be sustained on appeal unless the following requirements have been met: ...."
While we believe the First District might have reached a different result in Pitts if it had construed the statute by limiting the requirements of § 32 to those persons and the statutory basis upon which they might remonstrate and appeal an annexation decision, we need not do so here. Pitts is clearly distinguishable since, as the First District recognized in its decision, § 32 applies to annexation by towns, while prior sections of the act ( IC 18-5-10-25) concern annexation by cities. 333 N.E.2d 905.
We therefore turn our attention to the sections regarding annexation by cities. § 20 permits the common council on its own initiation to annex contiguous territory. § 23 provides for annexation initiated by owners of the real estate sought to be annexed. § 24 then provides the basis and procedure for remonstrance, and § 25 governs the basis for judicial review of the decision of the common council.
IC 18-5-10-23, which applies to the present annexation, states:
"Whenever the owners of real estate situated outside the corporate boundaries of any city, but adjacent thereto, desire to have real estate annexed to the city, they may file with the common council of the city a petition bearing the signatures of fifty-one per cent (51%) of the owners of land in the territory sought to be annexed, requesting a special ordinance for the purpose of annexing the contiguous territory described in the petition. If the common council fails to pass the special ordinance within sixty (60) days from the date of the filing of the petition, the petitioners may file a duplicate copy of the petition in the circuit or superior courts of the county where the territory is situated or with the judge thereof in vacation and the petition shall state the reason why the annexation should, in justice, take place. Notice of the proceedings, by way of summons, shall be served upon the proper officers of the city to which the petition has been presented and the city shall become defendant in the cause and shall be required to appear and answer as in other cases. The court or judge thereof in vacation shall thereupon proceed to hear and determine the petition without the intervention of a jury and shall give judgment upon the question of annexation according to the evidence which either party may introduce. If the evidence establishes that:
(a) Essential municipal services and facilities are not available to the inhabitants of such territory; and
(b) The city is physically and financially able to provide municipal services to the area sought to be annexed; and
(c) The total resident population of the area sought to be annexed is equal to at least three (3) persons for each acre of land included within its boundaries; and
(d) At least one-eighth (1/8) of the aggregate external boundaries of the territory sought to be annexed coincide with the boundaries of the annexing city; the court shall order the proposed annexation to take place, notwithstanding the provisions of any other law of this state.
If, however, the evidence does not establish all four (4) of the foregoing factors, the court shall deny the petition to annex and dismiss the proceeding."
The statute thus does three things. It first provides that 51% of the owners of land in the territory sought to be annexed may file a petition for annexation. (IC 18-5-10-20 permits the city to annex the tract assuming it is contiguous to existing city boundaries.)
Secondly, the section provides a basis to appeal to the courts if the common council fails to pass the annexation ordinance.
Thirdly, the section provides that if the court finds the existence of the four enumerated qualifications it shall order that the annexation take place despite the failure of the common council to approve it.
The plain language of the statute applies consideration of the enumerated factors only when the common council refuses or fails to grant the annexation. The plain implication of the legislative scheme is that the council may choose to approve the annexation petitioned for by fifty-one per cent of the owners regardless of the existence of the enumerated factors. This interpretation is reinforced by the provisions of § 25 which postulates the filing of a valid remonstrance as the trigger for the judicial review that section provides.
Thus, as it appears that the requisite number of landowners petitioned for the annexation in question and their petition was approved by the common council, no illegality may be premised on...
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