Aluminum Co. of America v. City of Lafayette

• Decision Date: 19 November 1980
• Docket Number: No. 2-879,2-879
• Citation: 412 N.E.2d 312
• Parties: ALUMINUM COMPANY OF AMERICA, a corporation, Appellant (Plaintiff Below), v. The CITY OF LAFAYETTE, Indiana, Appellee (Defendant Below). A 252.
• Court: Indiana Appellate Court

Page 312

412 N.E.2d 312

ALUMINUM COMPANY OF AMERICA, a corporation, Appellant (Plaintiff Below), v. The CITY OF LAFAYETTE, Indiana, Appellee (Defendant Below).

No. 2-879 A 252.

Court of Appeals of Indiana, Second District.

Nov. 19, 1980.

John J. Dillon and William T. Rosenbaum, Dillon, Hardamon & Cohen, Indianapolis, Thomas L. Ryan, Stuart, Branigan, Ricks & Schilling, Lafayette, for appellant.

Richard T. Heide, Kristin F. Magneson and Robert L. Bauman, Lafayette, for appellee.

SHIELDS, Judge.

Appellant Aluminum Company of America (Alcoa) appeals from a denial of a remonstrance to annexation by the City of Lafayette (City).

We reverse in part.

IC 18-5-10-25 (Burns Code Ed.), which specifies the findings required to sustain the annexation of land by a city, provides in pertinent part:

"If the evidence establishes that:

(c) The annexing city has developed a fiscal plan and has established a definite policy to furnish the territory to be annexed within a period of three (3) years, governmental and proprietary services substantially equivalent in standard and scope to the governmental and proprietary services furnished by the annexing city to other areas of the city which have characteristics of topography, pattern of land utilization and population density similar to the territory to be annexed; the court shall order the proposed annexation to take place notwithstanding the provisions of any other law of this state."

In Sedlak v. Town of St. John, Lake County, (1980) Ind.App., 403 N.E.2d 1126 and Stallard v. Town of St. John, Lake County, (1979) Ind.App., 397 N.E.2d 648, it was held that IC 18-5-10-32, which sets out the findings required to sustain the annexation of land by a town and which is substantially identical to IC 18-5-10-25, requires a written fiscal plan and definite policy. We hold that IC 18-5-10-25 also makes this requirement.

In the case at hand, the trial court specifically found:

"2. The City developed no specific fiscal plan or definite policy, as such, to furnish the requisite services within three years, contending that it was capable of providing all such services within the time limit."

The City does not challenge this finding which conclusively establishes the lack of written fiscal plan and definite policy to furnish governmental and proprietary services. Furthermore, the trial court's determination that City had the capability to provide the required services necessarily falls short of a written fiscal plan and definite policy to in fact provide the required services. A finding of capability is not an acceptable substitute in light of the rationale for the requirement of a written fiscal plan and definite policy as set forth in Stallard :

"This interpretation of IC 1971, 18-5-10-32(c) is necessary to preserve for landowners of the annexed area the protection intended to be afforded them by the Legislature when, in 1974, it passed IC 1971, 18-5-10-32.5 (Burns 1979 Supp.). That statute authorizes an owner of annexed land to institute proceedings against an annexing town that fails to implement its plan for providing services. As indicated in Harris v. City of Muncie, supra (163 Ind.App. 522, 325 N.E.2d 208), if a written plan duly reflected in the official town records were not required under IC 1971, 18-5-10-32, a landowner filing suit under IC 1971, 18-5-10-32.5 would be faced with attempting to establish a failure to implement a plan whose existence he might be incapable of proving in the first instance. Thus, he would be relegated to tilting with windmills."

Stallard at 650.

The judgment of the trial court denying the remonstrance,...