Annexation Ordinance No. X-07-91 (Blackhawk Annexation), Matter of, X-07-91
| Decision Date | 12 January 1995 |
| Docket Number | No. 02A04-9406-CV-216,X-07-91,02A04-9406-CV-216 |
| Citation | 645 N.E.2d 650 |
| Parties | In the Matter of Annexation Proposed by ANNEXATION ORDINANCE NUMBERBeing an Ordinance to Annex Certain Territory to the City of Fort Wayne and to Include Same in Councilmanic District Number 2 (BLACKHAWK ANNEXATION). |
| Court | Indiana Appellate Court |
Defendant-Appellant, ("Remonstrators"), appeal the trial court's denial of their remonstrance to Plaintiff-Appellee's, City of Fort Wayne's ("City's"), annexation proposal. Having reviewed the evidence, findings, and conclusions of law, we affirm.
Remonstrators present one issue for our review, which we restate as follows: whether the specific findings of fact and conclusions of law entered by the trial court were clearly erroneous.
The City of Fort Wayne Common Council adopted Annexation Ordinance X-07-91 and fiscal plan R-78-91 on December 26, 1991. The Blackhawk territory sought to be annexed by X-07-91 was part of the territory proposed to be annexed by a 1979 City of Fort Wayne Annexation Ordinance, X-04-79. A remonstrance was filed against X-04-79 on September 13, 1979. On June 27, 1989, the City of Fort Wayne repealed X-04-79. Following the repeal of X-04-79, the City filed a motion to dismiss the remonstrance against the ordinance on the grounds the remonstrance was moot. The City's motion to dismiss was granted on February 2, 1993. Remonstrators filed a petition challenging the 1991 annexation proposal. They appeal from the denial of that petition.
The trial court entered specific findings of fact and conclusions of law. The special findings will not be disturbed unless clearly erroneous. T.R. 52(A). We determine whether the evidence supports the findings and whether the findings support the judgment, and we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. Chidester v. City of Hobart (1994), Ind., 631 N.E.2d 908; Indianapolis Convention & Visitors Ass'n v. Indianapolis Newspapers, Inc. (1991), Ind., 577 N.E.2d 208. For a party to prevail on appeal from an adverse trial court judgment in a remonstrance action, "there must be a complete failure of proof with regard to the determinant at issue." Abell v. City of Seymour (1971), 150 Ind.App. 163, 166, 275 N.E.2d 547, 550; see also Baker v. City of South Bend (1971), 148 Ind.App. 596, 268 N.E.2d 623.
We do not reweigh the evidence; rather, we consider the evidence most favorable to the judgment of the trial court with all reasonable inferences therefrom. Smith v. Town of Culver (1968), 249 Ind. 665, 234 N.E.2d 494 (); City of Aurora v. Bryant (1960), 240 Ind. 492, 165 N.E.2d 141 ().
The power of annexation is fundamentally legislative, and the judicial role in annexation cases is limited to that prescribed by statute. King v. City of Bloomington (1959), 239 Ind. 548, 159 N.E.2d 563. Under the current statute, if the remonstrators are able to garner the requisite level of support, they may appeal the annexation to the courts. At the remonstrance hearing, the burden is on the municipality to demonstrate its compliance with the statute. This court's review is limited to ensuring that the municipality has not exceeded its authority and that the statutory conditions for annexation have been satisfied. Cf. City of Indianapolis v. Wynn (1959) 239 Ind. 567, 157 N.E.2d 828.
Remonstrators argue that the City did not have the power to enact Annexation Ordinance X-07-91 for a period of two years after February 2, 1993, the date upon which the Allen Superior Court issued a decision in respect to Annexation Ordinance X-04-79. Essentially, Remonstrators argue that the decision by the Allen Superior Court was adverse to Annexation Ordinance X-04-79 and, as such, the two-year statutory moratorium should be applied to Annexation Ordinance X-07-91. 1
The current moratorium statute, I.C. 36-4-3-15(b) provides:
If a judgment under section 12 or 15.5 of this chapter is adverse to annexation, the municipality may not make any further attempts to annex the territory during the two (2) years following the judgment, unless the annexation is petitioned for under section 5 [I.C. 36-4-3-5].
The annexation moratorium statute no longer references "any decision adverse to annexation." See I.C. 18-5-10-26, repealed effective September 1, 1981 by Acts 1980, P.L. 212, Sec. 10(c). The application of the annexation moratorium statute is limited to judgments adverse to annexation entered under either I.C. 36-4-3-12 or I.C. 36-4-3-15.1. I.C. 36-4-3-15.1 refers to a complaint made by an owner of land within one-half ( 1/2) mile which "must state that the reason the annexation should not take place is that the territory sought to be annexed is not contiguous to the annexing municipality" and, thus, has no application to the present proceedings. I.C. 36-4-3-12 involves a hearing on whether the annexation should take place following the filing of a sufficient remonstrance.
Remonstrators argue that the current moratorium statute is inapplicable because the 1979 annexation effort predates the adoption of I.C. 36-4-3-15(b) and that the prior statute mandated a two-year moratorium against further annexations when there is a "decision" adverse to annexation. First, the order issued by the trial court granted the City's motion to dismiss the annexation proceeding; thus, the City received a favorable and not an adverse outcome. An adverse judgment is one entered against a party defending on a given question. Vanderburgh County v. Rittenhouse (1991), Ind.App., 575 N.E.2d 663, trans. denied. The City was defending its motion to dismiss and judgment was rendered in their favor on the motion.
Nonetheless, the current moratorium statute is a mere recodification of the earlier moratorium statute, I.C. 18-5-10-26. As noted in Town of Porter v. Bethlehem Steel Corp. (1983), Ind.App., 451 N.E.2d 69, 69 n. 1, "[t]he current provision is recodified without substantial change." The change from the term "decision" to the term "judgment" appears in recodification. See Public Law 212 of the Acts of 1980, Section 3. Moreover, in the recodification, the General Assembly expressly stated:
This act is intended to be a codification and restatement of applicable or corresponding provisions of the laws repealed by this act. If this act repeals and replaces a law in the same form or in a restated form, the substantive operation and effect of that law continues uninterrupted.
Id. at Section 11(a).
Section 8 of Public Law 308 provided that the new moratorium statute did not "affect any annexation proceedings begun before May 1, 1981." Nevertheless, Section 9 of Public Law 308 provided that Section 8 of Public Law 308 expired May 1, 1985. Thus, the limitation on the application of the current moratorium statute to annexations begun before May 1, 1981 had expired by the date of the February 3, 1993 court action on which the Remonstrators rely.
Remonstrators, relying on Town of Porter v. Bethlehem Steel Corp., 451 N.E.2d 69, contend that it is not necessary that an annexation fail on the merits to invoke the two-year moratorium. In Porter, the annexation failed because the Town did not meet a basic requirement of the annexation statute. The proposed annexation in Porter was considered on its merits when a determination was made as to whether the statute was followed, unlike the 1979 annexation proposal, which was never considered on its merits in relation to the relevant statute before it was dismissed by the trial court. Accordingly, the evidence supports the trial court's findings on this issue and the findings support the trial court's judgment.
It is also the position of Remonstrators that Annexation Ordinance X-07-91 constituted harassment, bad faith or vexatious conduct. 2 The burden is on the remonstrators to prove any such harassment. Jones v. Town of Sunman (1962), 243 Ind. 70, 181 N.E.2d 777. The evidence must indicate that the City's sole purpose was to frustrate the remonstrance efforts. Id. The evidence does not support this Remonstrator's claim of harassment or vexatious conduct. Moreover, the trial court's specific finding of facts indicate otherwise. The evidence supports the trial court's findings on this issue and the findings support the trial court's judgment.
Remonstrators contend that Annexation Ordinance X-07-91 and its fiscal plan do not meet the requirements of I.C. 36-4-3-13 and our supreme court's holding in City of Hobart v. Chidester (1992), Ind., 596 N.E.2d 1374, appeal after remand, 631 N.E.2d 908. The specific finding of fact challenged by the Remonstrators is:
27. City of Fort Wayne planners made comparisons of the services provided to the Georgetown/Lake Forest area and the services to be provided the Blackhawk Annexation Area prior to the adoption of Annexation Ordinance X-07-91.
Remonstrators argue the trial court did not consider evidence presented at the trial, as required by City of Hobart, 596 N.E.2d 1374. The annexation statute requires only "that a city's annexation plan show that the city will promptly provide the annexed territory with municipal services equivalent to those it already provides in similar areas of the existing city." Chidester v. City of Hobart, 631 N.E.2d at 910. Thus, because the trial court's...
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