Baker v. City of South Bend, St. Joseph County, 970A149
| Decision Date | 19 April 1971 |
| Docket Number | No. 970A149,No. 2,970A149,2 |
| Citation | 25 Ind.Dec. 304,148 Ind.App. 596,268 N.E.2d 623 |
| Court | Indiana Appellate Court |
| Parties | Louis BAKER and Eleanor E. Baker, et al., Appellants, v. CITY OF SOUTH BEND, ST. JOSEPH COUNTY, Indiana, a municipal corporation, Appellee |
Robert E. Zimmerman, Montgomery & Zimmerman, South Bend, for appellants.
Shepard J. Crumpacker, Crumpacker, May, Levy & Searer, Robert M. Parker, Parker & Parker, South Bend, for appellee.
This is an appeal from the finding and judgment of the trial court upholding annexation of certain land to the City of South Bend, Indiana.
The issue presented by this appeal is: Does the record support the finding of the trial court that the annexation of certain territory was in the best interests of both the City of South Bend and the territory to be annexed?
The Common Council of the City of South Bend enacted a special ordinance for the annexation of certain lands. Appellants, owners of more than 75% in assessed valuation of the real property in the territory to be annexed, filed their 'Remonstrance and Appeal' alleging said ordinance is not just and reasonable. Appellants allege such annexation should not take place because one primary determinant enumerated in the applicable statute is not present.
Acts 1955, ch. 269, § 2, p. 720, Ind.Stat.Anno., § 48--702, Burns' 1963 Repl., 1 the applicable statute, contains six primary determinants which must be present for annexation. Of such determinants appellants rely only upon:
'(a) The annexation is in the best interests of the city and of the territory sought to be annexed.'
After hearing evidence, the trial court found that the annexation should take place, that the ordinance should be in full force and effect annexing the territory described in the special ordinance, and entered judgment accordingly.
Appellants filed their motion to correct errors which was overruled by the trial court. The motion to correct errors asserts that:
1. The decision of the trial court is not supported by sufficient evidence upon all necessary elements of a claim or defense;
2. The decision is contrary to the evidence; and
3. The decision is contrary to law.
Appellants have chosen to brief and argue that there is a failure of proof by the City that 1) the proposed annexation is in the best interests of the City; and 2) that the proposed annexation is in the best interest of the territory sought to be annexed.
Appellants have very properly phrased their arguments, for in order to prevail there must be a complete failure of proof with regard to the determinant at issue. In Smith et al. v. The Incorp. Town of Culver, Ind. (1968), 249 Ind. 665, at 667, 234 N.E.2d 494, at 496, Judge Arterburn, speaking for our Supreme Court, stated:
City of Aurora v. Bryant, et al. (1960), 240 Ind. 492, 165 N.E.2d 141; Arnholt, et al. v. City of Columbus (1958), 128 Ind.App. 253, 145 N.E.2d 660 (transfer denied).
In support of their contention that there is a failure of proof that the proposed annexation is in the best interests of appellee-City appellants cite City of Aurora v. Bryant, et al., supra. City of Aurora is distinguishable from the instant case because 1) it was based upon the statute prior to the 1955 amendment, and 2) the City of Aurora was the appellant, therefore, the presumptions used in appellate review were exactly opposite those in the instant case. However, our Supreme Court at 505--506 of 240 Ind., at 148 of 165 N.E.2d, did state:
'In our opinion the Legislature intended that the phrase 'for its (the city's) interest' include something more than an increase in revenue by reason of additional taxes received from the persons owning property within the territory sought to be annexed.' (Footnote omitted.)
Thus, if there is evidence, or inferences to be drawn from the evidence, to show that the proposed annexation is in the best interests of appellee-City for a reason other than tax revenue, the judgment of the trial court with regard to the first part of determinant '(a)' will not be disturbed.
The record contains the following facts which tend to support the finding of the trial court that annexation was in the best interests of appellee-City. The population of the City of South Bend is dwindling--during the period from 1960 to 1967 the population decreased approximately 8,800. There is a shortage of suitable residential lots for single-family dwellings within the corporate limits of the City. The City, which has more stringent health standards, will be more capable of controlling its environment. Likewise, through zoning and a higher standard of building code enforcement, the City can better guide and protect the future growth of the area. It cannot be disputed that the annexation would increase the City's bonding power. There was also testimony that the proposed annexation is necessary to permit logical growth of the City of South Bend. These are some of...
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