Boonville v. Am. Cold Storage
| Decision Date | 13 June 2011 |
| Docket Number | No. 87A01-1004-PL-167,87A01-1004-PL-167 |
| Parties | THE CITY OF BOONVILLE, Appellant/Cross-Appellee, v. AMERICAN COLD STORAGE, et al., Appellees. |
| Court | Indiana Appellate Court |
THE CITY OF BOONVILLE, Appellant/Cross-Appellee,
v.
AMERICAN COLD STORAGE, et al., Appellees.
No. 87A01-1004-PL-167
COURT OF APPEALS OF INDIANA
Filed: June 13, 2011
FOR PUBLICATION
ATTORNEYS FOR APPELLANT/ CROSS-APPELLEE:
JAMES L. PETERSEN
BRIAN J. PAUL
HILARY G. BUTTRICK
Ice Miller LLP
Indianapolis, Indiana
ATTORNEY FOR APPELLEES:
LESLIE C. SHIVELY
Shively & Associates, P.C.
Evansville, Indiana
DARDEN, Judge
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The City of Boonville ("Boonville") brings this interlocutory appeal following the trial court's denial of its motion to dismiss in favor of American Cold Storage NA, et al. (collectively "Landowners"). Landowners cross-appeal.
We affirm in part, reverse in part, and remand.1
1. Whether tax-exempt parcels should be counted in determining whether a remonstrance has been signed by 65% of owners of land in an annexed territory.
2. Whether Landowners demonstrated standing to bring a declaratory judgment action to challenge Boonville's annexation ordinance.
In their cross-appeal, Landowners raise the following issue:
3. Whether parcels that abut public roadways, though not part of the annexed territory designated by Boonville, should be counted in determining whether a remonstrance has been signed by 65% of the owners of land in the annexed territory.
Boonville is located in Warrick County, Indiana, and is "a municipal corporation and political subdivision organized under the laws of the State of Indiana." (Boonville's App. 26). On July 7, 2008, Boonville approved Ordinance 2008-2, annexing 1,165 acres of real estate located to the west of Boonville's geographic limits. Public highways border two sections of the proposed annexed territory. Landowners are Warrick County "residents, taxpayers and owners of real property" who oppose the annexation. (Boonville's App. 26).
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On October 3, 2008, Landowners filed their "Written Remonstrance and Verified Complaint for Declaratory Relief." (Boonville's App. 24-30). In Count I (Remonstrance), Landowners object to Ordinance No. 2008-2, asserting that, for numerous reasons, the annexation should not take place. (Boonville's App. 26-28). In order for Landowners to have standing, the remonstrance must be signed by at least 65% of the owners of land in the annexed territory (the "65% rule"). Ind. Code § 36-4-3-11(a)(1).2 In Count II (Claim For Declaratory Relief), Landowners incorporate their remonstrance grievances and allege statutory deficiencies. (Boonville's App. 29).
On November 26, 2008, Boonville filed a motion to dismiss under Indiana Trial Rule 12(B)(1), arguing that the remonstrators did not meet the 65% rule's statutory threshold. Boonville also filed a supplement to the motion on February 13, 2009. Boonville argued that a number of the names on Landowners' signature list should not be counted (1) "because they are the signatures of joint owners of a single parcel of land"; (2) "because [the remonstrators] executed waivers of the right to remonstrate to annexation as part of a sewer contract"; (3) some of the signatures "relate to parcels that are not in the Annexed Territory"; (4) some of the signatures "reference a duplicate parcel"; and (5) some of the signatures "reference no parcel at all." (Boonville's App. 156-58).3
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On March 18, 2009, Landowners filed their brief in opposition to Boonville's motion to dismiss. Therein, they argued that (1) they had satisfied the 65% rule; (2) Boonville had failed to show that sewer waivers were effective; (3) Boonville had failed to provide notice to some landowners whose parcels were included in the proposed annexed territory; and (4) Boonville had failed to comply with the statutory prerequisites for the adoption of the ordinance.
Boonville filed its reply in support of its motion to dismiss on May 5, 2009. Boonville alleged the following: (1) that tax-exempt parcels should be counted in determining the total number of landowners in the annexed territory; (2) that landowners who executed remonstrance waivers pursuant to sewer contracts should not be counted for remonstrance purposes; (3) that owners of parcels that abut public roadways neither own nor control the roadways and, therefore, lack standing as owners of land within the annexed territory; and (4) that Landowners, upon the dismissal of their remonstrance, cannot pursue a declaratory judgment action. (Boonville's App. 194-95).
A hearing was held on the various motions, and the trial court requested briefing on four legal issues, including the three issues that are considered in this appeal. After briefing, the trial court found in favor of Landowners on the issue of tax-exempt parcels and standing to bring a declaratory judgment action. The court found in favor of Boonville on the issue of whether parcels that abut public thoroughfares, though not part
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of the designated annexed territory, should be counted in determining whether a remonstrance has been signed by 65% of the owners of land in the annexed territory.4
After seeking and obtaining permission to pursue an interlocutory appeal, Boonville now appeals.
1. The Inclusion of Tax-Exempt Parcels in Determining the 65% Requirement
Boonville contends that the trial court erred in determining that tax-exempt parcels should not be included in determining the 65% requirement. The parties agree that the question presented is one of statutory interpretation; therefore, this court's review is de novo. See Sanders v. Bd. of Comm'rs of Brown County, 892 N.E.2d 1249, 1251 (Ind. Ct. App. 2008), trans. denied. De novo review provides no deference to the trial court's interpretation. Ind. Pesticide Rev. Bd. v. Black Diamond Pest & Termite Control, Inc., 916 N.E.2d 168, 181 (Ind. Ct. App. 2009), trans. denied. Our goal in statutory construction is to determine...
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