Brenwick Associates v. Boone County Redev.

• Decision Date: 20 July 2007
• Docket Number: No. 06A04-0611-CV-682.,06A04-0611-CV-682.
• Citation: 870 N.E.2d 474
• Parties: BRENWICK ASSOCIATES, LLC, First Industrial Acquisitions, Inc.<SMALL><SUP>1</SUP></SMALL> and Town of Whitestown, Indiana, Appellants-Plaintiffs, v. BOONE COUNTY REDEVELOPMENT COMMISSION and The Board of Commissioners of Boone County, Indiana, Appellees-Defendants.
• Court: Indiana Appellate Court

870 N.E.2d 474

BRENWICK ASSOCIATES, LLC, First Industrial Acquisitions, Inc.¹ and Town of Whitestown, Indiana, Appellants-Plaintiffs, v. BOONE COUNTY REDEVELOPMENT COMMISSION and The Board of Commissioners of Boone County, Indiana, Appellees-Defendants.

No. 06A04-0611-CV-682.

Court of Appeals of Indiana.

July 20, 2007.

George T. Patton, Jr., Alan S. Townsend, J. Christopher Janak, Stephen C. Unger, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellants.

Eileen J. Sims, Kincaid, Taylor, Sims, Chadd & Minnette, P.C., Lebanon, IN, Thomas K. Downs, Michael A. Wukmer, Donald R. Hostetler, Ice Miller LLP, Indianapolis, IN, Attorneys for Appellees.

OPINION

VAIDIK, Judge.

Case Summary

Brenwick Associates, LLC ("Brenwick") and the Town of Whitestown ("Whitestown") (collectively, "the Remonstrators") appeal from the trial court's judgment upholding the creation of an economic development area ("EDA") by the Boone County Redevelopment Commission ("BCRDC") and the Board of Commissioners of Boone County ("Boone County Commissioners") (collectively, "Boone County"). Boone County's proposed EDA includes 1425 acres over which Whitestown had previously initiated annexation proceedings and approximately 2500 acres that Whitestown added to its annexation ordinance after Boone County initiated creation of its EDA.

Initially, we conclude that the Remonstrators, as property owners in the proposed EDA, are aggrieved for purposes of seeking judicial review of the creation of the EDA. Furthermore, we agree with the Remonstrators that Boone County had no jurisdiction to create the EDA as to the 1425 acres in Whitestown's original annexation ordinance because Whitestown acted first to take jurisdiction over that territory. However, we agree with Boone County that the Remonstrators' statutory and due process rights were not violated because the procedure for creating an EDA is legislative, rather than judicial, in nature, and that the evidence is sufficient to support the creation of the EDA as to the additional 2500 acres.²

Facts and Procedural History

In 2003, Boone County created an EDA on the east side of I-65 known as Anson ("Anson EDA"). When the Anson EDA was first proposed, the specific geographic area of the proposed development was not definitively established, and the BCRDC considered extending its boundaries to the west side of I-65. In the end, it decided to limit the Anson EDA to the east side of I-65. Whitestown annexed a portion of the Anson EDA after it was created. In the Anson EDA, Boone County and Whitestown have cooperated to approve tax abatements for at least one development. After the Anson EDA was established, developers approached the BCRDC about creating an EDA on the west side of I-65. See Tr. p. 170.

In 2005, First Industrial Acquisitions, Inc. ("First Industrial") entered into a purchase agreement to purchase land from Brenwick on the west side of I-65 in Boone County. First Industrial approached Whitestown about potential tax abatements for its proposed development. Because Brenwick's property was outside of Whitestown's boundaries and Whitestown did not have jurisdiction to grant such tax abatements, First Industrial and Brenwick proposed that Whitestown annex Brenwick's property.

On July 24, 2006, Whitestown introduced an ordinance for the purpose of initiating annexation of approximately 1425 acres of land in Boone County ("Annexation Ordinance"). Just eleven days later, on August 4, 2006, the BCRDC adopted a Declaratory Resolution to create an approximately 4000-acre EDA on the west side of 165 ("I-65 West EDA"). The I-65 West EDA, as proposed, would include the 1425 acres Whitestown was seeking to annex. The Remonstrators sent the BCRDC a public records request seeking "any public record relating to the creation of the I-65 West Economic Development Area." Ex. Vol. I, p. 158-59. In return, they received only a copy of the Declaratory Resolution. On September 25, 2006, Whitestown amended its Annexation Ordinance to expand its proposed annexation by approximately 2500 acres. The 3918-acre proposed annexation territory overlaps much of the 4000 acre proposed I-65 West EDA.

On September 28, 2006, the BCRDC held a hearing on its Declaratory Resolution. Brenwick, First Industrial, and Whitestown filed a remonstrance against the establishment of I-65 West EDA. The BCRDC allowed the Remonstrators³ to present evidence but refused to allow the Remonstrators to question or "cross-examine" any of the employees or members of the BCRDC. The BCRDC also refused to reveal any of the evidence it had in support of the I-65 West EDA. At the conclusion of the hearing, the BCRDC determined that it would move forward with the I-65 West EDA and adopted a Confirmatory Resolution. The Confirmatory Resolution included the following clause:

The [BCRDC] has carefully considered the information provided to it by [Whitestown] regarding its proposed annexation of the Area and recognizes that the [BCRDC] and [Whitestown] will work cooperatively with regard to the future financing and tax abatement, as provided by Indiana law, if the Area is annexed by [Whitestown]. The [BCRDC] further commits to working with [Whitestown] in good faith on economic development in the Area if the annexation is completed.

Appellants' App. p. 54. Finally, on October 2, 2006, the Boone County Commissioners adopted a resolution approving the establishment of the I-65 West EDA.

On October 10, 2006, the Remonstrators filed an appeal with the trial court challenging the final action of Boone County establishing the I-65 West EDA. On November 8, 2006, the trial court held a hearing on the Remonstrators' appeal. At the hearing, BCRDC President Tom Lingafelter testified that the BCRDC created the I-65 West EDA because it "didn't want to see piecemeal development, small pieces here and there that are going in, each one putting infrastructure into their own area but not tying infrastructure together across that whole area." Tr. p. 173. He further testified that the 165 West EDA was created because Boone County wanted a "comprehensive plan" to ensure that development was coordinated with the upcoming construction of the Ronald Reagan highway. Id.

The next day, on November 9, 2006, the trial court entered judgment in favor of Boone County and against the Remonstrators, thereby upholding the creation of the I-65 West EDA. The trial court found that: (1) the Remonstrators were not "aggrieved" for purposes of Indiana Code § 36-7-14-18, the statute allowing for appeals from the creation of an EDA, and therefore did not have "standing" to pursue the appeal; and (2) even if they were "aggrieved," they did not meet their burden of proof in the appeal. See Appellants' App. p. 14-15. The trial court reached the following relevant conclusions of law: (1) that the BCRDC had the jurisdiction and authority to establish the I-65 West EDA and that the mere initiation of annexation did not deprive it of that authority; (2) that the BCRDC properly followed all statutory procedures to establish the I-65 West EDA; (3) that Boone County's actions in creating the I-65 West EDA were legislative, rather than judicial, in nature; (4) that the record, including five public meetings on the creation of the I-65 West EDA and four years of experience with the Anson EDA, is a sufficient factual basis on which the BCRDC based its findings supporting the creation of the I-65 West EDA; and (5) that the Remonstrators were not denied due process because the BCRDC was "acting in a legislative capacity where procedural rights of due process do not apply" and because the Remonstrators failed to show "any deprivation of any legal right[.]" Id. at 14-23. On November 30, 2006, the Remonstrators filed their appeal with this Court. Whitestown adopted the Annexation Ordinance on December 28, 2006, and published it on January 3, 2007. There is no indication in the materials before us that the annexation has been completed.

Discussion and Decision

On appeal, the Remonstrators raise four issues, which we restate and reorder as: (1) whether the Remonstrators are "aggrieved" for purposes of the statute allowing for judicial review of the creation of an EDA; (2) whether Boone County had jurisdiction to create the I-65 West EDA as to the 1425 acres in Whitestown's original Annexation Ordinance; (3) whether the Remonstrators' statutory and due process rights were violated by the procedure followed by Boone County in creating the I-65 West EDA; and (4) whether the evidence is sufficient to support the creation of the I-65 West EDA.

I. Judicial Notice

Before addressing the Remonstrators' arguments on appeal, we must resolve their pending Verified Motion to Take Judicial Notice of Initiation of Litigation and Issuance of Bonds ("Motion to Take Judicial Notice"). Remonstrators ask us to take judicial notice of the fact that Boone County recently filed a lawsuit to stop Whitestown's annexation effort because "Boone County has testified before the trial court and represented to this Court throughout this matter that it supports Whitestown's pending annexation ("Annexation") and its economic development area ("EDA") therefore does not conflict with, and is not intended to interfere with, the Annexation." Motion to Take Judicial Notice p. 1-2. Remonstrators also ask us to take judicial notice of the fact that Boone County has sold bonds related to the I-65 West EDA because "Boone County has [] requested and received, against Remonstrators' objections, an expedited appellate schedule in this matter on the basis that it is continually damaged by being unable to issue bonds through the EDA while this appeal is pending." Id. at 2.

Indiana Rule of Evidence 201(a) states:

A court may take judicial notice of a fact. A judicially-noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2)...