Certain Home Place Annexation Territory Landowners v. City of Carmel

• Decision Date: 31 October 2017
• Docket Number: Court of Appeals Case No. 29A05–1606–MI–1291
• Citation: 85 N.E.3d 926
• Parties: CERTAIN HOME PLACE ANNEXATION TERRITORY LANDOWNERS, Appellants–Petitioners, v. CITY OF CARMEL, Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

85 N.E.3d 926

CERTAIN HOME PLACE ANNEXATION TERRITORY LANDOWNERS, Appellants–Petitioners,

v.CITY OF CARMEL, Indiana, Appellee–Respondent.

Court of Appeals Case No. 29A05–1606–MI–1291

Court of Appeals of Indiana.

Filed October 31, 2017

Attorney for Appellants : Stephen R. Buschmann, Thrasher Buschmann & Voelkel, P.C., Indianapolis, Indiana

Attorneys for Appellee : Douglas C. Haney, City of Carmel, Carmel, Indiana, Bryan H. Babb, Stephen C. Unger, Bose McKinney & Evans LLP, Indianapolis, Indiana

Brown, Judge.

[1] In 2005, Certain Home Place Annexation Territory Landowners ("Landowners") successfully challenged an annexation attempt by the City of Carmel ("Carmel"). We reversed the trial court's decision. City of Carmel v. Certain Home Place Annexation Territory Landowners, 874 N.E.2d 1045, 1046 (Ind. Ct. App. 2007), trans. denied. The case was remanded for a determination as to whether Landowners carried their burden of proof under Indiana Code § 36–4–3–13(e) (2004), which affords a separate avenue to challenge annexations. The trial court ruled in favor of Carmel, concluding that Landowners failed to prove that fire protection was adequately furnished by a provider other than Carmel. On appeal, Landowners raise one issue, and Carmel raises several cross-appeal issues. We find Landowners' issue dispositive, that is: whether Landowners failed to prove that fire protection was being adequately furnished by a provider other than Carmel. We affirm.

Facts and Procedural History

[2] Carmel is located in Clay Township, Hamilton County. Home Place, the area sought to be annexed by Carmel, is located adjacent to Carmel in unincorporated Clay Township. The general boundaries of Home Place are 99^th Street to the south, Pennsylvania Street to the west, 111^th Street to the north, and Westfield Boulevard to the east. On July 2, 2004, the Common Council of the City of Carmel ("Council") introduced Ordinance No. C–264 for the purpose of annexing Home Place. On November 15, 2004, the Council unanimously passed the ordinance.

[3] On February 18, 2005, the Landowners filed a petition for remonstrance against the annexation. A hearing was held on July 7 and 8, 2005. On October 4, 2005, the trial court issued findings of fact and conclusions of law granting the remonstrance on grounds the City failed to adequately establish the method of financing the planned services that were to be provided to Home Place after annexation. See Ind. Code § 36–4–3–13(d)(2). Carmel appealed. On October 17, 2007, we reversed the trial court's decision, concluding that "Carmel met its burden of proving the statutory prerequisite that the fiscal plan must show ‘[t]he method or methods of financing the planned services.’ " City of Carmel, 874 N.E.2d at 1046.

[4] The matter was remanded to the trial court to determine whether Landowners carried their burden of proof as to Indiana Code § 36–4–3–13(e), which provides grounds by which remonstrators can prevail in preventing annexation. On remand, the parties twice agreed to hold the matter in abeyance for periods totaling six years. Following a change of judge, expiration of the agreed abeyance periods, and an attorney's conference, the trial court set a procedural schedule for briefing and for arguments. The trial court held a hearing on the matter on May 9, 2016. It did not entertain new evidence but instead reviewed the matter based on a paper record of the original evidence. On May 17, 2016, it issued findings of fact and conclusions of law upholding annexation. The court determined that under Indiana Code § 36–4–3–13(e)(2)(A)(i), Landowners failed to establish that fire protection was adequately furnished by a provider other than the municipality seeking annexation, that is, Carmel. Landowners now appeal.

Discussion

[5] When, as here, the trial court enters findings of fact and conclusions of law, "we review issues of fact for sufficiency of the evidence and look to the record only for evidence favorable to the judgment." City of Fort Wayne v. Certain Southwest Annexation Area Landowners, 764 N.E.2d 221, 224 (Ind. 2002). We set aside findings and judgments only when they are clearly erroneous. Id. As always, we review questions of law de novo. Id.

[6] Annexation is subject to judicial review only so far as the General Assembly has authorized it by statute, and the larger object of the annexation statute is, as it has always been, to permit annexation of adjacent urban territory. City of Carmel v. Certain Southwest Clay Tp. Annexation Territory Landowners, 868 N.E.2d 793, 797 (Ind. 2007) (quotation omitted). Annexation "is essentially a legislative function." City of Fort Wayne, 764 N.E.2d at 224. Therefore, courts play only a limited role in annexations and must afford the municipality's legislative judgment substantial deference. Id.

[7] Indiana Code § 36–4–3–13 lists the prerequisites for annexation, and the municipality bears the burden of showing that it has complied with these statutory conditions. City of Carmel, 868 N.E.2d at 797–798. If the municipality meets the requirements of Subsections 13(b)¹ or 13(c)² and Subsection 13(d)³ , the court must order the annexation to proceed, subject to the remonstrators' ability to establish all of the grounds listed in Subsection 13(e). Id. However, Subsection 13(e)(2) provides grounds by which remonstrators can prevail in preventing annexation, that is, by establishing all of the elements listed in the subsection. The subsection specifically provides that the trial court must order a proposed annexation not to take place if all of the conditions set forth in clauses (A) through (D) exist in the territory proposed to be annexed. The subsection reads as follows:

(e) At the hearing under section 12 of this chapter, the court shall do the following:

* * * * *(2) Order a proposed annexation not to take place if the court finds that all of the following conditions exist in the territory proposed to be annexed:

(A) The following services are adequately furnished by a provider other than the municipality seeking the annexation:

(i) Police and fire protection.

(ii) Street and road maintenance.

(B) The annexation will have a significant financial impact on the residents or owners of land.

(C) The annexation is not in the best interests of the owners of land in the territory proposed to be annexed as set forth in subsection (f).

(D) One (1) of the following opposes the annexation:

(i) At least sixty-five percent (65%) of the owners of land in the territory proposed to be annexed.

(ii) The owners of more than seventy-five percent (75%) in assessed valuation of the land in the territory proposed to be annexed.

Ind. Code § 36–4–3–13(e)(2) (emphases added).

[8] The issue is whether the trial court erred in determining that Landowners failed to establish that their fire protection was adequately furnished by a provider other than Carmel. Landowners further maintain that in making the alleged erroneous determination, the trial court also incorrectly established a new standard of review when it concluded that a determination under Subsection 13(e)(2)(A)(i) "call[ed] for a straight-forward factual analysis of who is doing most of the fire fighting and protecting in Home Place." Appellants' Appendix Volume 2 at 18. Landowners argue that instead of applying a "straight-forward factual analysis," the trial court should have made its determination by examining applicable statutes.

[9] According to Landowners, under Indiana Code §§ 36–8–13–2 (1981) (fire protection) and 36–8–13–3 (2004) (authorized methods of providing fire protection), Clay Township is the "provider" of fire protection in Home Place as contemplated by Indiana Code § 36–4–3–13(e)(2)(A)(i). Per Indiana Code § 36–8–13–2, a township, under certain circumstances, is required to provide for fire protection. The code section states as follows:

If a majority of the owners of taxable real property residing within and owning real property within that part of a township located outside the corporate boundaries of a municipality petition the township executive and legislative body to provide fire protection in that part of the township, the executive and legislative body shall grant the petition and proceed without delay to provide for fire protection. The executive and legislative body shall determine which of the methods in section 3 of this chapter for providing fire protection in townships will be followed.

Ind. Code § 36–8–13–2. Indiana Code § 36–8–13–3 lists the different ways a township can satisfy its responsibility with respect to fire protection, for example by providing the service with its own equipment and personnel, contracting with a volunteer fire department to provide the service, or contracting with a municipality to provide fire protection or emergency service. The statute reads in relevant part:

(a) The executive of a township, with the approval of the legislative body, may do the following:

(1) Purchase firefighting and emergency services apparatus and equipment for the township, provide for the housing, care, maintenance, operation, and use of the apparatus and equipment to provide services within the township but outside the corporate boundaries of municipalities, and employ full-time or part-time personnel to operate the apparatus and equipment and to provide services in that area....

(2) Contract with a municipality in the township or in a contiguous township that maintains adequate firefighting or emergency services apparatus and equipment to provide fire protection or emergency services for the township in accordance with IC 36–1–7.

(3) Cooperate with a municipality in the township or in a contiguous township in the purchase, maintenance, and upkeep of firefighting or emergency services apparatus and equipment for use in the municipality and township in accordance with IC 36–1–7.

(4) Contract with a volunteer fire department that has been organized to fight fires in the township for the use and operation of firefighting

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