Doan v. City of Fort Wayne, s. 768A111
| Decision Date | 13 November 1969 |
| Docket Number | 1169S268,Nos. 768A111,s. 768A111 |
| Citation | 253 Ind. 131,19 Ind.Dec. 255,252 N.E.2d 415 |
| Parties | Alfred A. DOAN et al., Appellants, v. CITY OF FORT WAYNE, Indiana, Appellee. |
| Court | Indiana Supreme Court |
This action arises out of an attempted annexation of land by the appellee, the City of Fort Wayne, Indiana. Appellants were owners of 372 out of 492 parcels or 75.6% of the land proposed to be annexed. They opposed said annexation by filing a written remonstrance in accordance with Ind.Ann.Stat. § 48--702 (1963 Repl.) as set forth below. The trial court dismissed the remonstrance against appellants, and overruled their motion for a new trial. Appellants took an appeal to the Appellate Court which affirmed the trial court's verdict. Doan v. City of Fort Wayne (1969), Ind.App., 247 N.E.2d 544. The question here presented is one of first impression concerning a matter of substantial public importance. We therefore deem it incumbent upon this court to carefully consider the issues presented.
The fact in this case may be summarized as follows: The Common Council of the City of Fort Wayne adopted Annexation Ordinance No. X--4--65 on May 25, 1965, which ordinance proposed to annex the land herein in dispute. Appellants filed timely written remonstrances as provided by the provisions of § 48--702, supra, and the cause was heard in the Allen Superior Court #3. The trial court found that of the owners of 372 parcels of land who signed remonstrances, the right to remonstrate was waived by the owners of 131 of these parcels; that the owners of another 113 parcels waived their right because a waiver was incorporated in instruments, 98 of which were recorded and 15 of which were not; that the present owners of 3 parcels had previously waived their rights to remonstrate in instruments signed individually; that the right to remonstrate was waived in instruments duly recorded by the predecessors in title of the owners of an additional 37 parcels of land; that the waivers as set forth, except as to the 15 parcels affected by the unrecorded instrument, were valid waivers and therefore could not be counted in determining whether sufficient signatures were affixed to the remonstrance in order to establish its validity; that there only remained valid and effective signatures of the owners of 103 parcels out of the 492 parcels; and that the 103 parcels constituted less than 50% of the 492 parcels to be annexed.
The trial court as a consequence of these findings, dismissed the remonstrance because neither statutory prerequisite was satisfied, to-wit: that the appeal be taken by a majority of the owners of the land to be annexed or owners of more than 75% of the assessed valuation thereof. No evidence was introduced at the trial as to the latter signatural requirement.
We agree with the Appellate Court that the significant questions presented by this case are whether the statutory right to remonstrate to an annexation may be validly waived under the circumstances of this case and whether such waiver is contrary to public policy. However, we respectfully disagree with their result.
The right to remonstrate is an extremely important one. The legislature created the right to give affected landowners a legal means to challenge annexation if they 'deed themselves aggrieved or injuriously affected.' The statute reads in pertinent part as follows:
'Remonstrances against annexation--Procedure--Fire protection and other services--Agreement for or court action in regard to.--Whenever territory is annexed to a city whether by general ordinance defining the city boundaries, or by special ordinance for the purpose of annexing territory, an appeal may be taken from such annexation by either a majority of the owners of land in the territory or by the owners of more than seventy-five per cent (75) in assessed valuation of the real estate in the territory, if they deem themselves aggrieved or injuriously affected, by filing their remonstrances in writing against such annexation, together with a copy of such ordinance, in the circuit or superior courts of the county where such territory is situated or with the judge thereof in vacation, within thirty (30) days after the last publication provided for in section 242 (§ 48--701); such written remonstrance or complaint shall state the reason why such annexation ought not in justice take place. Upon receipt of such remonstrance the court or the judge thereof in vacation shall determine whether it bears the necessary signatures and complies with the requirements of this section. In determining the total number of landowners of the area and whether or not signers of the remonstrance are landowners, the names as they appear upon the tax duplicate shall be prima facie evidence of such ownership. In ascertaining the number of landowners of the area and for the purpose of determining the sufficiency of the remonstrance as to the number of landowners required to constitute a majority, not more than one (1) person having an interest in a single property, as evidenced by the tax duplicate shall be considered a landowner. Upon the determination of the judge of the court that the remonstrance is sufficient he shall fix a time for a hearing on the remonstrance which shall be held not later than sixty (60) days thereafter. Notice of such proceedings by way of summons shall be served upon the proper officers of the city seeking to make annexation, and such city shall become defendant in such cause, and shall be required to appear and answer as in other cases. The judge of the court shall, upon the date fixed, proceed to hear and determine such appeal without the intervention of jury, and shall, without delay, give judgment upon the question of such annexation according to the evidence which either party may introduce. Such evidence demonstrating the presence of the following conditions shall be considered the primary determinants of the annexation's merit:
(a) The annexation is in the best interests of the city and of the territory sought to be annexed.
(b) The area is urban in character, being an economic and social part of the annexing city.
(c) The terms and conditions set forth in the ordinance are fair and just.
(d) The city is financially able to provide municipal services to the annexed area within the reasonably near future.
(e) The area sought to be annexed, if underdeveloped, is needed for development of the city in the reasonably near future.
(f) The lines of the annexation are so drawn as to form a compact area abutting the municipality.
If the judge of the court shall find that the primary determinants enumerated above apply to the ennexation, it shall take place notwithstanding the remonstrance and notwithstanding, further, the provisions of any other statute of this state. If however, the presence of these primary determinants cannot be demonstrated in the evidence, the annexation shall not take place. * * *'
In the present case all of the alleged waivers grew out of contracts entered into with appellee for the installation of water service in land located outside the city limits of Fort Wayne. In addition to other consideration paid by the landowners to appellee, the contracts all contained a waiver of the right to remonstrate against annexation. One provision in the waiver states in part as follows:
'* * * and therefore, it is further understood and agreed by and between the parties of this contract that any owner or owners of land, their successors in title and assigns which is now or hereafter located outside the corporate limits of the City of Fort Wayne, Indiana, who taps into the water main covered in this contract, or any extensions thereof, shall be deemed to thereby waive his, her, their, or its right to remonstrate against, or otherwise object to, interfere with, or oppose any pending or future annexation by the City of Fort Wayne, Indiana, of such land or of the territory in which such land is located.'
All of these alleged waivers, with one exception, were signed before the date of the annexation ordinance. The oldest of the waivers dates back to 1959.
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