Harris v. City of Muncie, 2--1073A216

Citation325 N.E.2d 208,163 Ind.App. 522
Decision Date31 March 1975
Docket NumberNo. 2--1073A216,2--1073A216
PartiesJ. B. HARRIS et al., Appellants, v. CITY OF MUNCIE, Appellee.
CourtCourt of Appeals of Indiana

Charles R. Clark, White, Pierce Beasley & Gilkison, Muncie, for appellants.

Darrel K. Peckinpaugh, David S. Wallace, Muncie, for appellee.

WHITE, Judge.

The City of Muncie, through its common council, adopted an annexation ordinance annexing all of Center Township of Delaware County not already within the city. Several thousand landowners in the affected area protested the proposed annexation by filing a remonstrance with the Delaware Circuit Court, a remonstrance that the City eventually stipulated to be legally sufficient to bring the matter before that Court. Several years after the remonstrance was filed a hearing was had and the remonstrance was denied.

The remonstrators have appealed from that denial, asserting that the evidence fails to establish that the city has 'developed a fiscal plan and has established a definite policy' to provide services to the affected area as required by IC 1971, 18--5--10--25, Ind.Ann.Stat. § 48--722 (Burns 1974 Supp.), and that some of the evidence adduced was improperly admitted.

The city contends that the statute does not require that it have such a plan when the area to be annexed meets the alternative standard set forth in its second paragraph, which is that the area 'is bordered on one-fourth of its aggregate external boundaries by the boundaries of the city and is needed and can be used by the city for its future development in the reasonably near future.' The city also argues that, although not required, the evidence does establish that it has developed such a plan and policy. Finally, it denies error in the admission of evidence.

We hold that a remonstrance against an annexation must be sustained regardless of the character of the affected area if the annexing city has not developed a fiscal plan and established a definite policy to provide services to that area. We further hold that the evidence presented to the Delaware Circuit Court did not establish that the City of Muncie had developed a fiscal plan and established a definite policy to provide services to the area it sought to annex. 1

I.

The statute specifying the circumstances under which a remonstrance against a proposed annexation must be sustained is IC 1971, 18--5--10--25, Ind.Ann.Stat. § 48--722 (Burns 1974 Supp.), which provides:

'The judge of the circuit or superior court shall, upon the date fixed, proceed to hear and determine the appeal without the intervention of jury, and shall, without delay, give judgment upon the question of the annexation according to the evidence which either party may introduce. If the evidence establishes that:

'(a) The resident population of the area sought to be annexed is equal to at least three (3) persons for each acre of land included within its boundaries or that the land is zoned for commercial, business or industrial uses or that sixty per cent (60%) of the land therein is subdivided; and

'(b) At least one-eighth (1/8) of the aggregate external boundaries of the territory sought to be annexed coincide with the boundaries of the annexing city; and

'(c) The annexing city has developed a fiscal plan and has established a definite policy to furnish the territory to be annexed within a period of three (3) years, governmental and proprietary services substantially equivalent in standard and scope to the governmental and proprietary services furnished by the annexing city to other areas of the city which have characteristics of topography, patterns of land utilization and population density similar to the territory to be annexed; the court shall order the proposed annexation to take place notwithstanding the provisions of any other law of this state.

'If, however, the evidence does not establish all three (3) of the foregoing factors the court shall sustain the remonstrance and deny the annexation unless the area although not meeting the conditions of factor (a) supra is bordered on one-fourth (1/4) of its aggregate external boundaries by the boundaries of the city and is needed and can be used by the city for its future development in the reasonably near future, the court may order the proposed annexation to take place notwithstanding the provisions of any other law of this state. The laws providing for change of venue from the county shall not apply, but changes of venue from the judge may be had as in other cases. Costs shall follow judgment. Pending the appeal, and during the time within which the appeal may be taken, the territory sought to be annexed shall not be deemed a part of the annexing city.'

Both the city and the remonstrators agree that the territory sought to be annexed herein does not satisfy any of the conditions described in factor (a), and that annexation can occur only through the exception contained in the last paragraph. The parties disagree, however, on the application of that paragraph. The remonstrators maintain that the conditions described therein should be considered as an alternative only to the conditions described in factor (a) and that the necessity of establishing factors (b) and (c) remains unchanged. The city argues that the statute provides two alternative standards for annexation one (the lettered factors) to be applied when the land to be annexed satisfies any one of the conditions contained in factor (a), the other (the final paragraph) to be applied when the land to be annexed satisfies none of the conditions contained in factor (a).

The language of IC 1971, 18--5--10--25, is indeed ambiguous and must therefore be construed to determine the legislative intent.

As proper approach in seeking the legislative intent of a given statute is to consider the history of law on that subject. Merchants' National Bank of Muncie v. Delaware School Township of Delaware County (1916), 185 Ind. 658, 114 N.E. 450. That approach is appropriate in this particular situation.

For decades after the adoption of the 1852 Constitution annexation laws both distinguished between urbanized (denominated 'platted') areas and rural ('unplatted') areas, and discouraged the annexation of rural areas. The discouragement was originally accomplished by making the procedure for annexing unplatted areas more complex, 2 and later by providing rural landowners with remedies not available to landowners in platted areas. 3 It was not until the passage of Acts of 1935, ch. 153, § 1 (an amendatory act), that both the procedure for annexation and the remedies of affected landowners were the same for platted and unplatted areas, and that parity was obtained not by relaxing the necessary conditions for annexation of unplatted lands but rather by imposing conditions on the annexation of platted land. During the same period the restrictions on a city's power to annex territory were increased. 4

Both concepts, the division between developed and undeveloped lands and the imposition of standards that must be satisfied, were contained in the statute that was the immediate predecessor of, and repealed by, the present law. That statute, Acts of 1955, ch. 269, § 3, as found in Ind.Ann.Stat. § 48--702 (Burns 1963 Repl.) provided in pertinent part:

'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 undeveloped, 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 annexation, 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.'

The above statute authorized annexation of two classes of land: first, land that is urban in character, and second, undeveloped land needed for the development of the city. The conditions that had to be satisfied were the same for each class. Further, an ordinance purporting to annex land that was in part urban in character and in part undeveloped would be disapproved if the undeveloped part was not needed for the development of the city. See Renner v. City of Columbus (1972), Ind.App., 283 N.E.2d 428.

The similarity between the 1955 statute set out above and IC 1971, 18--5--10--25, the statute involved herein, is striking. Both authorize annexation of urbanized land, though the latter statute is more specific in its description of such land. Both, in almost identical language, authorize the annexation of undeveloped land that is needed for the future development of the city. Both contain as a condition the prospect of providing services to the annexed area (at least in some instances), though again the latter is more specific.

It is indisputable that under the 1955 statute the capacity for future provision of services was a prerequisite to the annexation of any land, developed or undeveloped. We see nothing in the language of IC 1971, 18--5--10--25, that would compel us to conclude that the Legislature intended to exclude undeveloped land from that prerequisite; we see nothing in the language to compel the conclusion that the Legislature intended to permit undeveloped land, land historically not amenable to annexation, to be...

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