Rogers v. Municipal City of Elkhart

• Decision Date: 26 November 1997
• Docket Number: No. 20S03-9605-CV-317,20S03-9605-CV-317
• Parties: Lanny ROGERS and Carolyn Rogers, et al., Appellants (Plaintiffs Below), v. The MUNICIPAL CITY OF ELKHART, Indiana, Appellee (Defendant Below).
• Court: Indiana Supreme Court

Page 1238

688 N.E.2d 1238

Lanny ROGERS and Carolyn Rogers, et al., Appellants (Plaintiffs Below), v. The MUNICIPAL CITY OF ELKHART, Indiana, Appellee (Defendant Below).

No. 20S03-9605-CV-317.

Supreme Court of Indiana.

Nov. 26, 1997.

John C. Hamilton, Don G. Blackmond, South Bend, for Appellants.

Paul D. Eash, Elkhart, for Appellee.

SHEPARD, Chief Justice.

The Court of Appeals held in this case that only land which has been subjected to the regulatory process for platting and recording can be considered "subdivided" territory eligible for annexation by a contiguous municipality. We conclude that this holding exceeds the standard set by law.

Case History

The City of Elkhart enacted an ordinance to annex 439 acres of Cleveland Township, Elkhart County, under the authority granted by Indiana Code § 36-4-3-13. Several residents of the annexed territory remonstrated, and the Elkhart Superior Court heard evidence on the remonstrance over several months. Ultimately, the court upheld the annexation on multiple, alternative grounds. It held that the land being annexed was (1) needed for the city's development, (2) already 60% subdivided, and (3) zoned for business, commercial, or industrial uses.

Remonstrators' arguments on appeal may be characterized as raising three legal issues:

I. Whether the trial court could properly approve the ordinance on the first of the grounds above when the City expressly waived relying upon it;

II. Whether the trial court employed an improper reading of the "subdivided" requirement of our code;

III. Whether the trial court erred by finding that all but a de minimis amount of the land was zoned for business and industry.

Annexation Procedure and the Standard of Review

The framework of Indiana's annexation laws has long featured three basic stages: (1) legislative adoption of an ordinance annexing certain territory and pledging to deliver certain services within a fixed period; (2) an opportunity for remonstrance by affected landowners, and (3) judicial review.

Although the applicable statutes have undergone many changes over the years, certain general propositions of law have long applied. The statutes invest exclusive authority to annex territory in the governing body of a municipality. City of Aurora v. Bryant, 240 Ind. 492, 165 N.E.2d 141 (1960). Annexation is a legislative function and becomes a question subject to judicial cognizance only upon review as provided by statute. City of Indianapolis v. Wynn, 239 Ind. 567, 157 N.E.2d 828 (1959). Indeed, to the extent annexation statutes have seemed to require courts to make determinations of a non-judicial nature, courts have refused, finding themselves to be without the power to do so under the separation of powers clause of the Indiana Constitution, Art. 3 § 1. See, e.g., In re City of Mishawaka, 259 Ind. 530, 289 N.E.2d 510 (1972). A court is not authorized to act unless a remonstrance is filed; if a remonstrance is not filed, the annexation becomes effective. Wynn, 239 Ind. 567, 157 N.E.2d 828. The effect of filing a remonstrance is to abate the culmination of the annexation pending review in the courts, where the burden is on the municipality to sustain the annexation by showing that it has complied with the requirements of the statute. Id.

Because the city's authority to annex territory is defined by statute, the court's duty is to determine whether the city has exceeded its authority and met the conditions imposed by the statute. King v. City of Bloomington, 239 Ind. 548, 159 N.E.2d 563 (1959); Bryant, 165 N.E.2d at 147. City of Hobart v. Chidester, 596 N.E.2d 1374 (Ind.1992). Even though the burden of pleading is on the remonstrator, the burden of proof is on the municipality to demonstrate compliance with the statute. The court sits without a jury and enters judgment on the question of annexation after receiving evidence and hearing argument from both parties. Ind.Code Ann. § 36-4-3-12 (West 1997).

Once the trial court has decided whether to approve an annexation ordinance, either the municipality or the remonstrators may appeal. Where, as here, special findings are volunteered by the trial court, we apply the standard of review set out in Trial Rule 52. Chidester v. City of Hobart, 631 N.E.2d 908 (Ind.1994). Issues of fact are reviewed for sufficiency of the evidence, and the appellate court looks to the record only for evidence favorable to the judgment. Id. at 910. Questions of law, of course, are purely the stuff of appellate work, and we review them de novo. MacLeod v. Hunter, 671 N.E.2d 177, 178 (Ind.Ct.App.1996).

While annexation appeals commonly revolve around disputes over the provision of services, the adequacy of the City's fiscal plan is not at issue in this case. Instead, the dispute focuses on rather more technical matters relating to whether the land in question is adequately urban to meet the code requirements for annexation. The "urban character" provisions of our present law permit annexation if the land is contiguous to the municipality and if one of the following is true:

(A) The resident population density of the territory sought to be annexed is at least three (3) persons per acre;

(B) Sixty percent (60%) of the territory is subdivided;

(C) The territory is zoned for commercial, business, or industrial uses.

Ind.Code Ann. § 36-4-3-13(b) (West Supp.1997). Relatively rural territory may also be annexed without meeting any of these three standards if it is "needed and can be used by the municipality for its development in the reasonably near future." Ind.Code Ann. § 36-4-3-13(c)(2) (West Supp.1997).

I. Land "Needed for Future Development"

Remonstrators challenge the trial court's decision that the municipality satisfied alternative subsection 36-4-3-13(c)(2), the "needed for future development" provision. ¹ Remonstrators claim the City expressly waived reliance on this provision.

The record reveals that the City did waive reliance on this provision. To his credit, counsel for the City does not contest the Remonstrators' claim on appeal. Without pausing to determine whether the trial court might be sustained on these grounds if the City asserted otherwise, we pass on to the two issues the parties now contest.

II. Land "Sixty Percent Subdivided"

Another of the four alternative grounds for approval is that "[s]ixty percent (60%) of the territory is subdivided." Ind.Code Ann. § 36-4-3-13(b)(2)(B) (West Supp.1997). The annexation statute does not contain a definition of "subdivided."

The Remonstrators initially asserted that in deciding whether land is "subdivided" for annexation purposes, the courts should apply the definition of "subdivision" the legislature wrote for application in the article governing operation of plan commissions, redevelopment authorities, economic development districts, and the like. ² That article defines "subdivision" as: "The division of a parcel of land into lots, parcels, tracts, units, or interests in the manner defined and prescribed by a subdivision control ordinance adopted by the legislative body under I.C. 36-7-4." Ind.Code Ann. § 36-7-1-19 (West 1997).

The legislative body for Elkhart County has adopted such an ordinance. It is a relatively modern ordinance, applying to land subdivided after September 1, 1982. The Elkhart County Subdivision Control Ordinance defines "subdivision" in this way:

n. SUBDIVISION. A division or redivision of land in which two (2) or more parcels, lots or sites are established for residential or business purposes and any one (1) of these parcels, lots or sites are less than three (3) acres in area, which may include a public way through the tract of land. A division or redivision of land is not a subdivision if:

1. the sale or exchange of parcels of land to or between adjoining property owners where those sales or exchanges does not create additional building lots, or

2. A Court orders the division of land, or

3. A parent transfers adjacent land to a child.

(R. at 562) (quoting Elkhart County, Ind., Code § 36-7-4-700, County Subdivision Control Ordinance art. 2 § n, at Z-90 (1993)). This definition is geared to the creation of new development lots ³ and must be read in parallel with the definitions of "industrial subdivision." ⁴

The City maintains that the evidence shows that the territory is seventy-eight percent (78%) subdivided in accordance with the definition of "subdivision" contained in the Elkhart County Subdivision Control Ordinance. In their reply brief, counsel for the Remonstrators make it clear that they believe meeting this definition requires more than land subdivided in a way consistent with this definition. They assert that the City must demonstrate that 60% of the land became subdivided through the local subdivision approval process.

This assertion asks courts to add too much to statutes that consign decision-making power to legislators, local and state. The theme of Indiana annexation law has long been that adjoining territory of an urbanizing character was subject to annexation. As counsel for the Remonstrators observe, "Generally speaking, land next to a city has already begun taking on attributes of urbanization or it reflects the immediate likelihood of such urbanization." Appellant's Brief, p. 19. The earliest statutes permitted virtually automatic annexation of adjacent platted land. ⁵ In this century, the law permitted annexation of subdivided land "whether platted or not." Act of March 6, 1905, ch. 129 § 242, 1905 Ind. Acts. By 1935, the reference to platting was removed altogether. Act of March 7, 1935, ch. 153 § 1, 1935 Ind. Acts (amending Act of March 6, 1905). In 1955, the legislature chose to use the phrase "The area is urban in character, being an economic and social part of the annexing city." Act of March 11, 1955, ch. 269 § 1 and 3, 1955 Ind. Acts (amending Act of March 7, 1935). The current method of proving urban character were adopted in 1969:(1) 60% subdivided, (2) 3 persons per...