Sons v. City of Crown Point

• Decision Date: 13 February 1998
• Docket Number: No. 45A04-9703-CV-80,45A04-9703-CV-80
• Parties: Linda SONS, et al, Appellants-Plaintiffs, v. The CITY OF CROWN POINT, Indiana, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1237

691 N.E.2d 1237

Linda SONS, et al, Appellants-Plaintiffs, v. The CITY OF CROWN POINT, Indiana, Appellee-Defendant.

No. 45A04-9703-CV-80.

Court of Appeals of Indiana.

Feb. 13, 1998.

Edward P. Grimmer, Judith A. Reichmuth, Crown Point, for Appellants-Plaintiffs.

John M. Kopack, Kopack & Associates, Merrillville, for Appellee-Defendant.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Linda Sons, et al, (remonstrators) appeal the trial court's order dismissing their complaint for remonstrance against the annexation of their property to the City of Crown Point. The dispositive issue presented on appeal is whether the trial court erred by dismissing the remonstrance complaint for lack of subject matter jurisdiction. ¹

We affirm.

FACTS

On May 7, 1993, the Crown Point City Council held an emergency meeting and enacted Ordinance 1671, which annexed certain territory along the eastern boundary of the City of Crown Point. Ordinance 1671 provides that "said annexed territory shall be zoned per the attached zoning map and the Master Zoning Map of the City of Crown Point is hereby amended to reflect the addition to this property." (R. 37). Attached to the ordinance was a zoning map, which identified the boundaries of the annexed territory and the proposed zoning within the annexed area. On the same day, the Crown Point City Council also enacted Resolution 730, which approved a detailed written fiscal plan for the annexed area.

At the city council's next regular monthly meeting held on May 10, 1993, the city council enacted Ordinance 1672, annexing the same territory as Ordinance 1671. Like Ordinance 1671, Ordinance 1672 attached and incorporated a zoning map depicting the boundaries of the annexed territory and the zoning within the annexed area. The Crown Point City Council also enacted Resolution 731, approving the same fiscal plan approved in Resolution 730.

On May 13, 1993, the City of Crown Point directed two local newspapers to publish its Legal Notice of Publication, which provided the legal description of the annexed territory contained in the ordinances and stated that "said annexed territory shall be zoned per the attached zoning map and the Master Zoning Map of the City of Crown Point is hereby amended to reflect the addition of this property." (R. 247, 249).

On July 9, 1993, the remonstrators filed a remonstrance complaint with an attached petition signed by 126 individuals alleged to be landowners within the annexed territory. On November 22, 1993, the remonstrators filed a motion for summary judgment, arguing that the annexation was void for lack of a sufficient legal description of the annexed area. After a hearing, the trial court denied the remonstrators' motion for summary judgment. On May 26, 1994, the trial court denied the remonstrators' request for certification for interlocutory appeal.

On February 7, 1997, the City of Crown Point filed a motion to dismiss for lack of subject matter jurisdiction, contending that the petition of remonstrators did not contain a sufficient number of annexed territory landowner signatures to maintain the remonstrance action. The City of Crown Point submitted evidence that only 76 of the 126 remonstrators were actually landowners in the annexed territory. In addition, the City of Crown Point submitted copies of 23 "Withdrawal of Remonstrance to Annexation" forms executed by landowners in the annexed territory. After a hearing, the trial court granted the City of Crown Point's motion to dismiss, finding that the remonstrance petition failed to contain the signatures of a sufficient number of landowners in the annexed territory to maintain this action and that it lacked subject matter jurisdiction to entertain the remonstrators' petition.

DECISION

Remonstrators contend that the trial court erred in granting the City of Crown Point's motion to dismiss for lack of subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction presents a threshold question concerning the court's power to act. Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind.1994), reh'g denied. In ruling on a motion to dismiss for lack of subject matter jurisdiction, the court may resolve factual disputes. Id. The court has considerable latitude in devising procedures to ferret out the facts pertinent to jurisdiction, and it is well established that in doing so it may consider not only the complaint and motion but any affidavits or other evidence submitted. Id. at 1286-87. Moreover, when considering a motion to dismiss for want of subject matter jurisdiction, a court may weigh the evidence to determine the existence of the requisite jurisdictional facts. Id. at 1287.

Subject matter jurisdiction is "the power to hear and determine cases of the general class to which the proceedings then before the court belong." Mishler v. County of Elkhart, 544 N.E.2d 149, 151 (Ind.1989)(quoting Myers v. Sell, 226 Ind. 608, 613, 81 N.E.2d 846, 847 (1948)). Subject matter jurisdiction cannot be waived or conferred by agreement. Santiago v. Kilmer, 605 N.E.2d 237, 239 (Ind.Ct.App.1992), reh'g denied; trans. denied. This rule applies to the specific jurisdictional averments necessary to maintain the proceeding. Id. Specific jurisdictional averments must be made in the case of special statutory proceedings. Id.

Ind.Code § 36-4-3-11(a) provides the specific averments necessary for a remonstrance to be valid and confer subject matter jurisdiction on the court. Id. I.C. § 36-4-3-11(a) reads as follows:

Whenever territory is annexed by a municipality under this chapter, the annexation may be appealed by filing with the circuit or superior court of a county in which the annexed territory is located a written remonstrance signed by:

(1) A majority of the owners of land in the annexed territory; or

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

In a contest of the propriety of annexation, the trial court is charged with first determining whether the remonstrance contains the necessary signatures. I.C. § 36-4-3-11(b). Should the remonstrance be found insufficient, then the trial court is without subject matter jurisdiction over the action and cannot proceed further. Matter of Annexation Proposed by Ordinance No. X-01-93, 654 N.E.2d 284, 286 (Ind.Ct.App.1995), trans. denied.

Here, a certified list of landowners obtained from Lake County Auditor Anna Anton revealed that, at the time of the remonstrance complaint, the annexed territory contained 198 landowners and 247 separate parcels of land with a total assessed valuation of $3,045,600. Although the initial complaint contained 126 signatures, the City of Crown Point submitted evidence that 16 of the signatures on the petition did not appear on the auditor's list as being landowners within the annexed area. Also, numerous signatures on the remonstrance petition were made by either husband and wife or joint tenants of the same parcel of property in the annexed area. I.C. § 36-4-3-11 provides that "[o]nly one (1) person having an interest in each single property ... is considered a landowner for purposes of this section." Accordingly, the total number of landowners in the annexed territory who signed the remonstrance petition was reduced to 76. The Center Township Assessor Martha Wheeler testified that these 76 remonstrators constituted...