Stallard v. Town of St. John, Lake County

• Decision Date: 10 December 1979
• Docket Number: No. 3-177A28,3-177A28
• Citation: 397 N.E.2d 648
• Parties: Wayne B. STALLARD, Woodrow B. Manchak et al., Plaintiffs-Appellants, v. The TOWN OF ST. JOHN, LAKE COUNTY, Indiana; William T. Tuley, Kenneth C. Fehlberg, Eugene J. Smith, Individually and as members of the Board of Trustees of the Town of St. John, Indiana, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 648

397 N.E.2d 648

Wayne B. STALLARD, Woodrow B. Manchak et al., Plaintiffs-Appellants, v. The TOWN OF ST. JOHN, LAKE COUNTY, Indiana; William T Tuley, Kenneth C. Fehlberg, Eugene J. Smith, Individually and as members of the Board of Trustees of the Town of St John, Indiana, Defendants-Appellees.

No. 3-177A28.

Court of Appeals of Indiana, Third District.

Dec. 10, 1979.

James R. Bielefeld, Crown Point, for plaintiffs-appellants.

Andrew Rodovich, Hand, Muenich & Rodovich, Hammond, for defendants-appellees.

HOFFMAN, Judge.

Appellants Wayne B. Stallard and Woodrow B. Manchak (Remonstrators) appeal from the denial by Lake Circuit Court of their remonstrance, on behalf of themselves and all others similarly situated, to the annexation of certain real estate by the Town of St. John, defendant-appellee.

They argue, Inter alia, that the trial court erred in finding that St. John had developed, prior to February 12, 1973, the date of the passage of the annexation ordinance, a specific, demonstrable fiscal plan to furnish the annexed area with governmental and proprietary services substantially equivalent in standard and scope to those services furnished by St. John to other areas of the town with topography, patterns of land utilization and population density similar to that of the annexed area, as required by IC 1971, 18-5-10-32 (Burns Code Ed.).

The judgment of the trial court is reversed.

In addition to the issue here addressed, Remonstrators challenged: (1) the trial court's failure to require contiguity between the inhabited portion of the town and the inhabited portion of the annexed area; (2) two additional findings made by the trial court under IC 1971, 18-5-10-32; and (3) the constitutionality of that statute.

IC 1971, 18-5-10-32 reads as follows:

"Requirements to be met. Town annexation shall not be sustained on appeal unless the following requirements have been met:

(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 town; and

(c) The annexing town 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 town to other areas of the town which have characteristics of topography, patterns of land utilization and population density similar to the territory to be annexed.

"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 town and is needed and can be used by the town 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 town."

In Harris et al. v. City of Muncie (1975), 163 Ind.App. 522, 325 N.E.2d 208, this Court interpreted the language of IC 1971, 18-5-10-25 (Burns Code Ed.) ¹ which sets out the findings required to sustain the annexation of land by a city, and which is substantially identical to the language of IC 1971, 18-5-10-32, Supra, which sets out the findings required to sustain the annexation of land by a town.

Harris interpreted the ambiguous final paragraph of IC 1971, 18-5-10-25 to require that no annexation by a city can be sustained without the critical findings required by subsection (c). The Harris interpretation of IC 1971, 18-5-10-25(c) was applied to the identical language of IC 1971, 18-5-10-32(c) in York et al. v. Town of Carmel (1975), 166 Ind.App. 672, 337 N.E.2d 511. Thus, the trial court's judgment sustaining the annexation by St. John cannot be affirmed if the court erred in making the findings required by subsection (c). At the time of the passage of the annexation ordinance, St. John was required by statute to have in existence both a "fiscal plan" and a "definite policy" to furnish the annexed area, within three...