Town Council of New Harmony v. Parker
| Decision Date | 23 March 1999 |
| Docket Number | No. 87A01-9808-CV-305,87A01-9808-CV-305 |
| Citation | 707 N.E.2d 1002 |
| Parties | TOWN COUNCIL OF NEW HARMONY, Indiana, Appellant-Defendant, v. Shirley PARKER, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appellant-Defendant Town Council of New Harmony (Town) appeals the decision of the trial court to issue a declaratory judgment in favor of Shirley Parker's (Parker) complaint. The trial court held that the Town had an obligation to provide improvements such as streets, sidewalks, and public utilities to Parker's property and that the Town's restriction of access to Parker's property constituted a taking.
We affirm.
Parker raises six issues for our review which we consolidate and restate as follows: 1
1. Whether the Town's annexation of the present Parker property in 1882 or the subsequent annexation ordinance of 1975 created an obligation for the Town to provide municipal services to Parker's lots.
2. Whether the Town's restriction of access to Parker's property constituted a taking without just compensation.
3. Whether there was a taking when the zoning administrator of the Town issued a moratorium on improvement location permits for Parker's lots.
4. Whether the trial court erred in finding that the Town's plan to provide municipal services to Parker's property was inadequate.
In 1871, a subdivision designated as Richard Owen's Addition to New Harmony was platted and recorded in the office of the Posey County Recorder's office. In 1874, a subdivision designated as Robert Dale Owen's Eastern Enlargement of New Harmony was platted and recorded in the office of the Posey County Recorder's office. On May 30, 1882, an ordinance was passed which, by its terms, annexed Richard Owen's Addition and Robert Dale Owen's Eastern Enlargement as a part of the Town of New Harmony. In 1982, Parker purchased Lots 10 and 11 through 17 and the east half of Lot 18 of Robert Dale Owen's Eastern Enlargement, and in 1990, Parker purchased Lots 1 through 8 of Richard Owen's Addition.
Subsequent to the annexation ordinance of 1882, the Town has not implemented a program to improve the platted streets abutting Parker's lots, but other lots within the two additions were provided streets, sewers, and other town services. In 1975, an annexation ordinance numbered 1975-5 was passed by the Town, annexing a certain area to the southeast portion of the Town. Subsequent to the passage of ordinance 1975-5, the Town installed storm sewers serving Parker's lots. The Town also applied for a federal grant to install streets to service Parker's lots, however, the grant was denied and the Town abandoned plans to provide the streets.
Since Parker purchased Lots 12 through 17 in Robert Dale Owen's Eastern Enlargement, the lots were assessed as being on a paved street with sidewalks which were improvements that had never been installed by the Town. As a result, Parker was charged higher property taxes. Further, since Parker purchased Lots 1 through 8 in Richard Owen's Addition, the lots were assessed on the basis of being on a paved street with water, sewer, and gas and electric utilities. None of those improvements, however, were provided even though Parker paid higher property taxes based on that assessment.
Parker made demands on the Town to provide the services to the lots for which she had been paying higher property taxes, but the Town refused to do so. The Town's Zoning Administrator declared a moratorium on improvement location permits for Parker's lots and the Town also restricted access to Parker's lots by placing a chain across the unimproved portion of South Street.
On October 9, 1997, the trial court ordered that the Town was required to provide streets, sidewalks, and other utilities to Parker's lots in a comparable manner as those provided to other similarly situated properties within the Town. The court also ordered the Town to develop a program within sixty days to provide, within a reasonable time, the stated services to Parker's lots. Further, if the Town failed to do so, the court would order the matter to proceed under the eminent domain laws for the determination of damages resulting from the taking of Parker's property interests without just compensation. On November 7, 1997, the Town submitted its proposals for the provision of services. On August 11, 1998, the court made its October 9, 1997 entry final so as to allow the issue of liability in this cause to be appealed. On that same day, the court rejected the Town' proposals and appointed appraisers to assess damages to Parker's property pursuant to the Indiana eminent domain law. The Town now brings this appeal.
Before addressing the merits of this appeal, we note our standard of review. At Parker's request, the trial court entered specific findings of fact and conclusions of law along with its judgment. When a party has requested specific findings of fact and conclusions of law pursuant to Ind.Trial Rule 52, our standard of review is two-tiered. First, we determine whether the evidence supports the findings, and second whether those findings support the judgment. Culley v. McFadden Lake Corp., 674 N.E.2d 208, 211 (Ind.Ct.App.1996). The trial court's findings and conclusions will be set aside on appeal only if they are clearly erroneous. Id. Findings of fact are clearly erroneous if the record lacks any evidence or reasonable inferences to support them. Id. The judgment is clearly erroneous if it is unsupported by the findings of fact and the conclusions which rely on those findings. Id. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. Gunderson v. Rondinelli, 677 N.E.2d 601, 603 (Ind.Ct.App.1997). Rather, we must accept the ultimate facts as stated by the trial court if there is evidence to sustain them. Yates-Cobb v. Hays, 681 N.E.2d 729, 733 (Ind.Ct.App.1997).
The Town argues that neither the annexation of the present Parker property in 1882 nor the subsequent annexation ordinance of 1975 created an obligation for the Town to provide municipal services to Parker's lots. Specifically, the Town contends that Indiana law in 1882 did not mandate the provision of municipal services to annexed property, and the 1975 annexation ordinance did not include Parker's property because that property was already included within the Town.
The framework of Indiana's annexation law 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. However, earlier versions of the annexation statute did not require the city to set out in writing its plan for providing services; it was sufficient that the city present evidence at the trial court's hearing on remonstrance to show that the statutory preconditions to annexation (primary determinants) had been met. City of Hobart v. Chidester, 596 N.E.2d 1374, 1375 (Ind.1992). See, e.g., Burns' Ind.Stat.Ann. § 48-702 (1963) 2; Burns' Ind.Stat.Ann § 48-722 (Supp.1974), Ind.Code § 18-5-10-25. 3
Municipal annexation is today governed by Indiana Code §§ 36-4-3-1--36-4-3-22, and § 36-3-4-13(d) states the specific requirements to be met for an annexation to be valid. 4 Although the annexation statute today requires the municipality to develop a written plan to provide services to the annexed territory, the annexation law in effect when the Parker property was annexed did not expressly require the municipality to provide services upon annexation. However, we find that by inference, the Town of New Harmony was required to provide services to the property that is now Parker's property.
The property that is now Parker's property was annexed to the Town and recorded on June 5, 1882. Therefore, the statutes under which the Town of New Harmony proceeded in 1882 to annex the territory that is now Parker's property were enacted on March 5, 1857. At that time, the procedure and plan for the enlargement of the boundaries of both cities and towns was not nearly as comprehensive as the annexation law of today. 5 The statute for annexation of territory provided that Whenever there shall be lots laid off and platted adjoining to or within such town, and a record of the same is made in the Recorder's office of the proper county, the Board of Trustees may, by resolution, extend the boundary of such town so as to include such lots, whether improved or not; and the lots thus annexed shall thereafter form a part of such town, and be within the jurisdiction of the same. A copy of such resolution, with plat or map of survey defining the metes and boundaries of such addition, shall be immediately filed and recorded in the office of the Recorder aforesaid, and said tier of out-lots and said lots annexed, as last specified, shall be included in and constitute a part of said corporation, and the inhabitants residing thereon, and owners thereof, shall be subject to all the laws and regulations, and entitled to all the privileges, of said corporation.
Towns: Rev.Stat. 1881 § 3388. There is no dispute that the Town properly followed the statutory requirements when it annexed the territory that is presently Parker's property. Instead, the Town contends that the annexation statute above did not require the Town of New Harmony to provide services to the annexed land. We find, however, that the above annexation statute does include...
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