Town of Dyer v. Town of St. John, 45A03-0908-CV-360.
| Decision Date | 20 January 2010 |
| Docket Number | No. 45A03-0908-CV-360.,45A03-0908-CV-360. |
| Citation | 919 N.E.2d 1196 |
| Parties | TOWN OF DYER, Lake County, Indiana, Appellant-Plaintiff, v. TOWN OF ST. JOHN Indiana, CWS LLC, Paul Krilich, Jacqueline Krilich and Anne Sikma, Appellees-Defendants. |
| Court | Indiana Appellate Court |
William T. Enslen, Enslen, Enslen & Matthews, Hammond, IN, Thomas K. Hoffman, Crown Point, IN, Attorneys for Appellant.
David M. Austgen, Timothy R. Kuiper, Michael J. Jasaitis, Austgen Kuiper & Associates, P.C., Crown Point, IN, Attorneys for Appellee, Town of St. John.
Michael L. Muenich, Highland, IN, Attorneys for Appellees. CWS LLC, Paul Krilich, Jacqueline Krilich, and Anne Sikma.
The Town of Dyer ("Dyer") appeals the trial court's dismissal of its amended complaint for declaratory judgment and a permanent injunction against the Town of St. John ("St.John"). We affirm.
The restated issue before us is whether the trial court properly denied the validity of Dyer's attempt to annex land that St. John also was attempting to annex.
On April 16, 2008, the Dyer Town Council introduced Ordinance 2008-04 ("Dyer 04"), which sought annexation of 3296 acres of land. The land was comprised of three separate parcels, each of which adjoined Dyer's existing boundaries, but the parcels did not adjoin each other. On April 30, 2008, the Dyer Town Council introduced Ordinance 2008-05 ("Dyer 05"), which purported to amend Dyer 04 and sought annexation of a total of 3919 acres of land, including the 3296 acres from Dyer 04. As with Dyer 04, Dyer 05 included three separate, non-adjoining parcels of land. The Dyer Town Council never adopted either Dyer 04 or Dyer 05, nor does it appear that any public hearings ever were scheduled for them.
On or before August 27, 2008, two groups of landowners within the annexation area proposed in Dyer 05 filed petitions with St. John to be voluntarily annexed by that town instead. One hundred percent of the landowners in these territories petitioned for the St. John annexation. St. John adopted two ordinances annexing this land: Ordinance 1474 ("SJ 1474"), representing one group of landowners, which was adopted on September 18, 2008, and Ordinance 1476 ("SJ 1476"), representing a second group of landowners, which was adopted on October 16, 2008. The total area of these two territories was several hundred acres.
On September 16, 2008, the Dyer Town Council introduced Ordinance 2008-18 ("Dyer 18"), which purported to amend Dyer 04 and Dyer 05. Dyer 18 sought the annexation of only 2669 acres of land included within the acreage described in Dyer 05. As with Dyer 04 and Dyer 05, the proposed annexation encompassed three separate, non-adjacent parcels of land. Dyer 18 also included all of the land that St. John ultimately annexed in SJ 1474 and SJ 1476. On November 20, 2008, Dyer held a public hearing on Dyer 18, and the Dyer Town Council adopted Dyer 18 on December 22, 2008.
Meanwhile, on October 16, 2008, Dyer filed a complaint for preliminary injunction, permanent injunction, and declaratory judgment against St. John, seeking to void SJ 1474 and SJ 1476 and prohibit further annexation attempts by St. John. Some of the landowners involved in SJ 1474 and SJ 1476 ("the landowners") intervened in the lawsuit and moved to dismiss the complaint, as did St. John. The trial court dismissed the complaint on February 21, 2009.
On March 3, 2009, Dyer filed an amended complaint; it later filed, in the alternative, a motion to correct error in the dismissal of the original complaint. The landowners and St. John again moved to dismiss the complaint. On July 6, 2009, the trial court entered an order denying Dyer's motion to correct error and dismissing the amended complaint. The trial court concluded that Dyer's annexation attempt was void and unenforceable. Dyer now appeals.
Dyer appeals the granting of St. John and the landowners' motion to dismiss pursuant to Indiana Trial Rule 12(B)(6).1 A motion under Rule 12(B)(6) tests the legal sufficiency of a claim, not the facts supporting it. McPeek v. McCardle, 888 N.E.2d 171, 173 (Ind.2008). We review a trial court's dismissal under Rule 12(B)(6) de novo. Id. "Viewing the complaint in the light most favorable to the non-moving party, we must determine whether the complaint states any facts on which the trial court could have granted relief." Id. at 173-74. We may affirm the grant of a motion to dismiss if it is sustainable on any theory. Id. at 174.
St. John and the landowners contend that St. John's annexation efforts should be given effect over Dyer's for two principal reasons: first, because Dyer's annexation ordinance was invalid for containing three non-adjacent parcels and, second, because the ordinance finally adopted by Dyer was not introduced until after St. John had commenced its annexation proceedings. We agree with the first contention. Thus, we affirm the dismissal of Dyer's declaratory judgment on that basis and do not need to address the second contention.
"The power of annexation is fundamentally legislative, and the judicial role in annexation cases is limited to that prescribed by statute." Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind.1994). A court's duty when reviewing an annexation is to determine whether the municipality has exceeded its authority and met the conditions imposed by statute. City of Carmel v. Steele, 865 N.E.2d 612, 616 (Ind. 2007). Judicial review of an annexation may include whether the municipality met the contiguity requirements of our annexation statutes. See In re Remonstrance Appealing Ordinance Nos. 98-004, 98-005, 98-006, 98-007 and 98-008, of Town of Lizton, 769 N.E.2d 622, 634 (Ind.Ct.App. 2002).2
Dyer's attempted annexation of 2669 acres in Dyer 18 was an "involuntary" annexation under Indiana Code Section 36-4-3-3. See Steele, 865 N.E.2d at 617.3 That statute provides in part, "The legislative body of a municipality may, by an ordinance defining the corporate boundaries of the municipality, annex territory that is contiguous to the municipality...." Ind.Code § 36-4-3-3(a). There are some instances in which a municipality may annex non-contiguous territory, but that is expressly limited to the annexation of municipally-owned landfills, airports, golf courses, and hospitals; in some instances, non-contiguous territory may be annexed for the express purpose of creating an industrial park. I.C. § 36-4-3-4. None of these exceptions apply here.
"Contiguous" is defined by statute as follows:
For purposes of this chapter, territory sought to be annexed may be considered "contiguous" only if at least one-eighth (1/8) of the aggregate external boundaries of the territory coincides with the boundaries of the annexing municipality. In determining if a territory is contiguous, a strip of land less than one hundred fifty (150) feet wide which connects the annexing municipality to the territory is not considered a part of the boundaries of either the municipality or the territory.
I.C. § 36-4-3-1.5. At issue here is whether this definition of contiguous contemplates permitting a municipality to annex separate, multiple parcels of land that are not adjacent to each other, but the overall land to be annexed satisfies the 1/8 boundary requirement. The first step in interpreting a statute is to determine whether the statute is clear and unambiguous. Steele, 865 N.E.2d at 618. If a statute is clear and unambiguous, a court does not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense. Id.
If a statute is susceptible to more than one interpretation, it is ambiguous and open to judicial construction. Id. When faced with an ambiguous statute, our primary goal is to determine, give effect to, and implement the intent of the legislature. Id. We read the sections of an act together in order that no part is rendered meaningless if it can be harmonized with the remainder of the statute. Id. "We also examine the statute as a whole." Id. We presume the legislature did not intend for language in a statute to be applied illogically or to bring about an unjust or absurd result. Id.
We conclude that the current statutory definition of "contiguous" is ambiguous with respect to whether all of the land a municipality wishes to annex in a single ordinance must form a uniform, undivided body. The statute is conspicuously silent on that question. We also note that the mere fact the statute refers to the annexation of a "territory," not "territories," is of no help in deciding whether more than one distinct "territory" may be annexed simultaneously. It is a rule of statutory construction that words used in the singular may also include the plural. Gaddis v. McCullough, 827 N.E.2d 66, 71 (Ind.Ct. App.2005), trans. denied; see also I.C. § 1-1-4-1(3) ()
The statutory definition of contiguity first appeared in 1981. Prior to that time, there was no statutory definition of the word. See Delph v. Town Council of Town of Fishers, 596 N.E.2d 294, 297 (Ind. Ct.App.1992). Rather, courts were left to craft their own definition of whether annexed land was contiguous to the annexing municipality essentially on a case-by-case basis, looking to see whether "an alleged contiguity is superficial, a subterfuge or a pretext to extend boundaries which results in a territorial appendage that has little relationship to the compactness and unity of the city ...."; if so, an annexation was declared invalid. Reafsnyder v. City of Warsaw, 155 Ind.App. 455, 464, 293 N.E.2d 540, 545 (1973). Courts also were guided by the principle that the word "city" implied "an idea of compactness, unity, and continuity, and an assemblage of inhabitants living in the vicinity of each other and not separated by any other intervening division of the state." Id....
To continue reading
Request your trial