FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ON PETITIONERS' PETITION FOR REOMONSTRANCE

Transcription

1 STATE OF INDIANA COUNTY OF MARION ) ) ) ) ) ) IN THE MARION SUPERIOR COURT CASE NO. 32D PL-109 FIGHT AGAINST BROWNBURG ) ANNEXATION, et al., ) ) Petitioners and Remonstrators, ) ) ~ ) ) TOWN OF BROWNSBURG, INDIANA, ) et al., ) ) Respondents. ) FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ON PETITIONERS' PETITION FOR REOMONSTRANCE This action is before the Court on Petitioner/Remonstrators', Fight Against Brownsburg A1mexation, et al. ("FABA"), Petition for Remonstrance. On July 11,2013, Respondents, Town of Brownsburg, et al. (the "Town"), adopted Ordinance (the "Annexation Ordinance"), annexing certain territory north ofbrownsburg's current corporate boundaries. On October 7, 2013, FABA filed their Remonstrance and Petition for Declaratory Judgment and Damages. The Petitioner's Petition for Declaratory Judgment was dismissed in this Court's Order Granting the Respondent's Motion to Dismiss for Declaratory Judgment entered on July 11,2016. On May 31, 2016, the Town filed their Motion for Partial Sunm1ary Judgment, Designation of Evidence in Support ofpartial Summary Judgment, and Brief in Support oftheir Motion for Partial Summary Judgment. On June 28,2016, FABA filed their Brief in Opposition to the Town's Motion for Partial Summary Judgment. On July 7, 2016, the Town filed a Motion to Strike 1

2 Certain Evidence Designated in Opposition to Motion for Partial Summary Judgment. On August 12, 2016, this Court issued its Order Granting, In Part, and Denying, in Part, the Respondent's Motion for Partial Summary Judgment, Order Granting, In Part, and Denying, In Part, the Respondent's Motion to Strike Certain Evidence Designated in Opposition to Motion for Partial Summary Judgment. On August 16-18, 2016, a bench trial was held. Witnesses were sworn and evidence was heard pursuant to Indiana Code (b) or (c) and (d). The Court took the matters under advisement. On September 19,2016, FABA submitted their Proposed Findings of Fact and Conclusions of Law. On September 20, 2016, the Town submitted their Proposed Findings of Fact and Conclusions of Law. The Court, having considered the evidence and the proposed Findings offact and Conclusion of Law submitted by counsel, hereby finds and issues the following Findings of Fact and Conclusions of Law after judging the credibility of the many witnesses who testified: FINDINGS OF FACT 1. On July 11, 2013, the Town adopted Ordinance No (the "Annexation Ordinance") for the purpose of annexing territory north or Brownsburg's corporate boundaries (the "Annexation Area"). (See ExhibitS.) 2. In response to the Annexation Ordinance, F ABA filed their Remonstrance and Petition for Declaratory Judgment and Damages on October 7, The Annexation Area consists of 1,193 separate tax parcels and 1,434 distinct tracts of land, located on 4,461 acres north of Brownsburg. (See ExhibitS, and the Testimony of Jonathan Blake.) 4. The Annexation Area consists of two large areas ofland and there is a "land bridge" of three parcels that connects the two larger areas, which are not part of the Annexation 2

3 Area. There are also four subdivisions that are contiguous to both the Annexation Area and the Town's corporate boundaries that are excluded from the Annexation Area. (Exhibit A.) 5. The Annexation Area is 52% contiguous to the Town's current corporate boundaries. (Testimony of Jonathan Blake.) 6. At the time of the Annexation, the Annexation Area did not have a resident population of at least three (3) persons per acre and prior to annexation was not zoned to allow for commercial, business, or industrial uses. (Respondents' Proposed Findings of Fact, Conclusions of Law and Order of the Court, pg. 2; Stipulation of Town during Bench TriaL) 7. In order to analyze the extent to which the Annexation Area was "subdivided," the Brownsburg Department of Development Services measured existing land divisions in the Annexation Area using six (6) different methods. (Testimony of Jonathan Blake.) 8. According to the Indiana Advisory Commission on Intergovernmental Relations, an April 2014 Municipal Survey demonstrated that the Annexation Area was 76.88% agricultural,.02% Commercial, 0% Industrial, 21.50% Residential, and 0% Municipally-owned property. (FABA Exhibit 8.) In addition, when examining Exhibit F (a map of the Annexation Area), it demonstrates that the Annexation Area is predominately agriculture as reflected by the green areas. Lastly, the many Remonstrators which testified in this matter made it very clear that this is an agriculture/rural community. 9. Method 1 considered only formally recorded subdivision plats and associated rights-ofway and resulted in a finding that 957 tracts (66.74%) and 780 acres (17.5%) of the 3

4 Annexation Area would be considered subdivided. (See Exhibit H; Testimony of Jonathan Blake.) 10. Method 2 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area, except those describing quarter-quarter sections, and resulted in a finding that 1,326 tracts (92.5%) and 3,440 acres (77.1 %) of the Annexation Area would be considered subdivided. (See Exhibit I; Testimony of Jonathan Blake.) 11. Method 3 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area, except those describing the parent tracts remaining after a portion of the property is divided off, and resulted in a finding that 1,322 tracts (92.2%) and 1,669 acres (37.4%) of the Annexation Area would be considered subdivided. (See Exhibit J; Testimony of Jonathan Blake.) 12. Method 4 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area, except those creating less than three (3) portions from a quarter-quarter section, and resulted in a finding that 1,327 tracts (92.5%) and 3,198 acres (71.7%) of the Annexation Area would be considered subdivided. (See Exhibit K; Testimony of Jonathan Blake.) 13. Method 5 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area broken into two (2) or more lots or other divisions ofland, and resulted in a finding that 1,350 tracts (94.1%) and 3,804 acres (85.3%) of the Annexation Area would be considered subdivided. (See Exhibit L; Testimony of Jonathan Blake.) According to Mr. Blake, if the Brownsburg Subdivision Control Ordinance had been in effect when all of the property boundaries were 4

5 divided out of the original quarter sections, you would arrive at the above percentages under Method 5. Under this ordinance, it excludes the division ofland into two (2) or more tracts for an agriculture use. 14. Method 6 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area broken into two (2) or more lots or other divisions ofland, but excluding any tract ofland larger than twenty (20) acres, and resulted in a finding that 1,296 tracts (90.3%) and 1,810 acres (40.5%) of the Annexation Area would be considered subdivided. (See Exhibit M; Testimony of Jonathan Blake.) According to Mr. Blake, if the Hendricks County Subdivision Control Ordinance had been in effect when all of the property boundaries were divided out of the original quarter sections, you would arrive at the above percentages under Method The Town's witness, Jonathan Blake, stated on cross-examination that the agricultural portions of the Annexation Area were included in at least some of the calculations. There was no indication as to which methods, in pmiicular, included the agricultural portions of the Annexation Area. However, given the fact that the Town's Subdivision Control Ordinance excludes division of land into two (2) or more tracts for an agricultural use from the definition of"subdivision" and that 76.88% of the Annexation Area is agricultural, ideally only 23.12% ofthe Annexation Area would be available to count toward the 60% percent subdivided requirement. 16. The Court first takes notice of the list of recorded subdivisions within the Annexation Area provided by Hendricks County Cartographer, Lewis D. Kirts. The list details the minor plats as well as the subdivisions by name. The list demonstrates that the actual acreage of the thirty-six subdivisions and nineteen minor plats constitutes 17.54% of the 5

6 Annexation Area. (See F ABA Exhibit 9A.) This is well below the 60% required by Indiana Code (b) (2012). In Exhibit 9A, Kirts used the actual acreage figures by obtaining them manually of the actual plats rather than using the website. Kirts utilized this method because it is more accurate than relying on the computer models/website since it is sometimes unreliable. Kirts' calculation demonstrates that of the 4, acres in the Annexation Area that only of the acres are subdivided which means only % of the Annexation Area is subdivided. 17. The Town's Subdivision Control Ordinance defines "subdivision" as: Any land, vacant or improved, which is divided or proposed to be divided into two (2) or more lots, parcels, sites, units, plots, or interests for the purpose of offer, sale, lease, or development either on the installment plan or upon any and all other plans, terms, and conditions, including re-subdivision. Subdivision includes the division or development of either residentially or non-residentially zoned land, whether by deed, metes and bounds description, or other recorded instrument. For the purposes of these regulations, the following are exempt as implying subdivision, and thereby exempted from the platting requirements of this chapter: (1) A division ofland into two (2) or more tracts for an agricultural use. (2) An allocation of land in the settlement of an estate of a descendent or a court decree for the distribution of property. (3) The unwilling sale of land as a result of legal condemnations as defined and allowed in state law. (4) Widening of existing streets to conform to the Comprehensive Plan. (5) The acquisition of street rights-of-way by a public agency m conformance with the Comprehensive Plan. ( 6) The exchange of land for the purpose of straightening property boundary lines which does not result in the change of the present land usage. (7) A division of land for the sale or exchange of tracts between adjoining landowners, provided that no additional building sites other than for accessory buildings are created by the division. (F ABA Exhibit 55.) 18. Hendricks County Subdivision Control Ordinance defines "subdivision" as: The division of a parcel of land into two (2) or more lots, parcels, sites, units, plats, or interests for the purpose of offer, sale, lease, or development, either on the installment plan or upon any and au other plans, terms, conditions, including resubdivision. Subdivision includes the division of development ofland opened for 6

7 residential and nonresidential uses, whether by deed, meets and bounds description, devise, intestacy, lease, map, plat, or other recoded instrument. The following kinds of division of existing parcels of land are exempted from this ordinance: (1) A tract, which is at least twenty (20) acres in size; (2) A division of land for the sale or exchange of tracts to correct errors in an existing legal description, provided that no additional building sites other than for accessory buildings are created by the division; (3) A division ofland for the acquisition of street right-of-way or easement; ( 4) A division of land for the sale or exchange of tracts between adjoining land owners, provided that no additional building sites other than for accessory buildings are created by the division; (5) A division of land into cemetery plots for the purpose of burial of corpses; and (6) A division of land to be subdivided for agricultural use only, provided that no additional building sites are created by this division. (7) A division of land by Divisional Lot Split, subject to recording in the Hendricks County Recorder['s] office. (F ABA Exhibit 56.) 19. The Town contends that the Annexation Area is "needed and can be used" for the extension of the Ronald Reagan Parkway, for future planning purposes, and for road improvements on the western portion of the Annexation Area. (See Testimony of Jonathan Blake.) 20. The Comprehensive Plan states that the Town's growih strategy can be characterized by three types or locations of development: 1) Infill, 2) Primary Growth and 3) Secondary Growth Area. (See Exhibit 0, pg. 85). The Comprehensive Plan states that annexation is only necessary for the Infill and Primary Growth Area and not the Secondary Growth Area. (See Exhibit 0, pgs ). A map on page 87 of the Comprehensive Plan demonstrates the areas of Infill in darker blue, the areas of Primary Growth in light blue, and the areas of Secondary Growth in green. (See Exhibit 0). A majority ofthe Annexation Area is Secondary Growth. The Comprehensive Plan indicates that the 7

8 Secondary Growth Area consists of the area located within Brown and Lincoln Townships, and that much of the Secondary Growth Area comprises active agriculture fields and the community has expressed difficulties in envisioning long-term development in this area and that it should be encouraged only after the Infill and Primary Growth Areas are substantially developed that the Secondary Growth Areas would be looked at as this will discourage leap-frog development. (See Exhibit 0, pg. 88). 21. Mr. Ayers explained the Comprehensive Plan was created with public involvement and creates a vision or goal for the Town in the next 20 to 30 years. (See Exhibit 0). 22. The Ronald Reagan Parkway was first conceived in the early 1980s as an alternative to Raceway Road and S.R. 267, and will connect Interstate 70 in Hendricks County with Interstate 65 in Boone County. (See Testimony of John Ayers, Testimony of Todd Barker.) 23. Construction on the Ronald Reagan Parkway began in 1996 and has continued in phases since that time based on available funding. (See Testimony of John Ayers, Testimony of Todd Barker.) 24. While the Ronald Reagan Parkway is currently complete or under construction from Arneriplex Parkway at Interstate 70 by the Indianapolis International Airport, through Plainfield and A von to County Road 300 N in Brownsburg, including an interchange with Interstate 74 in Brownsburg, at present, the planning for Ronald Reagan Parkway through the Annexation Area only includes Hendricks County and Boone County, and does not include Brownsburg. (See Testimony of John Ayers, Testimony of Todd Barker.) 8

9 25. The Town will be entitled to participate in the planning of the future section of the Ronald Reagan Parkway through the Annexation Area if the Annexation becomes effective. (See Testimony of John Ayers.) 26. However, Mr. Ayers was clear that regardless of whether this Atmexation proceeds, the Ronald Reagan Parkway will be built. 27. Furthermore, while it is hypothesized that the timing for the extension of the Ronald Reagan Parkway may be within the next five to fifteen years, the timing of construction is not precisely known. (See Testimony of Todd Barker.) 28. The Town also contends that the Annexation Area is needed and can be used for future planning purposes, such as development associated with schools in the Annexation Area and residential development. (Testimony of Jonathan Blake; Testimony of Todd Barker.) 29. However, the testimony ofdr. Snapp, Superintendent of Brownsburg Community School Corporation, indicated that the school district currently has no plans with regards to development of schools within the Annexation Area of the 111 acres which the school owns. (Testimony of Dr. Snapp.) 30. Based on the location of existing and anticipated schools within and adjacent to the Annexation Area, the Town merely anticipates increased residential growth resulting from the new schools. (See Testimony of Todd Barker.) 31. Additionally, there was testimony regarding the capability of land in the Annexation Area to be used for residential purposes. Specifically, there was testimony that over the past 5-6 years, two developers wanted to develop property within the Annexation Area. However, in both cases, the Town of Brownsburg Zoning Board disapproved ofthe 9

10 developments going in; one of the issues raised was that the soil was not conducive for draining. (See Testimony of Don (Stan) Gmming.) 32. The Town also addressed improvements to the west side of the Annexation Area. (See Testimony of Jonathan Blake.) 33. The "improvements on the west side" refers to construction ofthe bridge over I-74. However, this project is "targeted for 2026." (Testimony of Todd Barker.) As this time frame is at least ten years away - assuming the targeted date is met - the Court finds that this time frame does not indicate that the Annexation Area can be used in the reasonably near future. 34. The need for an additional western crossing of Interstate 74 was demonstrated by the testimony of multiple witnesses, both for Brownsburg and Remonstrators, regarding the traffic congestion now existing at the intersection of Interstate 74 and State Road 267 in Brownsburg, which now serves as the primary North/South thoroughfare through Brownsburg and the Annexation Area. 35. Increased commercial development is also merely anticipated in western portion of the Annexation Area. (See Exhibit 0; Testimony of Todd Barker.) 36. The many Remonstrators who testified informed that Court that the County was providing adequate services and that the only reason that the Town wanted to annex their land was for the tax revenues. CONCLUSIONS OF LAW 37. All findings of fact are incorporated herein by reference as conclusions oflaw, and all conclusions of law are incorporated herein by reference as findings of fact, so the 10

11 misplacement of a finding in the conclusions section and vice versa shall not constitute an en or. A. Standard and Procedure for Review 38. The annexation process is set out entirely by statute and the courts only role in review is to ensure that all ofthe requirements of the statute have been satisfied. Town of Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016). 39. While the burden of pleading is on the remonstrator, the municipality or town has the burden of proof to demonstrate its compliance with the statute. Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1240 (Ind. 1997). 40. "The [C]ourt sits without a jury and enters judgment on the question of annexation after receiving evidence and hearing argument from both parties." ld. 41. This Court's "scope of judicial review of annexation and other legislative measures is limited to that provided by the statute enabling such review." Town of Whitestown v. Rural Perry Township Landowners, 40 N.E.3d 916,926 (Ind. Ct. App. 2015). 42. "Annexation is essentially a legislative process, and courts should not micromanage it." Bradley v. City of New Castle, 764 N.E.2d 212, 213 (Ind. 2002). 43. A proposed annexation shall be ordered to take place if an annexing municipality has met the requirements of either subsections (b) or (c), and subsection (d) ofind. Code Ind. Code (a). B. Statutory Requirements 11

12 44. Indiana Code establishes the standard by which a court shall order that a proposed annexation take place. (a) Except as provided in subsections (e) and (g), at the hearing under section 12 of this chapter, the court shall order a proposed annexation to take place if the following requirements are met: (1) The requirements of either subsection (b) or (c). (2) The requirements of subsection (d). (b) The requirements of this subsection are met if the evidence establishes the following: (1) That the territory sought to be annexed is contiguous to the municipality. (2) One (1) ofthe following: (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. (c) The requirements of this subsection are met if the evidence establishes the following: (1) That the territory sought to be annexed is contiguous to the municipality as required by section 1.5 of this chapter, except that at least one-fourth C/4), instead of one-eighth Cis), of the aggregate external boundaries of the territory sought to be annexed must coincide with the boundaries ofthe municipality. (2) That the territory sought to be annexed is needed and can be used by the municipality for its development in the reasonably near future. (d) The requirements of this subsection are met if the evidence establishes that the municipality has developed and adopted a written fiscal plan and has established a definite policy, by resolution of the legislative body as set forth in section 3.1 of this chapter. The fiscal plan must show the following: ( 1) The cost estimates of planned services to be furnished to the territory to be annexed. The plan must present itemized estimated costs for each municipal department or agency. (2) The method or methods of financing the planned services. The plan must explain how specific and detailed expenses will be funded and must indicate the taxes, grants, and other funding to be used. (3) The plan for the organization and extension of services. The plan must detail the specific services that will be provided and the dates the services will begin. ( 4) That planned services of a noncapital nature, including police protection, fire protection, street and road maintenance, and other noncapital services nonnally provided within the corporate boundaries, will be provided to the annexed territory within one (1) year after the effective date of annexation and that they will be provided in a manner 12

13 equivalent in standard and scope to those noncapital services provided to areas within the corporate boundaries regardless of similar topography, patterns of land use, and population density. (5) That services of a capital improvement nature, including street construction, street lighting, sewer facilities, water facilities, and stormwater drainage facilities, will be provided to the annexed territory within three (3) years after the effective date of the annexation in the same manner as those services are provided to areas within the corporate boundaries, regardless of similar topography, patterns of land use, and population density, and in a manner consistent with federal, state, and local laws, procedures, and planning criteria. Ind. Code (2012). 45. Even if the annexing municipality meets the requirements ofindiana Code (a), this Court is required to order that a proposed annexation not take place if the conditions provided in Indiana Code (e) exist Subsection (e) provides: At the hearing under section 12 ofthis chapter, the court shall do the following: (1) Consider evidence of the conditions listed in subdivision (2). (2) Order a proposed annexation not to take place if the court finds that all of the conditions set forth in clauses (A) through (D) and, if applicable, clause (E) exist in the territory proposed to be annexed: (A) The following services are adequately furnished by a provider other than the municipality seeking the annexation: (i) Police and fire protection. (ii) Street and road maintenance. (B) The annexation will have a significant financial impact on the residents or owners of land. (C) The annexation is not in the best interests of the owners ofland in the territory proposed to be annexed as set forth in subsection (f) (D) One (1) ofthe following opposes the annexation: (i) At least sixty-five (65%) of the owners ofland in the territory proposed to be annexed (ii) The owners of more than seventy-five percent (75%) in assessed valuation of the land in the territory proposed to be annexed. 1 The Court only heard evidence regarding Indiana Code (a)-(d) on the basis that if the Town failed to meet its burden under Indiana Code (b) or (c) and (d), there would be no reason to move to subsection (e). The Court infonned counsel that if the Court found that Town had met its burden under Indiana Code JJ(b) or (c) and (d), we would reconvene to hear evidence related to subsection (e). 13

14 Evidence of opposition may be expressed by any owner of land in the territory proposed to be annexed. (E) This clause applies only to an annexation in which eighty percent (80%) of the boundary of the territory proposed to be annexed is contiguous to the municipality and the territory consists of not more than one hundred (1 00) parcels. At least seventy-five percent of the owners of land in the territory proposed to be annexed oppose the annexation as determined under section 11 (b) of this chapter. Ind. Code (e) (2012). C. Contiguity Requirement 47. Both subsections (b) and (c) impose a contiguity requirement. See I.C (2012). 48. Contiguity exists where the "aggregate external boundaries of a territory coincide with the boundaries ofthe annexing municipality." I.C (a) (2012). 49. Indiana imposes a minimum requirement that at least one-eighth e/s) of a territory's aggregate external boundaries correspond with an annexing municipality. In subsection (c), this standard is increased to (1!4). I.C B(b)-(c) (2012). 50. The "statutory definition obviates any judicial interpretation of the term 'contiguous."' In Re Remonstrance Appealing Ordinance Nos , , , , and , of Town of Lizton, 769 N.E.2d 622, 632 (Ind. Ct. App. 2002) (citing Delph v. Town Council of Fishers, 596 N.E.2d 294, 297 (Ind. Ct. App. 1992)). 51. Indiana Code l.S(a) (2012) states: For purposes of this chapter, territory sought to be annexed may be considered "contiguous" only if at least one-eighth e/s) ofthe aggregated 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 that connects the annexing municipality to the territory is not considered a part of the boundaries of either the municipality or the territory. 52. This Court begins by noting the conflicting Court of Appeals precedent. 14

15 53. Town ofdyer v. Town of St. John involved an ordinance that was meant to annex three separate parcels of land. 919 N.E.2d 1196, 1197 (Ind. Ct. App ). Each of the parcels were contiguous to the Town of Dyer's existing boundaries, but none of the parcels were contiguous to each other. Id After careful consideration, the court held that Indiana's annexation statute requires that "an annexation ordinance apply only to solid, unbroken areas of land." I d. at The court, adopting the language of an Illinois case stated, "The purpose of the contiguity requirement is to allow the natural and gradual extension of municipal boundaries to areas that adjoin one another in a reasonably substantial physical sense." Id. at The court concluded that the ordinance was invalid and void because it attempted to annex multiple, disconnected parcels of land in a single proceeding. 54. In re Remonstrance Appealing Ordinance Nos , , , , ad of the Town of Lizton involved five annexation ordinances annexing separate parcels of land. 769 N.E.2d 622,625 (Ind. Ct. App. 2002). Parcel One was contiguous to the Town's borders. Id. The other four parcels were not contiguous to the Town's borders, but were contiguous to Parcel One. I d. One of the issues the court addressed on appeal was "whether a municipality may meet the contiguity requirement of IC by serially adopting ordinances annexing parcels that are contiguous to one another when only the first is contiguous to the municipality." Id. at 626. The Court of Appeals, restating the holding from several other cases held that not all tracts of land to be annexed must be contiguous to the town or city annexing them so long as one of them is contiguous and the rest are contiguous to each other.jd. at 632. The annexation of Parcels 15

16 Two through Five failed in this case, however, because the attempted annexing of these parcels took place before the annexation of Parcel One was complete.id. at Here, Jonathan Blake, the Town's witness, testified that the Annexation Area was 52% contiguous with the Town's boundaries. (Testimony of Jonathan Blake). 56. F ABA, on the other hand, argued that the Annexation Area failed to meet the contiguity requirement as the Annexation Area included a three parcel "land bridge" connecting the two large areas to be annexed and because there are large unincorporated areas of land within the boundaries of the Annexation Area. (Exhibit 61.) 57. While the facts in Town of Dyer and In re Town of Lizton are distinguishable from the facts of this case, following the holding of Town of Dyer would result in a finding that the Town has failed to meet the contiguity requirement as the large unincorporated areas within the Annexation Area cause the Annexation Area to not be a solid, unbroken area of land. Following the holding of In re Town of Lizton, however, would result in a finding that the Town meets the contiguity requirement as not all tracts of land to be annexed must be contiguous with the Town and 52% of the Annexation Area is contiguous with the Town's boundaries, which is greater than the 1 /s and 1;4 contiguity required by subsection (b) and (c), respectively. 58. The Court does have concerns about why the "land bridge" exists and no evidence was presented by the town as to why this was done, which would have assisted the Court in detem1ining if the contiguity requirement has been satisfied. 59. Because this Court finds that deficiencies exist with regards to the "sixty percent subdivided" requirement of subsection (b) as well as the "is needed and can be used... in the reasonably near future" requirement of subsection (c), this Court does not rule on 16

17 the contiguity requirement, but rather proceeds to the other requirements of subsection (b) and (c). D. Meeting the "Urban Character" Requirement of Indiana Code B(b) 60. "The 'urban character' provisions... 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 tettitory sought to be annexed is at least three (3) persons per acre; (B) Sixty percent (60%) of the tettitory is subdivided; (C) The tettitory is zoned for commercial, business, or industrial uses." Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1240 (Ind. 1997) (citing Ind. Code Ann (b) (West Supp. 1997)). 61. The Town stipulated to the fact that it could not meet the resident population and zoning requirements. (Bench Trial August 16, 2016; Respondents' Proposed Findings of Fact, Conclusions of Law and Order of the Court, pg. 2,-r 66). 62. Accordingly, the Town's ability to satisfy subsection (b) lies with its ability to demonstrate that at least 60% of the territory is subdivided. 63. "The annexation statute does not contain a definition of 'subdivided.'" 2 Rogers, 688 N.E.2d at Rather, as the Rogers court stated, a trial court may look in many directions to receive greater definition for that term. Id at "When the legislature has not defined a word, [the Court] give[s] the word it common and ordinary meaning. In order to determine the plain and ordinary meaning of words, 2 The Court would like to note that it would be helpful for the Court's judicial review for determining a municipality's compliance with the Annexation statute if"subdivision" and "reasonably near future" were defined. This would not only make application of a municipality's ordinance to the statute more precise and clear-cut, it would also promote uniformity in judicial decisions, and would assist counsel in knowing the exact criteria necessary to indicate that the Annexation Area is sixty percent subdivided, rather than having to explore academic exercises of ways to demonstrate that the Annexation Area is sixty percent subdivided. 17

18 courts may properly consult English language dictionaries." Town of Whitestown v. Rural Perry Township Landowners, 40 N.E.3d 916, 921 (Ind. Ct. App. 2015). 66. "Subdivide" is defined as "[t]o divide a part into smaller parts; to separate into smaller divisions." Subdivide, BLACK'S LAW DICTIONARY (6th ed. 1990). 67. "Subdivision" is defined as "[ d]ivision into smaller parts of the same thing or subject matter. The division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other division ofland for sale or development." Subdivision, BLACK's LAW DICTIONARY (6th ed. 1990). 68. Based on the plain and ordinary meaning of subdivide, the Town could meet the "sixty percent subdivided" requirement if the area of the subdivisions currently within the Annexation Area is sixty percent of the Annexation Area. 69. The Court first takes notice ofthe list of recorded subdivisions within the Annexation Area provided by Hendricks County Cartographer, Lewis D. Kirts. The list details the minor plats as well as the subdivisions by name. The list demonstrates that the actual acreage of the thirty-six subdivisions and nineteen minor plats constitutes 17.54% of the Annexation Area. (See F ABA Exhibit 9A.) This is well below the sixty percent required by Indiana Code B(b) (2012). 70. Looking at the legislative history of annexation statutes also provides some insight as to the meaning of "subdivision." 71. As stated in Rogers: The earliest annexation statute was adopted in It provided practically automatic annexation of improved land whenever any adjacent out-lot was platted into new building lots and then recorded. The acts of building and recording building lots were viewed as constructive consent to annexation. In this century, the law permitted annexation of subdivided land "whether platted or not." By 1935, the reference to platting was removed altogether. In 1955, the legislature chose to 18

19 use the phrase "The area is urban in character, being an economic and social part of the annexing city." The current method of proving urban character were adopted in 1969: (1) 60% subdivided, (2) 3 persons per acre, or (3) zoned for commercial, business, or industrial uses." ld. at 1241, 1241 n While it is true, as the Town's witness Jonathan Blake stated, that the subdivision plat has not been the only way property has been divided over the years, the legislative history indicates a requirement that annexation of improved land take place. The legislative history progressed from "improved land" in 1824, to "urban in character" in 1955, to the residential, subdivision, and zoning requirements oftoday. All of these descriptors indicate a requirement that the land to be annexed be improved or developed, and with 76.88% of the Annexation Area being agricultural, this Court finds that the Town cannot meet this requirement. (F ABA Exhibit 8). 73. This conclusion is supported by the Indiana Court of Appeals' statement in Town of Whitestown v. Rural Perry Township Landowners, "Even with statutory amendments over time, 'the object of annexation has remained the same: "to permit annexation of adjacent urban territory.""' 40 N.E.3d 916, 922 (Ind. Ct. App. 2015). 74. A municipal's definition of subdivision is another possible "yardstick" a court may employ to determine whether the territory meets the subdivision requirement. Rogers, 688 N.E.2d at In Rogers, the City ofelkhart attempted to annex 439 acres of Cleveland Township, but several of the residents of the annexed territory remonstrated. ld. at The lower court upheld the annexation because it was "(1) needed for the city's development, (2) already 60% subdivided, and (3) zoned for business, commercial, or industrial uses." ld. On appeal, the City maintained that the Annexation Area was greater than sixty percent subdivided in accordance with the definition of"subdivision" contained in the Elkhart 19

20 County Subdivision Control Ordinance.!d. at The Remonstrators, however, argued that meeting the subdivision requirement of the annexation statute required more than land being subdivided in a way consistent with the definition given in the Elkhart County Subdivision Control Ordinance.!d. The Indiana Supreme Court held that Elkhart's definition for subdivisions was consistent with the statutory purpose of permitting annexation of adjacent urban territory and found that the land was sufficiently subdivided.!d. at Here, the Town's Subdivision Control Ordinance defines "subdivision" as: Any land, vacant or improved, which is divided or proposed to be divided into two (2) or more lots, parcels, sites, units, plots, or interests for the purpose of offer, sale, lease, or development either on the installment plan or upon any and all other plans, terms, and conditions, including re-subdivision. Subdivision includes the division or development of either residentially or non-residentially zoned land, whether by deed, metes and bounds description, or other recorded instrument. For the purposes of these regulations, the following are exempt as implying subdivision, and thereby exempted from the platting requirements of this chapter: ( 1) A division of land into two (2) or more tracts for an agricultural use. (2) An allocation of land in the settlement of an estate of a descendent or a court decree for the distribution of property. (3) The unwilling sale of land as a result of legal condemnations as defined and allowed in state law. ( 4) Widening of existing streets to conform to the Comprehensive Plan. (5) The acquisition of street rights-of-way by a public agency m conformance with the Comprehensive Plan. ( 6) The exchange of land for the purpose of straightening property boundary lines which does not result in the change of the present land usage. (7) A division of land for the sale or exchange of tracts between adjoining landowners, provided that no additional building sites other than for accessory buildings are created by the division. (FABA Exhibit 55.) 77. Here, the Town utilized six different methods for demonstrating that the Annexation Area is sixty percent subdivided. 20

21 78. The analysis performed by the Brownsburg Department of Development Services considered both acreage and number of parcels in determining whether the Annexation Area was subdivided, thus resulting in twelve different percentage calculations as it related to the amount of the Annexation Area that was subdivided. 79. Method 1 considered only formally recorded subdivision plats and associated rights-ofway and resulted in a finding that 957 tracts (66.74%) and 780 acres (17.5%) of the Annexation Area would be considered subdivided. (See Exhibit H; Testimony of Jonathan Blake.) 80. Method 2 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area, except those describing quarter-quarter sections, and resulted in a finding that 1,326 tracts (92.5%) and 3,440 acres (77.1 %) of the Annexation Area would be considered subdivided. (See Exhibit I; Testimony of Jonathan Blake.) 81. Method 3 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area, except those describing the parent tracts remaining after a portion of the property is divided off, and resulted in a finding that 1,322 tracts (92.2%) and 1,669 acres (37.4%) of the Annexation Area would be considered subdivided. (See Exhibit J; Testimony of Jonathan Blake.) 82. Method 4 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area, except those creating less than three (3) portions from a quarter-quarter section, and resulted in a finding that 1,327 tracts (92.5%) and 3,198 acres (71.7%) of the Annexation Area would be considered subdivided. (See Exhibit K; Testimony of Jonathan Blake.) 21

22 83. Method 5 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area broken into two (2) or more lots or other divisions ofland, and resulted in a finding that 1,350 tracts (94.1 %) and 3,804 acres (85.3%) of the Annexation Area would be considered subdivided. (See Exhibit L; Testimony of Jonathan Blake.) 84. Method 6 considered all recorded subdivision plats, associated rights-of-way, and metes and bounds legal descriptions of properties within the Annexation Area broken into two (2) or more lots or other divisions ofland, but excluding any tract ofland larger than twenty (20) acres, and resulted in a finding that 1,296 tracts (90.3%) and 1,810 acres (40.5%) of the Annexation Area would be considered subdivided. (See Exhibit M; Testimony of Jonathan Blake.) 85. The Town's witness, Jonathan Blake, stated on cross-examination that the agricultural portions of the Annexation Area were included in at least some of the calculations. There was no indication as to which methods, in particular, included the agricultural portions of the Annexation Area. However, given the fact that the Town's Subdivision Control Ordinance excludes division of land into two (2) or more tracts for an agricultural use from the definition of"subdivision" and that 76.88% of the Annexation Area is agricultural, ideally only 23.12% of the Annexation Area would be available to count toward the sixty percent subdivided requirement. 86. Similarly, the Hendricks County Subdivision Control Ordinance does not support a finding that the Annexation area is sixty percent subdivided. 87. Hendricks County Subdivision Control Ordinance defines "subdivision" as: The division of a parcel of land into two (2) or more lots, parcels, sites, units, plats, or interests for the purpose of offer, sale, lease, or development, either on the 22

23 installment plan or upon any and all other plans, terms, conditions, including resubdivision. Subdivision includes the division of development ofland opened for residential and nonresidential uses, whether by deed, meets and bounds description, devise, intestacy, lease, map, plat, or other recoded instrument. The following kinds of division of existing parcels of land are exempted from this ordinance: ( 1) A tract, which is at least twenty (20) acres in size; (2) A division of land for the sale or exchange of tracts to correct errors in an existing legal description, provided that no additional building sites other than for accessory buildings are created by the division; (3) A division ofland for the acquisition of street right-of-way or easement; ( 4) A division of land for the sale or exchange of tracts between adjoining land owners, provided that no additional building sites other than for accessory buildings are created by the division; (5) A division of land into cemetery plots for the purpose of burial of corpses; and ( 6) A division of land to be subdivided for agricultural use only, provided that no additional building sites are created by this division. (7) A division of land by Divisional Lot Split, subject to recording in the Hendricks County Recorder[' s] office. (FABA Exhibit 56.) 88. Similar to the Town's Subdivision Control Ordinance, Hendricks County Subdivision Control Ordinance also is consistent with the statutory purpose of limiting am1exation to adjacent urban territory as it excludes, among other things, tracts that are at least twenty acres in size and land subdivided for agricultural use only. 89. Similarly, the Hendricks County Subdivision Control Ordinance does not support a finding that the Amlexation area is sixty percent subdivided. Under this Ordinance, it excludes tracts which are at least twenty (20) acres in size and a division of land to be subdivided for agriculture use only. 90. Of the six methods used by the Brownsburg Department of Development Services to determine whether the Annexation Area is sixty percent subdivided, only Method 2 and Method 6 removed tracts of at least twenty acres in size. Method 6 explicitly stated this exemption. Method 2 exempted quarter-quarter sections, which equates to forty acres. 23

24 However, the Hendricks County Subdivision Control Ordinance also provided that the division of land for agricultural use only was also to be exempted :from the definition of "subdivision." Thus, for the same reasons provided with regards to the Town's Subdivision Control Ordinance, this Court finds that the Town is unable to satisfy the "sixty percent subdivided" requirement. 91. When examining the various methods by which the Court may detetmine if the Annexation Territory is sixty percent subdivided, this Court finds that the testimony most credible and accurate is Mr. Kirts. His testimony demonstrates that the Annexation Territory is 17.54% subdivided. After examination of his testimony and after considering the legislative intent or purpose of this annexation statute being "to pe1mit annexation of adjacent urban territory", this Court finds that the Annexation Area is not sixty percent subdivided. Furthermore, when closely examining the Annexation Area, it is clear that the portion of this area to the West of the Town without including the portion of the area to the north and east of the Town may satisfy the sixty percent subdivided requirement but when the Court considers the entire Annexation Area, it simply does not satisfy this requirement for the above stated reasons. 92. Furthermore. this Court finds that in order to follow the legislative intent of the annexation statute, this Court should consider the total actual acreage of the Annexation Area including large tracts/parcels and the agricultural land. When doing so, this Court finds the Town has failed to comply with the requirement that the Annexation Area be sixty percent subdivided. E. Meeting the "Future Development" Requirements of Indiana Code (c) 24

25 93. "Relatively rural territory may also be annexed without meeting any of [the standards in subsection (b)] if it is "needed and can be used by the municipality for its development in the reasonably near future." Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1240 (Ind. 1997) (citing Ind. Code Ann (c)(2) (West Supp. 1997)). 94. Having concluded that the Town fails to meet its burden under Indiana Code (b), the only way in which annexation can proceed is if the Town meets its burden under subsection (c). 95. Like "subdivided," "reasonably near future" is not defined in the statute. 96. Case law is sparse regarding a specific time frame indicative of what constitutes "reasonably near future." However, Abell v. City of Seymour provides some insight. 97. In Abell, the City of Seymour sought to annex certain land. 275 N.E.2d 547, 548 (Ind. Ct. App ). Remonstrators timely filed their remonstrance and after a hearing, the trial court held that the area sought to be annexed was "needed for development... in the reasonably near future."!d. at 549. On appeal, the court affirmed the finding that the area was needed for development in the reasonably near future on the basis that there were "plans for constructing a new school in the area in three to five years and plans for the opening and closing of streets in the area."!d. at This case supports a finding that a time frame of a few years (ie. 3 to 5) would meet the "reasonably near future" requirement. 99. The determination that an annexation is appropriate, and that the scope of judicial review in such cases is circumscribed by the statutes. Town of Whitestown, 40 N.E.3d at 926. As a result, courts are to "afford legislative judgment considerable deference" and "avoid scrutinizing legislative processes." Id Regardless, an annexing municipality must bear 25

26 the burden of proof in establishing the validity of the annexation under Subsection (c). Id In addressing the requirements of Subsection ( c), Indiana Appellate Courts have largely focused on the question of the annexing municipality's purpose in initiating the annexation measure. Id. There is an established requirement that additional tax revenues not be the sole reason for the annexation. Id. When focusing on the scope of judicial review of an annexation is limited, the Indiana Supreme Court has made it clear that avoiding "a 'Dillonist' mindset is in the best interests of public policy in Indiana," because "it is far less burdensome on both the courts and the Legislature for the law to presume the existence oflocal authority to act absent some express prohibition." Id. Lastly, the Indiana Appellate Courts have held that "the purpose of the annexation statutes is not to impose requirements that harm or impede [a municipality's] future plans for urban management of the land, until the 'long-term inevitability' of annexation takes place." Id. Thus, in this case the statutory test, as interpreted by Indiana's Appellate Courts, is whether Brownsburg could use the Annexation Area for a purpose other than increased collection of property taxes in the reasonably near future.!d. at Here, the Town contends that the Annexation Area is needed and can be used for the extension of the Ronald Reagan Parkway, for future planning purposes, and for road improvements on the western portion of the Annexation Area. (See Testimony of Jonathan Blake.) However, the many Remonstrators testified that the purpose ofthis annexation was to increase tax revenues The Ronald Reagan Parkway was first conceived in the early 1980s as an alternative to Raceway Road and S.R. 267, and will connect Interstate 70 in Hendricks County with 26