IN THE INDIANA COURT OF APPEALS CASE NO. 32A PL-215 BRIEF OF APPELLANTS

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1 Filed: 5/26/2017 1:12:08 PM IN THE INDIANA COURT OF APPEALS CASE NO. 32A PL-215 TOWN OF BROWNSBURG, INDIANA et al, v. Appellants (Respondents below), FIGHT AGAINST BROWNSBURG ANNEXATION, et al, Appellees (Petitioners/Remonstrators below). ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Marion Superior Court Trial Court Case No. 32D PL-109 The Honorable Heather Welch, Special Judge Marion County Superior Court. BRIEF OF APPELLANTS Thomas F. Bedsole, # Maggie L. Smith, # FROST BROWN TODD LLC 201 North Illinois Street, Suite 1900 P.O. Box Indianapolis, IN (Fax) tbedsole@fbtlaw.com mlsmith@fbtlaw.com Attorneys for Appellants Town of Brownsburg Indiana, et al. 1

2 TABLE OF CONTENTS STATEMENT OF THE ISSUES... 5 STATEMENT OF THE CASE... 6 STATEMENT OF FACTS... 8 A. Section 13(c) needed and can be used requirement... 9 B. Section 13(b) and Section 13(c) s contiguity requirements C. Section 13(b) subdivision requirement D. Section 13(d) Fiscal Plan requirement E. Section 13 (e) requirements F. The trial court s decision SUMMARY OF THE ARGUMENT ARGUMENT I. The trial court did not adhere to the deferential review of annexation required by Indiana law and impermissibly substituted its judgment that annexation was not warranted II. The trial court s conclusion that Brownsburg failed to establish the subdivided and needed and can be used requirements of Section 13 is not supported by the law or the evidence A. Brownsburg established the Section 13(b) requirement that at least 60% of the annexed territory is subdivided B. Brownsburg established the Section 13(c) requirement that the annexed area is needed and can be used in the reasonably near future This requirement looks at advantages to the annexing municipality that might accrue from an annexation Brownsburg identified multiple advantages to annexation that would benefit the Town s long-term growth plans The trial court erred as a matter of law and fact in concluding Brownsburg failed to establish this requirement III. Brownsburg established the contiguity requirements of Section 13(b) and 13(c) CONCLUSION

3 Cases Statutes TABLE OF AUTHORITIES American Cold Storage NA v. City of Boonville, 42 N.E.3d 1027 (Ind.Ct.App. 2015)... 34, 40, 41, 49 Annexation Ordinance F v. City of Evansville, 955 N.E.2d 769 (Ind.Ct.App. 2011) Bradley v. City of New Castle, 764 N.E.2d 212 (Ind. 2002)... 32, 33, 34, 35, 36 Certain Westfield Southeast Area 1 Annexation Territory Landowners v. City of Westfield, 977 N.E.2d 394 (Ind.Ct.App. 2012) City of Aurora v. Bryant, 165 N.E.2d 141 (Ind. 1960) City of Fort Wayne v. Certain Southwest Annexation Area Landowners, 764 N.E.2d 221 (Ind. 2002) City of Hobart v. Chidester, 596 N.E.2d 1374 (Ind. 1992) Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798 (Ind.Ct.App. 2015)... 6 In re Annexation of Certain Territory to City of Muncie, IN, 914 N.E.2d 796 (Ind.Ct.App. 2009)... 34, 36 In re Remonstrance Appealing Ordinance Nos , , , , of the Town of Lizton, 769 N.E.2d 622 (Ind. Ct. App. 2002)... 51, 52 Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238 (Ind. 1997)... 33, 37 Town of Dyer v. Town of St. John, 919 N.E.2d 1196 (Ind.Ct.App. 2010)... 51, 52, 53 Town of Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195 (Ind. 2016) Town of Whitestown v. Rural Perry Tp. Landowners, 40 N.E.3d 916 (Ind.Ct.App. 2015) 5, 32, 35, 42, 43, 47, 48 IND. CODE (2012)... 15, 50 IND. CODE (2012)... 8, 9, 16, 17, 22, 23, 24, 25, 28, 36, 37, 42, 49, 50, 53, 54 IND.CODE , et seq IND.CODE , 43 IND.CODE Other Authorities Brownsburg Ordinance , 8 Brownsburg Ordinance

4 Brownsburg Ordinance Brownsburg Subdivision Control Ordinance Hendricks County Subdivision Control Ordinance

5 STATEMENT OF THE ISSUES A local government s decision to annex is subject to perhaps the most deferential standard of review for any type of proceeding reviewed by Indiana courts. The Indiana Supreme Court has declared that if the local legislature made a reasoned decision based on the statutory factors, then a trial court must order the annexation to occur even if the decision is imperfect or there was a better decision that could have been made, as the recourse for a bad annexation decision is through the ballot box, not the trial court. In this respect, the first two issues on appeal are: 1. Did the trial court s failure to adhere to this deferential review lead to analyzing the evidence in this case through an improper lens, which ultimately resulted in the trial court substituting its judgment for that of the local legislature? 2. Does the trial court s conclusion that Brownsburg failed to satisfy the Section 13(b) and Section 13(c) requirements directly conflict with this Court s holdings and analysis in American Cold Storage NA v. City of Boonville, 42 N.E.3d 1027 (Ind.Ct.App. 2015) and Town of Whitestown v. Rural Perry Tp. Landowners, 40 N.E.3d 916 (Ind.Ct.App. 2015)? The trial court made the specific finding of fact that, The Annexation Area is 52% contiguous to the Town s current corporate boundaries, but declined to make any legal conclusion as to contiguity based upon its resolution of the other Section 13(b) and (c) requirements. The last issue on appeal is: 3. If this Court reverses the trial court as to either its Section 13(b) or (c) conclusions, then given the finding that the Annexation Area is 52% contiguous to the Town s current corporate boundaries, should this Court declare that Brownsburg has established both the 12.5% contiguity requirement in Section 13(b), and the 25% contiguity requirement in Section 13(c)? 5

6 STATEMENT OF THE CASE On July 11, 2013, the Town of Brownsburg ( Brownsburg ) adopted Ordinance (the Annexation Ordinance ), annexing approximately 4,462 acres (the Annexation Area ) north of Brownsburg s current corporate boundaries. (Tr.Ex.S.) In response, a Political Action Committee created to oppose the annexation, Fight Against Brownsburg Annexation, and several named property owners in the Annexation Area (collectively, Remonstrators ) filed a Remonstrance and Petition for Declaratory Judgment 1 and Damages on October 7, (Appellants Appendix ( App. ) Vol.II,p to Vol.IV,p.211.) On October 28, 2013, Brownsburg moved to dismiss the remonstrance for lack of subject matter jurisdiction under Trial Rule 12(B)(1) and failure to state a claim upon which relief can be granted under Trial Rule 12(B)(6). (App.Vol.II,p.6.) The trial court dismissed the remonstrance petition for lack of subject matter jurisdiction, which the Court of Appeals reversed in an interlocutory appeal. See Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798 (Ind.Ct.App. 2015). On remand, Brownsburg sought partial summary judgment on June 1, (App.Vol.IV,p to Vol.V,p.1-28.) Remonstrators opposed the motion on June 25, 2016, Vol.V,p ), and filed a Motion for Findings Conclusions, T.R. 52. (App.Vol.V,p.136.) On July 7, 2016, the Town filed a Motion to Strike Certain Evidence Designated in Opposition to Motion for Partial Summary Judgment. (Vol.V,p ) Remonstrators responded, (App.Vol.V,p ), and on August 12, 2016, the trial court issued an Order Granting, In Part; and Denying, In Part, Brownsburg s Motion to Strike. (App.Vol.V,p ) Also on August 11, 2016, the trial court granted Brownsburg s Motion for Partial 1 On July 11, 2016, the trial court granted Brownsburg s Motion to Dismiss the separate Declaratory Judgment action. (App.Vol.II,p.22.) This appeal does not address this dismissal. 6

7 Summary Judgment in part, holding, Based on the undisputed evidence, this Court finds that because of the Town s extensive control and operation of the Brownsburg Fire Territory, as well as the Town s statutory designation of the Provider Unit for fire protection services that it is the Provider Unit as a matter of law. (App.Vol.V,p.178.) On this undisputed record, [Remonstrator] has failed to establish all the conditions listed in I.C (e)(2). Thus, the Town is entitled to summary judgment on this issue. (Id.) On August 16, 17, and 18, 2016, the trial court held a bench trial. On November 16, 2016, the trial court entered its Findings of Fact, Conclusions of Law, and Order on Petitioners Petition for Remonstrance. (App.Vol.V,p to Vol.VI,p.17.) On December 13, 2016, Brownsburg filed a Motion to Correct Error, asking the trial court to make findings of fact and conclusions of law regarding the requirements of I.C (d) pertaining to the Town s Fiscal Plan. (App.Vol.VI,p ) On January 24, 2017, the trial court granted Brownsburg s Motion to Correct Error and issued Amended Findings of Fact, Conclusions of Law, and Order on Petitioners Petition for Remonstrance, holding Brownsburg had not established the statutory requirements and, therefore, the annexation may not proceed. (App.Vol.II,p ) The trial court entered final judgment in favor of Remonstrators and against Brownsburg. (App.Vol.II,p ) This appeal thereafter timely ensued. 7

8 STATEMENT OF FACTS On July 11, 2013, the Town of Brownsburg ( Brownsburg ) adopted Ordinance (the Annexation Ordinance ), annexing approximately 4,462 acres (the Annexation Area ) north of Brownsburg s current corporate boundaries. (Tr.Ex.S.) In response, a Political Action Committee created to oppose the annexation, Fight Against Brownsburg Annexation, and several named property owners in the Annexation Area (collectively, Remonstrators ) filed a Remonstrance and Petition for Declaratory Judgment and Damages on October 7, (App.Vol.II,p to Vol.IV,p.211.) Indiana Code section ( Section 13 ) sets out the requirements for remonstrances and mandates a two-step evidentiary process. In the first step, Brownsburg has the burden to establish: (A) and (B) Either the Section 13(b) 2 contiguity and subdivision requirements or the Section 13(c) 3 contiguity and needed and can be used requirements; The Section 13(d) requirements that Brownsburg has developed and adopted a written fiscal plan and has established a definite policy. IND. CODE (a) (2012) ( Except as provided in subsections (e) 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). ). 2 As discussed in greater detail below, to meet its burden under Section 13(b), the Town was required to present evidence that (1) the territory sought to be annexed is contiguous to the municipality; and (2) Sixty percent (60%) of the territory is subdivided. IND. CODE (b)(1), (b)(2)(b) (2012). 3 To meet its burden under Section 13(c), the Town was required to present evidence that (1) the territory sought to be annexed is contiguous to the municipality, with at least onefourth (¼) of the aggregate external boundaries of the territory sought to be annexed [coinciding] with the boundaries of the municipality ; and the territory sought to be annexed is needed and can be used by the municipality for its development in the reasonably near future. IND. CODE (c)(1), (c)(2) (2012). 8

9 If Brownsburg establishes these requirements, the second step shifts the burden to Remonstrators to establish all of the requirements of Section 13(e) (set out below). IND. CODE (e)(2)(A-D) (2012). If Remonstrators cannot meet this burden, the court shall order a proposed annexation to take place. IND. CODE (a) (2012). A. Section 13(c) needed and can be used requirement. To meet its burden under Section 13(c), Brownsburg was required to present evidence that the territory sought to be annexed is needed and can be used by the municipality for its development in the reasonably near future. IND. CODE (c)(2) (2012). As support for this requirement, Brownsburg s expert presented Brownsburg s Comprehensive Plan which is a statutorily mandated plan adopted by local government to formally address future development. 4 (Tr.Ex.O.) Brownsburg is a growth community in Hendricks County, (Tr.Vol.II,p.145), whose population was projected to increase by 8.6% between 2012 and (Tr.Ex.O.) The population within surrounding Brown and Lincoln Townships was projected to increase by 10.4% over the same period. (Tr.Ex.O.) Although more than half of Brownsburg residents worked in Indianapolis in 2012, the gap between the number of jobs and homes within the Town has decreased and the character of 4 The establishment of a comprehensive plan is mandated by Indiana Code section , et seq. A comprehensive plan must contain at least the following elements: (1) A statement of objectives for the future development of the jurisdiction. (2) A statement of policy for the land use development of the jurisdiction. (3) A statement of policy for the development of public ways, public places, public lands, public structures, and public utilities. IND.CODE After the comprehensive plan is approved for a jurisdiction, each governmental entity within the territorial jurisdiction where the plan is in effect shall give consideration to the general policy and pattern of development set out in the comprehensive plan in the:(1) authorization, acceptance, or construction of water mains, sewers, connections, facilities, or utilities;(2) authorization, construction, alteration, or abandonment of public ways, public places, public lands, public structures, or public utilities; and (3) adoption, amendment, or repeal of zoning ordinances, including zone maps and PUD district ordinances, subdivision control ordinances, historic preservation ordinances, and other land use ordinances. IND.CODE (a). 9

10 Brownsburg has begun to shift from that of a bedroom community to a commercial destination and employment center. (Tr.Ex.O.) Chapter 3 of the Comprehensive Plan shares Brownsburg s vision for what the area will look like in (Tr.Ex.O.) To meet this vision, the Comprehensive Plan sets forth Brownsburg s long-range recommendations for the maintenance and enhancement of existing neighborhoods and commercial areas, and advance strategies for the sustainable development and growth of the Community. (Tr.Ex.O.) The Growth Areas Plan found at page 87 of the Comprehensive Plan shows that Brownsburg intends for future development to occur in three areas shown below: (1) a primary growth area; (2) a secondary growth area; and (3) infill (areas within the Town boundaries): (Tr.Vol.I,p.79-80; Tr.Ex.O.) 10

11 The Annexation Area (shaded in blue below) plays an immediate role in that growth plan: (Tr.Ex.A.) As one of Brownsburg s expert s testified, the largest portion of the Annexation Area falls within the primary growth area. (Tr.Vol.I,p.83.) A comparison of these two maps confirms this assessment. The map below created by counsel for purposes of illustration shows the boundaries of the Annexation Area added in red to the Growth Area Map (see also Tr.Ex.1C): The fact that a majority of the Annexation Area falls within the primary growth area reinforces the critical role that annexation plays in the long-term development of Brownsburg. 11

12 One of the reasons annexation plays such a critical role is because major transportation infrastructures have historically spurred growth and development in the surrounding areas. (Tr.Vol.I,p.90.) To that end, the Comprehensive Plan anticipates the continued extension of the Ronald Reagan Parkway 5 into and through the Annexation Area (shown by dotted red below), beyond its current end-point inside Brownsburg s limits, just north of I-74 at 56 th Street 6 : Current endpoint of Ronald Reagan Parkway 5 The Ronald Reagan Parkway will connect Interstate 70 in Hendricks County with Interstate 65 in Boone County. (Tr.Vol.I,p ) The Ronald Reagan Parkway is currently complete or under construction from Ameriplex Parkway at Interstate 70 by the Indianapolis International Airport, through Plainfield and Avon to County Road 300 N in Brownsburg, including an interchange with Interstate 74 in Brownsburg. (Id.) 6 A portion of the Ronald Reagan Parkway is already in Brownsburg, and the majority of the construction taking place right now is within Brownsburg s current corporate boundaries. (Tr.Vol.III,p.119.) Brownsburg has already funded substantial portions of the Ronald Reagan Parkway construction, including the bulk of the funding associated with its construction through Brownsburg. (Tr.Vol.III,p ) 12

13 (Tr.Ex.O; Tr.Vol.I,p ) Annexing this area now before the actual construction begins is considered critical to Brownsburg. 7 (Tr.Vol.I,p.88-90,113.) This is because Brownsburg expects the same type of increased commercial and industrial development that has already occurred in areas where the Ronald Reagan Parkway has been constructed to date. (Tr.Vol.I,p ) This development has included construction of a multi-modal freight terminal, a major warehouse/distribution facility, a regional hospital, churches, shopping centers, schools and residential development that did not exist prior to construction of the Ronald Reagan Parkway. (Tr.Vol.I,p ) Planning for this expansion through the Annexation Area is presently underway, but this planning only includes Hendricks County and Boone County and does not currently include Brownsburg (because the area has not yet been annexed). (Tr.Vol.III,p ) To ensure that that the anticipated expansion and development does not negatively impact traffic flow, land use, or property values within Brownsburg s corporate boundaries, Brownsburg deems it critical to be part of the long-term development planning going on now. (Tr.Vol.I,p.88,113; Tr.Vol.III,p.122.) If Brownsburg is not included during the planning and construction of anticipated development, there is a high likelihood that development in advance of the Ronald Reagan Parkway will not be part of a coordinated infrastructure plan, imposing significant future costs on Brownsburg to rebuild/realign/reconstruct that infrastructure when the area is ultimately annexed into Brownsburg and the Ronald Reagan Parkway is constructed. (Tr.Vol.I,p.90.) Brownsburg has been told the expansion of the Ronald Reagan Parkway is going to happen with or without its involvement although the Hendricks County representative 7 Based on anticipated federal funding cycles, construction for the extension of the Ronald Reagan Parkway through the Annexation Area is expected to begin within the next five to fifteen years which was described as near term given how long major projects like this take. (Tr.Vol.I,p ) As noted, planning for this expansion is going on now. (Tr.Vol.III,p ) 13

14 expressed the County s desire that Brownsburg be involved in the expansion. (Tr.Vol.III,p ) The only way this can happen and, thus, the only way to prevent the negative impact on traffic flow, land use, property values, and future costs is for Brownsburg to annex the area now so that it can have a seat at the planning table before it is too late. (Tr.Vol.I,p.88-90,113; Tr.Vol.III,p ) Separate from the Ronald Reagan Parkway expansion, Brownsburg also anticipates development of a bridge crossing of Interstate 74 in the western portion of the Annexation Area. (Tr.Vol.I,p ) The need for an additional western bridge crossing of Interstate 74 was undisputed based on the traffic congestion now existing at the intersection of Interstate 74 and State Road 267 in Brownsburg, which serves as the primary North/South thoroughfare through Brownsburg and the Annexation Area. (Tr.Vol.I,p ) And although the crossing is still in the planning stages and not scheduled for installation for another nine years, as with the testimony regarding the need to have Brownsburg involved in the early stages of planning for the Ronald Reagan Parkway, Brownsburg deems it critical to presently annex the area involved in this crossing of Interstate 74 so that Brownsburg can be part of the planning process at the outset. (Tr.Vol.I,p.94.) In addition to the need and plans for these two transportation infrastructures, annexation is supported by the fact that water and sewer/waste water services are currently provided to a significant number of properties in the Annexation Area, and these property owners must pay outside surcharges for these utilities. (Tr.Vol.I,p.81-82, ) Upon annexation, these residents will receive services on the same basis as those services are provided to current residents of Brownsburg without having to pay outside surcharges. (Id.) Another consideration supporting annexation is Brownsburg s need and intent to increase residential, commercial, and industrial development within the western portion of the 14

15 Annexation Area, just as is anticipated in the eastern portion next to the Ronald Reagan Parkway. (Tr.Vol.I,p.96-97; Tr.Ex.O.) Finally, annexation is supported by the fact that the Brownsburg Community School Corporation owns one hundred and eleven acres of property in the eastern portion of the Annexation Area adjacent to an existing, 8 recently constructed private Catholic school. (Tr.Vol.I,p.89; Tr.Vol.II,p.75.) Based on the location of existing schools within and adjacent to the Annexation Area, Brownsburg anticipates increased residential growth. (Id.) In addition, although the School Corporation has no present plans to develop future schools right now because it is in limbo financially, the expansion of the Ronald Reagan Parkway through the Annexation Area is expected to increase the financial resources of the School Corporation, (Tr.Vol.III.p.75-76), which likewise supports Brownsburg anticipated increased residential growth resulting from new schools. B. Section 13(b) and Section 13(c) s contiguity requirements. Both Section 13(b) and Section 13(c) have a contiguity requirement. For purposes of Section 13(b)(1), Section 1.5 provides, territory sought to be annexed may be considered contiguous only if at least one-eighth (⅛) [12.5%] of the aggregate external boundaries of the territory coincides with the boundaries of the annexing municipality. IND. CODE (a) (2012). Contiguity for purposes of Section 13(c)(1) is established if 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 (¼) [25%], instead of one-eighth (⅛) [12.5%], of the aggregate external 8 The testimony as to School development was presented by Jim Snapp, Superintendent of the School Corporation. (Tr.Vol.II,p ) Dr. Snapp, however, was not a disinterested witness, as he personally owns land in the Annexation Area and is one of the Remonstrators he made clear that he did not want the annexation to proceed. (Id.) 15

16 boundaries of the territory sought to be annexed must coincide with the boundaries of the municipality. IND. CODE (c)(1) (2012). Brownsburg presented evidence from its expert, the Senior Urban Planner for the Town of Brownsburg, establishing that the Annexation Area is approximately 4,462 acres in size and contains 1,434 distinct tracts of land and 1,193 unique taxing parcels. (Tr.Ex.S.) In Exhibit A, reproduced below, the brown shaded areas represents the current Town, and the blue shaded areas represent the area to be annexed. (Tr.Vol.I,p.32;Tr.Ex. A.) 9 The blue shaded Annexation Area consists of a single, solid block of land wherein each tract connects to at least one other tract within the Annexation Area. (Tr.Vol.I,p.32.) Mr. Blake testified that the contiguous areas on the Exhibit are anywhere the blue shaded area touches the brown shaded area. (Tr.Vol.I,p.32.) 9 As this Exhibit shows, the Annexation excluded four subdivisions that are contiguous to both the Annexation Area and the corporate boundaries of Brownsburg. 16

17 The external boundaries of the entire proposed annexation territory measured 160,000 linear feet, and the contiguous boundaries of the current corporate boundaries of Brownsburg measured 60,000 linear feet. (Tr.Vol.I,p.32.) Mr. Blake testified this resulted in 52% contiguity between the Annexation Area and the current corporate boundaries of Brownsburg. (Tr.Vol.I,p.32.) As seen in Exhibit C reproduced below, the corporate boundaries of the combined territory after the Annexation will look like this: (Tr.Vol.I,p.32; Tr.Ex. C.) C. Section 13(b) subdivision requirement. To meet its burden under Section 13(b), Brownsburg was required to present evidence that Sixty percent (60%) of the territory is subdivided. IND. CODE (b)(2)(b) (2012). In order to analyze the extent to which the Annexation Area was considered subdivided, Brownsburg s expert, Senior Urban/Town Planner Jonathan Blake who is a 17

18 certified planner through the American Institute of Certified Planners measured existing land divisions in the Annexation Area using six different methods. (Tr.Vol.I,p ) His analysis considered both the number of tracts/parcels and acreage in determining whether the Annexation Area was subdivided, resulting in twelve different percentage calculations of the relative division of the land in the Annexation Area. (Id.) In the first method, he considered only traditional recorded subdivision plats and associated rights-of-way and from these calculations, 957 tracts (66.74%) and 780 acres (17.5%) of the Annexation Area would be considered subdivided: (Tr.Vol.I,p.36-38; Tr.Ex.H.) The second method 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 from these calculations 1,326 tracts (92.5%) and 3,440 acres (77.1%) of the Annexation Area would be considered subdivided: 18

19 (Tr.Vol.I,p.38-41; Tr.Ex.I.) The third method accounted for 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 from these calculations 1,322 tracts (92.2%) and 1,669 acres (37.4%) of the Annexation Area would be considered subdivided: (Tr.Vol.I,p.42-43; Tr.Ex. J.) 19

20 The fourth method 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 portions from a quarter-quarter section), and from these calculations 1,327 tracts (92.5%) and 3,198 acres (71.7%) of the Annexation Area would be considered subdivided: (Tr.Vol.I,p.43-45; Tr.Ex. K.) The fifth method took into account all recorded subdivision plats, associated rights-ofway, and metes and bounds legal descriptions of properties within the Annexation Area broken into two (2) or more lots or other divisions of land, then analyzed all of the property boundaries that were divided out of the original quarter sections as if the Brownsburg Subdivision Control Ordinance had been in effect when they were divided, and from these calculations 1,350 tracts (94.1%) and 3,804 acres (85.3%) of the Annexation Area would be considered subdivided: 20

21 (Tr.Vol.I,p.45-47; Tr.Ex.L,55.) Finally, the sixth method considered all recorded subdivision plats, associated rights-ofway, and metes and bounds legal descriptions of properties within the Annexation Area broken into two (2) or more lots or other divisions of land, then analyzed all of the property boundaries that were divided out of the original quarter sections as if the Hendricks County Subdivision Control Ordinance had been in effect when they were divided, and from these calculations 1,296 tracts (90.3%) and 1,810 acres (40.5%) of the Annexation Area would be considered subdivided. (Tr.Vol.I,p.47-48; Tr.Ex.M,56,60.) 21

22 Remonstrators offered the mathematical calculations of a cartographer (a mapmaker who is not a certified planner) who simply used Brownsburg s Method #1 above, calculated only the acreage, and (as to acreage in this one method) reached the same calculation as did Brownsburg (that % of the Annexation Area was subdivided). (Tr.Vol.II,p.136.) D. Section 13(d) Fiscal Plan requirement. In addition to establishing the requirements of either Section 13(b) or 13(c), Brownsburg was required to establish that it has developed and adopted a written fiscal plan and has established a definite policy. IND. CODE (d) (2012). That 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 normally 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 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. 22

23 IND. CODE (d)(1-5) (2012). As support for this requirement, Brownsburg s expert tendered Brownsburg s fiscal plan relating to the Annexation Area, which was enacted on March 9, 2013 through Brownsburg Ordinance and later amended on July 11, 2013 through Brownsburg Ordinance ( The Fiscal Plan ). (Tr.Ex.U.) The Fiscal Plan states that the annexation was taken in accordance with Brownsburg s publicly considered and publicly approved 2008 Annexation Policies in compliance with IC (Tr.Ex.U.) Its policy narrative was developed by Wabash Scientific President Michael R. Shaver, an expert in fiscal planning for municipalities, and the information in the Fiscal Plan was assembled through many meetings and conversations with the leaders of each of Brownsburg s municipal service departments. (Tr.Vol.I,p ) The Fiscal Plan was prepared to ensure each department was capable of providing the services described in the Fiscal Plan with the resources provided to them. (Id.) It provides a detailed description of the capital (street construction, street lighting, sewer facilities, water facilities, and stormwater drainage facilities) and non-capital (police protection, fire protection, street and road maintenance, and other noncapital services normally provided within the corporate boundaries) municipal services to be provided to the Annexation Area and a detailed plan for the provision of those services to the Annexation Area. (Tr.Ex.U; Tr.Vol.I,p ,155.) Along with the description of services to be provided to the Annexation Area, the Fiscal Plan sets forth a credible plan for Brownsburg to provide the Annexation Area with all noncapital services to the Annexation Area within one year of the effective date of the annexation and all capital services within three years of the effective date of the annexation, on the same basis as those services are provided to current residents of Brownsburg. (Tr.Ex.U; 23

24 Tr.Vol.I,p ) The Fiscal Plan also provides itemized cost estimates of planned services to be furnished to the Annexation Area, broken down by each municipal department or agency. (Tr.Ex.U; Tr.Vol.I,p.157.) It describes how specific and detailed expenses will be funded, including taxes, grants and other funding to be used for financing the planned services. (Id.) The Fiscal Plan explains how planned services of a noncapital nature will be provided to the Annexation Area within one year after the effective date of the Annexation in a manner equivalent in standard and scope to those noncapital services provided to areas within Brownsburg regardless of similar topography, patterns of land use, and population density. (Tr.Ex.U; Tr.Vol.I,p ) Finally, the Fiscal Plan states that services of a capital improvement nature will be provided to the Annexation Area within three years after the effective date of the Annexation, in a manner equivalent to those services are provided to areas within Brownsburg 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. (Tr.Ex.U; Tr.Vol.I,p ) E. Section 13 (e) requirements. As noted above, even if Brownsburg established the above requirements, the proposed annexation could still be blocked if Remonstrators establish that each of the following four conditions exist in the territory proposed to be annexed: (A) (B) (C) The following services are adequately furnished by a provider other than the municipality seeking the annexation: (i) (ii) Police and fire protection. Street and road maintenance. The annexation will have a significant financial impact on the residents or owners of land. The annexation is not in the best interests of the owners of land in the territory proposed to be annexed as set forth in subsection (f). 24

25 (D) One (1) of the following opposes the annexation: (i) (ii) At least sixty-five percent (65%) of the owners of land in the territory proposed to be annexed. The owners of more than seventy-five percent (75%) in assessed valuation of the land in the territory proposed to be annexed. Evidence of opposition may be expressed by any owner of land in the territory proposed to be annexed. IND. CODE (e)(2)(a-d) (2012). If, however, Remonstrators failed to establish any one of these four conditions, Section 13(e) is inapplicable and cannot be used to block annexation. Id. ( [T]he court shall Order a proposed annexation not to take place if the court finds that all of the conditions set forth in clauses (A) through (D) exist in the territory proposed to be annexed. ). As part of summary judgment proceedings, Brownsburg argued Remonstrators could not meet 13(e) because Brownsburg currently provided fire protection service to the Annexation Area. (App.Vol.V,p ) Brownsburg designated evidence that fire services in the Annexation Area are provided by the Brownsburg Fire Territory pursuant to the statutory framework set forth in Ind. Code et seq. (App.Vol.IV.p ) Specifically, the Restated Interlocal Cooperation Agreement for the Brownsburg Fire Territory (the Interlocal Agreement ) governs the provision of fire services within the Annexation Area. (Id.) Three Participating Units entered into the Interlocal Agreement: Brown Township, Lincoln Township and the Town of Brownsburg, all of which are in Hendricks County, Indiana. (Id.) The territory receiving fire protection service pursuant to the Interlocal Agreement (the Territory ) includes all of the area within the Town of Brownsburg, Brown Township, and Lincoln Township. (App.Vol.IV.p.224.) The Interlocal Agreement designates Brownsburg as the Provider Unit for all purposes and sets forth various requirements. (App.Vol.IV.p

26 226.) In accordance with these requirements, the Brownsburg Fire Territory ratified the establishment of the Brownsburg Fire Territory Department (the Department ). (App.Vol.IV.p.226.) All members of the Department are employees of Brownsburg. (Id.) The number of positions in the Department and their respective salaries are determined by the Executive Board of the Brownsburg Fire Territory, but that determination must be approved by Brownsburg in its role as the Provider Unit. (Id.) Brownsburg, as Provider Unit, and the Department are designated as the enacting and enforcing authority for a uniform fire and building code, ambulance fee schedule, and fireworks and amusement permitting and inspection procedures throughout the Territory. (App.Vol.IV.p ) This authority must be in compliance with ordinances adopted by Brownsburg as the Provider Unit, with the same powers and authority as exercised by Brownsburg within its geographic boundaries. (Id.) The Brownsburg Fire Territory has an Executive Board, comprised of either the Executive or appointed representative of each Participating Unit. (App.Vol.IV.p.227.) The general administration of the Brownsburg Fire Territory is vested in the Executive Board by majority vote. (App.Vol.IV.p ) However, the Executive of the Provider Unit (Brownsburg) has veto power over the following decisions: Section 2.12(d) Removal of the Chief of the Department. Section 2.12(e) Acting on the budget, subject to approval by the Town. Section 2.12(f) Determination of the reimbursement charge paid to the Provider Unit for administration and dispatch services. Section 2.12(g) Determination of the pro-rata share of the cost of all insurance premiums. Section 2.12(h) Determination of the number of positions and salaries for Department personnel. Section 7.2 Approval, rejection or modification of the proposed budget. 26

27 Section 7.4 Section 7.5 Approval, modification or rejection of proposed expenditures from the Equipment Fund. Approval of an additional appropriation over and above the current budget. (App.Vol.IV.p.229, ) The Executive Board retains simple majority authority over: Section 2.12(j) Appointment of Counsel for the Territory. Section 2.12(k) Establishing rules and procedures governing the Department and its personnel. (App.Vol.IV.p.230.) The appointment of the Chief of the Department is the only action requiring unanimous consent of the Executive Board. (App.Vol.IV.p ) The Executive Board also has the authority to own and acquire property, enter into contracts, act as a purchasing agent, sue and invoke any legal or equitable remedies, accept gifts and donations, and such other ancillary powers as may be necessary to accomplish these purposes. (App.Vol.IV.p ) The budget for the Brownsburg Fire Territory is established annually by the Executive Board, but the Executive of the Provider Unit has veto power over the budget s approval, rejection, or modification. (App.Vol.IV.p.235.) Once approved, the Brownsburg Town Council, as the legislative body for Brownsburg, either approves or rejects the budget, and the Brownsburg Town Council can only act in the absence of an approved budget if it determines that an emergency exists. (Id.) Once the budget is approved by the Brownsburg Town Council, the budget as approved is included in Brownsburg s overall budget. (Id.) The Brownsburg Town Council then appropriates the funds contained in the Brownsburg Fire Territory budget and establishes a tax levy throughout the Territory to fund the budget. (Id.) The Brownsburg Town Council, acting on behalf of Brownsburg as the Provider Unit, must also approve, modify, or reject proposed expenditures from the Equipment Replacement Fund and must approve or reject any recommendation for additional appropriation or to incur 27

28 debt. (App.Vol.IV.p ) Finally, as the Provider Unit, Brownsburg performs dispatch, payroll, benefits and insurance administration services, for which it is paid $36,000 per year from the Brownsburg Fire Territory. (App.Vol.IV.p.237.) Because of this, Brownsburg argued the Remonstrators cannot establish under the plain terms of Ind. Code (e)(2)(a) that a provider other than Brownsburg adequately furnishes the Annexation Area with fire protection services because of Brownsburg s extensive control and operation of the Brownsburg Fire Territory, as well as Brownsburg s statutory designation as the provider of fire protection services in its role as the provider unit. (App.Vol.V.p.12.) Therefore, the Remonstrators cannot prevent Brownsburg s annexation by establishing the conditions of Ind. Code (e)(2), and Brownsburg is entitled to partial summary judgment on the conditions contained therein. (Id.) F. The trial court s decision. On August 11, 2016, the trial court granted Brownsburg s Motion for Partial Summary Judgment as to the Section 13(e) requirements, holding, Based on the undisputed evidence, this Court finds that because of the Town s extensive control and operation of the Brownsburg Fire Territory, as well as the Town s statutory designation of the Provider Unit for fire protection services that it is the Provider Unit as a matter of law. (App.Vol.V,p.178.) On this undisputed record, [Remonstrator] has failed to establish all the conditions listed in I.C (e)(2). Thus, the Town is entitled to summary judgment on this issue. (Id.) On August 16, 17, and 18, 2016, the trial court held a bench trial as to the remaining requirements and held that Brownsburg established the Section 13(d) fiscal plan requirement, but failed to establish the Section 13(b) subdivided requirement and the Section 13(c) needed and can be used by the municipality for its development in the reasonably near future requirement. (App.Vol.II,p ) 28

29 With regard to the contiguity requirements of Section 13 (b) and (c), the trial court made findings of fact. (App.Vol.II,p ) But the trial court ultimately declined to make any conclusions as to this requirement, holding, 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 the contiguity requirement. (App.Vol.II,p.49.) SUMMARY OF THE ARGUMENT Annexation cases in Indiana operate as their own special class of proceedings, and the deference afforded by the court to a legislative decision to annex is substantial. The question in annexation cases is whether the local legislature made a reasoned even if imperfect decision based on the statutory factors. It is not whether the trial court believes there was a better decision that could have been made; such substitution of a court s judgment for that of the local governing body implicates concerns regarding the constitutional separation of powers. This deferential review required the trial court to determine whether Brownsburg presented evidence supporting the statutory factors. If yes, the trial court was required to order the annexation take place. Because Brownsburg did present substantial evidence supporting each of the statutory requirements including the subdivided and needed and can be used requirements the trial court committed reversible error by not ordering that annexation take place. First, Brownsburg presented evidence that at least 60% of the Annexation Area was subdivided. The trial court, however, declared that Indiana law requires that: (1) only the actual acreage of the Annexation Area not the parcels/tracts be considered; and (2) Brownsburg could only consider the non-agricultural portion of the Annexation Area for purposes of the subdivided requirement. Based upon this recitation of law, the trial court held at least 60% of 29

30 the Annexation Area was not subdivided. This was reversible error. This Court s most recent evaluation of the subdivided requirement in American Cold Storage NA v. City of Boonville, 42 N.E.3d 1027 (Ind.Ct.App. 2015), establishes the trial court s declarations as to Indiana law are incorrect. The determination on subdivision can be based on parcels/tracts; there is nothing in Indiana law requiring that only the actual acreage of the Annexation Area be considered. Likewise, nothing in Indiana law provides that only non-agricultural portions of an Annexation Area may be considered. Only 38.5% of the Annexation Area in Boonville was nonagricultural, yet this Court unequivocally declared that over 60% of the Annexation Territory is subdivided for the purpose of Section 13(b). The trial court s conclusion that Brownsburg failed to satisfy the subdivided requirement is not supported by Indiana law and should be reversed. Second, Brownsburg presented many reasons why the annexed area is needed and can be used in the reasonably near future, as required by Section 13(c). These included the need to be part of the currently ongoing planning process now for the future construction of the Ronald Raegan Parkway and the I-74 bridge in order to prevent a detrimental impact on traffic flow, land use, and property values within Brownsburg s corporate boundaries, as well as the need and intent to increase residential, commercial, and industrial development within the Annexation Area to meet Brownsburg s continued growth projections. The trial court s conclusion that this evidence failed to establish the Section 13(c) requirements stands in direct conflict with this Court s decision in City of Boonville, which held evidence that Boonville has run out of room and needs the Annexation Territory to be able to grow and attract new business and industry, and that Boonville has plans for bringing new development to the Annexation Territory was sufficient even if there is no evidence of 30

31 ongoing, confirmed projects in the Annexation Territory. Id. at The trial court s contrary conclusion constitutes reversible error. Finally, the trial court made the specific finding of fact that, The Annexation Area is 52% contiguous to the Town s current corporate boundaries. However, the trial court ultimately declined to make any legal conclusion as to contiguity based upon its finding that Brownsburg failed to meet the other Section 13(b) and (c) requirements. This factual finding is well supported by the evidence. Accordingly, if this Court reverses the trial court as to either its Section 13(b) or Section (c) conclusion, this Court should declare that Brownsburg has established both the 12.5% contiguity requirement in Section 13(b), and the 25% contiguity requirement in Section 13(c). In summary, Brownsburg has met the requirements of Section 13(b), (c), and (d), and (as the trial court concluded) Remonstrators cannot establish the requirements of Section 13(e). Judgment should be entered in favor of Brownsburg, and the proposed annexation should be allowed to proceed. 31

32 ARGUMENT I. The trial court did not adhere to the deferential review of annexation required by Indiana law and impermissibly substituted its judgment that annexation was not warranted. The critical dispositive issue in this appeal revolves around the proper standard to be applied by a trial court when deciding an annexation issue. Brownsburg contends the trial court viewed the evidence in this case through an improper lens, and its resulting conclusions are impermissibly affected by this improper standard. Because property owners have no vested interest in the maintenance of municipal boundaries at any particular location Annexation is an essentially legislative function. Bradley v. City of New Castle, 764 N.E.2d 212, 215 (Ind. 2002) (citations omitted). The larger object of the annexation statute is, as it always has been, to permit annexation of adjacent urban territory. Therefore, a remonstrator s challenge to annexation is not a regular lawsuit, but rather a special proceeding the General Assembly may control. Id. In this respect, The statutory scheme that provides for municipal annexation of unincorporated township land has historically presumed the validity of an annexation ordinance. Town of Whitestown v. Rural Perry Tp. Landowners, 40 N.E.3d 916, 922 (Ind.Ct.App. 2015) Even with statutory amendments over time, the object of annexation has remained the same: to permit annexation of adjacent urban territory. Id. As set out below, in an unbroken line of decisions going back more than six decades, Indiana courts have made it clear that these principles mandate deference to the local government s legislative decisions with overreaching by the judiciary rising to the level of a 32

33 constitutional violation of separation of powers. 10 More than sixty years ago, the Indiana Supreme Court declared that the role of the trial court in an annexation merely establishes the fact that the conditions of the statute, necessary to overcome a remonstrance, have or have not been met, and if they have been met the statute then ex proprio vigore [of its own force] annexes the territory. City of Aurora v. Bryant, 165 N.E.2d 141, 145 (Ind. 1960). In performing such function, the court is not reestablishing and changing the boundaries of governmental units. The court is simply given the power to determine, in the event there is a remonstrance filed, whether certain conditions imposed by the statute are met. Id. Just last year, the Supreme Court reaffirmed this governing principle: The judgment of the court simply establishes the fact that the conditions of the statute necessary to overcome a remonstrance have or have not been met; and if they have met the statutory requirements then the trial court is bound to approve annexation of the affected territory. Town of Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016). Various iterations of this deferential standard have been found in the years in between, with all of the decisions showing unwavering commitment to afford[ing] legislative judgment considerable deference because the General Assembly has delegated part of its power to reestablish and change governmental unit boundaries to local legislatures. Bradley v. City of 10 See Bradley v. City of New Castle, 764 N.E.2d 212, 216 (Ind. 2002) ( It is wellestablished that we avoid scrutinizing legislative processes [T]his Court has held repeatedly that courts should not intermeddle with the internal functions of the Legislative branches of Government. ); Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1239 (Ind. 1997) ( Indeed, to the extent annexation statutes have seemed to require courts to make determinations of a non-judicial nature, courts have refused, finding themselves to be without the power to do so under the separation of powers clause of the Indiana Constitution, Art ); City of Hobart v. Chidester, 596 N.E.2d 1374, (Ind. 1992) ( The statutes invest exclusive authority to annex territory in the governing body of a municipality. to the extent annexation statutes have seemed to require courts to make determinations of a non-judicial nature, courts have refused, finding themselves to be without the power to do so under the separation of powers clause of the Indiana Constitution, Art. 3, 1. ). 33