Presented by: Rose Scovel, AICP LSL Planning, Inc. Jamie Palmer, AICP Center for Urban Policy and the Environment

Presented by: Rose Scovel, AICP LSL Planning, Inc. Jamie Palmer, AICP Center for Urban Policy and the Environment

Current law Ordinance Odi Fiscal plans Process Notice and hearings Remonstrance Strategies Successes and failures Court cases and decisions Indiana General Assembly Questions

Forced? Involuntary? Municipal Determination? Voluntary? Super-Voluntary?

Territory contiguous to the municipality (IC 36-4-3-4) 3 4) At least 1/8 of the aggregate external boundary of the territory coincides with the boundaries of the annexing municipality (IC 36-4-3-1.5) A strip of land less than 150 feet wide which connects the annexing municipality to the territory is not considered part of the boundaries of the territory or municipality Territory that is not contiguous and is occupied by a municipally owned or operated airport or landing field

Can a municipality annex into adjacent townships? YES Can a municipality annex across county lines? IT DEPENDS Was part of the municipality in the other county on January 1, 1982? then yes Does the executive of the other county approve? then yes; if not, then no

Territory that is not contiguous and is occupied by a municipally owner or regulated sanitary landfill, golf course, or hospital A number of special legislative provisions for certain communities

A legislative body of a municipality may, by ordinance, annex any of the following (IC 36-4-3-4) AKA Involuntary, forced, municipal determination If the owners of land located outside but contiguous to a municipality want to have territory annexed to the municipality (IC (C36-4-3-5) 3 AKA Voluntary annexation Annexation in which owners of land outside but contiguous to a municipality file a petition signed by 100% of the landowners (IC 36-3-4-5.1) AKA Super-voluntary annexation

Contents (IC 36-4-3-3.5) Description of the boundaries of the territory to be annexed, including any public highways or ROW Approximate number of acres to be annexed Any special terms or conditions of the annexation Any property tax abatements adopted for the annexation area Territory must be assigned to at least one legislative district (IC 36-4-3-4(g))

Applicability Applies to ALL annexations except non-contiguous or those covered by special legislation Requirement Adopt by resolution Required before notice except for super-voluntary (5.1), before adoption of ordinance for 5.1

Contents (36-4-3-13(d)) Cost estimates of planned services Method of financing planned services Plan for organization and extension of services Planned services of a non-capital nature will be provided within 1 year Planned services of a capital nature will be provided d within 3 years

Draft fiscal plan Adopt fiscal plan by resolution First reading of ordinance Provide notice to affected property owners Hold public hearing Second reading and adoption of ordinance Publication of adopted ordinance Remonstrance period Your community may vary on readings and may require Plan Commission involvement

Public hearing not earlier than 60 days after ordinance introduction ti All interested parties must have the opportunity to testify Notice published 60 days before hearing (shorter for super-voluntary) Notice sent to property owners by certified mail 60 days before hearing (shorter for super-voluntary) Ordinance may be adopted 30-60 days after hearing

Contents of notice Legal description i Date, time, location, and subject of hearing Map showing current and proposed municipal boundaries Current zoning classifications of the area and any proposed zoning changes Detailed summary of fiscal plan Location to inspect the fiscal plan Statement that copy of fiscal plan can be obtained at no charge Name of representative who may be contacted

Filing Must be filed within 90 days of publication of the ordinance after adoption Must be signed by at least 65% of the owners of land in the annexed area or the owners of 75% of the assessed valuation in the annexation area Must state why the annexation should not take place No remonstrance available for super-voluntary annexation

Court orders annexation to take place IF Territory sought to be annexed is contiguous AND Population density is at least three persons per acre 60% of the area is subdivided Zoned for commercial, industrial, or business use OR Territory sought to be annexed is ¼ contiguous (rather than 1/8) AND is needed d and can be used by the municipality for its development in the reasonably near future AND the municipality adopted a fiscal plan meeting the requirements of IC 36-4-3-13

Court must find ALL of these conditions are met to invalidate the annexation: Police, fire, and road maintenance are adequately provided by a provider other than the municipality The annexation will have a significant fiscal impact on the residents or owners of land The annexation is not in the best interest of the land owners At least 65% of the land owners oppose the annexation (or owners of 75% of AV)

Burden of proof is on the municipality Services Financial burden Best interest

No annexation unless developer requests it Require annexation if developer wants municipal services (especially sewer) Accept petition i from property owners Municipal determination annexation of developed areas outside corporate boundaries Municipal determination annexation of undeveloped land ahead of growth

Small areas or large areas? Match sewer service area? Move in the direction of growth? Involve the property owners before process begins?

Begin with the end in mind Police and fire service quality, response time, equipment Non-municipal utility providers Financial burden on residents (will they even pay more under property tax caps)?

Both happen

Several small areas on the NW side of town Some development dating back to 1960s, 70s, and 80s Some areas currently being developed Residential, commercial, institutional All in sewer district ALL filed remonstrances, but later dropped Delaying effective date a concession made in several One small area on NE side of town Commercial and residential mix In sewer district Filed remonstrance, dropped in exchange for taking over a private road and repaving it

Large area on west side of town Primarily il residential i More than 2,000 housing units, some multi-family Primarily developed in the 1970s and 80s Originally didn t have sewers, sanitary district extended in 1990s to fix problems; waivers useless In sewer district now Needed to resolve a battle with a neighboring community over annexation areas Remonstrance filed and later dropped Decided it was cheaper to pay taxes than continue fight

Southwest Clay Township Compromise Delay effective date Tax abatement Road improvements now Plan Commission member now (actually earlier) Some property owners held out and proceeded through court Supreme Court held that fiscal plan was detailed enough Question about which group of opponents counts original, or after agreement and vote

Failure to act, move through the process Big box area on NW side of town Small area north of town (residential and church) Still hanging out in remonstrance process Small areas on NE side of town Small areas north of town (residential) Total failure? Two adjacent small neighborhoods on north side of town, residential In sewer district Fire protection became driving issue in remonstrance Judge ruled the annexation invalid; appeal filed; remonstrators currently not paying their attorney UPDATE: Court of Appeals support city, annexation is valid

Home Place Services Who provides? Who else can provide? Can the city afford to provide? Character Socio-economic o o c factors

Court of Appeals review of annexations is limited to ensuring that the municipality has not exceeded its authority and that the statutory conditions for annexation have been satisfied Chemical Waster Management of Indiana v. City of New Haven (2001) Annexation of territory by a municipality is not a taking of property Chidester v. City of Hobart (1994)

Power of annexation is fundamentally legislative and judicial role in annexation cases is limited to that provided by statute Chidester v. City of Hobart (1994) City s failure to assign annexed territories to councilmanic districts in the annexation ordinances warranted granting of remonstrance petitions and denial of annexations City of Muncie v. Lowe (1999)

A municipality s annexation ordinance adopted in the year preceding a federal decennial census may neither take effect nor become final until January 2 of the year the census is conducted Hancock County REMC v. City of Greenfield (2002) A trial court hearing a remonstrance is not an examiner conducting an audit of a challenged fiscal plan Bradley v. City of New Castle

City s fiscal plan for annexed area was not frozen as of the date of its adoption and, thus, the city could amend and supplement that plan at the remonstrance hearing Bradley v. City of New Castle (2002)

2007, Indiana Supreme Court Appealed from Hamilton Superior Court Issue was whether majority of landowners could agree to a settlement Superior Court held that group of landowners could not agree to settlement Carmel amended fiscal plan to reflect settlement terms NOAX held a referendum of landowners regarding settlement and majority supported Lower court ruled ordinance and fiscal plan could not be amended Carmel stated on appeal that the lower court improperly reviewed the fiscal plan Supreme Court ruled fiscal plan was sufficient After the referendum remonstrators did not have necessary signatures to require the annexation overturned.

2007, Indiana Court of Appeals Appealed from Hamilton Superior Court decision Home Place landowners prevailed in Superior Court Carmel appealed based on Superior Court inappropriately auditing fiscal plan Reversed the Superior Court decision Agreed with Carmel that Superior Court audited fiscal plan Carmel did meet its burden in showing how services would be financed Southwest Clay case was cited

2008, Indiana Supreme Court Appeal from Boone Superior Court, Transferred from Indiana Court of Appeals Court of Appeals held that the introduction of an annexation ordinance by Whitestown precluded the RDC from creating an overlapping EDA RDC had jurisdiction and the right to create an EDA until Whitestown COMPLETED its annexation; trial court decision was upheld

2008, Indiana Court of Appeals Signature question can counsel sign remonstrance in place of land owner; signatures filed later as a court exhibit Trial court dismissed because of lack of sufficient signatures (under statute) to sustain remonstrance Remonstrance was facially insufficient i If the statute disagrees with normal trial procedures, the statute takes precedence p, p

Hot topic the past few sessions

Emotional issue Perennial issue before legislature prior to 1997 Legislative i leadership request study from IACIR to put some of the issues to rest IACIR conducts study in 1997 and 1998

212 citizens and municipal officials over 5 forums across the state Categories of comments: Fairness of the process Procedural issues, particularly l communication i and notice Self-determination Provision of services Motivations to annex Adverse impacts Allocation of costs, revenues, and debt Administrative issues Public health, environmental, and QOL issues

Five general methods of annexation Legislative determination: annexation by state legislation Popular determination: annexation with approval of the annexed through petition or vote Municipal determination: annexation by unilateral action of municipality Judicial determination: court decides Quasi-judicial determination: independent board decides

Most states use a combination Most other states allow some kind of popular determination Indiana s annexation laws were and probably bl still are some of the most advantageous toward municipalities

Direct notice to property owners Establish a time period between public hearing and adoption Extend the time period for remonstrance Strengthen definition of urban character Stronger disclosure in property transactions of waivers of remonstrance Specify services that will be provided Stronger fiscal plans Clarify filing requirements

Significant changes adopted in 1999 100% voluntary option (2001) Changes to address the Indiana Supreme Court ruling that the special provisions that applied to St. Joseph County were unconstitutional Various additions to non-contiguous and limiting municipal taxation of ag land Donut hole legislation; town vs. city permission (2005)

Increased property taxes for annexed properties The fallacy of increased levy Tax caps Overlapping vs. mutually exclusive property tax units Relative levy revenue distributions Relative population revenue distributions (based on official census figures only) County motor vehicle excise surtax and county wheel tax (residence of vehicle owners and relative ratio of road and street mileage)

Use the power to annex respectfully and judiciously Voluntary (owner-initiated) iti t annexations are safest Open communication and honest education efforts are critical Avoid land grabs Fiscal plans are an important municipal tool, not just a pain Coordinate utility and annexation planning Important to pay special attention given changing fiscal conditions Remember, Indiana has one of the most favorable annexation policies for municipalities in the nation

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