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Justices' split reinstates COA annexation ruling

February 2, 2011

A split decision by the Indiana Supreme Court on an annexation battle between Greenwood and Bargersville means a lower appellate panel’s decision is reinstated and the city takes a win in the 29-month legal battle that has statewide implications.

Justices issued an order Monday in the case of City of Greenwood, Ind., et al. v. Town of Bargersville, Ind., No. 41A05-0912-CV-684, but with one of the five justices recusing himself, the remaining four couldn’t agree on which side should prevail. Justice Frank Sullivan recused himself from the case for reasons the court has not outlined, and that left a divide in the remaining jurists.

The order is dated Jan. 29, but attorneys in the case say they received it on Monday afternoon.

Chief Justice Randall T. Shepard and Justice Steven David would have affirmed the trial judge in favor of Bargersville, while Justices Brent Dickson and Robert Rucker would have reversed the ruling – as the Court of Appeals had done last year – and ruled in Greenwood’s favor. Those four justices heard arguments on Jan. 20.

With that split, Indiana Appellate Rule 58 dictates that the intermediate appellate court’s decision on July 15, 2010, is reinstated. In that ruling, the three-judge panel addressed for the first time whether the waiver of the right to object to, remonstrate against, or appeal an annexation constitutes “consent” to an annexation under Indiana Code Section 36-4-3-9.

The issue in this case was whether 51 percent of the landowners being annexed had consented when they signed a previous sewer-service agreement, which had given consent for the sewer service and waived objection to annexation, but didn’t consent to that land swap as required by law. Specifically, the land in question was 1,847 acres along State Road 135 in Johnson County that fell within three miles of the city limits, and the issue triggered statutory impact about what kind of consent was required.

At least 55 percent of the parcels were subject to sewer-service agreements, but the appellate judges found in the end that less than 51 percent of the landowners had consented to the annexation. Waiving the right to object to, remonstrate against, or appeal an annexation isn’t the same as consenting to an annexation under the statute, Judge Terry Crone wrote last year.

This decision ends this appeal and issue, and the city is now able to proceed with annexation attempts. The Court of Appeals noted in its ruling last summer that it in no way impacts the landowners’ statutory right to remonstrate against Greenwood’s proposed annexation on remand.

Indianapolis attorney Karl Mulvaney, a longtime appellate lawyer who represented Greenwood, said that he was pleased with the result but that it was a rare happening for it to culminate this way – few cases result in a split and reenactment of the lower appellate ruling. He had notified the city of the decision but wasn’t aware of what might happen next at the city level concerning annexation. City attorney Shawna Koons-Davis couldn’t be immediately reached today.
 

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