`

COA: Remonstrators didn't request timely stay of annexation

October 6, 2011

The Indiana Court of Appeals upheld the dismissal of remonstrators’ challenge to annexation of land by the city of Evansville, finding the issue to be moot because the annexation has already been completed.

In In Re Petition in Opposition to Annexation Ordinance F-2008-15 v. The City of Evansville, No. 82A05-1102-PL-84, landowners challenged an adopted amended annexation ordinance by the city of Evansville that reduced the amount of territory contained in the original proposed annexation. Two months after the ordinance was published, the remonstrators sought declaratory relief.

The trial court dismissed the remonstrance and ruled in favor of the city on the declaratory judgment action, dismissed the remonstrators’ declaratory judgment action for lack of jurisdiction and entered final judgment for the city.

The annexation became effective when the clerk of the municipality complied with the filing requirements of Indiana Code 36-4-3-22(a); in this case, the annexation became effective Feb. 11, 2011. The remonstrators filed their notice of appeal on Feb. 18, 2011, but did not request a stay of the annexation before Feb. 11 or 18, but waited until April 4 to do so.

As a result, the Court of Appeals can’t grant the remonstrators any effective relief because they failed to request a stay or file a notice of appeal before the annexation became effective. The appellate court inferred based on previous cases that the Indiana Supreme Court recognized that challenges to a proposed annexation will become moot if the annexation becomes effective before a review of the matter can be completed, absent an injunction or stay on proceeding with the annexation pending appeal.

In order to preserve their challenge to the trial court’s order, the remonstrators should have requested a stay of the annexation following the Jan. 21, 2011, adverse ruling by the trial court. By not doing so, the issues they present on appeal are moot, wrote Judge Cale Bradford.

Even if the issues weren’t moot, the remonstrator’s claims would fail because they did not have the required minimum of landowners’ signatures on the remonstrance petition, and the remonstrators did not explain how their substantial rights were violated by alleged procedural defects by the city under I.C. 36-4-3-8.

ADVERTISEMENT

Recent Articles by Jennifer Nelson