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Divided appeals court tosses Boonville annexation

October 9, 2012

The Indiana Court of Appeals reversed a trial court decision that upheld an annexation by the city of Boonville, finding that the trial court erred in counting separate state-owned parcels of a highway for purposes of remonstrance.

The 2-1 decision split over the interpretation of how a state highway should be evaluated under the remonstrance statutes, which allow landowners standing to challenge annexation when 65 percent of those affected object.

In American Cold Storage, et al. v. The City of Boonville, 87A01-1112-PL-610, Judge John Baker wrote that Warrick Superior Special Judge Brent Almon erred when he counted State Road 62 as separate parcels that the state had to purchase to obtain right of way. “We conclude that this was error, inasmuch as it undermines the General Assembly’s intent to provide a mechanism for landowners to oppose annexation,” Baker wrote.

“If each parcel of a public highway is counted separately, the remonstrance process is distorted,” he wrote in a majority opinion joined by Chief Judge Margret Robb.

Boonville argued that the parcels should be counted separately and that the plaintiffs had waived their right to raise the issue because it wasn’t heard in a prior appeal regarding the same annexation. Judge Cale Bradford sided with the city on both counts in his dissent.

“The General Assembly has provided a process for challenging annexation, and if we conclude that the process is distorted in this case simply because it does not seem that the landowners will be able to remonstrate, I have a difficult time seeing how we could avoid reaching the same conclusion in any case where the challengers are unable to reach the statutory thresholds,” Bradford wrote.


   


 

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