COA: Remonstrators didn't request timely stay of annexation

Back to TopCommentsE-mailPrintBookmark and Share

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.


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?