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Delayed ordinance publication doesn’t affect power to annex

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Landowners challenging the annexation of portions of land in Hamilton County to the city of Westfield lost their appeal before the Indiana Court of Appeals. The remonstrators claimed the city’s delayed publication of annexation ordinances should have barred the annexation.

The city passed ordinances to annex certain parcels of land in Washington Township, Hamilton County in September 2008. But Westfield didn’t publish the ordinances in the local newspaper until Dec. 6, 2008 – 71 days after the mayor signed the ordinances.

The remonstrators claimed this should bar annexation because the city didn’t publish the ordinances within the 30-day period outlined in Indiana Code 36-4-3-7(a). Westfield argued that the remonstrators lacked standing to challenge the annexation.

Hamilton Superior Judge William Hughes found the remonstrators had standing, but ruled in favor of the city on annexation.

The Court of Appeals agreed with the remonstrators that the city conflated the requirements for a remonstrance petition with those at a remonstrance hearing. Statute holds that standing is established at the trial court’s certification of the remonstrance petition.

“Once certified, whether the required number of remonstrators ‘continued to oppose the annexation’ is simply a matter to be proved at the evidentiary hearing,” Judge Patricia Riley wrote in Certain Westfield Southeast Area 1 Annexation Territory Landowners and Certain Westfield Southeast Area 2 Territory Landowners v. City of Westfield, 29A02-1205-MI-389.

The judges rejected the remonstrators’ claim the delay in publishing the ordinances should bar annexation because they failed to show that the city committed a procedural wrong so severe that their substantial rights have been affected. The failure to publish does not affect the power to annex; it merely renders the ordinance inoperative until publication is made, Riley wrote.

“Thus, rather than becoming void, the Ordinances at issue here simply went into effect at a later date. Further, the record shows that belated publication did not impair the Remonstrators’ substantial rights since Remonstrators’ request to the City for evidence of publication of the Ordinances prompted the City to publish them,” she wrote.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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