The Indiana Court of Appeals 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 arose in the annexation battle between the Greenwood and Bargersville in City of Greenwood, Ind., et al. v. Town of Bargersville, Ind., No. 41A05-0912-CV-684.

The annexation proceedings in this case happened through Bargersville obtaining the consent of at least 51 percent of the owners of land in the territory Bargersville proposed to annex. The 1,847 acres were within 3 miles of Greenwood’s city limits. Greenwood also wanted to annex the land.

The trial court granted summary judgment for Bargersville and voided Greenwood’s attempted annexation.

The Court of Appeals first ruled that Greenwood did have standing to seek a declaratory judgment on the validity of the annexation based on whether 51 percent of landowners consented to the annexation. The judges also found that as a matter of law, fewer than 51 percent consented pursuant to I.C. Section 36-4-3-9.

In order for the annexation to be valid, 377 parcels had to validly consent to the annexation. Not all the landowners had signed the same documents. Some of the signed forms explicitly gave consent to the annexation and others who signed a sewer service agreement stated they waived any objections to annexation, but didn’t give specific consent. At least 55 percent of the parcels are subject to sewer service agreements that were executed before the amendment of I.C. Section 36-4-3-9.

Waiving the right to object to, remonstrate against, or appeal an annexation isn’t the same as consenting to an annexation under the statute, wrote Judge Terry Crone. The judge compared it to a legislator voting either for or against a bill or abstaining from voting.

“Just as abstaining is not the same as voting for a bill, not remonstrating against an annexation is not the same as consenting to an annexation,” he wrote.

Those who signed the sewer service agreements don’t constitute valid consent to the annexation. The appellate court expressed no opinion on the validity of those agreements or on the validity of the remaining documents on which Bargersville and the trial court relied in finding 51 percent had consented. They also emphasized that the decision in no way impacts the landowners’ statutory right to remonstrate against Greenwood’s proposed annexation on remand.

“Even assuming the validity of those documents, far fewer than 51% of the landowners in the Territory consented to Bargersville's annexation. Therefore, we reverse the trial court's grant of summary judgment in favor of Bargersville and remand for further proceedings consistent with this opinion,” wrote Judge Crone.