Annexation battle over ‘reasonably near future’ continues in Indiana Supreme Court

November 30, 2015

The second in a series of annexation battles was presented to the Indiana Supreme Court Nov. 25, this time asking the justices to review the Legislature’s intent when allowing cities and towns to bring in unincorporated areas for development.

This current dispute involves the town of Fortville. Remonstrators were successful at the trial court level but the Indiana Court of Appeals reversed that victory in Town of Fortville v. Certain Fortville Annexation Territory Landowners, 30A01-1410-MI-442.

The appellate panel ruled the Hancock Circuit Court erred in denying the municipality’s annexation. Specifically, the Court of Appeals held the trial court did not give substantial deference to Fortville’s adoption of an annexation ordinance and the lower court erred in concluding the town did not meet the statutory requirement that the area to be annexed “is needed and can be used for development in the reasonably near future.”

Bose McKinney & Evans Bryan Babb, representing the town of Fortville, argued precedence. He told the justices the trial court’s interpretation of “development in the reasonably near future” did not recognized the Supreme Court’s prior rulings that found courts must give substantial deference to municipalities.

Justice Robert Rucker inquired how much deference the courts should give. He pointed out the trial court did a thorough job and considered many aspects of the annexation ordination before ruling against the annexation.

“Why is that wrong,” Rucker asked.

Babb responded such a stance allows the trial court to conduct a judicial audit of the reasons why a municipality wants to annex an area. But Rucker questioned if Babb was arguing that as long as the municipality says it needs the annexation, there should be no judicial review.

Babb replied municipalities still have to credibly demonstrate that they need the annexation territory.

Chief Justice Loretta Rush picked up on judicial deference when she questioned the remonstrators’ attorney Stephen Buschmann of Thrasher Buschmann & Voelkel. She asked if the landowners opposed to the annexation would still win when the deference standard was applied.

Buschmann held that a municipality has to meet the dictates of the annexation statute, Indiana Code 36-4-3-13, when it wants to annex rural property.

“It takes more than just saying, ‘Gosh we’d like to round out our boundaries,’” Buschmann argued. “You actually have to meet the standard to show it is needed and can be used by the municipality for its development in the reasonably near future.”

Buschmann continued, saying an ordinary person would not consider taking 10 years or longer to do something with an annexed territory to be the reasonably near future.

Justice Steven David asked how much municipalities have to provide to meet the statute. He inquired whether cities and towns have to provide definite plans or blueprints for the development.

Buschmann responded that a municipality has to at least have some type of planning that shows the annexed area will be developed in the reasonably near future.

Then Justice Brent Dickson injected that the statute uses the language “can be used.” A municipality could show the various possibilities of use without having to submit a formal plan, he said.

Buschmann replied the city or town still needs to present some evidence that it intends to develop the property in the reasonably near future.

Rucker posed that the dispute boiled down to what constitutes development. There is no question of need, he said, but rather the question focuses on “development” and “near future.”

“It’s what it’s needed for,” Buschmann said. “If I’m a municipality I can argue I need control because I don’t want somebody 30 years down the road to build something I don’t like. The statute says ‘development in the reasonably near future.’”

In October, the Supreme Court heard oral arguments in another annexation dispute, Town of Zionsville v. Town of Whitestown and Angel Badillo, 06A01-1410-PL-432. Here, the parties were arguing over whether Zionsville met the statutory requirement of being contiguous with the area it wants to annex.

As in the Fortville case, remonstrators fighting annexation by Boonville lost at the Court of Appeals. In American Cold Storage NA et al. v. City of Boonville, 87A01-1502-PL-76, the appellate panel ruled the municipality did not have to submit concrete plans for development in order to move forward with the annexation.

The Court of Appeals denied a petition for rehearing in that case. A petition to transfer is pending before the Supreme Court.



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