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Brownsburg loses appeal of order blocking annexation

April 5, 2018

The Indiana Court of Appeals has upheld a special judge’s ruling that prohibited the town of Brownsburg from annexing nearly 4,500 acres of land, halting proposed plans to use the land for infrastructure, residential and school development.

The appellate court’s Thursday ruling comes after Judge Heather Welch ruled in November 2016 that the town failed to show the area to be annexed had an urban character or was needed for future development. Welch’s order came after a September 2016 bench trial in Hendricks Superior Court. A group of residents known as Fight Against Brownsburg Annexation remonstrated against the annexation of 4,462 acres of land outside of the town’s boundaries.

The town council adopted an ordinance approving the annexation in July 2013, but Welch’s 2016 ruling found it failed to meet the requirements of Indiana Code sections 36-4-3-13(b) and (c), which require that at least 60 percent of the land to be annexed be subdivided and set for development in the “reasonably near future.” The town argued it needed the land to extend Ronald Reagan Parkway, the Interstate 74 crossing and school and residential development, among other planned improvements. Remonstrators, however, claimed the annexation was a method of increasing tax revenues.

Relying on precedent from cases such as Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1241 (Ind. 1997), Welch’s findings agreed with the testimony of Hendricks County cartographer Lewis Dee Kirts, who found the annexation area was only 17.54 percent subdivided. But the judge also noted ambiguities in the definition of “subdivision,” which prompted her to look “in several directions” to arrive at a definition.

Those directions included a review of expert testimony, the map of the annexation area, Indiana Supreme Court precedent and Brownsburg’s subdivision control ordinance. That evidence, taken together, did not support a finding that Brownsburg could meet the 60 percent subdivision requirement, Indiana Court of Appeals Judge Elaine Brown wrote Thursday.

The special judge’s order also found that a substantial portion of the 4,500 acres was not needed, and the small sections that might be used would not be developed for 15 years. Further, former Town Council member David Richardson testified he believed the town was “biting off more than it could chew” considering the size of the annexed area, while the school superintendent testified that Brownsburg Schools had no plans for development in the area.

As with the definition of “subdivision,” Welch noted the phrase “reasonably near future” is not statutorily defined. But relying on Abell v. City of Seymour, 275 N.e.2d 547, 548 (Ind. Ct. App. 1971), the judge determined the five- to 15-year timeframe proposed for development of that annexation area would not meet any definition of the reasonably near future.

Brown wrote that Brownsburg’s arguments against that holding were merely requests to assess witness credibility and reweigh evidence, so the appellate court unanimously upheld Welch’s ruling as it related to subsection 13(c) as well.

Thursday’s appellate victory for the remonstrators came after a similar 2015 victory, when the Court of Appeals determined the original trial judge, now-retired Hendricks Superior Judge David H. Coleman, erred in determining he lacked subject matter jurisdiction to determine whether the remonstrance petition was valid. The case was later moved to Welch as a special judge.

The case is Town of Brownsburg, Indiana, et al. v. Fight Against Brownsburg Annexation, et al., 32A01-1702-PL-215.

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