COA affirms dismissal of annexation fiscal plan challenge

December 4, 2018

The Indiana Court of Appeals affirmed the dismissal of a Dayton resident’s complaint for declaratory judgment against the town when it found meritless her assertions that a fiscal plan for a proposed annexation was “inadequate.”

In June 2017, Cindy Marsh filed a complaint for declaratory judgment in Tippecanoe Circuit Court against the town of Dayton after it approved a resolution to adopt a fiscal plan for the annexation of 55 acres on which a residential subdivision is proposed. Marsh’s complaint asked that the resolution be voided due to the town’s alleged failure to comply with Indiana Code Section 36-4-3-13, which sets various requirements for annexation fiscal plans.

A trial court dismissed Marsh’s complaint based on the town’s motion for judgment, and similarly dismissed her amended complaint in November 2017 after the town motioned to dismiss for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6).

On appeal, Marsh argued that the trial court erred in granting the town’s motion to dismiss her amended complaint for failure to state a claim in Cindy K. Marsh v. Town of Dayton, Indiana, 18A-MI-50.

In her amended complaint, Marsh contended that the town’s fiscal plan was inadequate because it did not disclose the source of funding for sidewalk extensions, nor the construction and extension of sewer and water main services from the new subdivision to existing utilities.

However, the appellate court ultimately concluded Marsh’s assertions were meritless.

“First, as the Town points out, there are currently no plans (let alone legal requirements) for the construction of sidewalk extensions to the annexation area, and Marsh cites no authority for the proposition that a fiscal plan must include estimated costs and specify funding sources for purely hypothetical projects,” Judge Terry Crone wrote for the court. “Second, the fiscal plan clearly discloses the source of funding for the construction and extension of sewer and water main services.”

The appellate court thus affirmed the dismissal of Marsh’s complaint, but not without noting that the town’s contention that her appeal be dismissed pursuant to the mandatory language of Appellate Rule 11(D) was in fact discretionary, not mandatory.

“It is true, as the Town observes, that ‘shall’ has been deemed ‘mandatory’ for purposes of statutory construction,” Crone continued. “But Appellate Rule 11(D) does not say that an appeal ‘shall be dismissed’ if an appellant fails to meet the seven-day deadline; instead, it says that such a failure ‘shall subject the appeal to dismissal.’ We have deemed such language to be discretionary, rather than mandatory, with respect to the untimely filing of briefs.”


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