ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
John C. Hamilton Paul D. Eash
Don G. Blackmond Elkhart, Indiana
South Bend, Indiana
SUPREME COURT OF INDIANA
LANNY ROGERS AND CAROLYN ) ROGERS, et al., ) ) 20S03-9605-CV-317 Appellants (Plaintiffs Below ),) in the Supreme Court ) v. ) 20A03-9501-CV-13 ) in the Court of Appeals THE MUNICIPAL CITY OF ELKHART, ) INDIANA, ) ) Appellee (Defendant Below ). )
SHEPARD, Chief Justice.
The Court of Appeals held in this case that only land which has been subjected to the regulatory process for platting and
recording can be considered "subdivided" territory eligible for
annexation by a contiguous municipality. We conclude that this
holding exceeds the standard set by law.
Remonstrators' arguments on appeal may be characterized as
raising three legal issues:
I. Whether the trial court could properly approve the ordinance on the first of the grounds above when the City expressly waived relying upon it;
II. Whether the trial court employed an improper
reading of the "subdivided" requirement of our
III. Whether the trial court erred by finding that all
but a de minimis amount of the land was zoned
for business and industry.
Although the applicable statutes have undergone many changes over the years, certain general propositions of law have long applied. The statutes invest exclusive authority to annex territory in the governing body of a municipality. City of Aurora v. Bryant, 240 Ind. 492, 165 N.E.2d 141 (1960). Annexation is a legislative function and becomes a question subject to judicial cognizance only upon review as provided by statute. City of Indianapolis v. Wynn, 239 Ind. 567, 157 N.E.2d 828 (1959). Indeed, to the extent annexation statutes have seemed to require courts to make determinations of a non-judicial nature, courts have refused, finding themselves to be without the power to do so under the separation of powers clause of the Indiana Constitution, Art. 3 § 1. See, e.g., In re City of Mishawaka, 259 Ind. 530, 289 N.E.2d 510 (1972) . A court is not authorized to act unless a remonstrance is filed; if a remonstrance is not filed, the annexation becomes effective. Wynn, 239 Ind. 567, 157 N.E.2d 828. The effect of filing a remonstrance is to abate the culmination of the annexation pending review in the courts, where the burden is on the
municipality to sustain the annexation by showing that it has
complied with the requirements of the statute. Id.
Because the city's authority to annex territory is defined by
statute, the court's duty is to determine whether the city has
exceeded its authority and met the conditions imposed by the
statute. King v. City of Bloomington, 239 Ind. 548, 159 N.E.2d 563
(1959); Bryant, 165 N.E.2d at 147. City of Hobart v. Chidester,
596 N.E.2d 1374 (Ind. 1992). Even though the burden of pleading is
on the remonstrator, the burden of proof is on the municipality to
demonstrate compliance with the statute. The court sits without a
jury and enters judgment on the question of annexation after
receiving evidence and hearing argument from both parties. Ind.
Code Ann. § 36-4-3-12 (West 1997).
Once the trial court has decided whether to approve an
annexation ordinance, either the municipality or the remonstrators
may appeal. Where, as here, special findings are volunteered by
the trial court, we apply the standard of review set out in Trial
Rule 52. Chidester v. City of Hobart, 631 N.E.2d 908 (Ind. 1994).
Issues of fact are reviewed for sufficiency of the evidence, and
the appellate court looks to the record only for evidence favorable
to the judgment. Id. at 910. Questions of law, of course, are
purely the stuff of appellate work, and we review them de novo.
MacLeod v. Hunter, 671 N.E.2d 177, 178 (Ind. Ct. App. 1996).
While annexation appeals commonly revolve around disputes over
the provision of services, the adequacy of the City's fiscal plan
is not at issue in this case. Instead, the dispute focuses on
rather more technical matters relating to whether the land in
question is adequately urban to meet the code requirements for
annexation. The "urban character" provisions of our present law
permit annexation if the land is contiguous to the municipality and
if one of the following is true:
(A) The resident population density of the territory sought to be annexed is at least three (3) persons per acre;
(B) Sixty percent (60%) of the territory is subdivided;
(C) The territory is zoned for commercial, business, or
Ind. Code Ann. § 36-4-3-13(b) (West Supp. 1997). Relatively rural
territory may also be annexed without meeting any of these three
standards if it is "needed and can be used by the municipality for
its development in the reasonably near future." Ind. Code Ann. §
36-4-3-13(c)(2) (West Supp. 1997).
"needed for future development" provision.
the City expressly waived reliance on this provision.
The record reveals that the City did waive reliance on this
provision. To his credit, counsel for the City does not contest
the Remonstrators' claim on appeal. Without pausing to determine
whether the trial court might be sustained on these grounds if the
City asserted otherwise, we pass on to the two issues the parties
The Remonstrators initially asserted that in deciding whether land is "subdivided" for annexation purposes, the courts should apply the definition of "subdivision" the legislature wrote for application in the article governing operation of plan commissions,
redevelopment authorities, economic development districts, and the
That article defines "subdivision" as: "The division of a
parcel of land into lots, parcels, tracts, units, or interests in
the manner defined and prescribed by a subdivision control
ordinance adopted by the legislative body under I.C. 36-7-4." Ind.
Code Ann. § 36-7-1-19 (West 1997).
The legislative body for Elkhart County has adopted such an
ordinance. It is a relatively modern ordinance, applying to land
subdivided after September 1, 1982. The Elkhart County Subdivision
Control Ordinance defines "subdivision" in this way:
n. SUBDIVISION. A division or redivision of land in which two (2) or more parcels, lots or sites are established for residential or business purposes and any one (1) of these parcels, lots or sites are less than three (3) acres in area, which may include a public way through the tract of land. A division or redivision of land is not a subdivision if:
1. the sale or exchange of parcels of land to or between adjoining property owners where those sales or exchanges does not create additional building lots, or
2. A Court orders the division of land, or
3. A parent transfers adjacent land to a child.
(R. at 562) (quoting Elkhart County, Ind., Code § 36-7-4-700, County Subdivision Control Ordinance art. 2 § n, at Z-90 (1993)). This definition is geared to the creation of new development lotsSee footnote 3 and must be read in parallel with the definitions of "industrial
The City maintains that the evidence shows that the territory
is seventy-eight percent (78%) subdivided in accordance with the
definition of "subdivision" contained in the Elkhart County
Subdivision Control Ordinance. In their reply brief, counsel for
the Remonstrators make it clear that they believe meeting this
definition requires more than land subdivided in a way consistent
with this definition. They assert that the City must demonstrate
that 60% of the land became subdivided through the local
subdivision approval process.
This assertion asks courts to add too much to statutes that consign decision-making power to legislators, local and state. The theme of Indiana annexation law has long been that adjoining territory of an urbanizing character was subject to annexation. As counsel for the Remonstrators observe, "Generally speaking, land next to a city has already begun taking on attributes of urban ization or it reflects the immediate likelihood of such urbanization." Appellant's Brief, p. 19. The earliest statutes
permitted virtually automatic annexation of adjacent platted land.
In this century, the law permitted annexation of subdivided land
"whether platted or not." Act of March 6, 1905, ch. 129 § 242,
1905 Ind. Acts. By 1935, the reference to platting was removed
altogether. Act of March 7, 1935, ch. 153 § 1, 1935 Ind. Acts
(amending Act of March 6, 1905). In 1955, the legislature chose to
use the phrase "The area is urban in character, being an economic
and social part of the annexing city." Act of March 11, 1955, ch.
269 § 1 and 3, 1955 Ind. Acts (amending Act of March 7, 1935). The
current method of proving urban character were adopted in 1969:
(1) 60% subdivided, (2) 3 persons per acre, or (3) zoned for
commercial, business, or industrial uses. City and Town Act of
1969, ch. 239 § 407, Ind. Acts 1969 (now codified as amended at
Ind. Code Ann. § 36-4-3-13(b) (West Supp. 1997).
Inasmuch as the present statute contains no definition of "subdivided," the trial court might well have looked in several directions if it perceived the need for greater definition. The definition of a "subdivision" found in that part of the code applicable to planning and redevelopment is a plausible place to look, though that article in the code addresses rather different activities than the annexation article. We conclude that the
definition a municipality uses for these purposes is one yardstick
a court may employ, although there may be others not suggested to us by the parties to this case.
It is apparent that the 439 acres at issue meet the definition
of "subdivided" under Elkhart's 1982 ordinance. Remonstrators'
assertion that the City must prove that all the land was subdivided
pursuant to Elkhart's 1982 subdivision approval ordinance, however,
demands far more than the straightforward language of the code
provides. The evidence showed, for example, that many of the
subdividings occurred before Elkhart's 1982 ordinance was enacted,
indeed, before current Title 36 itself became a part of the Indiana
The larger object of the annexation statute is, as it has
always been, to permit annexation of adjacent urban territory. The
trial court's use of Elkhart's ordinance for subdivisions was
consistent with this statutory purpose and the language of the code
itself. The trial court's finding that the land was "subdivided"
was sufficient based on the record.
permitted by Ind. Code Ann. § 36-4-3-13(b)(2)(C) (West Supp. 1997).
Remonstrators argue that a territory must be 100% zoned for the
enumerated uses to be eligible under this provision. The trial
court disagreed, concluding that a de minimis exception for other
zoning uses exists within the statute. The court noted that 6.6
percent of the territory was zoned for residential use and
concluded that this is de minimis.
The Court of Appeals agreed that a de minimis analysis is
appropriate, but held that 6.6 percent is too substantial to be
called de minimis.
We agree with both courts that a de minimis rule may be
applied to section 36-4-3-13(b)(2)(C). The trial court's
description of the annexed territory suggests why a practical
approach is appropriate:
The immediate issue is whether or not any residential zone, however small, and whether or not, as here, an enclave, or enclaves, within commercial, business or industrial zones precludes annexation of the whole territory. The answer by this court is that an area overwhelmingly zoned for industrial, commercial, and business uses should be considered as meeting the statutory requirements for annexation even if a small shard, island, or enclave of land is zoned residential.
. . . .
. . . The territory is urban in character but only a small portion is either zoned for or used for residential purposes. The whole territory contains about 29 dwellings and 59 businesses, commercial, and industrial establishments of all sizes, with about 100 buildings for those establishments. These non- residential buildings are scattered through the whole territory, even on the three streets having all but two
of the houses, and are even scattered among houses on the
streets which have houses. No street is purely
(R. at 63-65.)
It is apparent from the record that the 6.6% of the land zoned residential consists of a regular, full-fledged residential subdivision that would itself likely qualify under the "subdivided" provision in the code. While a court might view cautiously any attempt to annex under a single ordinance territories that might not meet the statutory criteria standing alone, here, the trial court seems to have been justified in finding that 93.4% was sufficient to meet the business zoning test.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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