City of Kokomo Ex Rel. Goodnight v. Pogue
2010 Ind. App. LEXIS 2385
| Ind. Ct. App. | 2010Background
- Kokomo adopted Annexation Ordinance 6541 targeting 3,742 parcels on August 25, 2008.
- Remonstrators gathered signatures from owners of 2,543 parcels (about 68%) and filed the remonstrance on November 19, 2008.
- Kokomo moved to dismiss December 18, 2008, arguing waivers of remonstrance reduced valid signatures below 65% via sewer contracts from 1991, 1993, and two in 1998.
- An additional 137 signatures came from waivers tied to tapping into Kokomo’s sewer system (64 individuals) and a Country Development group (73 signatures) related to the sewer waivers.
- The trial court denied Kokomo’s motion to dismiss on February 9, 2010, and Kokomo appealed seeking dismissal for insufficient signatures.
- The court of appeals reversed, holding that the waivers could render the remonstrance below the statutory threshold and remonstrators cannot proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do waivers defeat the 65% signature threshold? | Kokomo | Remonstrators | Waivers valid; signature count falls to 64.3%; remonstrance fails. |
| Is failure to mail notices by certified mail fatal to remonstrance rights? | Kokomo | Remonstrators | Not fatal; certified-mail requirement not strictly enforced; non-delivery does not void remonstrance. |
| Does Doan allow waiver of remonstrance in sewer-contract contexts to bind subsequent landowners? | Kokomo | Remonstrators | Waivers tied to sewer contracts valid when they bind affected landowners with actual notice; Doan limited to sewer context. |
Key Cases Cited
- Doan v. City of Fort Wayne, 253 Ind. 131, 252 N.E.2d 415 (Ind. 1969) (remonstrance right not waived before territory is annexed; sewer waivers may apply)
- Bradley v. City of New Castle, 764 N.E.2d 212 (Ind. 2002) (annexation review of remonstrances; courts avoid micromanagement)
- Rogers v. City of Evansville, 437 N.E.2d 1019 (Ind. Ct. App. 1982) (recordation and notice effects on remonstrance waivers)
- In re Petition to Annex Approximately 7,806 Acres of Real Estate into City of Jeffersonville, 891 N.E.2d 1157 (Ind. Ct. App. 2008) (procedural scope of remonstrance proceedings)
- Annexation Proposed by Ordinance No. X-01-93, 654 N.E.2d 284 (Ind. Ct. App. 1995) (waiver provisions tied to sewer contracts; binding when proper and recorded)
- GKN Co. v. Magness, 744 N.E.2d 397 (Ind. 2001) (standard for Rule 12(B)(1) review and evidentiary contexts)
- Annexation Proposed by Ordinance No. X-01-93 (cited within opinion), 654 N.E.2d 284 (Ind. Ct. App. 1995) (contextual discussion on waivers and remonstrances)