Lead Opinion
OPINION
In this case, a city passed an ordinance annexing additional territory, which a group of landowners vigorously oppose. Indeed, this is the second time that these litigants have been before a panel of this Court. The issue presented to us this time is how to count State-owned parcels of land that now form State-owned right of ways. The trial court concluded that the parcels should be counted individually. We conclude that this was error, inasmuch as it undermines the General Assembly’s intent to provide a mechanism for landowners to oppose annexation.
Appellants-plaintiffs American Cold Storage et al., (collectively, “the Landowners”) appeal the trial court’s ruling dismissing their challenge to an annexation by the appellee-defendant City of Boonville (Boonville) for lack of subject matter jurisdiction. Specifically, the Landowners argue that the trial court erred by individually counting the State-owned parcels that are now State Road 62 rather than counting State Road 62 as a single piece of real estate. According to the Landowners, counting each individual parcel that is now part of a state highway diluted the percentage of signatures necessary to oppose the annexation.
Boonville cross-appeals arguing that the Landowners have waived this issue because it was available to them during the first appeal and they failed to raise it. Declining to find waiver and concluding that the trial court erred by counting each individual parcel that was acquired to build what is now State Road 62, we reverse and remand for further proceedings consistent with this opinion.
FACTS
Boonville is a municipal corporation and political subdivision located in Warrick County. On July 7, 2008, Boonville passed Ordinance 2008-2, which annexed 1,165 acres of real estate located west of Boon-ville’s geographic limits. Public highways border two sections of the proposed annexed territory. The Landowners are 230 individuals, trusts, and corporate entities who oppose the annexation.
On November 26, 2008, Boonville filed a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). On March 11, 2010, the trial court entered its order denying Boonville’s motion to dismiss.
On March 17, 2010, Boonville filed its motion to certify for interlocutory appeal the trial court’s order denying Boonville’s motion to dismiss, which the trial court and this Court granted. On June 13, 2011, a panel of this Court issued its decision holding that tax-exempt parcels should be included in determining the total number of parcеls in the proposed annexation area. City of Boonville v. Am. Cold Storage, et al.,
On October 26, 2011, the Landowners filed their brief in support of their position regarding how the State Road 62 parcels should be counted and motion requesting a hearing for a determination of the sufficiency of the remonstrance. Boonville opposed the motion.
On December 19, 2011, the trial court dismissed the complaint. The Landowners filed their notice of appeal on December 21, 2011. Then, on January 17, 2012, the Landowners filed a motion to correct error, which prompted this Court to remand once again. On March 23, 2012, after reсeiving briefs and hearing argument from both sides, the trial court denied the Landowners’ motion to correct error. This Court resumed jurisdiction on April 3, 2012.
DISCUSSION AND DECISION
The Landowners argue that the trial court erred in dismissing their remonstrance for lack of subject matter jurisdiction. More particularly, the Landowners contend that the trial court should not have included the parcels that were acquired by the State to construct what is now State Road 62.
As an initial matter, Boonville maintains thаt the Landowners have waived their argument by failing to raise it in the first appeal. As stated in the FACTS, the main issue in the first appeal was whether tax-exempt parcels should be included in determining the total number of parcels in the proposed annexation area. See Boonville I,
Boonville points out that of the 109 tax-exempt parcels within the annexed territory, by the Landowners’ calculations, eighty-eight of them are State right-of-way properties and that the Landowners understood this at the time of the first appeal. In support of this assertion, Boon-ville directs us to the Landowners’ 2009 brief that they filed with the trial court in which they made the following argument:
The parcels in the name of the State of Indiana are in fact parts of one public right-of-way which is S.R. 62. Under Indiana law these parcels would constitute only one parcel and owner and are not available to be counted as properties of rеmonstration owners.
Appellee’s App. p. 19. Nevertheless, according to Boonville, the Landowners failed to pursue this related question during the first appeal.
An issue that was known and available but not raised in the first appeal is waived as a basis for relief in subsequent proceedings. Citizens Action Coal. of Ind. Inc. v. N. Ind. Pub. Serv. Co.,
Here, the рrecise question presented to this Court is the total number of parcels in the proposed annexation territory. More precisely, the dispositive legal issue is how to count the parcels that now comprise State Road 62. This question encompasses whether a state highway is multiple parcels or a single parcel for purposes of the remonstrance statute.
By contrast, before the trial court issued its ruling that was the subject of the first appeal to this Court, it requested briefing on four specific legal issues, including the three presented on the first appeal, namely, whether to include tax-exempt parcels in determining whether the 65% Rule had been met, whether the Landowners had standing to bring a declaratory judgment, and whether to include parcels that abut public roadways.
II. How to Count the Parcels Comprising State Road 62
A. Standard of Review
The Landowners argue that the parcels acquired by the State for building a state highway should be counted as one parcel for purposes of the 65% Rule contained in Indiana Code section 36^1-3-11 (Remonstrance Statute). This argument presents
The issue presented requires us to interpret the Remonstrance Statute. If a statute is unambiguous, we must give the statute its clear and plain meaning; however, if a statute is ambiguous, we must ascertain the legislature’s intent and interpret the statute to effectuate that intent. Robinson v. Gazvoda,
The Remonstrance Statute provides, in relevant part:
(a) ... whenever territory is annexed by a municipality under this chapter, the annexation may be appealed by filing with the circuit or superior court of a county in which the annexed territory is located a written remonstrance signed by:
(1) at least sixty-five percent (65%) of the owners of land in the annexed territory; or
(2) the owners of more than seventy-five (75%) in assessed valuation of the land in the annexed territory.
B. Precedent Interpreting Remonstrance Statute
Boonville contends that precedent interpreting the Remonstrance Statute has made clear that all property is to be counted in determining whether the 65% Rule has been met. Boоnville points out that if the phrase “owners of land” contained in Section (a)(1) of the Remonstrance Statute is broad and general enough to include owners of tax-exempt land, as a panel of this Court concluded in Boonville I,
Panels of this Court and our Supreme Court have previously interpreted the Remonstrance Statute in similar contexts. For instance, in City of Fort Wayne v. Certain Northeast Annexation Area Landowners,
Then, in Arnold v. City of Terre Haute,
Finally, in Boonville I, a panel of this Court determined that the landowners had misinterpreted the Remonstrance Statute by arguing that tax-exempt parcels should nоt be counted for purposes of the 65% Rule.
C. Application to the Instant Case
At first blush, these cases seem to support Boonville’s position that each par
Additionally, in Boonville I, a panel of this Court concluded that parcels adjacent to public roads but not included in the annexed territory should not be counted in determining whether the 65% Rule had been satisfied.
Likewise, Indiana Code seсtion 36-4-3-2.5, which defines “public highway” for purposes of municipal annexation under Indiana Code section 9-25-2-4 as “a street, an alley, a road, a highway, or a thoroughfare in Indiana, including a privately owned business parking lot and drive, that is used by the public or open to use by the public.” The language of this statute along with Boonville I indicates that State Highway 62 is a single asset or property rather than multiple parcels of land.
Perhaps most compelling, including eaсh individual parcel that was acquired for a public highway when counting the total number of parcels in a proposed annexation area would include many parcels that would neither support nor oppose annexation. There is no authority which permits the State to take a position one way or the other on any local annexation. Consequently, under these circumstances all public highway parcels would be silent as to the numerator portion of the 65% Rule equation; however, they would be counted in the denominator.
Even assuming solely for argument’s sake that the State may take a position and has an interest in doing so because of various fees it might have to pay or regulations to which it might be subjected, this point does not support giving the State multiple votes based on the arbitrary number of parcels that it had acquired for a state right-of-way when the State is simply anоther landowner. In any event, under either scenario, if each parcel of a public highway is counted separately, the remonstrance process is distorted.
To be sure, in some cases, including each parcel that the State acquired to build a state right-of-way would make it impossible for remonstrators to garner enough signatures to satisfy the 65% Rule because the state right-of-way could represent more than 35% of the parcels in a proposed annexation area. We think that such a result undermines the intent of the General Assembly to provide a mechanism
Consequently, we conclude that the trial court erred, insofar as it counted the separate parcels that were acquired by the State to build State Road 62 rather than counting State Road 62 as a single parcel under the Remonstrance Statute. Accordingly, we reverse the decision of the trial court and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Figure 1: -Parcels A. B, c|, and D are owned by private landowners.
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. For illustrative purposes only, attached to the end of this opinion are two figures. The first figure illustrates parcels of property owned solely by private landowners. The second figure illustrates the increase in the number of parcels resulting from the State acquiring portions of the landowners' parcels to accommodate a state highway. Additionally, the second figure shows the state highway encompassing the added parcels. Note, however, that the figures are not actual representations of the factual circumstances in this
. According to Black’s Law Dictionary, a remonstrance is "[a] presentation of reasons for opposition or grievance.” 1298 (7th ed. 1999).
. The fourth issue that was briefed but not considered on appeal in Boonville I was whether the signatures of parcel owners who executed City of Boonville Sewer Applications containing a waiver of the right to remonstrate against annexation should be counted in determining whether the 65% Rulе had been satisfied. Appellee’s App. p. 19-20.
. Boonville directs us to the affidavit of Jeffrey A. Volz, the Director of Operations and Data Analysis with the Indiana Department of Local Government Finance. In his affidavit, Director Volz stated that he had access to tax duplicate data and attached a tax duplicate with the State-owned parcels for 2007-2008. We note that the Landowners' 2011 affidavit from the auditor of Warrick County stating that State-owned parcels did not have an assessed value and had not been issued a tax duplicate is more recent. Appellants' App. p. 160.
Dissenting Opinion
dissenting.
First, I would accept Boonville’s argument that the question of how the State-owned parcels should be counted has been waived. Second, I would conclude that the parcels owned by the State should be treated no differently than any other parcel for purposes of the 65% rule of the remonstranсe statute. Consequently, I respectfully dissent.
I. Waiver
I would not address the Landowners’ argument regarding how the State-owned parcels should be treated because it was not raised before the first appeal. “The law is well-established that an issue is waived if it was available on the first appeal but was not presented.” Citizens Action Coal, of Ind., Inc. v. N. Ind. Pub. Serv. Co.,
II. How the State-Owned Parcels Should be Counted
Moreovеr, if I were to reach the merits of the Landowners’ claim, I would con-
A statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute. In so doing, the objects and purposes of the statute in question must be considered as well as the effect and consequences of such interpretation. When interpreting the words of a single section of a statute, this court must construe them with due regard for all other sections of the act and with regard for the legislative intent to carry out the spirit and purpose of the act. We presume that the legislaturе intended its language to be applied in a logical manner consistent with the statute’s underlying policy and goals. Rupert v. State,717 N.E.2d 1209 , 1210 (Ind.Ct.App. 1999).
Fuller v. State,752 N.E.2d 235 , 237-38 (Ind.Ct.App.2001).
In my view, the Indiana Supreme Court’s 2000 holding in Arnold, which interpreted the remonstrance statute and adopted a “ ‘one-parcel-one-vote’ ” regime, controls. The Landowners argue that a distinction between “land” and “public highways” can be inferred from the annexation statutes, from which it can further be inferred that the exclusion of the term “public highway” from the remonstrance statute indicates that it should be only counted as one parcel. First, the statutes in question certainly make no clear distinction between “land” and “public highways,” most importantly by failing to define “land” as anything other than all land. Quite simply, “public highway” is a subset of “land” — not a different concept. The most reasonable reading of the remonstrance statute is therefore that all land is to the treated the same for purposes of the 65% rule. “ ‘It is the function of this court to ascertain and implement the legislature’s intent and the legislature’s intent must be primarily determined by giving effect to the ordinary and plain meaning of the language used in the statute.’ ” Henricks v. Fletcher Chrysler Prods., Inc.,
The Landowners also argue that individually counting the State-owned parcels that make up Highway 62 distorts the remonstrance process in this case and “might make an effective remonstrance literally impossible” in other cases. Appellant’s Reply Br. at 5. While I agree that сounting the State-owned parcels individu
I respectfully dissent.