FIGHT AGAINST BROWNSBURG ANNEXATION, et al., Appellants-Plaintiffs, v. TOWN OF BROWNSBURG, Indiana, et al., Appellees-Defendants.
No. 32A01-1407-PL-300.
Court of Appeals of Indiana.
May 15, 2015.
32 N.E.3d 798
David E. Wright, Kevin D. Koons, Kroger, Gardis & Regas, LLP, Indianapolis, IN, Attorneys for Appellees.
NAJAM, Judge.
Statement of the Case
[1] This appeal involves the statutory process remonstrators must follow when opposing an annexation ordinance. That process begins with the filing of a remonstrance petition under
[2] Here, after the Town of Brownsburg (“Brownsburg“) introduced an ordinance to annex 4,461 acres north of the town, several affected landowners formed a group called Fight Against Brownsburg Annexation (“FABA“) and filed a remonstrance petition with the trial court.1 Brownsburg moved to dismiss the petition under
[3] We reverse and remand for further proceedings.
Facts and Procedural History
[4] On March 7, 2013, the Town Council of Brownsburg (“Town Council“) introduced Annexation Ordinance Number 2013-06 (“the annexation ordinance“), which proposed the annexation of 1,193 parcels located on 4,461 acres north of Brownsburg. The Town Council also adopted a fiscal plan for the annexation on that date. On April 9, FABA began gathering signatures for a remonstrance petition. On May 16, the Town Council held a public hearing on the annexation plan and held additional public hearings regarding zoning issues in June. On July 11, the Town Council amended the fiscal plan and adopted2 the annexation ordinance.
Discussion and Decision
Introduction
[6] The annexation of land by municipalities is governed by
Standard of Review
[7] The standard of appellate review for
Subject Matter Jurisdiction
[8] Before we turn to the substantive arguments raised on appeal, we must first address the trial court‘s conclusion that it lacked subject matter jurisdiction over FABA‘s remonstrance petition. The question of subject matter jurisdiction entails a determination of whether a court has jurisdiction over the general class of actions to which a particular case belongs. Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind.2000). The statute at issue in this appeal is
(a) Except as provided in section 5.1(i) of this chapter and subsections (d) and (e), whenever territory is annexed by a municipality under this chapter, the annexation may be apрealed 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 percent (75%) in assessed valuation of the land in the annexed territory.
The remonstrance must be filed within ninety (90) days after the publication of the annexation ordinance under section 7 of this chapter, must be accompanied by a copy of that ordinance, and must state the reason why the annexation should not take place.
(b) On receipt of the remonstrance, the court shall determine whether the remonstrance has the necessary signatures....
(Emphasis added). Because thе statute expressly provides that a party may file a remonstrance petition “with the circuit or superior court of a county in which the annexed territory is located,” there is simply no question that the trial court here has subject matter jurisdiction over FABA‘s petition. Id. Still, this court has previously held that a
[9] As we explained in City of Kokomo ex. rel. Goodnight v. Pogue, 940 N.E.2d 833, 836 (Ind.Ct.App.2010),
[i]n the past, we referred to the failure of a remonstrance petition to contain the required number of signatures as depriving a trial court of subject matter jurisdiction. See Sons v. City of Crown Point, 691 N.E.2d 1237, 1239 (Ind.Ct.App.1998). In recent years, our supreme court has clarified thе concept of subject matter jurisdiction, while dis-carding
the phrase “jurisdiction over the case.” K.S. v. State, 849 N.E.2d 538, 540 (Ind.2006). Specifically, “[s]ubject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs.” Id. In light of K.S., we have rejected Sons and held, “A more accurate portrayal of Ind.Code § 36-4-3-11(a) is that it provides the procedural prerequisites to the trial court‘s exercise of subject matter jurisdiction over remonstrance proceedings.” [Herdt v. City of Jeffersonville (In re Petition to Annex Approximately 7,806 Acres of Real Estate into City of Jeffersonville)], 891 N.E.2d 1157, 1161 (Ind.Ct.App.2008), trans. denied.
(Emphasis added).
[10] Our case law post-K.S. addressed some of the inconsistencies regarding issues of subject matter jurisdiction. In Herdt, the case we relied on in City of Kokomo, this court attempted to clarify the question of a trial court‘s subject matter jurisdiction over remonstrance proceedings. In Herdt, the City of Jeffersonville had filed a
“[j]urisdiction over the case” refers rather to various procedural prerequisites to the exercise of subject matter jurisdiction. The issue of a party‘s failure to satisfy such procedural prerequisites is properly raised by means of a motion under
Ind. Trial Rule 12(B)(1) for lack of jurisdiction or12(B)(6) for failure to state a claim, depending on whether the claimed defect is apparent on the face of the complaint.
Id. (citing Packard v. Shoopman, 852 N.E.2d 927, 930-31 (Ind.2006)). Thus, in Herdt, we held that the City of Jeffersonville correctly brought its challenge to the timeliness of the remonstrance petition as a
[11] But here we revisit our holding in Herdt, where we relied on our supreme court‘s opinion in Packard. In Packard, a township assessor challenged the timeliness of a pеtition for judicial review in the Indiana Tax Court. The assessor claimed that, because the petition had not been timely filed, the Tax Court lacked subject matter jurisdiction to hear the case. At issue was whether the assessor‘s claim was timely asserted, or whether it was waived for being untimely. In addressing this argument, our supreme court held in relevant part as follows:
The statutory provision for timely filing in the Tax Court found in
Indiana Code section 33-26-6-2 predates our decision in K.S. and was enacted at a time when Indiana courts commonly used the phrase “jurisdiction over the particular case” to refer to various procedural prerequisites to the exercise of subject matter jurisdiction. We conclude that whensection 33-26-6-2 was passed, the General Assembly used “jurisdiction” to refer to the now abolished “jurisdiction over the particular case,” i.e. procedural prerequisites that can be waived or procedurally defaulted if not timely raised. As we held in Wayne County Property Tax Assessment Board of Appeals v. United Ancient Order of Druids-Grove #29, 847 N.E.2d 924, 926 (Ind.2006), apetitioner‘s failure to file the administrative record in the Tax Court within the time required does not deprive the Tax Court of subject matter jurisdiction over the petitioner‘s appeal. We explained: The timing of filing the agency record implicates neither the subject matter jurisdiction of the Tax Court nor personal jurisdiction over the parties. Rather, it is jurisdictional only in the sense that it is a statutory prerequisite to the docketing of an appeal in the Tax Court. That issue is properly raised by means of a motion under
Rule 12(B)(1) for lack of jurisdiction or12(B)(6) for failure to state a claim, depending on whether the claimed defect is apparent on the face of the petition.Druids, 847 N.E.2d at 926. The same applies to the filing of a petition for review of an [Indiana Board of Tax Review] determination.
We also acknowledge that statutory “jurisdictional” requirements in other statutes may require a different result[] but conclude that this turns on the nature of the court and the particular statutory language.
Id. at 930-31 (emphases added). In other words, where a statute defines certain “jurisdictional” requirements, procedural challenges pursuant to those defined requirements may be brought under
[12] In this case, however, because the language of the applicable statute is much different than that of the statutе discussed in Packard, the reasoning in Packard is inapposite. The statute addressed in Packard,
[13] Accordingly, we decline to follow Herdt, and we hold that challenges to the sufficiency of a remonstrance petition under
[14] But Herdt disregards the full context of our supreme court‘s analysis in Packard. Again,
[15] For the same reasons, we also disagree with this court‘s opinion in City of Kokomo, which relied on Herdt to hold that the city had properly challenged the validity of signаtures to a remonstrance petition in a
[16] In sum, a trial court has subject matter jurisdiction to determine whether a remonstrance petition is facially sufficient under
Interpreting Indiana Code Section 36-4-3-11
[17] Because the issues raised by the parties in their briefs on appeal are likely to recur on remand, we address them here. On appeal, the parties proffer competing interpretations of
[18] Statutory interpretation is a quеstion of law and is reviewed de novo, or without deference to the trial court‘s interpretation. Curley v. Lake Cnty. Bd. of Elections & Registration, 896 N.E.2d 24, 34 (Ind.Ct.App.2008), trans. denied. “When a statute has not previously been construed, our interpretation is controlled by the express language of the statute and the rules of statutory construction.” Prater, 922 N.E.2d at 748. “If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning.” Curley, 896 N.E.2d at 34 (quotations omitted). “If a statute is susceptible to multiple interpretations, we must try to ascertain the legislature‘s intent and interpret the statute so as to effectuate that intent.” Id. (quotation omitted). “We review the statute as a whole and presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results.” Prater, 922 N.E.2d at 748. “[W]e must consider not only what the statute says but what it does not say.” Curley, 896 N.E.2d at 37. In other words, “we are obliged to suppose that the General Assembly chose the language it did for a reason.” Prater, 922 N.E.2d at 750.
[19] Again,
(a) Except as provided in section 5.1(i) of this chapter and subsections (d) and (e), 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 percent (75%) in assessed valuation of the land in the annexed territory.
The remonstrance must be filed within ninety (90) days after the publication of the annexation ordinance under section 7 of this chapter, must be accompanied by a copy of that ordinance, and must state the reason why the annexation should not take place.
(b) On receipt of the remonstrance, the court shall determine whether the remonstrance has the necessary signatures. In determining the total number of landowners of the annexed territory and whether signers of the remonstrance are landowners, the names appearing on the tax duplicate for that territory constitute prima facie evidence of ownership. Only one (1) person having an interest in each single property, as evidenced by the tax duplicate, is considered a landowner for purposes of this section.
Dates of Signatures
[20] FABA contends that thе trial court erred when it concluded that FABA “failed to attach signatures sufficient to vote 65% percent of the parcels in the annexed territory in favor of a remonstrance challenging the Town‘s adopted annexation ordinance.” Appellants’ App. at 11. In support of that conclusion, the trial court stated in relevant part as follows:
5. With respect to the 65% landowner opposition requirement, our Supreme Court has said that this requirement must be “understood as a testing of landowner sentiment after the rest of the process has run its course.” City of Carmel v. Certain Sw. Clay Twp. Annexation Territory Landowners, 868 N.E.2d 793, 800 (Ind.2007).
6. The statutory scheme sets out a process that a municipality must follow before it may even adopt an annexation ordinаnce. That process includes formal 60-day notice to property owners, the opportunity for public input during a public hearing, and a 30-day waiting period after the public hearing. I[nd].[]C[ode §] 36-4-3-2.1(b) and (c), and -2.2. Following the Supreme Court‘s direction in the City of Carmel case, the Court must accept that the 65% signature requirement represents a testing of landowner sentiment after this statutorily required process has run its course. 7. Moreover, the plain language of the statute provides that the remonstrance “must be accompanied” by a copy of the published ordinance,
I.C. [§] 36-4-3-11(a) , indicating that the written remonstrance must be signed after the ordinance is adopted.8. The parties do not dispute that Remonstrators submitted more than 500 petitions with signatures that were dаted before the ordinance was ever adopted, including more than 200 with signatures that were dated before the Town and the public had the benefit of public input during the May 16, 2013[.] public hearing. These signatures do not reflect an accurate representation of landowner sentiment after the statutory process had run its course, as our Supreme Court has directed.
9. The failure to obtain a sufficient percentage of particular parcel owners results in a failure to meet the subject matter jurisdiction requirement for the court to consider the merits of the annexation.
Id. 11-12 (some emphasis added).
[21] On appeal, FABA correctly points out that
[22] But Brownsburg contends that, “taken as a whole, the most natural and plain reading of the statute leads us to the conclusion that remonstrance petitions are invalid if they are signed before the municipality adopts the ordinance being remonstrated, regardless of whether the signer included a date on the face of the petition.” Appellees’ Br. at 18. In support of that contention, Brownsburg reads the statute to require that, at the time the landowner signs the remonstrance petition, it must include a copy of the ordinance, which, Brownsburg contends, does not exist until it is adopted. But FABA counters that Brownsburg “made no substantive changes to [the ordinance] from March 7[, when it was introduced,] through July 11, 2013[, when it was adopted].” Reply Br. at 4. Thus, whether the landowners signed the remonstrance petition after the ordinance was introduced or after it was adopted, there is no question that the landowners were expressing their opposition to the same ordinance.
[23] Moreover, while the statute requires that a copy of the ordinance accompany the remonstrance petition when it is filed, the statute does not require that the form of petition used to obtain the landowners’ signatures be accompanied by a copy of the ordinance when the petition is signed. Brownsburg‘s contention is really a request that we re-write the statute. There is nothing in the statutory language
[24] Next, Brownsburg contends that, if a landowner signs the remonstrance petition before the ordinance is adopted, the landowner‘s reasons for opposing annexation “are speculative.” Appellees’ Br. at 19. Brownsburg maintains that “the remonstrator must wait until the municipality adopts an annexation ordinance in order to state the reasons why the annexation should not takе place....”
[25] Brownsburg also contends that the “statutory scheme [is] designed to facilitate dialogue between the municipality and residents throughout the annexation process” and that that process is “undermined if the Court allows remonstrance petitions to be collected and signed before that statutory process has run its course.” Appellees’ Br. at 19. In particular, Brownsburg points out that, at least sixty days after a municipality introduces an annexation ordinance, it shall hold a public hearing.
[26] In support of that contention, Brownsburg cites to our supreme court‘s opinion in City of Carmel, 868 N.E.2d 793 (Ind.2007).9 In City of Carmel, the city “annexed territory in the southwest corner of Hamilton County representing roughly 3,400 parcels, and remonstrators contested the annexation. The organization leading the remonstrance negotiated favorable terms with the city and decided to settle. In a referendum among landowners, a majority voted in favor of settling.” Id. at 795. Following a hearing on the merits of the remonstrance petition pursuant to
[27] But our supreme court observed that the statute at issue in City of Carmel,
[28] Brownsburg‘s reliance on City of Carmel is misplaced. Brownsburg ignores the fact that City of Carmel does not address the statute in this case,
[29] While we agree that landowners might be well-advised to wait until an annexation ordinance is adopted before deciding whether to sign a remonstrance petition, the relevant statutes do not require that the signatures in support of a remonstrance be affixed at any particular time before the petition is filed. And here, where there is no material difference between the annexation ordinance as introduced and as adopted, and the stated reasons for the oрposition to the annexation are not challenged as insufficient, there is no reason to question the landowners’ decisions to sign the remonstrance petition before the adoption of the ordinance. As happened in City of Carmel, if Brownsburg and the remonstrators were to negotiate a settlement agreement before a hearing on the merits of the petition is concluded, the remonstrance would be defeated if a sufficient number of remonstrators had been convinced to change their minds. Finally, again, signatures to a remonstrance petition need not be dated. Thus, had the remonstrators in this case not dated their signatures, no challenge to their timeliness would have been brought. The dates indicated are mere surplusage and, as such, are irrelevant.
[30] In sum,
Multiple Owners of Parcels
[31] Brownsburg also contends that FABA‘s remonstrance petition is deficient because it did not include the signatures of every owner of parcels owned by
[32] In support of its contention, Brownsburg cites to this court‘s opinion in City of Ft. Wayne v. Certain Northeast Annexation Area Landowners, 564 N.E.2d 297 (Ind.Ct.App.1990), trans. denied. In that case, we interpreted
[33]
Mootness
[34] Finally, at the hearing on its motion to dismiss, Brownsburg argued that “any remonstrance directed to a proposed ordinance that was amended before adoption would be a moot remonstrance, because the outdated version of the proposed ordinance was no longer under consideration.” Appellees’ Br. at 27. Brownsburg asserts that “the outdated version of the proposed Ordinance, to which many of the petitions here were directed, had no legal existence or effect until the Third Reading and final vote to adopt the Ordinance on July 11, 2013.” Id. at 28. Thus, Brownsburg contends that FABA‘s petition is moot because the majority of the remonstrators signed the petition prior to the adoption of the final
[35] In support of its contention on this issue, Brownsburg cites to Vesenmeir v. City of Aurora, 232 Ind. 628, 115 N.E.2d 734 (1953), and Matter of City of Fort Wayne, 178 Ind.App. 228, 381 N.E.2d 1093 (1978). As Brownsburg states, “[t]hese cases both held that the remonstrances [at issue] were moot because they were directed to an annexation ordinance that the municipality later repealed and superseded with a new ordinance.” Appellees’ Br. at 27. Brownsburg acknowledges that, in the instant case, it neither repealed an ordinance nor “introduced a completely new ordinance” that was ultimately adopted. Id. at 28. Instead, Brownsburg asserts that it “has consistently maintained that it had not yet passed any ordinance until July 11, 2013,” and
any remonstrance petitions that were directed to prior versions of the as-of-yet-unadopted ordinance were premature and should be deemed moot and not bе counted, just like the petitions in City of Aurora and City of Fort Wayne were deemed moot because they were directed to an outdated ordinance, albeit by repeal and a new ordinance rather than by amendment before final adoption.
[36] We reject Brownsburg‘s contention on this issue. First, again,
Conclusion
[37] The trial court had subject matter jurisdiction to determine the sufficiency of FABA‘s remonstrance petition under
[38] Reversed and remanded for further proceedings.
BAKER, J., and FRIEDLANDER, J., concur.