Bradley v. City of New Castle

ATTORNEYS FOR APPELLANTS                ATTORNEYS FOR APPELLEE

George T. Patton, Jr.                   Kevin W. Dogan
Kevin S. Smith                          Indianapolis, Indiana
Bryan H. Babb
BOSE McKINNEY & EVANS, LLP              David L. Copenhaver
                                        R. Scott Hayes
E. Edward Dunsmore                      HAYES, COPENHAVER & CRIDER
Knightstown, Indiana                    New Castle, Indiana

ATTORNEYS FOR AMICI CURIAE              R. Thomas Bodkin
CITIZENS OPPOSING ANNEXATION,           Jason P. Lueking
ET AL.                                  Douglas A. Welp
                                        BAMBERGER, FOREMAN, OSWALD
John H. Brooke                          & HAHN, LLP
Casey D. Cloyd                          Evansville, Indiana
BROOKE & CLOYD, P.C.
                                        ATTORNEYS FOR AMICUS CURIAE
                                        INDIANA MUNICIPAL LAWYERS
                                        ASSOCIATION

                                       Nana Quay-Smith
                                       Karl L. Mulvaney
                                       BINGHAM SUMMERS WELSH & SPILMAN
                                       Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



JAMES E. BRADLEY, KAY C. MILLER,  )
and Certain Other Persons Owning  )
Property in the Proposed Annexed  )
Territory,                        ) No. 33S01-0104-CV-195
                                        )  in the Supreme Court
      Appellants (Plaintiffs Below),)
                                        )
            v.                          ) No. 33A01-9807-CV-281
                                        )  in the Court of Appeals
CITY OF NEW CASTLE, INDIANA,      )
                                        )
      Appellee (Defendant Below). )






                     APPEAL FROM THE HENRY CIRCUIT COURT
                     The Honorable John L. Kellam, Judge
              The Honorable Barbara A. Harcourt, Special Judge
                         Cause No. 33C01-9302-CP-19



                               March 12, 2002

SHEPARD, Chief Justice.

      In 1992, the City of New  Castle  annexed  some  750  acres  in  Henry
County with an estimated population of 1,700 residents.

      The trial court rejected all  the  Remonstrators’  challenges  to  the
annexation.  The Court of Appeals reversed, faulting the City Council  on  a
variety of procedural points (although the Remonstrators make no claim  that
their substantive rights were violated) and faulting  the  trial  court  for
allowing the City to supply additional evidence in support of  the  adequacy
of the Fiscal Plan.  Annexation is essentially a  legislative  process,  and
courts should not micromanage it.

      We affirm the trial court.



                        Facts and Procedural History


      On October 19, 1992, the Common Council of  the  City  of  New  Castle
held a public information hearing on proposed Ordinance No. 2892,  to  annex
four contiguous  areas:   Elmwood  Addition  (Area  1);  Blue  River  Valley
Addition (Area 2); McGrew Addition (Area 3); and Wildwood Estates (Area  4).


      The Council followed a “three readings” approach.   On  November  2nd,
it adopted a written Fiscal Plan for implementing the annexation  and  voted
in favor of the Ordinance on first reading.  On November 16th,  the  Council
amended the Ordinance to eliminate a twenty-four acre  tract  from  Area  4,
thereby splitting that Area into 4 East and 4 West,  and  also  amended  the
Plan.  It then passed the Amended Ordinance on second reading.  On  December
7th, the Council again amended the Plan and passed the Amended Ordinance  on
final reading.

      In February 1993, certain property  owners  residing  in  the  annexed
areas  filed  a  Petition  for  Declaratory  Judgment  and  a  Petition  for
Remonstrance.  These  Remonstrators  claimed  that  the  Council  failed  to
observe some statutorily  required  procedures  in  passing  the  Ordinance.
They also challenged the sufficiency of the Fiscal Plan as  adopted  at  the
time of the Ordinance’s passage.

      In  May  1994,  Remonstrators  filed  a  Third  Amended  Petition  for
Declaratory Judgment  and  Remonstrance.   Judge  John  Kellam  treated  the
City’s response as a motion for summary judgment and, in July 1995,  granted
summary judgment in favor of  the  City  on  the  petition  for  declaratory
judgment and on portions of the petition for remonstrance.[1]

       The  hearing  on  the  remaining  portions  of   the   petition   for
remonstrance began in November 1995.  Remonstrators requested a  continuance
after the City changed its theory of annexation on  Area  2  to  reflect  an
intervening  Court  of  Appeals  decision.   The  trial  court  granted  the
continuance and the hearing resumed in July 1996.  During the  hearing,  the
court allowed the City to present evidence revising  and  supplementing  the
Fiscal Plan that the Council adopted in 1992.

      On March 3, 1997, the City filed a motion under Ind. Trial Rule  53.2,
and on April 8 this Court appointed Judge Barbara  A.  Harcourt  to  replace
Judge Kellam.  On June 17, 1998, Special Judge Harcourt  issued  a  judgment
in the City’s favor, supported by findings of fact and conclusions  of  law.


      Remonstrators appealed.  The Court of  Appeals  held  that  the  trial
court erred in  granting  partial  summary  judgment  on  the  petition  for
remonstrance and in allowing the City to make  significant  changes  to  its
Fiscal Plan during  the  remonstrance  hearing.   Bradley  v.  City  of  New
Castle, 730 N.E.2d 771, 787 (Ind. Ct.  App.  2001).   We  granted  transfer.
753 N.E.2d 10 (Ind. 2001).



                Standard of Review for Annexation Challenges


      A. The Nature of Annexation.  For much of Indiana  history,  aggrieved
property owners had virtually no recourse to protest annexation.[2]  Over  a
century ago we said:
      [N]o property is taken from the owner, by annexation, no private right
      of the owner is affected; the act simply changes the property and  its
      owner, in their civil relation  to  certain  public  authority.   This
      power the State has the right to  exercise,  directly  or  indirectly,
      within constitutional limits, at any time.


Stilz v. City of Indianapolis, 55 Ind. 515, 523 (1877).

      In short, “annexation of territory to a city is not a  taking  of  the
property, nor does it deprive any  person  of  his  property.”   Taggart  v.
Claypool, 145 Ind. 590,  596,  44  N.E.  18,  20  (1896).   Property  owners
therefore  have  no  vested  interest  in  the  maintenance   of   municipal
boundaries at any particular location.  Forks v. City of  Warsaw,  257  Ind.
237, 273 N.E.2d 856 (1971), cert. denied, 409 U.S. 841 (1972).

      B. The Trial Court’s Role.  Annexation is an  essentially  legislative
function.  Rogers v. Mun. City of Elkhart, 688 N.E.2d at 1239  (citing  City
of Indianapolis v. Wynn, 239 Ind.  567,  157  N.E.2d  828  (1959)).   It  is
subject to judicial review only as provided by statute,  and  “[t]he  larger
object of the annexation statute is,  as  it  always  has  been,  to  permit
annexation of adjacent urban territory.”  Id. at 1242.

      Therefore, a remonstrator’s challenge to annexation is not  a  regular
lawsuit, but rather a special proceeding the General Assembly  may  control.
See Thorn v. Silver, 174 Ind. 504, 510, 89 N.E. 943, 946 (1909)  (action  by
remonstrators challenging a drain construction  assessment).   Indiana  Code
§§ 36-4-3-11 through 13 establish requirements  for  remonstrances;[3]  give
trial courts authority to hear and enter judgment on  remonstrances;[4]  and
direct courts to order annexation provided that  the  city  meets  specified
requirements on matters such as contiguity and has  adopted  a  fiscal  plan
showing that it will provide municipal services to  the  annexed  area  that
are equivalent to those  enjoyed  by  residents  in  similar  areas  of  the
municipality.[5]

      The trial court’s role is  to  decide  whether  the  municipality  has
operated within its authority and satisfied  the  statutory  conditions  for
annexation.  Rogers, 688 N.E.2d at 1239-40.  At  the  remonstrance  hearing,
the  municipality  bears  the  burden  of  showing   compliance   with   the
requirements of the annexation statute.  Id.

      Although the municipality bears the  burden  of  proof  when  properly
challenged, we afford legislative judgment considerable  deference.   It  is
well-established that we  avoid  scrutinizing  legislative  processes,  even
those that are constitutionally mandated.  See  State  ex  rel.  Masariu  v.
Marion Superior Court No. 1, 621 N.E.2d  1097,  1098  (Ind.  1993)  (“[T]his
Court has held repeatedly  that  courts  should  not  intermeddle  with  the
internal functions of  either  the  Executive  or  Legislative  branches  of
Government.”); see also Roeschlein v. Thomas, 258 Ind. 16,  280  N.E.2d  581
(1972).

      The General Assembly has delegated part of its power  to  re-establish
and change governmental unit boundaries to local  legislatures.   See  Perry
Township v. Indianapolis Power & Light Co.,  224  Ind.  59,  64  N.E.2d  296
(1946).  We do not abandon  our  deferential  approach  simply  because  the
state legislature  has  delegated  a  legislative  function  to  subordinate
agents, the municipalities.  See City of Valparaiso v. Gardner, 97  Ind.  1,
3 (1884) (“[C]ourts will  not  interfere  with  mere  matters  of  municipal
legislation . . . .” ).

      Therefore, a trial court hearing a remonstrance  is  not  an  examiner
conducting an audit of a challenged fiscal plan.  Rather,  it  should  focus
on whether that plan represents a credible commitment  by  the  municipality
to  provide  the  annexed  area  with  comparable  capital  and  non-capital
services.

      B. The Appellate Court’s Role.  When  a  trial  court  enters  special
findings, as it did here, we review issues of fact for  sufficiency  of  the
evidence and  look  to  the  record  only  for  evidence  favorable  to  the
judgment.  Ind. Trial Rule 52; Rogers, 688 N.E.2d at 1240.  We  do  not  set
aside findings and judgments unless they are clearly  erroneous.   T.R.  52.
We review questions of law de novo.  Rogers, 688 N.E.2d  at  1240  (citation
omitted).



                Scope of Review for Annexation Remonstrances



      Remonstrators argue that the City exceeded its authority by  violating
certain  statutory  directives  concerning  the   passage   of   ordinances.
(Appellants’ Br. at 57.)  Some of these directives appear  in  Indiana  Code
Chapter 36-4-3, Municipal Annexation and Disannexation, although not in  the
sections  that   deal   specifically   with   remonstrance   proceedings.[6]
(Appellants’  Br.  at  57,  65.)   Others  appear  elsewhere  in  the  Code.
(Appellants’ Br. at   62, 67.)  Remonstrators  do  not  argue  that  any  of
these violations impaired their substantial rights or caused  them  specific
harm.


      For example, Remonstrators point to the requirement in Ind. Code § 36-
4-3-3 that says,  “The  legislative  body  of  a  municipality  may,  by  an
ordinance defining the  corporate  boundaries  of  the  municipality,  annex
territory . . . .”  Remonstrators argue that this statute requires  a  legal
description and,  because  the  City  did  not  prove  that  the  annexation
ordinance (which referred to City boundaries generally) had a  map  attached
to define the City’s legal boundaries, the annexation fails.   They  do  not
claim  that  they  were  misled  or  disadvantaged  in  any  way   by   this
approach.[7]


      As another example, Remonstrators point  to  Ind.  Code  §  36-4-6-13,
which says:  “A two-thirds (2/3) vote of  all  the  elected  members,  after
unanimous consent of the members  present  to  consider  the  ordinance,  is
required to pass an ordinance of the legislative body on the same day or  at
the same meeting at which it is introduced.”  (Appellants’  Br.  at  62-63.)
They claim that the November 16, 1992, Council action  deleting  twenty-four
acres of land from  Area  4  was  more  than  just  an  amendment  and  thus
triggered the “unanimous consent” requirement.[8]  (Appellants’ Br.  at  64-
65.)  They do not, however, assert any specific harm  arising  out  of  this
course of events.


      Judge Kellam declined to address these individual  challenges  on  the
merits and granted  summary  judgment  to  the  City,  concluding  that  all
sufficiently  specific  allegations  fell  outside  the  scope  of  judicial
review.  The Court of Appeals disagreed and remanded for a new  remonstrance
hearing.  Bradley, 730 N.E.2d at 787.


      We begin by noting that the separation of powers doctrine, which  both
the trial court and Court of Appeals discussed at length, does not  preclude
judicial review, if  only  because  Indiana’s  legislature  has  provided  a
specific judicial role in annexation challenges.  The  question  is  whether
judicial review should extend beyond the confines  of  Sections  11  through
13.


      The Court of Appeals “f[ou]nd nothing in the  Annexation  Act[9]  that
shows that the General Assembly intended to limit the judicial review  of  a
municipalit[y’s]  annexation  power.”   Bradley,  730  N.E.2d  at  782.   It
therefore concluded that Remonstrators could challenge the annexation  based
on  noncompliance  with  statutes  that  do  not  deal   specifically   with
remonstrances.


      We disagree.  According to Ind. Code § 36-4-3-13, “a court shall order
a proposed annexation to take place if the following requirements are  met.”
  (Emphasis  added.)   These  requirements  are  contiguity  (or   specified
alternatives to contiguity)  plus  a  fiscal  plan  that  covers  enumerated
subjects.  This language seems plain enough:  if the City satisfies  Section
13’s listed requirements, the court shall order annexation.


      We recognize, of  course,  that  annexing  municipalities  may  commit
procedural wrongs so severe that courts must act to  protect  remonstrators’
substantial rights.  An example of such is King v. City of Bloomington,  239
Ind. 548, 159 N.E.2d 563  (1959).   There,  remonstrators  claimed  to  have
incurred great expense to challenge an annexation ordinance.   239  Ind.  at
556, 159 N.E.2d at  567.   If  they  succeeded,  a  statute  prohibited  any
reannexation attempt for two years.  239 Ind. at 558,  159  N.E.2d  at  568.
In an alleged attempt to frustrate  the  remonstrators’  efforts,  the  city
repealed the ordinance and  then  three  months  later  started  the  entire
process over by annexing  substantially  the  same  territory  under  a  new
ordinance.  239 Ind. at 557, 159 N.E.2d at 567-68.

      Although no statute forbade this practice, this Court held:
      [I]f it is shown that a defendant prepares at  considerable  time  and
      expense to defend and the action is  then  dismissed  for  the  avowed
      purpose of repeatedly filing like actions to harass and wear down  the
      defendant without giving him an opportunity to adjudicate  and  settle
      the issues on the merits, equity has a remedy. . . . The principle  is
      invoked to prevent vexatious litigation, multiplicities of  suits,  or
      circuit of actions.  Equity will not suffer a wrong without a remedy.


239 Ind. at 563-64, 159 N.E.2d at 570-71 (citations omitted).

      Similarly, due process and due course  of  law  may  require  judicial
relief where plausible claims of fraud or  discrimination  are  established.
See, e.g., State ex rel. City of Marion v. Grant  Circuit  Court,  239  Ind.
315, 157  N.E.2d  188  (1959)(allowing  judicial  review  of  city’s  sewage
disposal rate scheme).  However, “[w]e start from  the  premise  that  there
can be no protected property interest in adherence to established  procedure
. . . . and the mere failure to follow applicable rules or  procedures  does
not, without more, amount to  a  due  process  violation.”   Shook  Heavy  &
Envtl.  Const.  Group  v.  City  of  Kokomo,  632  N.E.2d  355,  361   (Ind.
1994)(quoting Rice v. Scott County Sch.  Dist.,  526  N.E.2d  1193,  1196-97
(Ind.  Ct.  App.  1988))(citations  omitted)(denying  judicial   review   to
unsuccessful bidder for public contract).

      As we noted  above,  Remonstrators’  complaints  here  are  relatively
technical in nature,  and  do  not  assert  any  impairment  of  substantive
rights.  The trial court therefore  correctly  concluded  that  the  alleged
procedural  violations  fell  outside  the  scope  of  judicial  review   of
annexations.




                  A Balanced Approach to Fiscal Plan Review


      Section 13 requires “that a city’s annexation plan show that the  city
will  promptly  provide  the  annexed  territory  with  municipal   services
equivalent to those it already provides in similar  areas  of  the  existing
city.”  Chidester II, 631 N.E.2d at 910.   Specifically,  at  the  time  the
City passed its annexation ordinance,  it  was  also  required  to  adopt  a
written fiscal plan showing:
        1) The cost estimates of planned services to be  furnished  to  the
           territory to be annexed.
        2) The method or methods of financing the planned services.
        3) The plan for the organization and extension of services.
        4) That planned services of a noncapital nature,  including  police
           protection, fire protection, street and  road  maintenance,  and
           other noncapital services normally provided within the corporate
           boundaries, will be provided to the annexed territory within one
           (1) year after the effective date of annexation, and  that  they
           will be provided in a manner equivalent in standard and scope to
           those noncapital services provided to areas within the corporate
           boundaries that have similar topography, patterns of  land  use,
           and population density.
        5) That services of a capital improvement nature, including  street
           construction,   street   lighting,   sewer   facilities,   water
           facilities, and stormwater drainage facilities, will be provided
           to the annexed  territory  within  three  (3)  years  after  the
           effective date of the annexation, in the same  manner  as  those
           services are provided to areas within the  corporate  boundaries
           that  have  similar  topography,  patterns  of  land  use,   and
           population density, and in a  manner  consistent  with  federal,
           state, and local laws, procedures, and planning criteria.
        6) The plan for hiring the employees of other governmental entities
           whose jobs  will  be  eliminated  by  the  proposed  annexation,
           although the municipality is not required to hire any employees.

Ind. Code Ann. § 36-4-3-13(d)(West Supp. 1992).


      It is undisputed that the City did adopt a written  fiscal  plan  that
covered all of these topics to some extent.  Remonstrators  argue  that  the
trial court erred by allowing the City to amend and supplement that Plan  at
the  hearing,  to  meet  its  burden  of  proving   the   Plan   sufficient.
(Appellants’ Br. at 67-68.)  The issue, then, is whether a  fiscal  plan  is
frozen as of the date of its adoption for purposes of evaluating  its  legal
sufficiency.


      We answered this question in City of Hobart v. Chidester,  596  N.E.2d
1374 (Ind. 1992)(“Chidester I”),  after  remand,  631  N.E.2d  908.   There,
remonstrators argued that the City of Hobart’s fiscal  plan  failed  to  set
out all the information required under the statute.  Id. at 1375.  The  City
introduced evidence at trial addressing this deficiency.  Id.  We said:
      Remonstrators are correct in that the plan must be more  than  a  mere
      recital of the statutory language.  We do  not  think,  however,  that
      comparisons between the city’s topography, patterns of land  use,  and
      population density and those of the annexed territory need be set  out
      in the plan itself.  Such comparisons would do little to  advance  the
      ability of landowners to enforce their rights to  services  under  the
      plan.   . . . The statutes do call upon the trial court  to  determine
      whether the city’s  written  resolution  and  plan  are  according  to
      statute, but they also tell  the  court  to  “enter  judgment  on  the
      question of the annexation according  to  the  evidence  which  either
      party may introduce.”  Ind. Code § 36-4-3-12(a)(2)(West Supp. 1991). .
      . .  There would be no need for an evidentiary hearing . .  .  if  all
      proof of a city’s ability to provide like services had to be  set  out
      in the written plan.

Id. at 1378 (emphasis added).

      Here, Judge Harcourt found that “[t]he Fiscal Plan contained a  number
of errors.  Some of which were quite obvious  i.e.  that  the  tax  increase
from 8.2465% to 14.3604% was a 6% increase [as opposed to a  $6  increase].”
(R. at 900.)  Most significantly, the required capital  improvement  expense
for water services should have been $78,500 rather than  the  $11,000  shown
in the Plan.  (R. at 906.)  After taking into account the  evidence  at  the
hearing, however, Judge Harcourt found as fact that:
      The current building,  policing,  fire  and  medical,  water,  sewage,
      street lighting, street and  road  maintenance,  street  construction,
      parks, animal control, transit and administrative  services  currently
      provided to the citizens of New Castle in  comparable  areas  will  be
      provided to the citizens of the annexed areas  in  a  manner  that  is
      equivalent . . . in standard and scope.  This  includes  both  capital
      and non-capital services.  All of the  non-capital  services  will  be
      supplied to the annexed territory within  one  year  of  the  date  of
      annexation and all capital expenditures will be within three years  of
      the date of annexation.


(R. at 911.)  She went on to say:
      19.   The Court agrees that the municipality, bearing  the  burden  of
      proof, may present matters outside the Fiscal Plan during the trial of
      the case.  The municipality is not required to include every detail in
      the plan which may be presented at trial.


      20.   However, at some point new evidence  presented  at  trial  would
      constitute a complete reworking of the plan.  Such  reworking  of  the
      plan would create undue hardship upon remonstrators.


      . . . .


      34.   The Court . . . identified three  purposes  for  written  fiscal
      plans in Ho[]bart v. Chidester:[10]


           “First, the publication of the written plan  permits  landowners
           to make an intelligent decision as to whether or not  to  accept
           annexation or remonstrate.


           Second, requiring a  written  plan  makes  the  opportunity  for
           remonstrance and judicial review more realistic.  As a practical
           ma[tt]er, more than vague promises are needed  for  a  Court  to
           test a city’s ability to provide like services  to  the  annexed
           territory.


           Third, a fiscal plan needs to  be  in  writing  to  protect  the
           rights of the landowners to institute proceedings to  force  the
           annexing city to  provide  the  services  pro[mis]ed  under  the
           plan.”  Hobart at 1377-78.


      35.   In the present case,  the  Fiscal  Plan  certainly  allowed  the
      remonstrators to determine whether or not to remonstrate.  They  chose
      to remonstrate.


      36.   The written plan also allowed for a complete judicial review.


      37.   The Fiscal Plan quite clearly stated what services  were  to  be
      provided to the areas being annexed.


      38.   The Fiscal Plan contained  some  errors.   Some  of  the  errors
      [were] obvious, such as the percentage of increase of taxes and  could
      easily be identified by the lay public as well as  the  Court.   Other
      errors involved an increase of funds needed,  such  as  sewage  costs.
      These increases were clearly identified.


      39.   The Plan’s errors were corrected by amendment or at  trial.   At
      trial, the Plan still served as the basis for review.


      40. The third purpose served by a plan is protection for landowners in
      the future.  The Plan in this case, along with the extensive testimony
      and exhibits produced at trial certainly provides  the  landowners  in
      the Annex Areas 1, 2, 3, 4 East and 4 West with a  concrete  statement
      of the city’s promise to provide certain services to them.


      . . . .


      43. The Court concludes that the city has met its burden  with  regard
      to provision of services to  annexed  areas,  both  capital  and  non-
      capital in a manner which  is  equivalent  as  that  provided  to  the
      comparable areas.  The city has carried its burden as to the  cost  of
      services to annexed areas and method of financing the services.


      . . . .


      48.  Therefore,  the  Court  concludes  that  the   Fiscal   Plan   as
      supplemented at trial is not so seriously defective as to  thwart  the
      purposes announced under Hobart v. Chidester.


      49.  The central issue remains as  to  whether  or  not  the  evidence
      offered at trial in 1995 and 1996 essentially rewrote the Fiscal  Plan
      to  the  point   that   substantial   unfairness   resulted   to   the
      remonstrators.


      . . . .


      52.  This case presents serious, strong competing public policies.  On
      one hand, is the need for  municipalities  to  grow  in  a  regulated,
      planned fashion.  On the other hand, individual landowners need to  be
      fully informed of proposed annexation actions.  These  interests  must
      always be carefully balanced.


      . . . .


      55.  The function of the Court in  the  annexation  process  is  quite
      limited.    “Annexation   is   primarily   a   legislative   decision.
      Nevertheless, the judiciary is charged with ensuring that the  minimum
      requirements for annexation, as prescribed  by  the  General  Assembly
      have been satisfied.”  Town of Sellersburg v. Proposed  Annexation  of
      Certain Property, 677 N.E.2d 608, 612.  (Ind. App. 1997); Chidester v.
      City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994).


      56.   It appears  to  the  Court  that  this  case  presents  a  close
      question.


      . . . .


      58. The city made a number of errors in its Fiscal Plan and  the  Plan
      preparation could be termed “sloppy.”


      59. Plaintiffs’ expert witness testified that errors may  be  expected
      for Fiscal Plans.


      . . . .


      61. . . . [A]t the end of the trial in this  case,  the  remonstrators
      had complete information as to  the  city’s  plans  for  provision  of
      services to the annexed areas.


      62.  The Court concludes that the errors are not fatal to  the  Fiscal
      Plan  or  to  the  annexation  process  as  a   whole.    The   City’s
      supplementation  of  the  Plan  at  trial  did  not  unduly  prejudice
      Plaintiffs.  The city has borne its  burden  of  proving  it  met  the
      minimum requirements set forth by the Indiana General Assembly.


(R. at 915-22.)




      We quote these  findings  and  conclusions  at  length  because  Judge
Harcourt followed the appropriate path.  Her analysis correctly  focused  on
the purposes for  requiring  fiscal  plans  and  measured  the  City’s  Plan
against those purposes.  She allowed the City reasonable leeway in  updating
the Plan within the bounds of fairness to the Remonstrators.


      At the end of the day, Judge Harcourt concluded that although the Plan
was imperfect it was legally sufficient to protect the  annexed  landowners’
future rights.  This conclusion is supported by sufficient facts, and it  is
a correct application of the law.



                                 Conclusion


      We affirm the judgment of the trial court.


Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] The Remonstrators sought an interlocutory appeal on the remonstrance
claims, but the parties later filed jointly for its dismissal.  (R. at 555-
60.)  Remonstrators did not appeal the declaratory judgment ruling.  See
Bradley v. City of New Castle, 730 N.E.2d 771, 774 (Ind. Ct. App. 2000),
transfer granted, opinion vacated, 753 N.E.2d 10 (Ind. 2001).
[2] Indiana’s statutory annexation scheme dates back to 1824, when the
first annexation statute allowed virtually automatic annexation of improved
land whenever an adjacent out-lot was platted into new building lots and
recorded.  See Rogers v. Mun. City of Elkhart, 688 N.E.2d 1238, 1241 n.5
(Ind. 1997) (citing “An act for the incorporation of Towns,” 1824 Ind. Rev.
Stat., ch. CXI § 14, at 417 (Jan. 30, 1824)).  “The acts of building and
recording building lots were viewed as constructive consent to annexation.”
 Id. (citing Forsyth v. City of Hammond, 142 Ind. 505, 40 N.E. 267 (1895)).

[3] Ind. Code Ann. § 36-4-3-11 (West Supp. 1992)(“Section 11”).
[4] Ind. Code Ann. § 36-4-3-12 (West 1992)(“Section 12”).
[5] Ind. Code Ann. § 36-4-3-13 (West 1992)(“Section 13”); Chidester v. City
of Hobart, 631 N.E.2d 908, 910 (Ind. 1994)(“Chidester II”).
[6] Only Sections 11 through 13 are specific to remonstrances.
[7] Remonstrators concede that Ind. Code § 36-4-3-4 provided an alternative
basis for annexation and does not require this description.  (Appellants’
Br. at 61.)  They argue, however, that because the City voluntarily said it
was acting pursuant to Section 3, it must strictly comply with Section 3’s
requirements.  (Appellants’ Br. at 61-62.)  We need not address this
argument for reasons explained below.
[8] The City disagrees and also points out that the ordinance did not
actually pass into law until the third reading and signing on December 7th.
 (Appellee’s Br. at 29-30, 32-33.)
[9] Municipal Annexation and Disannexation Act, Ind. Code § 36-4-3-1 et
seq.
[10] This refers to Chidester I.