Rogers v. Municipal City of Elkhart

GARRARD, Judge,

concurring in result.

I concur in the result reached. As stated by the majority, the question before us is whether, under the evidence presented, the city complied with the requirements of either IC 36-4-8-13(b)(@Q)(B) or (C). Admittedly the annexed area did not have the population density required by subsection (b)@)(A).

Furthermore, the city expressly advised the court and remonstrators that it was not making any claim under IC 36-4-8-13(c) which permits annexation where % of the area is contiguous to the city and the "territory ... is needed and can be used by the municipality for its development in the reasonably near future." Since no claim under (c) was litigated by the parties, the city is bound by its disclaimer on appeal.

The trial court determined that the annexation met the requirements of subsection (B) which requires that sixty percent (60%) of the territory is subdivided. The issue presented by this finding is the appropriate meaning of the term "subdivided".

The city would have us adopt the definition used in its subdivision control ordinance. That ordinance, in order to acquire maximum jurisdiction over the division of land by landowners within its area of operation, defines subdivision as "any division or redivision of land in which two (2) or more parcels ... are established for residential or business purposes and any one (1) of these parcels ... [is] less than three acres in area...."

While that definition may be an appropriate jurisdictional yardstick, it certainly does not meet the "urban character" analysis discussed by the majority and which has been an ongoing part of the courts' analysis in annexation matters. On the other hand, neither do I accept the majority's definition that as used in the annexation statute the term "subdivided" should be limited to "land divid*599ed pursuant to a local subdivision control ordinance" (op. at 597) or a parcel "actually recorded pursuant to a local subdivision control ordinance." (op. at 597). It seems to me that the ordinary meaning of the term as used in the annexation statute is to refer to land that has been platted into a subdivision of lots, and that is so whether or not the subdivision was accomplished under a subdivision control ordinance and whether or not the plat has been recorded-so long as the lots have been created and conveyed as such.

Applying that definition, it does not appear that sixty percent of the annexed area was subdivided. Accordingly, the court's finding was contrary to law.

Subsection (C) permits annexation where "tlhe territory is zoned for commercial, business, or industrial uses." Again, admittedly, approximately 7%, consisting of about 29 acres, was zoned for residential purposes. I agree with the majority that (C) requires the entire area in question to be zoned for commercial, business or industrial uses. Therefore, the court's finding that the requirements of (C) were met cannot stand.

Nor will the statute admit to some notion of tacking the requirements for one area to the requirements for another to create some amorphous whole. When the various enabling provisions of IC 36-4-3-13 are considered together, municipalities are given a broad range for annexing necessary and desirable areas. On the other hand, the language employed plainly renders the various provisions mutually exclusive. Furthermore, IC 36-4-3-11 preserves the right of landowners to remonstrate against annexation. Their rights to do so might be seriously impaired if a municipality could alter the potential for a sufficient remonstrance merely by tacking an area under one subsection to areas under other subsections.

I therefore concur in the result reached.