                                                                  Jun 02 2015, 8:28 am




ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
Nicholas K. Kile                                            Stephen C. Unger
Mark J. Crandley                                            Paul D. Vink
Barnes & Thornburg LLP                                      Bradley M. Dick
Indianapolis, Indiana                                       Bose McKinney & Evans LLP
                                                            Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Town of Zionsville, Indiana,                                June 2, 2015

Appellant-Defendant,                                        Court of Appeals Cause No.
                                                            06A01-1410-PL-432
        v.                                                  Appeal from the Boone Superior
                                                            Court
                                                            The Honorable Rebecca M. McClure
Town of Whitestown, Indiana,                                Cause No. 06D02-1406-PL-64
and Angel Badillo,
Appellee-Plaintiff




Bailey, Judge.




Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                   Page 1 of 34
                                            Case Summary
[1]   The Town of Zionsville (“Zionsville”) appeals the entry of summary judgment

      against it and in favor of the Town of Whitestown and Angel Badillo

      (collectively, “Whitestown”) with respect to the parties’ claims and

      counterclaims concerning 1) Zionsville’s proposed reorganization with Perry

      Township, in Boone County, and 2) Whitestown’s proposed annexation of

      portions of Perry Township.


[2]   Zionsville’s appeal presents novel questions concerning the construction of

      numerous provisions of the Indiana Government Modernization Act of 2006

      (“the Act”), see Ind. Code § 36-1.5-1-1 et seq., and how provisions of the Act

      operate in conjunction with other statutes that regulate the operation of local

      governments in Indiana. The trial court concluded at summary judgment that,

      even with the Act’s significant liberalization of the rules concerning

      reorganization and territorial boundary-drawing at the level of local

      government, Zionsville cannot “leap-frog” Whitestown in an effort to

      reorganize with portions of Perry Township which are not contiguous with

      Zionsville. Appellees’ Br. at 1.


[3]   Zionsville appeals. We reverse and remand.



                                                      Issue



      Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015   Page 2 of 34
[4]   Zionsville presents for our review several issues, which we present as the single

      issue of whether the trial court erred when it granted summary judgment for

      Whitestown on its claims and on Zionsville’s counterclaims. 1



                              Facts and Procedural History
[5]   In 2010, Zionsville reorganized with two townships in Boone County, Eagle

      Township and Union Township (“the 2010 Reorganization”). Zionsville’s

      town boundaries were entirely within Eagle Township prior to the

      reorganization. The 2010 Reorganization resulted in the dissolution of the

      separate township governments of Eagle and Union. All government functions

      previously carried out by the townships were consolidated into Zionsville’s

      governmental bodies, and portions of the territory previously held by the

      townships were absorbed into Zionsville.


[6]   At the time of the 2010 Reorganization, portions of Whitestown were in Eagle

      Township. Other portions of Whitestown were in Perry Township, which

      shared a border with the southwest corner of Eagle Township, and still other

      portions lay in Worth Township. See Appellees’ Br. at 7.


[7]   In 2013, Whitestown adopted an ordinance to annex a portion of land in Perry

      Township, which was to be used as a home for Whitestown’s planned Waste




      1
        The trial court’s order addresses a counterclaim by Zionsville alleging breach of contract related to certain
      interlocal agreements. Zionsville did not address this matter in its appeal, and we accordingly leave the trial
      court’s entry of summary judgment on that question undisturbed.

      Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                              Page 3 of 34
       Water Treatment Plant (“the 2013 Annexation”). A remonstrance was filed

       and the case is presently pending before this Court. See Docket for Ind. Ct.

       App. Cause No. 29A05-1409-MI-00437.


[8]    On April 18, 2014, Perry Township adopted a resolution to consider plans to

       reorganize with Zionsville. On April, 21, 2014, Zionsville also adopted a

       similar resolution.


[9]    On April 22, 2014, one day after Zionsville adopted its resolution, Whitestown

       introduced four proposed annexation ordinances for territory within Perry

       Township, and for territory within the boundaries of Eagle Township that

       Zionsville had not included in the 2010 Reorganization (“the 2014

       Ordinances”). All of the territory sought to be annexed under the 2014

       Ordinances was also within the scope of territory to be incorporated in

       Zionsville under the 2014 Zionsville Plan. Appellees’ Br. at 7.


[10]   On May 20, 2014, Zionsville and Perry Township each adopted an identical

       plan for reorganization (“the 2014 Zionsville Plan,” “the 2014 Plan,” or “the

       plan”). The plan would reorganize Perry Township’s government with that of

       Zionsville. Perry Township’s government would cease to exist, and all

       township government functions and offices would be incorporated into those of

       Zionsville.


[11]   As to the territorial scope of the 2014 Zionsville Plan, all of the land included

       within Perry Township but outside of Whitestown—including territory subject

       to the 2013 Annexation—would be incorporated into Zionsville. Further, the

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015    Page 4 of 34
       2014 Zionsville Plan included provisions that would redraw the existing

       boundaries of Zionsville to include portions of land that had previously been

       part of Eagle Township prior to the 2010 Reorganization, but which had not

       been included in that reorganization. In sum, then, the 2014 Plan would

       incorporate into Zionsville all the territory encompassed by the 2014

       Ordinances adopted by Whitestown, as well as the remainder of Perry

       Township.


[12]   None of the portions of Perry Township that the 2014 Zionsville Plan identified

       as being part of a reorganized Zionsville included land physically adjacent to

       territory that had been incorporated into Zionsville in the 2010 Reorganization.

       Zionsville, however, had been providing township services within Whitestown

       throughout the geographic areas that previously belonged to Eagle Township,

       up to the boundary between Perry and Eagle Townships.


[13]   On June 24, 2014, Whitestown filed suit against Zionsville, challenging the

       validity of the 2014 Zionvsille Plan and seeking a declaratory judgment

       invalidating the Plan. Zionsville answered and filed a counterclaim, contending

       that Whitestown lacked authority to pursue its annexation plans as reflected in

       the 2014 Ordinances, which had been made available for public comment. 2

       Whitestown and Zionsville filed cross-motions for summary judgment, which

       proceeded to a hearing on September 9, 2014.




       2
           The 2014 Ordinances were not adopted prior to the initiation of this appeal.


       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015             Page 5 of 34
[14]   On October 7, 2014, the trial court granted summary judgment in favor of

       Whitestown, concluding that the 2014 Zionsville Plan was contrary to the

       provisions of and therefore was not authorized by the Act. The court also

       concluded that, contrary to Zionsville’s counterclaim, Whitestown had the

       necessary statutory authority to pursue its annexation plans. Zionsville sought

       a stay of the trial court’s order pending appeal, which the trial court denied on

       October 9, 2014.


[15]   This appeal ensued.3



                                   Discussion and Decision
                                          Standard of Review
[16]   This case comes to us on appeal from the trial court’s order granting summary

       judgment in Whitestown’s favor upon cross-motions for summary judgment.

       On appellate review of an entry of summary judgment, we use the same

       standard as that used by the trial court. Bushong v. Williamson, 790 N.E.2d 467,

       473 (Ind. 2003). Summary judgment is appropriate only when the designated

       evidence establishes that there is no genuine issue of material fact and that the

       movant is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). We

       construe all facts and inferences therefrom in favor of the non-moving party.




       3
        In the interim, the public question on the 2014 Zionsville Plan proceeded to voters. Voters approved the
       plan on November 4, 2014. On November 24, 2014, the Indiana Supreme Court denied a petition by
       Zionsville for transfer of jurisdiction for purposes of direct appellate review.

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                          Page 6 of 34
       Bushong, 790 N.E.2d at 473. We limit our review of factual matters to the

       materials the parties designated to the trial court. Id.


[17]   A trial court’s entry of summary judgment comes “clothed with a presumption

       of validity.” Kader v. State, 1 N.E.3d 717, 725-26 (Ind. Ct. App. 2013) (citations

       and quotation marks omitted). Where, as here, the trial court enters its

       summary judgment order in the form of findings and conclusions, these offer

       valuable insight into the trial court’s rationale for its decision and facilitate our

       review. Spudich v. NIPSCO, 745 N.E.2d 281, 290 (Ind. Ct. App. 2001), trans.

       denied. A trial court’s findings and conclusions at summary judgment do not

       limit our review of the order, and we may affirm a grant of summary judgment

       upon any theory supported by the evidence. Id.


[18]   That an appeal is from cross-motions for summary judgment does not alter our

       standard of review. Mahan v. Amer. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind.

       Ct. App. 2007), trans. denied. We consider each motion separately to determine

       whether the moving party is entitled to judgment as a matter of law. Id.


[19]   Where, as here, the core of the dispute centers upon the interpretation of

       statutes, we use established rules of statutory construction “to give effect to the

       General Assembly’s intent.” Ballard v. Lewis, 8 N.E.3d 190, 194 (Ind. 2014).

       The best evidence of the legislature’s intent is the statutory text. Adams v. State,

       960 N.E.2d 793, 798 (Ind. 2012). When a statute’s language is clear and

       unambiguous, there is “no room for judicial construction.” Ballard, 8 N.E.3d at

       194.


       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015       Page 7 of 34
[20]   Ambiguous language, however, is open to judicial construction. Id. A statute

       is ambiguous when it admits of more than one reasonable interpretation, and in

       such situations we resort to rules of statutory construction to give effect to the

       legislature’s intent. Adams, 960 N.E.2d at 798. We read the statute as a whole

       and avoid “excessive reliance on a strict, literal meaning or the selective reading

       of individual words.” Id.


                     The 2006 Government Modernization Act
[21]   This case raises for the first time for this Court’s consideration the interpretation

       of numerous provisions of 2006’s Government Modernization Act.4 First

       enacted by our Legislature in 2006 with specific portions subsequently

       amended, the Act affords local governments “broad powers to enable political

       subdivisions to operate more efficiently by eliminating restrictions under

       existing law” that might otherwise impede the efficient and cooperative

       administration and functioning of local governments. I.C. § 36-1.5-1-1(1). The

       Act thus “contains full and complete authority for … reorganization of political

       subdivisions.” I.C. § 36-1.5-1-2(1). Where conflicts arise between the Act and

       other law, compliance with the Act serves to satisfy the requirements for

       complying with any conflicting laws, I.C. § 36-1.5-1-6, and the Act is to be

       liberally construed to effect its purposes. I.C. § 36-1.5-1-5.




       4
         The Indiana Supreme Court has considered portions of the Act in the limited context of a certified question
       from a U.S. District Court in a challenge to certain voting provisions of a reorganization plan. See discussion
       infra of Kole v. Faultless, 963 N.E.2d 493 (Ind. 2012).

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                             Page 8 of 34
[22]   In furtherance of its purposes, the Act sets forth a new framework for the

       reorganization of, and the redrawing of boundaries between, local

       governments. Previously-enacted statutes concerning annexation of territory by

       a local government generally required that the annexing government and the

       annexed territory be contiguous with one another. See, e.g., I.C. § 36-4-3-

       4(a)(1). The Act leaves those statutes undisturbed. However, the Act provides

       an alternate route for local governments to incorporate other territory by means

       of the wholesale reorganization of subdivisions of local government. That is,

       the Act provides that certain political subdivisions may, with the consent of

       certain classes of voters, adopt and enact plans that allow local government

       bodies to merge with one another while redrawing territorial boundary lines.

       I.C. § 36-1.5-4-1 et seq.


[23]   Like prior statutes, the Act ensures that no portion of any Indiana county that

       does not participate in a reorganization will be deprived of township services.

       The Act does so, however, in a different manner. In prior statutes governing

       the establishment and abolition of townships, our statutes provided that “any

       territory in a county…not included in one (1) of the townships…is included in

       the township that: (1) is contiguous to that territory; and (2) contains the least

       population of all townships contiguous to that territory.” I.C. § 36-6-1-12.


[24]   In contrast, the Act distinguishes between portions of a township whose

       political offices have been reorganized and the remainder of the township.

       Thus, when the political bodies of a township reorganize and some areas of the

       township do not participate in that plan:

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015     Page 9 of 34
               the reorganized political subdivision continues to be responsible after
               the reorganization for providing township services in all areas of the
               township, including within the territory of a municipality in the
               township that does not participate in the reorganization.
       I.C. § 36-1.5-4-40.5(2)(A). This provision affords flexibility in the

       reorganization of township governing bodies, while also ensuring that areas of

       municipalities not participating in township reorganizations are not deprived of

       township services.


[25]   The flexibility envisioned by the Act is the culmination of a long period of

       development in the Indiana General Assembly’s delegation of authority to local

       governments, from a Dillon Rule-based approach of limited delegated authority

       to a home-rule regime. See Kole v. Faultless, 963 N.E.2d 493, 495-96 (Ind. 2012)

       (discussing the Dillon Rule and the use of ultra vires challenges to local

       government action, and exploring forty years’ development of liberalized local

       government authority in Indiana). Thus, in 2007, the General Assembly

       amended the Indiana Home Rule Act such that “a unit is presumed to possess

       broad powers of local government, unless the Indiana Constitution or a statute

       expressly denies the unit that power, or expressly grants it to another entity.”

       Id. at 496 (citing I.C. § 36-1-3-5).


[26]   “Against this ever-liberalizing landscape,” the Act has afforded even broader

       powers to local government to permit not only the exercise of authority and

       power, but also “‘full and complete authority’ to reorganize, exercise

       governmental functions under a cooperative agreement, and transfer

       responsibilities between offices and officers.” Id. (quoting I.C. § 36-1.5-1-2).


       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015            Page 10 of 34
       The Act creates new mechanisms vis-à-vis traditional annexation for the

       incorporation into municipalities of unincorporated areas of townships. These

       mechanisms favor reorganization of local governments by consent of the

       governed to forced annexation.


[27]   In light of all this, at issue here is whether Zionsville, as reorganized under the

       2010 Plan, was denied the power to reorganize with Perry Township under the

       2014 Zionsville Plan, and if Zionsville was denied such power, whether

       Whitestown could properly move forward with its annexation efforts.


                                                   Mootness
[28]   As a threshold issue, Whitestown argues that because Zionsville did not

       successfully obtain a stay of the trial court’s summary judgment order, the 2014

       Zionsville Plan was ipso facto void. The results of the election as to the 2014

       Zionsville Plan were therefore of no effect, and as a result, Whitestown

       contends, Zionsville’s appeal is moot. For its part, Zionsville contends that the

       public question concerning the reorganization appeared on the ballot and

       received a majority vote. Further, Whitestown did not seek emendation of the

       ballot from county election officials, Zionsville argues, and thus the appeal can

       proceed.


[29]   We find the Indiana Supreme Court’s opinion in White v. Ind. Democratic Party

       ex re. Parker, 963 N.E.2d 481 (Ind. 2012), instructive. In White, the Indiana

       Democratic Party brought an (ultimately untimely) challenge to the eligibility of

       Charlie White for the office of the Secretary of State of Indiana. Id. at 490.

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015    Page 11 of 34
       Surveying Indiana case law on election challenges, part of the White Court’s

       rationale rested on the principle that Indiana law seeks to honor voters’

       decisions so that “the will of the people in the choice of public officers may not

       be defeated by any merely formal or technical objections.” Id. at 486 (citations

       and quotation marks omitted). “[V]oters who are lawfully qualified to

       participate in our democratic process may not be disenfranchised except by

       their own willful or deliberate act to the extent that one who did not receive the

       highest vote cast may still be declared elected.” Id. (citations and quotation

       marks omitted). Thus, “[t]he existence of a fact which disqualifies, and of the

       law which makes that fact operate to disqualify, must be brought home so

       closely and so clearly to the knowledge or notice of the elector, as that to give

       his vote therewith indicates an intent to waste it.” Id. (quoting Oviatt v. Behme,

       238 Ind. 69, 74, 147 N.E.2d 897, 900 (1958)).


[30]   Here, as in White, we are confronted with litigation over the proper

       qualification of a choice posed to Indiana voters on an election ballot. There is

       no evidence that voters intentionally sought to waste their votes on the public

       question, and a majority of voters appear to have ratified the 2014 Zionsville

       Plan. Law and public policy in our state favor recognizing the validity of the

       choices of voters absent specific evidence that voters necessarily sought to waste

       their votes. We accordingly decline Whitestown’s invitation to conclude that

       Zionsville’s appeal is moot.




       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015   Page 12 of 34
              Reorganization of Zionsville and Perry Township
                  Zionsville’s Claim to Hybrid Status under the Act
[31]   Zionsville claims it was authorized to reorganize with Perry Township under

       either of two provisions of the Act, in Indiana Code section 36-1.5-4-1(a):

                Any of the following may reorganize under this chapter:
                (2) Two (2) or more townships located entirely within the same
                county. A township reorganizing under this subdivision must be
                adjacent to at least one (1) other township participating in the
                reorganizations;
                ***
                (7) A township and a municipality that is located in any part of the
                same township….
       I.C. § 36-1.5-4-1(a).


[32]   These provisions, as well as most other provisions of the Act, have not yet been

       interpreted by Indiana’s appellate courts. The sole case interpreting the Act is

       the Indiana Supreme Court’s decision in Kole, supra. In Kole, which involved a

       certified question from the U.S. District Court for the Southern District of

       Indiana, the plaintiffs sought to challenge a plan of reorganization involving the

       Town of Fishers and Fall Creek Township; the two governments sought to

       reorganize into a city with an elected city commission but an appointed mayor,

       a novel structure for a second class city.5 Id. at 495-97. Characterizing the




       5
         A second class city is defined by our statutes as a city with a population of between 35,000 and 599,999.
       I.C. § 36-4-1-1(a).

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                           Page 13 of 34
       General Assembly’s direction on principles of local government operation as

       “ever-liberalizing,” id. at 496, and noting that the Act does not by its terms in

       Section 36-1.5-4-1(a) “limit the resulting forms the reorganized political

       subdivision may take,” id. at 497, the Kole Court observed:

                it is far less burdensome on both the courts and the Legislature for the
                law to presume the existence of local authority to act absent some
                express prohibition, than it is to require legislation spelling out every
                detail of every permissible action a municipality may take. So the
                General Assembly has said, several times over multiple recent decades.
       Id. at 498. Based on this reasoning, the Kole Court concluded that Fishers and

       Fall Creek Township could, within the scope of powers afforded by the Act,

       reorganize into a city without an elected mayor.


[33]   Here, Zionsville contends that it was acting within statutory authority under

       Subsection 36-1.5-4-1(a) to reorganize with Perry Township. Whitestown

       argues to the contrary. It contends—and the trial court agreed—that Subsection

       36-1.5-4-1(a)(2) does not apply because Zionsville is a town, not a township. 6


[34]   Zionsville acknowledges that it is a town in terms of its formal structure.

       However, Zionsville argues that as a result of the 2010 Reorganization, it no

       longer bears only the powers of a town, but also those of a township.

       Specifically, Zionsville relies upon the following statutory provision:




       6
         The trial court also concluded that Zionsville could not proceed with the Plan based upon Subsection 36-
       1.5-4-1(a)(7); because we resolve this appeal on the basis of Subsection (a)(2), we do not address Subsection
       (a)(7) further.

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                           Page 14 of 34
               The following apply in the case of a reorganization under this article
               that includes a township and another political subdivision:
               ***
               (2) Except as provided in subdivision (3):7
               (A) the reorganized political subdivision continues to be responsible
               after the reorganization for providing township services in all areas of
               the township, including within the territory of a municipality in the
               township that does not participate in the reorganization; and
               (B) the reorganized political subdivision retains the powers of a
               township after the reorganization in order to provide township services
               as required by clause (A).
       I.C. § 36-1.5-4-40.5


[35]   Based upon these provisions, Zionsville contends that after the 2010

       Reorganization it continued to exercise the powers of a town and that it gained

       the powers of a township, including the authority under Subsection 36-1.5-4-

       1(a)(2) to exercise reorganization powers in the same manner as a township.

       Zionsville contends that this is the meaning of the legislative language in

       Subsection 36-1.5-4-40.5(2)(B), “retains the powers of a township…in order to

       provide township services as required by clause (A).” In short, Zionsville

       contends that it assumed a town/township hybrid status as a result of the 2010

       Reorganization, and this hybrid status permitted it to act in the manner of a

       township in its efforts to reorganize with Perry Township.




       7
        Subsection 36-1.5-4-40.5(3) pertains to the operation of interlocal agreements for provision of local
       government services. Neither party argues that Subsection 36-1.5-4-40.5(3) has any bearing upon the case.

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                        Page 15 of 34
[36]   While township governments provide an array of services, see I.C. § 36-6-4-3

       (designating as among the duties of a township executive fire protection in

       some circumstances, provision of township assistance, weed control,

       cemeteries, and insulin distribution to the poor), the Act does not delineate

       what township powers are necessary to provide township services under

       Subsection 36-1.5-4-4.5(2). However, some provisions of the Act make specific

       exceptions from the powers accorded to municipalities that reorganize with

       townships. For example, Subsection 36-1.5-4-40.5(6) specifically restricts

       political subdivisions that reorganize with townships from borrowing money

       under Indiana Code subsections 36-6-6-14(b) and (c), which govern the

       procedures by which townships may borrow from township funds to pay for

       firefighting or other emergency services.


[37]   Still other provisions of the Act treat a political subdivision reorganized under

       the Act as a township regardless of the formal structure selected as a result of

       the reorganization plan. For example, Subsection 36-1.5-4-40.5(7) provides for

       a different calculation of the ad valorem property tax levy for a reorganized

       political subdivision’s firefighting fund under Indiana Code section 36-8-13-4.

       Section 36-8-13-4 addresses aspects of the property tax levy pertinent to

       township firefighting funds. Thus, under the terms of the Act, a reorganized

       political subdivision’s firefighting fund is treated as though it is that of a

       township—without regard to whether the ultimate form of the reorganized

       subdivision is itself a town, a township, or some other entity.




       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015      Page 16 of 34
[38]   These statutory provisions thus permit broad changes to the functioning of local

       governments with few of the limitations attendant to prior statutory schemes

       regulating local government, and are consonant with the Act’s express

       statements of purpose, including enabling the streamlining and greater

       efficiency of local government, reducing the costs to taxpayers of the operation

       of local government, I.C. §§ 36-1.5-1-1(1), (2)(A) & (3), and improving the

       ability of local governments to provide “critical and necessary services.” I.C. §

       36-1.5-1-1(2)(B). They are also consonant with the legislature’s guidance that

       the Act should be liberally construed to effect the Act’s purposes, I.C. § 36-1.5-

       1-5, and with the Kole Court’s reasoning.


[39]   The Act neither expressly precludes Zionsville, having reorganized with and

       assumed the duties of a township, from functioning in a hybrid town/township

       capacity, nor from exercising the powers of a township when initiating a

       reorganization. The provisions of Subsections 36-1.5-4-40.5(6) and (7) of the

       Act indicate that the legislature contemplated that reorganized political

       subdivisions involving a township and another structure of government would

       retain broad township powers: if the legislature had intended otherwise, there

       would have been no need to restrict a reorganized political subdivision from

       borrowing money for firefighting and other emergency services in the same

       manner as a township. And as the Indiana Supreme Court observed in Kole,

       our legislature has continually departed from the Dillon Rule regime of limited

       powers, and “it is far less burdensome … to presume the existence of local

       authority to act absent some express prohibition.” 963 N.E.2d at 498.


       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015   Page 17 of 34
[40]   The Act affords local governments a free hand in determining their subsequent

       structures, and lacks express prohibitions on Zionsville’s exercise of township

       powers after its reorganization with Eagle and Union Townships. We

       accordingly conclude that pursuant to Subsection 36-1.5-4-40.5(2)(B) of the Act,

       Zionsville was authorized as a result of its reorganization with Eagle and Union

       Townships in 2010 to act as a township under Subsection 36-1.5-4-1(a)(2) when

       it adopted the 2014 Zionsville Plan to reorganize with Perry Township.


                                                    Adjacency
[41]   We turn next to whether Zionsville was adjacent to Perry Township as that

       term is defined within the Act.


[42]   In a case where two or more townships plan to reorganize together, Subsection

       36-1.5-4-1(a)(2) requires that “[a] township reorganizing under this subdivision

       must be adjacent to at least one (1) other township participating in the

       reorganizations.” Defining adjacency for its purposes, the Act provides, “two

       (2) political subdivisions may not be treated as adjacent if the political

       subdivisions are connected by a strip of land that is less than one hundred fifty

       (150) feet wide.” I.C. § 36-1.5-4-2.


[43]   Whitestown argues that even if, as we decided above, Zionsville could properly

       proceed under Subsection 36-1.5-4-1(a)(2) with the 2014 Zionsville Plan,

       Zionsville is nevertheless precluded from reorganizing with Perry Township

       because no part of Zionsville’s boundaries are adjacent to those of Perry

       Township. This is so, Whitestown argues, because Zionsville’s westernmost

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015       Page 18 of 34
       boundary ends where Whitestown’s easternmost boundary begins. That

       boundary line is entirely within territory that belonged to Eagle Township

       before the dissolution of its township government into that of Zionsville,

       without any of the boundary touching on the line between Perry Township and

       Eagle Township. Whitestown insists that the 2014 Zionsville Plan would see

       Zionsville “leap-frog” over Whitestown to reach Perry Township, something

       that was not within the legislature’s intent when it promulgated the Act.

       Appellees’ Br. at 1.


[44]   We think, in light of Section 36-1.5-4-40.5, that a liberal construction of the

       adjacency provision cuts differently. While the Act permits political

       subdivisions to reorganize and redraw their boundaries, a successor political

       subdivision must still perform the duties of a predecessor political subdivision.

       See I.C. § 36-1.5-4-40.5(2)(A). The language of that provision is instructive:

               the reorganized political subdivision continues to be responsible after
               the reorganization for providing township services in all areas of the
               township, including within the territory of a municipality in the
               township that does not participate in the reorganization.
       Id. (emphasis added). And despite providing for boundary changes in a

       reorganized political subdivision, I.C. § 36-1.5-4-37, nevertheless a reorganized

       body of local government must continue to provide services for territory outside

       its redrawn lines.


[45]   In setting forth the effects of reorganization, however, the Act provides “all of

       the participating political subdivisions, except the reorganized political

       subdivision, cease to exist,” I.C. § 36-1.5-4-6(1), and goes on to set forth what

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015            Page 19 of 34
       happens to the political offices, property, and debts of the reorganizing

       subdivisions. I.C. §§ 36-1.5-4-6(2)-(5). That is, the statute addresses not the

       disposition of territory, but the disposition of the bureaucratic bodies of a

       township, municipality, or other body of local government.


[46]   Thus, the Act differentiates between the land within a township, i.e., territory

       that is part of the “area[] of the township,” and the governing bodies of a

       township or municipality. The statute provides that the township, including

       those portions “that [did] not participate in the reorganization,” remains as a

       geographic entity, even as the bureaucracy associated with governance is

       reorganized. Thus, a municipality that does not participate in a reorganization

       of a township remains in the township—the language of township abolition is

       not used, see I.C. § 36-6-1-5, nor does the statute contemplate the prospect of a

       portion of territory being entirely outside a township. See § I.C. 36-6-1-12.


[47]   After the 2010 Reorganization, Section 36-1.5-4-40.5 required that Zionsville

       provide township services for the parts of Whitestown that lay in Eagle

       Township. The corporate political boundaries of the reorganized Zionsville

       extended to the boundaries of Whitestown. But Zionsville’s role as provider of

       township services extended farther than this: Zionsville was required to provide

       township services within Whitestown and to the geographical boundary

       between Eagle Township and Perry Township. Whitestown acknowledges that

       Zionsville provided the township services of Eagle Township within the

       boundaries of Whitestown—portions of Eagle Township that were not part of

       the reorganization of the Eagle Township and Zionsville governments in 2010.

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015    Page 20 of 34
       Nevertheless, the language of Section 36-1.5-4-40.5(2)(A) contemplates the

       ongoing status of territory outside a reorganization as still being within the

       same township.


[48]   Thus, the Act anticipates home rule reorganization of local government

       functions unencumbered by the existing township system, but also anticipates

       that reorganized local governments will be required—without the operation of

       any interlocal agreement—to provide township services outside their own

       boundaries. Given the statutory requirement that Zionsville provide township

       services throughout the geographic territory of Eagle Township, we cannot

       conclude that Eagle Township simply disappeared, with nothing in its place.

       Indeed, that result would give rise to precisely the “zombie township” situation

       that Whitestown argues the legislature did not intend to create. Appellee’s

       App’x at 32. Zionsville’s continued operation as a township in the space left

       behind by reorganization, however, places Zionsville-as-township within the

       otherwise-township-less space in Whitestown, and addresses the “zombie

       township” contention.


[49]   Understood in this light, and interpreted liberally to give effect to the

       legislature’s intent, the adjacency requirement is not to be taken as a kind of

       technical, “gotcha” provision. Rather, the adjacency requirement ensures that

       townships with like interests and common borders may reorganize together in

       the interests of efficiency. This adjacency provision ensures that far-flung

       municipalities and townships without any meaningful geographical relationship

       to one another cannot reorganize together—as would have been the case had

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015      Page 21 of 34
       Zionsville, as the successor governing body of Eagle Township, sought to

       reorganize with a more distant township than Perry Township. All of this

       serves the purposes of the Act: to permit better cooperation among local

       governments, improve the ease of operation of local government, enhance the

       provision of government services, and reduce the cost of local government to

       taxpayers and to the state-level government of Indiana. I.C. § 36-1.5-1-1.


[50]   Crucially, the purposes of the Act and the adjacency rules of Section 36-1.5-4-2

       function to differentiate the reorganization at issue in the 2014 Zionsville Plan

       from an older means of extending the geographic reach of local government—

       annexation. Annexation under the Indiana Code requires contiguity:

               [T]erritory sought to be annexed may be considered “contiguous” only
               if at least one-eighth ( ⅛ ) of the aggregate external boundaries of the
               territory coincides with the boundaries of the annexing municipality.
               In determining if a territory is contiguous, a strip of land less than one
               hundred fifty (150) feet wide which connects the annexing
               municipality to the territory is not considered a part of the boundaries
               of either the municipality or the territory.
       I.C. § 36-4-3-1.5. In certain cases involving annexation of privately-owned

       land, contiguity also requires the consent of the landowners of the property

       sought for annexation. Delph v. Town Council of Town of Fishers, 596 N.E.2d 294,

       297 n. 4 (Ind. Ct. App. 1992).


[51]   Here, Zionsville provided township services throughout the geographical

       bounds of Eagle Township up to the boundary with Perry Township. That is,

       Zionsville served as the township-level government for portions of Eagle

       Township that, while incorporated within Whitestown, received Eagle

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015          Page 22 of 34
       Township services before and after the 2010 Reorganization. Perry Township’s

       legislature adopted a plan to reorganize with Zionsville under the provisions of

       the Act in order to deliver township services more efficiently within the

       geographic scope of Perry Township. Whitestown, while not participating in

       the reorganization, will continue to see township services provided by

       Zionsville as the successor to the governmental bodies of Perry and Eagle

       Townships, a necessary result of the application of the Act after successive

       reorganizations of township government in Boone County.


[52]   The language employed by the Act requiring that “the reorganized political

       subdivision…be responsible after the reorganization for providing township

       services in all areas of the township,” I.C. § 36-1.5-4-40.5(2)(A), does not

       contemplate the abolition of township boundaries—only the reorganization of

       township governing bodies. Zionsville prior to the 2014 Zionsville Plan was

       providing township services throughout the full geographical scope of Eagle

       Township—that is, up to the boundary line between Eagle and Perry

       Townships—after having reorganized with the governing body of Eagle

       Township. Under the 2014 Plan, Zionsville would continue to provide these

       township services in Eagle and Perry Townships. The townships remain in

       name and with geographic boundaries set forth in the descriptions maintained

       by the county executive. See I.C. § 36-6-1-2. But the manifestation of the body

       responsible for governance and services within these boundaries is established

       by the Plan created in accordance with the Act. And, while the Plan may

       change the form and structure of the governing body traditionally responsible


       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015   Page 23 of 34
       for these matters, this flexibility in local government structure at various levels

       of operation is at the heart of the Act.


[53]   In light of the foregoing, we conclude that the adjacency requirement in Section

       36-1.5-4-2 was satisfied. Accordingly, the trial court erred when it entered

       summary judgment against Zionsville as to its ability to reorganize with Perry

       Township under Section 36-1.5-4-1(a)(2).


                                              Voting Districts
[54]   Zionsville also challenges the trial court’s entry of summary judgment with

       respect to the determination of voting districts for the public question on the

       2014 Zionsville Plan. The applicable provision of the Act for voting districts in

       a public question concerning the reorganization of two townships under

       Subsection 36-1.5-4-1(a)(2), based upon which we have held Zionsville could

       proceed with the 2014 Plan, provides:

               A reorganization as specified in the plan of reorganization is approved
               if a majority of the voters in each reorganizing political subdivision
               voting on the public question approve the public question on the
               reorganization. If a reorganizing political subdivision includes the
               territory of another reorganizing political subdivision, the vote of
               voters of a reorganizing political subdivision who also are voters in a
               second reorganizing political subdivision that is geographically larger
               than the first political subdivision and that includes the territory of the
               first political subdivision shall be included only in the tally of votes for
               the first reorganizing political subdivision in which the voters reside.
       I.C. § 36-1.5-4-32(a).




       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015            Page 24 of 34
[55]   Because the trial court concluded that Zionsville could not properly pursue

       reorganization with Perry Township, it addressed the foregoing statute only in a

       cursory manner, concluding:

               The Court does find…that the [2010 Zionsville] Plan’s voting areas do
               not comply with either I.C. 36-1.5-4-32(a) or (b). The Plan provides
               only that a majority of voters in two (2) voting areas must approve it:
               (1) the Town of Zionsville, and (2) Perry Township. Therefore, [the
               Plan’s] voting areas are not consistent with the Act’s requirements for
               townships reorganizing under I.C. 36-1.5-4-1(a)(2) or for a
               municipality reorganizing with a township under I.C. 36-1.5-4-
               1(a)(7)…
       Appellant’s App’x at 25.


[56]   Zionsville argues on appeal that the entire question of voting districts is moot

       because an election occurred in November 2014, the issue was put to voters on

       ballots, and the voters accepted the 2014 Zionsville Plan. Zionsville argues

       that, mootness notwithstanding, the voting districts were proper, and in any

       event Whitestown waived this aspect of its challenge because it took no action

       to obtain relief from local elections officials. In response, Whitestown proposes

       several possible permutations of voting districts, none of which the 2014

       Zionsville Plan set forth; in the absence of these, Whitestown contends, the

       2014 Zionsville Plan must fail.


[57]   Because we have concluded that Zionsville could proceed under Subsection 36-

       1.5-4-1(a)(2), only Subsection 36-1.5-4-32(a)’s requirements for voting districts

       applies. The terms of that provision govern the counting of votes for purposes

       of determining the outcome of a voter referendum on a public question where


       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015       Page 25 of 34
       there are overlapping political subdivisions, both of which are reorganizing.

       They apply only “[i]f a reorganizing political subdivision includes the territory

       of another reorganizing political subdivision.” Id.


[58]   Whitestown insists that, under the Act, Zionsville’s standing in the place of

       Eagle Township (and, for that matter, Union Township) requires that each

       township’s voters be counted separately, and that the pre-2010 reorganization

       Town of Zionsville also be counted separately. This contention does not take

       into account the difference created by the Act between political subdivisions—

       that is, the political bodies elected by voters—and the territorial boundaries

       established as the townships. As we observed above, it is the aim of the Act to

       streamline the operation of the political subdivisions. Consonant with this,

       under the terms of the Act, the votes in each of the separate “reorganizing

       political subdivisions” must reach a majority. I.C. § 36-1.5-4-32(a).


[59]   Here, there were only two political subdivisions at issue in the reorganization:

       Perry Township and the reorganized Town of Zionsville. These were the two

       political bodies seeking to reorganize together; the political subdivisions of

       Eagle and Union Township had ceased to exist, and the Act thus did not

       require that the votes of Eagle and Union Township be separated and counted

       separately from those of the rest of Zionsville. And because Perry Township

       and Zionsville did not overlap with one another, there was no statutory

       requirement for the type of vote-counting procedures contemplated by Section

       36-1.5-4-32.



       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015   Page 26 of 34
[60]   We accordingly conclude that the trial court erred on a matter of law when it

       construed the Act to require more than the two voting districts representing

       Perry Township and Zionsville.8


                                                   Annexation
[61]   We turn now to the counterclaim Zionsville presented to the trial court, which

       alleged that Whitestown could not proceed with an effort to annex territory that

       had already been identified as part of the area to be incorporated into Zionsville

       under the 2014 Zionsville Plan.


[62]   In the summary judgment proceedings, neither party presented evidence that

       Whitestown had completed the annexation of the areas of Perry Township

       designated by the 2014 Ordinances. Because we have concluded that Zionsville

       was not precluded from reorganizing with Perry Township under the 2014

       Zionsville Plan, thereby reversing the trial court’s entry of summary judgment,

       we must address the implications of that decision for Whitestown’s annexation

       efforts.


[63]   Annexation and disannexation of land by municipalities is governed by Indiana

       Code chapters 36-4-3 and -4. The procedures and requirements for annexation

       under these statutes are distinct from the reorganization mechanisms set out by




       8
        We observe further that, even if the trial court had not erred on this question, nevertheless Indiana’s law and
       public policy, which favors the recognition of the decisions of voters despite apparent substantive questions of
       disqualification, disfavors vacation of election results where there is no evidence of the intentional wasting of
       votes. See White, 963 N.E.2d at 486.

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                             Page 27 of 34
       the Government Modernization Act. In addition to the congruity requirements

       discussed above, incorporated municipalities must conform to other substantive

       and procedural requirements. Of particular note in the present case is the

       annexation statute’s provision governing annexation of territory within

       municipalities: “a municipality may not annex territory that is inside the

       corporate boundaries of another municipality, although municipalities may

       merge under IC 36-4-2.” I.C. § 36-4-3-2.


[64]   The Act adds an additional restriction to annexations. Protecting the territories

       of reorganizing political subdivisions, the Act provides:

                (b) A political subdivision may not take any of the following actions
               partially or wholly within a reorganizing political subdivision after the
               date on which a plan of reorganization is finally adopted by all
               reorganizing political subdivisions unless all reorganizing political
               subdivisions agree by adopting identical resolutions:
                        (1) Initiate an annexation of territory.
                        ***
               (c) This chapter does not prohibit:
                        (1) a political subdivision subject to the reorganization from
                        taking an action under subsection (b) within the political
                        subdivision’s own boundaries; and
                        (2) any of the reorganizing political subdivisions from taking an
                        action under subsection (b) for the purpose of implementing the
                        plan of reorganization.
               (d) A political subdivision may take an action described in subsection
               (b) after the date on which the reorganization is rejected by the voters
               under section 33 of this chapter.
               (e) If a reorganization is approved by the voters under section 34 of
               this chapter, a political subdivision may not take an action under
               subsection (b) until the earlier of the following:


       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015            Page 28 of 34
                        (1) The plan of reorganization has been implemented.
                        (2) One (1) year after the date on which the reorganization is
                        approved under section 34 of this chapter.
       I.C. § 36-1.5-4-45.


[65]   In conjunction with this provision, the statute governing municipal annexations

       generally provides, “If a township is a participant in a proposed

       reorganization…[under the Act]… a municipality may not adopt an annexation

       ordinance annexing territory within the township within the period set forth in

       IC 36-1.5-4-45.” I.C. § 36-4-3-1.4.


[66]   Zionsville, in its counterclaims, alleged that Whitestown could not properly

       seek to annex portions of Perry Township’s territory because the annexation

       was not initiated prior to the 2014 Zionsville Plan. Zionsville and Whitestown

       disagree upon the meaning of “initiate” in Subsection 36-1.5-4-45(b)(1).

       Zionsville would define that term as requiring, in the broad scheme of an

       annexation, the adoption of a fiscal plan by Whitestown as required under

       Indiana Code section 36-4-3-3.1. Whitestown disagrees, and argues that

       initiating an annexation for purposes of the Act means to begin the statutory

       process for annexation by first proposing an annexation in the municipal

       legislature.


[67]   To determine the meaning of “initiate” as used in Subsection 36-1.5-4-45(b)(1),

       we turn to the plain language of Sections 36-1.5-4-45 and 36-4-3-1.4 in

       conjunction with one another. “Initiate” as used in the Act must be construed

       in light of the limitations upon annexation imposed by Section 36-4-3-1.4.

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015            Page 29 of 34
       Section 36-4-3-1.4, defines “initiate” for purposes of Subsection 36-1.5-4-

       45(b)(1) Act by providing that “a municipality may not adopt an annexation

       ordinance … within the period set forth in IC 36-1.5-4-45.” To initiate an

       annexation in that context is to “adopt an annexation ordinance.” I.C. § 36-4-

       3-1.4. This is a statutory requirement distinct from prior case law, which

       addressed initiation of proceedings outside the context of the Act. See, e.g.,

       Ensweiler v. City of Gary, 169 Ind. App. 642, 644-645, 350 N.E.2d 658, 659

       (1976) (noting that “in order to be ‘first,’ a proceeding must have been validly

       instituted,” and that “the city’s annexation ordinance had been introduced and

       had passed two readings” before a competitive measure was filed with a county

       commission).


[68]   Whether the trial court erred in its summary disposal of Zionsville’s

       counterclaim challenging Whitestown’s annexation effort, then, turns upon

       when Whitestown adopted its annexation ordinances. Generally, “[a]n

       ordinance…passed by the legislative body [of a town] is considered adopted

       when it is signed by the executive. If required by statute, an adopted

       ordinance…must be promulgated or published before it takes effect.” I.C. § 36-

       5-2-10(a). However, our annexation statutes set forth numerous prerequisites to

       the adoption of an annexation ordinance. An annexation ordinance may be

       adopted between thirty and sixty days after a public hearing on the ordinance.

       I.C. § 36-4-3-2.1(c). But that hearing must occur “not earlier than sixty (60)

       days after the date the ordinance is introduced,” I.C. § 36-4-3-2.1(b), and the




       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015   Page 30 of 34
       annexing municipality must provide written notice of the proposed annexation

       ordinance and the public hearing. I.C. §§ 36-4-3-2.1(b) & (d).


[69]   Under the statutes, then, if Whitestown had adopted its annexation ordinances

       before Zionsville and Perry Township adopted the final 2014 Zionsville Plan,

       Whitestown would have initiated its annexation before the final 2014 Plan was

       adopted. But this is not the case.


[70]   Both parties argue that the conventional first-in-time rules, as discussed in

       Covered Bridge Homeowners Ass’n v. Town of Sellersburg, should apply in

       determining when action to establish exclusive control over a subject matter has

       occurred. 971 N.E.2d 1222 (Ind. Ct. App. 2012), trans. denied. In Covered

       Bridge, this Court held:

               [W]hen two governmental entities may possess “concurrent and
               complete” authority over a subject matter, the authority becomes exclusive
               in the one before which proceedings are first validly instituted, and that entity
               has a duty to retain its authority and “proceed to a final hearing and
               disposition.” Taylor [v. City of Fort Wayne], 47 Ind. [274,] 282 [(1874)].
               This is not to say that the second entity cannot attempt to exercise its
               own authority (perhaps because it believes that the first entity invalidly
               exercised its authority), only that it risks ending up on the losing side
               of a declaratory judgment action.
       Id. at 1232 (emphasis added).


[71]   The 2014 Zionsville Plan was adopted on May 20, 2014, with intent to proceed

       toward a public question presented to the electorate in 2014. Whitestown first

       proposed the annexation ordinances on April 22, 2014. Proposal of the

       ordinances, while a first step toward annexation, is not the measure of initiation


       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                 Page 31 of 34
       of an annexation under Section 36-1.5-4-45. Rather, as we concluded above,

       initiation of an annexation under Section 36-1.5-4-45 is measured by the date

       upon which an annexation ordinance is adopted. Adoption of the ordinances is

       subject to the statutory procedures and timeframes discussed above. By

       creating a kind of “race” between annexation and reorganization, with a set of

       formal requirements that favors reorganization, the legislature expressed its

       intent to favor local governments’ reorganization efforts, involving the consent

       of voters, over more traditional annexation measures.


[72]   Here, by May 20, 2014, Whitestown had not yet satisfied the statutory

       prerequisites to adoption of the annexation ordinance.9 Zionsville’s 2014 Plan

       was therefore first-in-time over and against Whitestown’s annexation efforts.

       Whitestown did not initiate the annexation within the terms of the Act, and

       Zionsville was entitled to summary judgment on its counterclaims challenging

       Whitestown’s ability to annex the portions of Perry Township that were

       included in the 2014 Zionsville Plan.


[73]   Because we have concluded that there was no bar to the 2014 Zionsville Plan,

       and because voters approved that plan, those portions of Perry Township that

       were within the scope of the 2014 Plan’s reorganization were incorporated into

       Zionsville. And because Whitestown cannot annex land incorporated into




       9
        Because we conclude that the required public hearing period had not yet elapsed before the 2014 Zionsville
       Plan was formally adopted on May 20, 2014, we do not address Zionsville’s specific contention that adoption
       of a fiscal plan is the proper measure for when an annexation is initiated as contemplated by the Act.

       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015                        Page 32 of 34
       another municipality, see I.C. § 36-4-3-2, Whitestown’s 2014 Ordinances must

       necessarily fail.


[74]   Excluded from this holding, however, is a single parcel of land: that land which

       is the subject of the 2013 Whitestown annexation for the Waste Water

       Treatment Plant, designated in the 2013 Annexation that was adopted under

       the annexation statutes prior to the 2014 Zionsville Plan. An appeal of the 2013

       Annexation is pending. Upon resolution of the litigation on the 2013

       Annexation, the statutes then in effect would govern any subsequent

       reorganizations or annexation efforts by Zionsville, Whitestown, or other local

       government.


[75]   We accordingly conclude that the trial court erred when it granted summary

       judgment in favor of Whitestown as to Zionsville’s counterclaims challenging

       Whitestown’s annexation plans. We decline to consider the effect of the 2014

       Plan on the 2013 Waste Water Treatment Plant Annexation.



                                                 Conclusion
[76]   Zionsville’s appeal is not moot. The trial court erred when it entered summary

       judgment for Whitestown and against Zionsville on the question of whether

       Zionsville was denied authority under the Act to reorganize with Perry

       Township. The trial court also erred as to the question of the voting districts

       associated with the 2014 Zionsville Plan. Zionsville was improperly denied

       summary judgment as to its claims concerning the viability of Whitestown’s


       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015   Page 33 of 34
       annexation efforts. We therefore vacate the order, but decline to consider the

       effect of the 2014 Plan on Whitestown’s effort to annex territory for their Waste

       Water Treatment Plant, because that matter is the subject of another pending

       appeal.


[77]   We accordingly reverse the entry of summary judgment and remand this case to

       the trial court with instructions to enter judgments consistent with our opinion

       today.


[78]   Reversed and remanded.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 06A01-1410-PL-432 | June 2, 2015   Page 34 of 34
