                                                                              FILED
                                                                        Oct 31 2017, 10:05 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Stephen R. Buschmann                                       Douglas C. Haney
Thrasher Buschmann & Voelkel, P.C.                         City of Carmel
Indianapolis, Indiana                                      Carmel, Indiana
                                                           Bryan H. Babb
                                                           Stephen C. Unger
                                                           Bose McKinney & Evans LLP
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Certain Home Place Annexation                              October 31, 2017
Territory Landowners,                                      Court of Appeals Case No.
Appellants-Petitioners,                                    29A05-1606-MI-1291
                                                           Appeal from the Hamilton
        v.                                                 Superior Court
                                                           The Honorable Matthew C.
City of Carmel, Indiana,                                   Kincaid, Special Judge
Appellee-Respondent.                                       Trial Court Cause No.
                                                           29D03-0502-MI-169



Brown, Judge.




Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017                       Page 1 of 15
[1]   In 2005, Certain Home Place Annexation Territory Landowners

      (“Landowners”) successfully challenged an annexation attempt by the City of

      Carmel (“Carmel”). We reversed the trial court’s decision. City of Carmel v.

      Certain Home Place Annexation Territory Landowners, 874 N.E.2d 1045, 1046 (Ind.

      Ct. App. 2007), trans. denied. The case was remanded for a determination as to

      whether Landowners carried their burden of proof under Indiana Code § 36-4-

      3-13(e) (2004), which affords a separate avenue to challenge annexations. The

      trial court ruled in favor of Carmel, concluding that Landowners failed to prove

      that fire protection was adequately furnished by a provider other than Carmel.

      On appeal, Landowners raise one issue, and Carmel raises several cross-appeal

      issues. We find Landowners’ issue dispositive, that is: whether Landowners

      failed to prove that fire protection was being adequately furnished by a provider

      other than Carmel. We affirm.


                                     Facts and Procedural History

[2]   Carmel is located in Clay Township, Hamilton County. Home Place, the area

      sought to be annexed by Carmel, is located adjacent to Carmel in

      unincorporated Clay Township. The general boundaries of Home Place are 99th

      Street to the south, Pennsylvania Street to the west, 111th Street to the north, and

      Westfield Boulevard to the east. On July 2, 2004, the Common Council of the

      City of Carmel (“Council”) introduced Ordinance No. C-264 for the purpose of

      annexing Home Place. On November 15, 2004, the Council unanimously

      passed the ordinance.



      Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017   Page 2 of 15
[3]   On February 18, 2005, the Landowners filed a petition for remonstrance against

      the annexation. A hearing was held on July 7 and 8, 2005. On October 4, 2005,

      the trial court issued findings of fact and conclusions of law granting the

      remonstrance on grounds the City failed to adequately establish the method of

      financing the planned services that were to be provided to Home Place after

      annexation. See Ind. Code § 36-4-3-13(d)(2). Carmel appealed. On October 17,

      2007, we reversed the trial court’s decision, concluding that “Carmel met its

      burden of proving the statutory prerequisite that the fiscal plan must show ‘[t]he

      method or methods of financing the planned services.’” City of Carmel, 874

      N.E.2d at 1046.


[4]   The matter was remanded to the trial court to determine whether Landowners

      carried their burden of proof as to Indiana Code § 36-4-3-13(e), which provides

      grounds by which remonstrators can prevail in preventing annexation. On

      remand, the parties twice agreed to hold the matter in abeyance for periods

      totaling six years. Following a change of judge, expiration of the agreed

      abeyance periods, and an attorney’s conference, the trial court set a procedural

      schedule for briefing and for arguments. The trial court held a hearing on the

      matter on May 9, 2016. It did not entertain new evidence but instead reviewed

      the matter based on a paper record of the original evidence. On May 17, 2016, it

      issued findings of fact and conclusions of law upholding annexation. The court

      determined that under Indiana Code § 36-4-3-13(e)(2)(A)(i), Landowners failed

      to establish that fire protection was adequately furnished by a provider other




      Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017   Page 3 of 15
      than the municipality seeking annexation, that is, Carmel. Landowners now

      appeal.


                                                  Discussion

[5]   When, as here, the trial court enters findings of fact and conclusions of law,

      “we review issues of fact for sufficiency of the evidence and look to the record

      only for evidence favorable to the judgment.” City of Fort Wayne v. Certain

      Southwest Annexation Area Landowners, 764 N.E.2d 221, 224 (Ind. 2002). We set

      aside findings and judgments only when they are clearly erroneous. Id. As

      always, we review questions of law de novo. Id.


[6]   Annexation is subject to judicial review only so far as the General Assembly

      has authorized it by statute, and the larger object of the annexation statute is, as

      it has always been, to permit annexation of adjacent urban territory. City of

      Carmel v. Certain Southwest Clay Tp. Annexation Territory Landowners, 868 N.E.2d

      793, 797 (Ind. 2007) (quotation omitted). Annexation “is essentially a

      legislative function.” City of Fort Wayne, 764 N.E.2d at 224. Therefore, courts

      play only a limited role in annexations and must afford the municipality’s

      legislative judgment substantial deference. Id.


[7]   Indiana Code § 36-4-3-13 lists the prerequisites for annexation, and the

      municipality bears the burden of showing that it has complied with these

      statutory conditions. City of Carmel, 868 N.E.2d at 797-798. If the municipality




      Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017   Page 4 of 15
                                                                 1            2                                 3
meets the requirements of Subsections 13(b) or 13(c) and Subsection 13(d) ,

the court must order the annexation to proceed, subject to the remonstrators’



1
    Indiana Code § 36-4-3-13(b) provides as follows:
         The requirements of this subsection are met if the evidence establishes the following:
           (1) That the territory sought to be annexed is contiguous to the municipality.
           (2) One (1) of the following:
                    (A) The resident population density of the territory sought to be annexed is at least three (3)
                    persons per acre.
                    (B) Sixty percent (60%) of the territory is subdivided.
                    (C) The territory is zoned for commercial, business, or industrial uses.
2
    Indiana Code § 36-4-3-13(c) provides as follows:
         The requirements of this subsection are met if the evidence establishes the following:
           (1) That the territory sought to be annexed is contiguous to the municipality as required by section
           1.5 of this chapter, except that at least one-fourth (¼), instead of one-eighth (⅛), of the aggregate
           external boundaries of the territory sought to be annexed must coincide with the boundaries of the
           municipality.
           (2) That the territory sought to be annexed is needed and can be used by the municipality for its
           development in the reasonably near future.
3
    Indiana Code § 36-4-3-13(d) provides as follows:
         The requirements of this subsection are met if the evidence establishes that the municipality has
         developed and adopted a written fiscal plan and has established a definite policy, by resolution
         of the legislative body as set forth in section 3.1 of this chapter. The fiscal plan must show the
         following:
           (1) The cost estimates of planned services to be furnished to the territory to be annexed. The
           plan must present itemized estimated costs for each municipal department or agency.
           (2) The method or methods of financing the planned services. The plan must explain how
           specific and detailed expenses will be funded and must indicate the taxes, grants, and other
           funding to be used.
           (3) The plan for the organization and extension of services. The plan must detail the specific
           services that will be provided and the dates the services will begin.
           (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
           regardless of 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,

Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017                             Page 5 of 15
ability to establish all of the grounds listed in Subsection 13(e). Id. However,

Subsection 13(e)(2) provides grounds by which remonstrators can prevail in

preventing annexation, that is, by establishing all of the elements listed in the

subsection. The subsection specifically provides that the trial court must order a

proposed annexation not to take place if all of the conditions set forth in clauses

(A) through (D) exist in the territory proposed to be annexed. The subsection

reads as follows:


    (e) At the hearing under section 12 of this chapter, the court shall do
        the following:


                                             *****


             (2) Order a proposed annexation not to take place if the court
                 finds that all of the following conditions exist in the
                 territory proposed to be annexed:


                      (A) The following services are adequately furnished by a
                         provider other than the municipality seeking the
                         annexation:


                      (i) Police and fire protection.


                      (ii) Street and road maintenance.




        regardless of similar topography, patterns of land use, and population density, and in a
        manner consistent with federal, state, and local laws, procedures, and planning criteria.

Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017                         Page 6 of 15
                            (B) The annexation will have a significant financial
                               impact on the residents or owners of land.


                            (C) The annexation is not in the best interests of the
                               owners of land in the territory proposed to be
                               annexed as set forth in subsection (f).


                            (D) One (1) of the following opposes the annexation:


                                    (i) At least sixty-five percent (65%) of the owners
                                        of land in the territory proposed to be
                                        annexed.


                                    (ii) The owners of more than seventy-five percent
                                         (75%) in assessed valuation of the land in the
                                         territory proposed to be annexed.


      Ind. Code § 36-4-3-13(e)(2) (emphases added).


[8]   The issue is whether the trial court erred in determining that Landowners failed

      to establish that their fire protection was adequately furnished by a provider

      other than Carmel. Landowners further maintain that in making the alleged

      erroneous determination, the trial court also incorrectly established a new

      standard of review when it concluded that a determination under Subsection

      13(e)(2)(A)(i) “call[ed] for a straight-forward factual analysis of who is doing

      most of the fire fighting and protecting in Home Place.” Appellants’ Appendix

      Volume 2 at 18. Landowners argue that instead of applying a “straight-forward

      factual analysis,” the trial court should have made its determination by

      examining applicable statutes.

      Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017     Page 7 of 15
[9]   According to Landowners, under Indiana Code §§ 36-8-13-2 (1981) (fire

      protection) and 36-8-13-3 (2004) (authorized methods of providing fire

      protection), Clay Township is the “provider” of fire protection in Home Place as

      contemplated by Indiana Code § 36-4-3-13(e)(2)(A)(i). Per Indiana Code § 36-8-

      13-2, a township, under certain circumstances, is required to provide for fire

      protection. The code section states as follows:


              If a majority of the owners of taxable real property residing
              within and owning real property within that part of a township
              located outside the corporate boundaries of a municipality
              petition the township executive and legislative body to provide
              fire protection in that part of the township, the executive and
              legislative body shall grant the petition and proceed without
              delay to provide for fire protection. The executive and legislative
              body shall determine which of the methods in section 3 of this
              chapter for providing fire protection in townships will be
              followed.


      Ind. Code § 36-8-13-2. Indiana Code § 36-8-13-3 lists the different ways a

      township can satisfy its responsibility with respect to fire protection, for

      example by providing the service with its own equipment and personnel,

      contracting with a volunteer fire department to provide the service, or

      contracting with a municipality to provide fire protection or emergency service.

      The statute reads in relevant part:


          (a) The executive of a township, with the approval of the legislative
              body, may do the following:


          (1) Purchase firefighting and emergency services apparatus and
              equipment for the township, provide for the housing, care,

      Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017   Page 8 of 15
        maintenance, operation, and use of the apparatus and equipment
        to provide services within the township but outside the corporate
        boundaries of municipalities, and employ full-time or part-time
        personnel to operate the apparatus and equipment and to provide
        services in that area. . . .


    (2) Contract with a municipality in the township or in a contiguous
        township that maintains adequate firefighting or emergency
        services apparatus and equipment to provide fire protection or
        emergency services for the township in accordance with IC 36-1-
        7.


    (3) Cooperate with a municipality in the township or in a contiguous
        township in the purchase, maintenance, and upkeep of
        firefighting or emergency services apparatus and equipment for
        use in the municipality and township in accordance with IC 36-1-
        7.


    (4) Contract with a volunteer fire department that has been
        organized to fight fires in the township for the use and operation
        of firefighting apparatus and equipment that has been purchased
        by the township in order to save the private and public property
        of the township from destruction by fire, including use of the
        apparatus and equipment in an adjoining township by the
        department if the department has made a contract with the
        executive of the adjoining township for the furnishing of
        firefighting service within the township.


    (5) Contract with a volunteer fire department that maintains
        adequate firefighting service in accordance with IC 36-8-12.


I.C. § 36-8-13-3.




Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017   Page 9 of 15
[10]   Landowners read these statutes to support their proposition that Clay Township

       is the provider of fire protection in Home Place. According to Landowners, as

       long as Clay Township complies with Indiana Code § 36-8-13-3, “it remains, as

       a matter of law, the provider of fire protection in Home Place. . . . Thus, as a

       matter of law, fire protection is being furnished to Home Place by a provider

       other than Carmel, to wit: by Clay Township.” Appellants’ Brief at 9, 11.


[11]   In determining that Landowners failed to establish that fire protection services

       were adequately furnished by a provider other than Carmel, the trial court

       examined, among others, the following Indiana Code Sections: 36-8-2-13 (1980)

       (“[a] municipality may exercise powers granted by sections 4, 5, and 6 of this

       chapter in areas within four (4) miles outside its corporate boundaries”); 36-8-13

       (township fire protection and emergency services); 36-8-19 (addressing fire

       protection territories); 36-8-13-2 (addressing circumstances under which a

       municipality is required to provide fire protection); 36-8-13-3 (listing different

       ways a township can satisfy its fire-protection responsibility); 22-12-1-18.7 (1999)

       (defining “qualified entity,” for purposes of fire safety code enforcement, as “the

       executive of a township providing fire protection under IC 36-8-13-3(a)(1) [where the

       township provides the service with its own equipment and personnel]; or . . . a

       municipality providing fire protection to a township under IC 36-8-13-3(a)(2) or IC

       36-8-13-3(a)(3) [where the township contracts with a municipality to provide fire




       Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017   Page 10 of 15
                                                                                      4
       protection]” (emphases added); and 6-1.1-18.5-13(10) (2004) (addressing a

       township’s authority to appeal and allowing a township to increase its levy “to

       pay a fair and reasonable amount under the contract with the municipality that

       is furnishing the fire protection” (emphasis added). Appellants’ Appendix

       Volume 2 at 19-20. The trial court ultimately found that “[Indiana Code § 36-4-

       3-13(e)(2)(A)(i)] asks who is furnishing the [fire-protection] services – not who

       may be a ‘provider.’” Id. at 19. We agree.


[12]   When courts set out to construe a statute, the goal is to determine and give effect

       to the intent of the legislature. Sales v. State, 723 N.E.2d 416, 420 (Ind. 2000).

       The first place courts look for evidence is the language of the statute itself, and

       courts strive to give the words their plain and ordinary meaning. Prewitt v.

       State, 878 N.E.2d 184, 186 (Ind. 2007); Sales, 723 N.E.2d at 420. We examine

       the statute as a whole and try to avoid excessive reliance on a strict

       literal meaning or the selective reading of individual words. Id. We presume the

       legislature intended the language used in the statute to be applied logically,

       consistent with the statute’s underlying policy and goals, and not in a manner

       that would bring about an unjust or absurd result. Id.


[13]   Indiana Code § 36-4-3-13(e), in relevant part, directs “a proposed annexation not

       to take place if the court finds that . . . [t]he following services are adequately

       furnished by a provider other than the municipality seeking the annexation: . . .



       4
        Effective April 20, 2017, P.L. 85-2017, Sec. 16 corrected and amended Indiana Code § 6-1.1-18.5-13.
       Subsection (10), among other subsections, was removed.

       Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017                   Page 11 of 15
       fire protection.” While the statute does not define the word “furnish” or the

       word “provider,” according to Black’s Law Dictionary,

       the word “furnish” means “to supply, provide, or equip, for accomplishment of

       a particular purpose.” BLACK’S LAW DICTIONARY 675 (6th ed. 1990). The

       American Heritage College Dictionary defines “furnish” as “[t]o supply; give[,]”

       and defines “provider” as “[o]ne that makes something available.” THE

       AMERICAN HERITAGE COLLEGE DICTIONARY 552, 1102 (3rd ed. 2000). We

       detect no apparent intent by the Indiana General Assembly to stray from the

       plain and common meaning of the words “furnish” and “provider” within the

       language and context of the statute. Thus, we apply the plain and

       common meaning of the words within their reasonable contexts. With the

       definitions in mind, we construe Indiana Code § 36-4-3-13(e) to mean the

       following: a proposed annexation is not to take place if, among other things, the

       court finds that fire protection services are adequately supplied by one that makes

       the services available other than the municipality seeking the annexation.5


[14]   Carmel and Clay Township signed a contract whereby Carmel agreed to

       “furnish fire protection service to the residents of the Township outside the

       limits of [Carmel] . . . .” Appellants’ Appendix Volume 2 at 42. Clay

       Township agreed to “leave all of its fire fighting [sic] equipment, trucks and

       accessories . . . at the disposal of [Carmel]” throughout the term of the contract.



       5
        Although the words “furnish” and “provide” sometimes are used as synonymous terms, we presume the
       Indiana General Assembly meant the derivatives of the words, as used in Indiana Code § 36-4-3-13(e), to
       have different meanings.

       Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017                  Page 12 of 15
       Id. at 43. Carmel provided all of the fire department personnel and agreed to

       maintain a minimum of one hundred forty-four full-time firefighters, including

       a paid fire chief. The fire chief was to be appointed by the mayor of Carmel

       after consultation with Clay Township’s trustee and board. Carmel agreed to

       purchase “all materials and supplies, to pay all compensation to personnel and

       firemen, pay the costs of operation of the Fire Department and the

       Communication Center, to carry all necessary insurance on

       firefighters/personnel and on all buildings and equipment of [Carmel and the]

       Township, except the [fire station owned by the Township that is located in

       Home Place] . . . .” Id. at 44. Carmel owned twenty-nine of the thirty-four

       vehicles in the firefighting fleet.


[15]   The township did not take an active role in the administration of the fire-

       protection services. Other than the five vehicles that it owned that were a part

       of the fire department’s fleet, and the money it paid for the fire-protection

       services, the township did not contribute any other resources to the fire

       department, such as personnel, training, or additional equipment. Therefore,

       we find that under Indiana Code § 36-4-3-13(e), Carmel was the “provider” that

       “furnished” fire-protection services to Home Place. The trial court did not err

       in using a straight-forward factual analysis in making its determination, and it

       correctly found that Landowners failed to prove that fire protection was being

       adequately furnished by a provider other than Carmel.


[16]   Landowners also argue that the trial court’s “ignore[ed] the significant financial

       contribution made by the Township [toward the fire protection], without which

       Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017   Page 13 of 15
       the [fire-protection] services could not have been provided.” Appellants’ Brief at

       7. Specifically, according to Landowners, the trial court’s “straight-forward

       factual analysis of who is doing most of the firefighting and protecting in Home

       Place” failed to consider a number of factors, such as, the fire station located in

       Home Place is owned by the township; the township owns one-half of a fire

       station located on 106th Street and is part-owner of two other stations located in

       the township; the township owns five of the most expensive vehicles in the

       firefighting fleet; and, the township contributed several million dollars in 2004

       and 2005 for the fire-protection services. We disagree.


[17]   In determining that Landowners failed to establish that fire-protection services

       are adequately furnished by a provider other than Carmel, the trial court found

       that Clay Township did not have a fire department and did not employ any

       firefighters; that Carmel furnished fire protection in Home Place through a

       yearly contract with Clay Township; that in exchange for the protection, Clay

       Township paid Carmel a share of its fire budget based upon the proportionate

       assessed value in the unincorporated areas of the township, but that those

       payments did not include a share of many of the administrative costs of running

       the fire department such as labor, personnel issues, overhead, legal matters,

       purchasing, payroll, and discipline; and that even though the township had one

       of six fire stations and one-seventh of the firefighting fleet titled in its name, this

       did not constitute “‘adequate’ fire protection by a provider other than Carmel”

       because “it is a Carmel firefighter that responds [to the emergency] relying on

       mostly Carmel equipment, apparatus, buildings, and administration.”


       Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017   Page 14 of 15
       Appellants’ Appendix Volume 2 at 19. We find that the trial court considered

       all of the factors before it when it made its determination. No error occurred

       here.


                                                  Conclusion

[18]   Landowners failed to prove that fire protection is being adequately furnished by

       a provider other than Carmel. The judgment of the trial court is affirmed.


[19]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 29A05-1606-MI-1291 | October 31, 2017   Page 15 of 15
