                                                                       FILED
                          IN THE                                  Jun 05 2019, 11:18 am



   Indiana Supreme Court                                               CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




             Supreme Court Case No. 19S-PL-342

      Town of Brownsburg, Indiana, et al.,
                   Appellants/Cross-Appellees,

                              –v–

Fight Against Brownsburg Annexation, et al.,
                   Appellees/Cross-Appellants.


       Argued: September 20, 2018 | Decided: June 5, 2019

Appeal from the Hendricks Superior Court, No. 32D02-1310-PL-109
          The Honorable Heather Welch, Special Judge

    On Petition to Transfer from the Indiana Court of Appeals,
                     No. 32A01-1702-PL-215



                  Opinion by Justice Slaughter
 Chief Justice Rush and Justices David, Massa, and Goff concur.
Slaughter, Justice.

   In this municipal-annexation case, we hold that a trial court hearing a
remonstrance proceeding on judicial review must consider the evidence
submitted by both the municipality and the remonstrators. The trial court
need not defer to either the municipality’s own evidence supporting the
annexation or its determination that it met the statutory requirements.
Whether the annexation was lawful is a legal question for the trial court. If
the court enters special findings of fact and conclusions of law, appellate
courts are to apply the standard of review provided in Trial Rule 52. We
provide guidance for applying the undefined statutory terms
“subdivided” and “reasonably near future” and, on this record, affirm the
trial court’s judgment for the Remonstrators and against the Town of
Brownsburg.


Factual and Procedural History
   In 2013, Brownsburg adopted an ordinance to annex 4,462 acres of
property adjacent to the Town. A group of affected landowners, acting
through a political action committee, Fight Against Brownsburg
Annexation, remonstrated and sought a declaration that the Town did not
meet the statutory annexation requirements.

    Under the statute, a municipality wanting to annex land must prove
several things. Ind. Code § 36-4-3-13(a) (2013 Repl.). Among them are,
first, that the municipality has adopted a written fiscal plan to ensure the
municipality can afford to provide services to those living in the proposed
annexation territory, id. § 36-4-3-13(d); second, that the proposed territory
is sufficiently contiguous to the municipality’s current boundaries, id. §§
36-4-3-13(b)(1), 36-4-3-13(c)(1); and, third, that either the proposed
territory is sufficiently urban under criteria recited in the statute, id. § 36-
4-3-13(b)(2), or the municipality will use the territory for development in
the “reasonably near future”, id. § 36-4-3-13(c)(2).

   After a three-day bench trial, the court entered extensive findings of
fact and conclusions of law and determined that the Town had not met all
statutory requirements for annexing the proposed territory. The court thus


Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019            Page 2 of 21
entered judgment for the Remonstrators and against the Town. The Town
then appealed, the Remonstrators cross-appealed, and the court of appeals
affirmed. Town of Brownsburg v. Fight Against Brownsburg Annexation, 98
N.E.3d 114 (Ind. Ct. App. 2018). The Town sought transfer, which we now
grant, thus vacating the appellate decision.


Discussion and Decision

   A. Standards of Review

   At issue here are two standards of review. The first deals with the
nature and extent of an appellate court’s review of a trial court’s findings
of fact, conclusions of law, and entry of judgment in an annexation case.
The second is the degree to which a trial court must defer to a
municipality’s determination that it has met the applicable criteria under
the annexation statute. The Town argues that the trial court paid
insufficient deference to the Town’s determination to annex the proposed
territory in a manner consistent with the governing statute.




   Our standard of appellate review in annexation cases is well-settled.
When a trial court enters special findings of fact and conclusions of law, as
the court below did here, we apply the standard of review set forth in
Trial Rule 52. Town of Fortville v. Certain Fortville Annexation Territory
Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016). For purposes of appellate
review, that means we review what the trial court found and concluded,
not what the municipality did. In other words, we ask not whether the
record supports the municipality’s decision to enact the annexation
ordinance, but whether it supports the trial court’s decision to uphold or
reject the annexation.

   First, we consider whether the evidence supports the trial court’s
findings. We will not set aside findings unless they are clearly
erroneous—i.e., the record contains no facts supporting them either



Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019         Page 3 of 21
directly or inferentially. Id. This standard is highly deferential. If a factual
finding is plausible given the entire record, we will not reverse it even if
we would have decided the matter differently were we sitting as finders
of fact. We give great deference to a court’s findings because of its
capacity to judge witness credibility. This standard applies equally to
expert testimony. “The weight to be accorded expert testimony as well as
lay testimony[] is the exclusive province of the trier of fact which is at
liberty to discount it or to reject it in the face of lay testimony, which it
finds more persuasive.” Fordyce v. State, 425 N.E.2d 108, 110 (Ind. 1981)
(citation omitted). Thus, the trier of fact—not a reviewing court—decides
the weight and credibility to give the testimony of dueling experts. We
will reject a finding as clearly erroneous only if we are left with the
definite and firm conviction, based on all the evidence, that the court
erred. Fortville, 51 N.E.3d at 1198 (citing Yanoff v. Muncy, 688 N.E.2d 1259,
1262 (Ind. 1997)).

   Next, we ask whether the findings support the court’s legal
conclusions. We give no deference to conclusions of law but review them
de novo. In re Marriage of Gertiser, 45 N.E.3d 363, 369 (Ind. 2015). The
court’s ultimate judgment—who wins on which counts or claims, and
who loses—must follow from the conclusions of law and is clearly
erroneous if the court applied the “wrong legal standard to properly
found facts.” Fortville, 51 N.E.3d at 1198 (citing Yanoff, 688 N.E.2d at 1262).

   Here, the Town appeals from a negative judgment—one adverse to the
party with the burden of proof at trial. Under our case law, the party
challenging a negative judgment generally must show on appeal that “the
evidence as a whole … leads unerringly and unmistakably to a decision
opposite that reached by the trial court.” Spranger v. State, 650 N.E.2d 1117,
1119 (Ind. 1995) (citations omitted). The Town argues that the court of
appeals erred by referencing the negative-judgment standard, 98 N.E.3d at
118-19, and emphasizes that Fortville, which also involved a municipality
appealing from a negative judgment, applied only the Rule 52 standard.

   Given our analysis and holding in Fortville, we agree with the Town
that the negative-judgment standard does not apply in annexation cases.
Although the court of appeals mentioned this standard, it does not seem



Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019             Page 4 of 21
to have applied it. Throughout its opinion, the court assessed the trial
court’s decision under Rule 52’s “clearly erroneous” standard, id. at 125,
130, which is the correct standard. We note that commentators have
questioned whether there is any appreciable, discernible difference
between these two standards of appellate review—the negative-judgment
standard and the Rule 52 standard. As Professor Stroud observed in his
influential treatise on Indiana practice, “there is no apparent reason to
conceive of a negative judgment review in terms different than sufficiency
review.” Spranger, 650 N.E.2d at 1120 n.1 (quoting Kenneth M. Stroud, 4A
Indiana Practice, § 12.7 at 144 (1990)). He continued: “the burden imposed
upon either losing party on appeal in order to realize reversal, and the
standards by which the judgment will be evaluated, are in the final
analysis, functionally indistinguishable.” Id.

   There is much practical wisdom in Professor Stroud’s observation. It is
hard to conceive of a situation where an appellant would satisfy the
sufficiency-based “clearly erroneous” standard of Rule 52 yet would fail to
meet the supposedly more onerous negative-judgment standard. We
yielded to Professor Stroud, in part, in Spranger when we “distinguished”
the two standards this way: “In one, the inquiry is essentially whether
there is any way the trial court could have reached its decision. In the
other, it is whether there is no way the court could have” done so. 650
N.E.2d at 1120 (emphasis in original). Then, we concluded, “Arguably,
this is a distinction without a difference.” Id. (footnote omitted).

   Indeed, the practical difference, if any, between these two standards of
appellate review is far from clear. But for now, we need not explore
further the scope or extent of any such distinction because the parties did
not ask us to reconsider prevailing law or to merge these two standards.
Cf. United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995) (Posner, J.) (“as we
have sometimes heretically suggested, there are operationally only two
degrees of review, plenary (that is, no deference given to the tribunal
being reviewed) and deferential”) (citations omitted).




Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019            Page 5 of 21
   Annexation is the statutory process by which municipalities acquire
additional territory outside their existing corporate boundaries.
Annexation cases today involve two “legislative” choices, by which we
mean policy choices for the political branches and not legal questions for
the courts.

  First, the General Assembly determines whether to permit a
municipality to annex additional territory at all and, if so, under what
conditions. Over the past two centuries, the legislature has answered this
policy question differently, as is its prerogative. For example, on whether
to subject municipal annexations to judicial review, this requirement has,
at various times, been expressly conferred, expressly withheld, and
completely unmentioned.

   Second, when the General Assembly allows it, the other “legislative”
choice is the municipality’s to decide which specific territory to annex,
subject to the power of remonstrators to challenge the annexation and of
courts to pass on the annexation’s legality. “The framework of Indiana’s
annexation laws has long featured three basic stages: (1) legislative
adoption of an ordinance annexing certain territory and pledging to
deliver certain services within a fixed period of time; (2) an opportunity
for remonstrance by affected landowners; and (3) judicial review.”
Fortville, 51 N.E.3d at 1197 (quoting City of Carmel v. Steele, 865 N.E.2d 612,
615 (Ind. 2007)).

   Apart from the current scheme, one can imagine a wide array of
legislative options concerning whether to allow annexations at all;
whether annexations can be challenged; and whether courts are to assess
their legality. Regardless of which annexation protocols the General
Assembly enacts, it has considerable leeway to subject its own (or
municipalities’) annexation decisions to varying degrees of judicial
review—plenary, limited, or none.

   Under current law, remonstrators cannot oppose annexation merely
because they do not want to live in the municipality or because they
believe annexation will affect them adversely, such as by raising their



Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019            Page 6 of 21
taxes or altering their way of life. The General Assembly has created
statutory requirements for valid remonstration. These requirements place
the burden of pleading on the remonstrators challenging the annexation.
Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1240 (Ind. 1997). But
“the burden of proof is on the municipality to demonstrate compliance
with the statute.” Fortville, 51 N.E.3d at 1198 (citation omitted).

   If those objecting to the annexation satisfy the remonstrance
procedures, a court must determine whether the municipality satisfied the
statutory requirements for annexation. The trial court sits as finder of fact
and, after receiving evidence and hearing argument, assesses whether the
legal requirements were met. The court does not weigh competing views
about the wisdom or desirability of the proposed annexation. Instead, it
plays a “limited role” in annexations and must afford “substantial
deference” to the municipality’s legislative judgment—i.e., to its policy
choice to annex the disputed territory. Id. (citation omitted). The court’s
role, however, is not to “sustain blindly” an exercise of such judgment, but
to ensure that the municipality did “not exceed[] its authority”, and that
the “statutory conditions for annexation [were] satisfied.” Id. (quoting
Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994)). Stated
differently, whether and what to annex are policy choices for the
municipality; whether the annexation was lawful is a legal question for
the courts.

   Neither the governing annexation statute nor separation-of-powers
principles compel a different result, despite the Town’s contrary
argument. In its transfer petition, the Town argues that the “substantial
deference” courts owe municipalities’ policy choices also applies to legal
questions: “If substantial deference is to mean anything, it has to mean
that a municipality’s reasoned and factually informed understanding of
the statutory criteria and the evidence supporting that [sic] criteria must
be given priority over the remonstrator’s and the trial court’s contrary
conclusions.” What the Town seeks, in effect, is an interpretation that
renders the Remonstrators’ evidence superfluous—i.e., either the Town
provided enough evidence to satisfy the statutory criteria, or it did not,
but nothing the Remonstrators might put forward could contradict the
sufficiency of the Town’s evidence.


Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019          Page 7 of 21
    The statute nowhere supports giving municipalities a “blank check”
with its annexation decisions. To the contrary, by its terms the statute
requires courts to enter judgment “according to the evidence that either
party”—municipality or remonstrator—“may introduce.” I.C. § 36-4-3-
12(a)(2) (emphasis added). Thus, the statute itself refutes the Town’s
argument. A trial court assessing the legality of a disputed annexation
must weigh and balance the evidence submitted by both sides and not put
its thumb on the scale for either.

  Nor does separation of powers require the kind of deference the Town
urges here. This doctrine neither requires judicial review nor forecloses it.
Rather, “the judicial role in annexation cases is limited to that prescribed
by statute.” Chidester, 631 N.E.2d at 910 (footnote omitted). In Rogers, we
explained that Article 3, Section 1 of the Indiana Constitution precludes
courts from making “determinations of a non-judicial nature”. 688 N.E.2d
at 1239 (citing In re City of Mishawaka, 259 Ind. 530, 532, 289 N.E.2d 510,
512 (1972)). That much was and remains true. A statute violates separation
of powers to the extent it calls for courts to make value judgments based
on criteria not judicially administrable. Id. In the cited Mishawaka case, the
trial court found portions of the governing annexation statute
unconstitutional. The trial court held that certain statutory requirements—
e.g., that annexation must reflect a municipality’s “best interests” and be
“fair and just”—“were of a non-judicial nature” and thus “in conflict with
Art. 3, § 1 of the Indiana Constitution.” 259 Ind. at 531-33, 289 N.E.2d at
511, 512-14. Thus, Rogers—along with Mishawaka—stands for the
unremarkable proposition that statutory standards so value-laden that
they amount to policy choices are not susceptible to judicial enforcement.

  Likewise, Bradley v. City of New Castle, 764 N.E.2d 212 (Ind. 2002), does
not advance the Town’s argument. There, we cautioned courts not to
“micromanage” or “scrutiniz[e]” the policy choices reflected in a
municipality’s annexation decision. Id. at 214, 216. We repeat the
admonition here. But that does not entitle the Town to kid-gloves
treatment on judicial review. For good or ill, the legislature now subjects
annexations to judicial review to ensure their legality. A trial court does
not fulfill that role simply by taking a municipality’s word for it. What the
court must follow is the legislature’s requirement that municipalities meet


Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019          Page 8 of 21
certain criteria before annexation can proceed, not a municipality’s claim
that the statutory criteria are satisfied on a given evidentiary record. Just
as there was no separation-of-powers violation when the legislature gave
courts no role in annexation decisions, neither does the legislature violate
separation of powers today in charging courts to ensure municipalities
meet the statute’s requirements. Thus, the judicial role is to decide
whether the municipality has met the statutory requirements or flouted
them. Fortville, 51 N.E.3d at 1197-98. Courts may do no more; but we must
do that much.

  Next, we consider the statutory annexation requirements and the trial
court’s merits conclusion that the Town did not satisfy them.


   B. Annexation requirements under Section 13(a)
  A municipality’s authority to annex territory is defined by statute.
Section 13 of the municipal-annexation chapter, I.C. ch. 36-4-3, recites the
annexation requirements a municipality must satisfy.


      (a) Except as provided in subsections (e) and (g), at the hearing
      under section 12 of this chapter, the court shall order a
      proposed annexation to take place if the following
      requirements are met:


        (1) The requirements of either subsection (b) or (c).


        (2) The requirements of subsection (d).


I.C. § 36-4-3-13(a). Even if a municipality satisfies these requirements
under subsection 13(a), remonstrators can still defeat an annexation if they
prove the elements of subsections 13(e) or 13(g). Id.

    As discussed next, we have no occasion to address subsections 13(e) or
13(g) because we agree with the trial court that the Town did not satisfy
its threshold burden to prove it met “[t]he requirements of either
subsection [13](b) or (c).” Id. § 36-4-3-13(a)(1).



Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019          Page 9 of 21
   Although the terminology has changed over the years, “[t]he larger
object of the annexation statute is, as it has always been, to permit
annexation of adjacent urban territory.” Rogers, 688 N.E.2d at 1242.
Consistent with that goal, subsection 13(b) requires both contiguity
between the municipality and the proposed annexation territory and one
of three conditions to exist showing the territory is sufficiently urban to
warrant annexation—as measured by population density, how much of
the territory is subdivided, and how the territory is zoned.


      (b) 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.


Id. § 36-4-3-13(b). The Town agrees it cannot meet either the population-
density or zoning requirements. So we consider whether the trial court
was correct in concluding that the Town failed to prove the territory to be
annexed is at least sixty-percent “subdivided”.

   We begin by noting that the municipal-annexation chapter, I.C. ch. 36-
4-3, does not define “subdivided”. The legislature has defined some terms
that apply throughout Title 36. Id. § 36-1-2-1. But “subdivided” is not



Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019          Page 10 of 21
among them. Elsewhere in Title 36, “subdivision” is defined, id. § 36-7-1-
19, but this definition expressly applies only to Title 36, Article 7—
concerning planning and development—and not to municipal
annexations in Article 4, Chapter 3. “The definitions in IC 36-1-2 and in
this chapter apply throughout this article.” Id. § 36-7-1-1.

   The result is that the legislature has left “subdivided” undefined for our
purposes. When that happens, we prefer to interpret the term using its
“plain, or ordinary and usual, sense.” Id. § 1-1-4-1(1). And, relevant here,
the meaning of a statutory term is a question of law we decide de novo
and not a matter on which we will accede to litigants or lower courts.
Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010). When determining a
statute’s meaning, “we start with the plain language of the statute, giving
its words their ordinary meaning and considering the structure of the
statute as a whole.” West v. Office of Indiana Sec'y of State, 54 N.E.3d 349,
353 (Ind. 2016) (citation omitted). We thus reject the Town’s plea that we
defer to its “authority to make reasonable judgment calls … as to what
undefined terms in a governing statute mean.”

   Merriam-Webster defines “subdivide” as follows:

      transitive verb


      1 : to divide the parts of into more parts

      2 : to divide into several parts
      especially : to divide (a tract of land) into building lots


      intransitive verb


      : to separate or become separated into subdivisions


MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/subdivide
(last visited June 4, 2019). The two definitions most relevant to the
annexation chapter concern dividing a tract of land into building lots and
separating land into subdivisions. But these definitions do not illuminate
how they are to apply in a given annexation case. A literal definition


Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019          Page 11 of 21
makes no sense because all land has been divided to some degree. See
generally Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 548, 551-52 (1823)
(Marshall, C.J.) (discussing at length divisions of North American territory
both before and after European conquest). And we will not embrace a
definition that nullifies a legislative requirement. ESPN, Inc. v. Univ. of
Notre Dame Police Dep't, 62 N.E.3d 1192, 1199 (Ind. 2016). So we look
elsewhere within the statute for guidance and observe two things from its
context.

   First, we note that the sixty-percent “subdivided” requirement must
refer to a subdivision that is residential—and not some other zoned use.
Recall that subsection 13(b)(2) identifies three alternative tests for
satisfying the annexation statute’s “urban character” requirement. One
option is 13(b)(2)(C), which says the territory is sufficiently urban if
“zoned for commercial, business, or industrial uses.” It follows that the
sixty-percent “subdivided” requirement in 13(b)(2)(B) must refer to a use
of the land other than commercial, business, or industrial; else, the
“subdivided” requirement would be redundant of 13(b)(2)(C). Nor is this
requirement referring to divided agricultural land—which would not
indicate an “urban character”.

   Second, the sixty-percent “subdivided” requirement must be referring
only to a formal residential “subdivision” and not mere residential parcels
or tracts of land. Section 8 of the same chapter, which outlines some of the
required terms and conditions in an annexation ordinance, distinguishes
between territory that is “subdivided” and that which is “parceled” into
separate “lots or parcels”:


      The territory is subdivided or is parceled through separate
      ownerships into lots or parcels such that at least sixty percent
      (60%) of the total number of lots and parcels are not more than
      one (1) acre.


I.C. § 36-4-3-8(c)(2). This passage notably refers to both “subdivided” and
“parceled” territory, while subsection 13(b)(2)(B)—the operative provision
here—refers only to “subdivided” territory. Because the legislature knows
how to refer to both kinds of territory but referenced only “subdivided”


Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019         Page 12 of 21
territory in 13(b)(2)(B), we infer that these two kinds of territory are
distinct, and that the sixty-percent “urban character” requirement refers
only to residential territory that is formally “subdivided” and not that
which is merely “parceled”.

   We have not previously defined when land is “subdivided” under
Indiana Code section 36-4-3-13(b)(2)(B), and we decline to do so today.
But to provide guidance to future litigants and lower courts, we make the
following three observations. First, all real property has been subdivided
in the broadest sense of the term, so “subdivided” in subsection
13(b)(2)(B) is a narrower term referring only to formally recorded,
residential subdivisions and not other categories of divided real
property. Second, the only permissible unit of measurement is acreage
and not the number of parcels or tracts of land. Third, all acreage within
the proposed annexation territory must be included in the ratio’s
denominator, and none should be exempted or excluded.

   Unlike the trial court, we are agnostic about whether the legislature
should define “subdivided”—a key statutory term, to be sure, in many
annexation disputes. That is a matter for the legislature. But until or unless
the legislature specifies the term’s meaning, courts and communities
interested in local annexation issues should proceed with these guideposts
in mind.


          a. Trial court’s findings not clearly erroneous
   As discussed in Part A., we review the trial court’s factual findings for
clear error and accord its legal conclusions no deference. The findings here
are amply supported by the evidence, including testimony of the
Remonstrators’ expert, and are not clearly erroneous. And we find no
error in the court’s decision to discount testimony from the Town’s expert,
who used six different methods for determining whether the annexation
area was sixty-percent subdivided. Each method resulted in a different
percentage, and his results varied dramatically depending on whether the
relevant measuring unit is tracts or acreage. Moreover, of the Town’s six
methods, only one method considered the urban character of the
proposed annexed area. Thus, the other five methods did not answer


Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019         Page 13 of 21
whether the annexation territory meets the “urban character” requirement
or the statute’s overall goal of enabling municipalities to annex adjacent,
urban territory. Finally, applying our understanding of “subdivided”,
explained above, we agree with the trial court that the disputed
annexation area does not meet the statutory sixty-percent “subdivided”
requirement.


          b. Town’s evidence

   The Town called an employee within its department of development
services as an expert witness. The expert used existing land divisions to
develop six different methods for measuring the extent to which the
proposed annexation territory is “subdivided”. For each method, he made
two calculations—one based on the number of parcels or tracts of land;
the other based on acreage. He thus produced twelve different
percentages—two for each of his six methods for defining “subdivided”.
He derived the parcels/tracts percentage by calculating the number of
subdivided parcels/tracts within the annexed territory (numerator) by the
total number of parcels/tracts there (denominator). And he derived the
acreage percentage—as the name suggests—by dividing the number of
subdivided acres in the annexed territory by the total number of acres. Of
the expert’s twelve calculations, nine resulted in ratios exceeding the
required sixty-percent threshold.

   The expert’s first method considered only formally recorded
subdivision plats and traditional rights of way within the annexation area.
Using this method, he concluded that 957 parcels/tracts out of 1,434
parcels/tracts were subdivided (66.74%) and 780 acres out of 4,462 acres
are subdivided (17.5%).

   His second method considered all recorded subdivision plats,
associated rights of way, and metes-and-bounds legal descriptions of
properties, except those describing so-called “quarter-quarter” sections,
which refer to forty-acre tracts. One square mile is 640 acres. And a
“quarter-quarter” section is one-fourth of one-fourth (or one-sixteenth) of
a square mile, or forty acres. Using this method, the expert found that
1,326 tracts (92.5%) and 3,440 acres (77.1%) are subdivided.


Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019        Page 14 of 21
   The third method considered all recorded subdivision plats, associated
rights of way, and metes-and-bounds legal descriptions of properties,
except those describing so-called “parent” tracts. An example of a parent
tract would be the thirty-eight acres of property that remain after a farmer
split up his forty-acre field to build a house on two acres. Using this
method, the expert found that 1,322 tracts (92.2%) and 1,669 acres (37.4%)
are subdivided.

   The fourth method considered all recorded subdivision plats,
associated rights of way, and metes-and-bounds legal descriptions of
properties, except those creating fewer than three portions from a quarter-
quarter section. Using this method, the expert found that 1,327 tracts
(92.5%) and 3,198 acres (71.7%) are subdivided.

   The fifth method considered all recorded subdivision plats, associated
rights of way, and metes-and-bounds legal descriptions of properties
broken into two or more lots or other divisions of land. Using this method,
the expert found that 1,350 tracts (94.1%) and 3,804 acres (85.3%) are
subdivided.

   And the sixth method considered all recorded subdivision plats,
associated rights of way, and metes-and-bounds legal descriptions of
properties broken into two or more lots or other divisions of land, but
excluding any tract of land larger than twenty acres. Using this method,
the expert found that 1,296 tracts (90.3%) and 1,810 acres (40.6%) are
subdivided.

   The Town’s expert acknowledged that some of his calculations
included agricultural portions of the annexed territory but did not
indicate which methods did so.


          c. Remonstrators’ evidence

   The Remonstrators’ evidence included a survey by the Indiana
Advisory Commission on Intergovernmental Relations showing that more
than three-fourths (76.88%) of the annexation area is agricultural. The
Remonstrators also presented the expert testimony of the Hendricks
County cartographer. The expert compiled a list detailing, by name, the


Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019        Page 15 of 21
thirty-six residential subdivisions and nineteen minor residential plats
within the annexed territory. Using government records, he recorded the
actual acreage for each of these subdivisions and plats and concluded that
782.79 acres of the annexed territory are subdivided—representing 17.54%
of the area’s total acreage.


          d. Trial court’s findings and conclusions

   The trial court did not have the benefit of our explanation of
“subdivided” when she decided this matter. But her findings and
conclusions are largely consistent with the line we have drawn. After
hearing evidence at a three-day bench trial and receiving the parties’
written submissions, the court entered extensive findings of fact and
conclusions of law. The court began by following our guidance in Rogers
that a municipality’s own definition of “subdivision” in a local code
pertaining to planning and redevelopment is “one yardstick a court may
employ”, 688 N.E.2d at 1242 (emphasis added), in assessing whether
disputed annexation territory is sixty-percent subdivided.

   Here, the court looked to Brownburg’s and Hendricks County’s
respective subdivision-control ordinances. These are the local codes that
specify the obligations developers must undertake when they build
subdivisions within the Town’s and County’s jurisdiction. The court noted
that the Town’s ordinance excludes from its definition of “subdivision”
any land divided into two or more tracts for an agricultural use.
According to the court, that exclusion, combined with the fact that 76.88%
of the annexation area is agricultural, leaves just 23.12% of the annexation
area available to count toward the sixty-percent “subdivided”
requirement.

  In addition, the court found that the County ordinance, like the Town
ordinance, also is consistent with the statutory purpose of limiting
annexation to adjacent urban territory. After all, the court observed, the
ordinance excluded tracts at least twenty acres in size and land
subdivided only for agricultural use.




Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019        Page 16 of 21
   The court chose to credit testimony of the Remonstrators’ expert that
the annexation area is 17.54% subdivided. And it concluded, based on the
annexation statute, that the “subdivided” requirement is to be measured
using total acreage, including agricultural land and large residential
tracts/parcels. Thus, the court held, the Town failed to satisfy the sixty-
percent “subdivided” requirement of subsection 13(b)(2)(B).


          e. Our analysis

   The trial court, the Remonstrators’ expert, and the Town’s expert’s first
method, while substantially correct, all embraced a definition of
“subdivided” that is likely overinclusive. These experts opined and the
trial court found that the “subdivided” area comprised not just the thirty-
six residential subdivisions within the annexation territory but also the
nineteen minor residential plats there. The record before us is not clear on
what qualifies as a minor residential plat. Thus, while we agree with the
court’s legal conclusion that the Town’s proposed annexation territory
does not meet the sixty-percent “subdivided” threshold, we also note that
the percentage of territory that is subdivided is probably less than the
17.54% found by the trial court (representing 782.79 acres in the
numerator and 4,461.98 total acres in the denominator). Though the trial
court likely erred by including in the fraction’s numerator “parceled”
plats, lots, and other residential property that may not be part of a formal
subdivision, on this record any such overinclusion is minimal.




   Having concluded that the trial court was entitled to find that the
proposed annexation territory was not sixty-percent “subdivided”, we
consider next whether the Town met the alternative requirement under
subsection 13(a)(1) that the annexation territory is “needed and can be
used by the municipality for its development in the reasonably near
future.” I.C. § 36-4-3-13(c)(2). The trial court held the Town did not satisfy
this requirement. We agree.




Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019          Page 17 of 21
   Subsection 13(c)(2)’s requirement that the proposed annexation area
must be “needed and can be used … in the reasonably near future”
includes an essential temporal element. But as with “subdivided”, the
legislature did not define “reasonably near future”. So localities and other
interested parties have had to litigate just how soon or remote the
prospective development within a proposed annexation area must occur
to qualify as “reasonably near future”. Although the annexation statute
provides few clues, one provision relevant here draws a clear temporal
line, in contrast to the statute’s otherwise gauzy guidance.

   Subsection 15(b) instructs that if a proposed annexation does not satisfy
the statute, the municipality cannot annex that territory or any part of it
for four years. I.C. § 36-4-3-15(b). Given this clear timeframe, we recognize
four years as the time period for assessing the “reasonably near future”
requirement under subsection 13(c)(2). In other words, a municipality
must prove that it needs and can use the proposed annexation territory for
development within four years of enacting the annexation ordinance.

  Again, the trial court ruled without the benefit of the clarity we
announce today. But her findings and conclusions—that the future
development projects the Town identified for the annexation territory will
not occur in the reasonably near future—are not clearly erroneous and are
consistent with our legal pronouncement.

   One such project is the Ronald Reagan Parkway, which was first
conceived in the 1980s as an alternative to Raceway Road and State Road
267, and would connect to Interstate 65 in Boone County. Construction on
the Reagan Parkway began in 1996 and has continued in phases since then
as funding became available. Although portions of the Parkway are
complete or currently under construction, planning for the Parkway
through the annexation area includes Hendricks and Boone counties but
does not include the Town. Even the Town agrees that the timeframe for
extending the Parkway past its current terminus within the Town’s limits
through the annexation area is “[o]ver the next five to fifteen years”. And
even then, the “timing of construction is not precisely known.”

   Another future project is the development and construction of a bridge
crossing Interstate 74 in the western portion of the annexation area. The


Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019        Page 18 of 21
court heard testimony that this project is “targeted for 2026”, and the
Town itself agrees the project “is still in the planning stages and not
scheduled for installation for another nine years”.

   Other future projects the Town identified include additional residential
development and school expansion within the annexation area. But the
trial court rejected these, too, finding that neither proposed development
is needed and can be used in the reasonably near future. The
superintendent of the Brownsburg schools testified that the school
corporation owns 111 acres in the annexation area but has “[a]bsolutely …
no planned projects whatsoever for that area.” The court also heard
testimony that twice in recent years housing developers had tried to build
on ninety-four acres in the annexation area, but the Town’s zoning board
rejected the developments because of, among other reasons, drainage
problems resulting from heavy clay soil confirmed by the county
surveyor.

   Finally, the court found that the Town has no plans for a “substantial
majority” of the annexation area, and that only “small portions” of the
area may be needed and used but not for at least “5 to 15 years in the
future.”

   Based on these findings, the court concluded that the Town did not
satisfy the “reasonably near future” requirement of subsection 13(c). As
with the sixty-percent subdivided requirement, we hold that the court’s
findings of fact here are not clearly erroneous, and that the record
supports its conclusions of law.

                                      *       *        *

   Because we resolve this case on the ground that the Town did not meet
either statutory requirement under subsection 13(a)(1), we need not
address other issues the parties raised below, including the contiguity
requirements under subsections 13(b)(1) and 13(c)(1) and the fiscal-plan
requirements under subsection 13(d).




Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019        Page 19 of 21
   C. Remonstrators’ cross-appeal

   Finally, we reject the Remonstrators’ cross-appeal. Remonstrators
cannot bring a declaratory-judgment action when their remonstrance and
separate request for declaratory relief challenge the same proposed
annexation. The legislature has provided a specific statutory procedure for
challenging the legality of an annexation. The availability of that avenue
of relief forecloses other legal recourse. Cf. Bradley, 764 N.E.2d at 217-18
(discussing narrow exceptions to exclusivity of remonstrance procedure
not applicable here). Thus, the trial court was correct in dismissing their
declaratory-judgment action.


Conclusion
   For these reasons, we affirm the trial court’s judgment that the Town
did not satisfy its burden of proving it had met the statutory requirements
for annexing the disputed territory.


Rush, C.J., and David, Massa, and Goff, JJ., concur.



ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES


Thomas F. Bedsole
Maggie L. Smith
Frost Brown Todd LLC
Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE ACCELERATE INDIANA
MUNICIPALITIES AND INDIANA MUNICIPAL LAWYERS
ASSOCIATION, INC.


Kevin S. Smith
Brent R. Borg
Church Church Hittle & Antrim
Fishers, Indiana



Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019        Page 20 of 21
ATTORNEY FOR APPELLEES/CROSS-APPELLANTS


Gregory W. Black
Gregory W. Black, P.C.
Plainfield, Indiana




Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019   Page 21 of 21
