                                                                   Aug 28 2015, 9:06 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Arend J. Abel                                              Stephen C. Unger
Cohen & Malad, LLP                                         Andrew M. McNeil
Indianapolis, Indiana                                      Bose McKinney & Evans LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

American Cold Storage NA, et                               August 28, 2015
al.,                                                       Court of Appeals Case No.
Appellants-Plaintiffs,                                     87A01-1502-PL-76
                                                           Appeal from the Warrick Superior
        v.                                                 Court
                                                           The Honorable S. Brent Almon,
City of Boonville,                                         Special Judge
Appellee-Defendant                                         Trial Court Cause No.
                                                           87D01-0810-PL-452



Baker, Judge.




Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015                  Page 1 of 19
[1]   Boonville seeks to annex an area of over 1,000 acres that is adjacent to the city.

      A group of landowners in the annexation area filed a remonstrance petition.

      The current appeal is the fourth time this particular annexation ordinance has

      reached the appellate courts (it has been twice to the Court of Appeals and once

      to our Supreme Court).


[2]   Here, the landowners in the annexed area appeal the trial court’s order finding

      in favor of Boonville on the remonstrance petition. The landowners argue that

      the trial court deferred too much to Boonville’s judgment and that the evidence

      does not support a conclusion that Boonville met its statutory burden of

      showing either that 60% of the land in the annexed area is “subdivided” or that

      the annexed area is needed and can be used by Boonville for development in the

      reasonably near future. Finding that the trial court applied the correct standard

      and that the evidence is sufficient to support the trial court’s order, we affirm.


                                                      Facts
[3]   Boonville is a city of just over 6,200 people in Warrick County. Between 2000

      and 2010, Boonville’s population dropped by 8.6%. In recent years, multiple

      businesses have left Boonville, and others have avoided locating there. There

      are multiple vacant commercial buildings in Boonville, some of which are

      owned by the City or the County.




      Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 2 of 19
[4]   On July 7, 2008, Boonville’s city council passed an ordinance seeking to annex

      1,165 acres (the Annexation Territory) of primarily agricultural land1 located to

      the west of Boonville. The annexation would increase the geographic size of

      Boonville by nearly 65%. Boonville provides fire protection in the Annexation

      Territory, and Boonville police patrol the Annexation Territory and are often

      the first responders for emergency calls in that area.


[5]   Boonville believes that the proposed annexation would reverse its population

      decline by providing opportunities for commercial and industrial growth that

      are not currently available. Specifically, Boonville notes that within the current

      city limits, there are only thirty-six undeveloped acres of land zoned for

      commercial, business, or industrial use. All of that acreage is located within a

      floodplain. In the Annexation Territory, in contrast, there are a total of 727

      undeveloped acres, 227 of which are outside the floodplain and already zoned

      for commercial, business, and industrial use.


[6]   Boonville has plans for infrastructure improvements to the Annexation

      Territory. It has already constructed a new sewer treatment plant in the

      Annexation Territory, with plans to extend sewer collection facilities to the

      northern, undeveloped portion of the area. There are also plans to improve

      upon the roadway infrastructure, including a new bypass that will cross through

      the undeveloped area of the Annexation Territory. In 2004, Warrick County




      1
          Approximately 62% of the Annexation Territory is currently being farmed.


      Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015       Page 3 of 19
      agreed to Boonville’s request to create an economic development area (EDA)

      for the Annexation Territory.2


[7]   On October 3, 2008, more than two hundred landowners in the Annexation

      Territory (the Landowners) filed a remonstrance petition. Boonville moved to

      dismiss the petition based upon alleged failure to comply with relevant statutes,

      and the trial court granted the motion. On interlocutory appeal, this Court

      reversed and remanded for further consideration by the trial court. City of

      Boonville v. Am. Cold Storage, 950 N.E.2d 764 (Ind. Ct. App. 2011) (Boonville I).


[8]   On remand, the trial court determined that the Landowners had not met certain

      statutory requirements for the remonstrance petition. On appeal, this Court

      disagreed and reversed. Am. Cold Storage v. City of Boonville, 977 N.E.2d 19 (Ind.

      Ct. App. 2012), trans. granted, vacated (Boonville II). Our Supreme Court granted

      transfer, agreeing with this Court that the trial court erred, reversing the trial

      court’s order, and remanding for further consideration. Am. Cold Storage v. City

      of Boonville, 2 N.E.3d 3 (Ind. 2014) (Boonville III).


[9]   After the second remand, a bench trial on the remonstrance petition took place

      on January 13-16, 2015. Following a motion from the Landowners, the parties

      submitted proposed findings and conclusions. On February 23, 2015, the trial

      court issued its findings of fact, conclusions of law, and judgment of




      2
       The purpose of an EDA is to attract development, including the promotion of significant opportunities for
      employment and attraction of major new business enterprise. Ind. Code § 36-7-14-41.

      Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015                        Page 4 of 19
       annexation, denying the remonstrance petition and authorizing the annexation.

       The Landowners now appeal.


                                     Discussion and Decision
                                       I. Standard of Review
[10]   In Rogers v. Municipal City of Elkhart, our Supreme Court described the

       framework of Indiana’s annexation procedures as follows:


               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; (2) an opportunity for remonstrance by
               affected landowners, and (3) judicial review.


               Although the applicable statutes have undergone many changes
               over the years, certain general propositions of law have long
               applied. The statutes invest exclusive authority to annex territory
               in the governing body of a municipality. Annexation is a
               legislative function and becomes a question subject to judicial
               cognizance only upon review as provided by statute.


                                                        ***


               Because the city’s authority to annex territory is defined by
               statute, the court’s duty is to determine whether the city exceeded
               its authority and met the conditions imposed by the statute. Even
               though the burden of pleading is on the remonstrator, the burden
               of proof is on the municipality to demonstrate compliance with
               the statute. The court sits without a jury and enters judgment on
               the question of annexation after receiving evidence and hearing
               argument from both parties.


       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 5 of 19
               Once the trial court has decided whether to approve an
               annexation ordinance, either the municipality or the
               remonstrators may appeal.


       688 N.E.2d 1238, 1239-40 (Ind. 1997).


       A. Review of Trial Court’s Decision by Court of Appeals
[11]   Where, as here, the trial court issues findings and conclusions as provided for in

       Indiana Trial Rule 52(A), we apply a two-tiered standard to review the trial

       court’s order. Oil Supply Co. v. Hires Parts Serv., Inc., 726 N.E.2d 246, 248 (Ind.

       2000). We determine whether the evidence supports the findings and the

       findings support the judgment. Id. In deference to the trial court’s proximity to

       the issues, “we disturb the judgment only where there is no evidence supporting

       the findings or the findings fail to support the judgment.” Id. We do not

       reweigh the evidence, but only consider the evidence favorable to the trial

       court’s judgment. Id. Thus, challengers labor under a heavy burden, but one

       that may be overcome by showing that the trial court’s findings are clearly

       erroneous. Id.


[12]   The Landowners contend that this appeal presents an issue of statutory

       interpretation to be reviewed de novo. We disagree. It is apparent that the true

       nature of this appeal is a challenge to the sufficiency of the evidence supporting

       the dismissal of the remonstrance petition, and we will review it accordingly.




       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015    Page 6 of 19
             B. Review of Proposed Annexation by Trial Court
[13]   The parties strongly disagree about the way in which a court should review a

       municipality’s annexation determination. The trial court observed that

       “[s]ubstantial deference is owed to Boonville’s decision to annex the

       Annexation Territory.” Appellants’ App. p. 2. More specifically, the trial court

       found and held as follows:


               Boonville believes that the best way to proceed is to annex the
               territory now, then extend sewer service and develop the area as
               a part of Boonville. The evidence supports the City’s decision of
               need. This Court will not second guess the City’s decision on how best
               to develop the Annexation Territory and extend services. The
               City has acted within its legislative discretion and has
               demonstrated that the area is needed and can be used for its
               development in the reasonably near future.


       Id. at 17 (emphasis added). The Landowners contend that the trial court

       afforded Boonville too much deference at the expense of its obligation to

       conduct judicial review—essentially, they argue that as part of judicial review,

       the trial court should have second-guessed Boonville.


[14]   The Landowners concede that courts defer to a municipality’s legislative

       judgment in determining whether to annex territory. But they argue that “it is

       for the Courts to decide whether the statutory requirements are met, and ‘the

       municipality bears the burden of showing compliance with the requirements of

       the annexation statute.’” Appellants’ Br. p. 27 (quoting Bradley v. City of New

       Castle, 764 N.E.2d 212, 216 (Ind. 2002)). While that is accurate, it is well


       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015     Page 7 of 19
       established that annexation remonstrances are not regular lawsuits, but are

       special proceedings guided by well-established standards and principles.

       “‘[A]nnexation is essentially a legislative function.’ Therefore, courts play only

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

       judgment substantial deference.” In re Annexation of Certain Territory to City of

       Muncie, 914 N.E.2d 796, 801 (Ind. Ct. App. 2009) (quoting City of Fort Wayne v.

       Certain S.W. Annexation Area Landowners, 764 N.E.2d 221, 224 (Ind. 2002)). In

       other words, “[c]ourts are not authorized to dissect the minutiae of what are

       essentially legislative decisions.” Fort Wayne, 764 N.E.2d at 229.


[15]   Indeed, our Supreme Court has held that the court’s role is limited even where

       the municipality bears the burden of proof: “Although the municipality bears

       the burden of proof when properly challenged, we afford legislative judgment

       considerable deference.” Bradley, 764 N.E.2d at 216. Therefore, a reviewing

       court may not examine the municipality’s burden “under too powerful a

       microscope.” Fort Wayne, 764 N.E.2d at 225. In sum, we find that the trial

       court applied a properly deferential standard when considering the proposed

       annexation ordinance.


                                II. Annexation Requirements
                                     A. Statutory Framework
[16]   Indiana Code section 36-4-3-13 provides, in relevant part, that if the

       requirements of either section 13(b) or 13(c) are met, the court “shall order a

       proposed annexation to take place” unless the landowner-remonstrators are

       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 8 of 19
able to meet the criteria set forth in section 13(e). 3 I.C. 36-4-3-13(a) (emphasis

added). Sections 13(b) and 13(c) state as follows:


         (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.


         (c)      The requirements of this subsection are met if the evidence
                  establishes one (1) of the following:


                  (1)       That the territory sought to be annexed is:


                            (A)      contiguous to the municipality as required by
                                     section 1.5 of this chapter, except that at least



3
  If the trial court finds that the municipality has met its statutory burden, the annexation must occur unless
the landowner-remonstrators are able to meet the criteria set forth in section 13(e). In this case, the trial court
found that the Landowners did not meet the section 13(e) criteria, and they do not appeal that determination.

Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015                              Page 9 of 19
                                     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; and


                           (B)       needed and can be used by the municipality
                                     for its development in the reasonably near
                                     future.


                  (2)      This subdivision applies only to an annexation for
                           which an annexation ordinance is adopted after
                           December 31, 2016. That the territory sought to be
                           annexed involves an economic development project
                           and the requirements of section 11.4 of this chapter
                           are met.


In this appeal, only two portions of sections 13(b) and (c) are at issue.

Specifically, the Landowners contend that the trial court erred by concluding

that Boonville proved that (1) sixty percent of the Annexation Territory is

subdivided pursuant to section 13(b)(2)(B); and (2) the Annexation territory is

needed and can be used by Boonville for its development in the reasonably near

future pursuant to section 13(c)(1)(B).4




4
 The trial court primarily rested its decision on section 13(c), but also found that even if Boonville had not
met the requirements in that section, it had also met the requirements of section 13(b). The Landowners
appeal under both sections 13(b) and 13(c).

Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015                           Page 10 of 19
                    B. Section 13(b): Sixty Percent Subdivided
[17]   The parties’ primary disagreement with respect to section 13(b) surrounds the

       definition of the term “subdivided.” The Landowners contend that this term,

       which is not defined in the statute, must be considered in light of the overall

       purpose of the statute, which is “to permit annexation of adjacent urban

       territory.” Rogers v. Elkhart, 688 N.E.2d 1238, 1242 (Ind. 1997). They insist

       that the Annexation Territory is “far from urban,” noting that “[t]he unzoned

       land, and the land zoned agricultural, recreation and conservancy, or

       floodplain, make up nearly half of the [A]nnexation [T]erritory.” Appellants’

       Br. p. 18.


[18]   At trial, Boonville’s expert testified that in his opinion, more than 60% of the

       Annexation Territory is subdivided. He reasoned that, although many of the

       parcels were divided long ago, before the county’s subdivision control

       ordinance was enacted, they “would be required to go through the subdivision

       control ordinance if they were done today because of where they’re zoned.”

       Appellants’ App. p. 83. The Landowners argue that this analysis is faulty

       because it “erroneously applied the Warrick County subdivision control

       ordinance to any land that had ever been divided, regardless of when, and

       erroneously overlooked the fact that several of the parcels that he asserted were

       ‘subdivided’ were in fact aggregated.” Appellants’ Br. p. 19 (emphasis original).


[19]   The Landowners observe that virtually all land in the United States has been

       divided at some point. Without evidence regarding the dates on which the


       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 11 of 19
       parcels were divided, “Boonville’s expert’s definition of ‘subdivision’ might

       apply to land divided more than a century ago, when one farmer sold some

       land to another.” Id. The Landowners argue that this approach is inconsistent

       with the statutory purpose of urbanization.


[20]   We cannot agree with the Landowners’ overly narrow definition of the term

       “subdivided.” Indeed, our Supreme Court has rejected precisely such a narrow

       definition. In rejecting the remonstrators’ assertion that to meet section

       13(b)(2)(B), “the City must demonstrate that 60% of the land became

       subdivided through the local subdivision approval process,” our Supreme Court

       reasoned as follows:

               This assertion asks courts to add too much to statutes that
               consign decision-making power to legislators, local and state.
               The theme of Indiana annexation law has long been that
               adjoining territory of an urbanizing character was subject to
               annexation. As counsel for the Remonstrators observe,
               “Generally speaking, land next to a city has already begun taking
               on attributes of urbanization or it reflects the immediate
               likelihood of such urbanization.”


       Rogers, 688 N.E.2d at 1241. The Court then outlined the evolution of the

       urbanization question, which historically “permitted annexation of land

       ‘whether platted or not’” and annexations for areas that are “an economic and

       social part of the annexing city.” Id. The Rogers Court explained that

       “[i]nasmuch as the present statute contains no definition of ‘subdivided,’ the

       trial court might well have looked in several directions if it perceived the need

       for greater definition.” Id. at 1241-42. Our Supreme Court emphasized that

       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 12 of 19
       “the definition a municipality uses for these purposes is one yardstick a court

       may employ, though there may be others not suggested to us by the parties to

       the case,” and the remonstrators’ limited definition “demands far more than the

       straightforward language of the code provides.” Id. at 1242.


[21]   In light of Rogers, we find that the trial court properly refused to limit the

       definition of “subdivided” to parcels of land that have actually gone through the

       process set forth by the county subdivision control ordinance. Boonville’s

       expert testified that, based on the definition of “subdivision” in that ordinance,

       61.5% of the Annexation Territory would have been required to follow the

       procedures set forth by that ordinance and would constitute a subdivision

       today, had the ordinance been in place when the parcels were divided.


[22]   As for whether the Annexation Territory has begun taking on the attributes of

       urbanization, the trial court heard all of the evidence and found that, while

       parts of the Annexation Territory are undeveloped, “it is also apparent that

       large portions of the Annexation Territory are already developed and have

       become urbanized in the general sense.” Appellants’ App. p. 8. The trial court

       relied on the development along the highway access of State Road 62, where

       there are numerous restaurants, auto dealerships, office buildings, two

       industrial parks, and several residential neighborhoods. This evidence suffices

       to support the trial court’s finding that the Annexation Territory has already

       begun taking on attributes of urbanization. We find that the trial court applied

       a proper definition of the term “subdivided” and did not err by concluding that



       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 13 of 19
       over 60% of the Annexation Territory is subdivided for the purpose of Section

       13(b).


                   C. Section 13(c): Needed and Can Be Used
[23]   Given that we have found that Boonville met the conditions set forth in section

       13(b), we need not also consider section 13(c). But because these types of issues

       recur frequently, we will consider the application of 13(c) to this case.


[24]   To meet its burden under the relevant portion of section 13(c), Boonville was

       required to show that the Annexation Territory was both “needed” and “can be

       used” for Boonville’s development “in the reasonably near future.”


                                             1. Recent Cases
[25]   This Court has issued two opinions recently relating to section 13(c). In Town

       of Fortville v. Certain Fortville Annexation Territory Landowners, a group of

       remonstrators challenged Fortville’s attempted annexation of land adjacent to

       the town. No. 30A01-1410-MI-442 (Ind. Ct. App. July 2, 2015), trans. pending.

       In Fortville, the trial court found that the town had failed to meet its burden that

       the annexed area was needed and could be used for development in the

       reasonably near future. This Court noted that “the trial court appears to have

       been seeking evidence that Fortville had plans to implement brick and mortar

       development in the near future.” Id. at *3. We found that this standard was

       overly limited and held that, to comply with section 13(c), “a municipality need

       not demonstrate immediate plans to build on the annexed land . . . .” Id. at *4.

       This Court reasoned as follows:
       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015    Page 14 of 19
               To allow the trial court’s order to stand would be to hold that a
               city—if it does not have impending plans to build on land that it
               seeks to annex—must sit and watch the land be used and
               developed in ways that might harm or impede its future plans for
               urban management of the land, until the “long-term inevitability”
               of annexation takes place. This result would be bad policy and
               likely harm both the area to be annexed and the municipality that
               seeks to annex it. Thus, we determine that the trial court should
               not have limited its analysis to evidence of physical construction
               or development in determining whether Fortville fulfilled the
               requirements of Indiana Code section 36–4–3–13(c)(2).


               Therefore, we hold that the trial court applied the wrong
               evidentiary standard as a matter of law and find that, in
               determining whether a municipality fulfills the requirements of
               Indiana Code section 36–4–3–13(c)(2), a trial court may, and
               should, consider non-physical brick and mortar development uses, such as
               those—using annexed territory for “transportation linkages with other
               developing areas, to control adjacent development on its borders, and to
               prevent conflicting land uses”—noted by our Supreme Court in
               Hobart. 631 N.E.2d at 913 n.6. We reverse and remand with
               instructions that the trial court apply the correct standard and
               reconsider its judgment.


       Id. at *4-5 (citing Chidester v. City of Hobart, 631 N.E.2d 908, 913 n.6 (Ind. 1994))

       (emphasis added).


[26]   Not long after Fortville was handed down, this Court considered a similar case

       in Town of Whitestown v. Rural Perry Township Landowners, No. 29A05-1409-MI-

       437 (Ind. Ct. App. July 29, 2015), not yet certified. In Whitestown, the town

       enacted an annexation ordinance that sought to annex acreage located in an

       unincorporated portion of Perry Township. A number of landowner-


       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015     Page 15 of 19
       remonstrators filed a remonstrance petition, and the trial court found in their

       favor. Among other things, the trial court found that Whitestown had failed to

       meet its burden under section 13(c). This Court noted that “there was ample

       testimony concerning the town’s rapid growth and the efforts Whitestown put

       into encouraging, predicting, and planning that growth—and how the

       Annexation Area could be used for those ends.” Id. at *9.


[27]   Although there was no evidence of ongoing, confirmed projects in the

       annexation area, this Court emphasized that “the test prescribed under [section

       13(c)] is not whether the annexing municipality can make do without the

       territory it seeks to annex.” Id. Citing to Fortville, the Whitestown Court held

       that the trial court erred by finding that Whitestown had failed to carry its

       burden of proof. The Court also sought to “remind trial courts of . . . the

       deferential standard accorded to annexing municipalities[.]” Id. at *10. In the

       end, the Whitestown Court reversed the trial court and instructed that judgment

       be entered in favor of Whitestown on the remonstrators’ petition.


                                     2. Boonville Annexation
[28]   As for the case before us, we agree with Boonville that what a municipality

       needs and can use “is first and foremost a legislative determination.”

       Appellees’ Br. p. 33. A court should not substitute its judgment for what a

       municipality determines is needed to accomplish its purposes. State v. Collom,

       727 N.E.2d 737, 741 (Ind. Ct. App. 1999) (holding that questions of

       government necessity and expediency are understood to be exclusively for the


       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 16 of 19
       legislature). Additionally, we observe that necessity “is not limited to the

       ‘absolute or indispensable needs of [the municipality], but is considered to be

       that which is reasonably proper and useful for the purpose sought.” Collom, 720

       N.E.2d at 741. Boonville was not required to put forth specific development

       projects planned for the Annexation Territory. Instead, it merely needed to

       show that the land was needed and can be used, rather than “a concrete ‘will’

       be used.” Appellees’ Br. p. 36.


[29]   The evidence supporting Boonville’s assertion that the Annexation Territory is

       needed and can be used is as follows:


            Boonville has run out of room and needs the Annexation Territory to be
             able to grow and attract new business and industry.
            The city currently has zero acres outside of the floodplain that are
             available for commercial, business, or industrial development. The
             Annexation Territory would add 227 such acres to Boonville.
            Boonville has plans for bringing new development to the Annexation
             Territory, including sewer services and a major transportation linkage.
            Boonville has already constructed a new Sewer Treatment plant in the
             Annexation Territory.
            Boonville provides fire protection and police patrols to the Annexation
             Territory.

       Being mindful of our deferential standard of review, we find that this evidence

       supports the trial court’s conclusion that Boonville met its burden under section

       13(c). While there is no evidence of ongoing, confirmed projects in the

       Annexation Territory, Boonville is not required to make such a showing. It has

       offered evidence establishing a need for the Annexation Territory, as well as its

       outlined hopes for development, including business, transportation, and sewer

       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 17 of 19
       services, in that area. This evidence is sufficient to show that the Annexation

       Territory is needed and can be used by Boonville in the reasonably near future.


[30]   The Landowners contend that the proposed annexation is a mere tax grab,

       pointing to a media interview in which Boonville’s mayor allegedly stated “that

       she was not going to give anything to the annexed area, and all she wanted was

       their money.” Appellants’ App. p. 97. This media report was not, itself, put

       into evidence at the trial. Instead, one of the remonstrators claimed that he had

       seen the television news report nearly seven years before the trial. At trial, the

       mayor testified that the reason for the annexation was because the city needed it

       for development. Furthermore, a government fiscal expert testified that the

       City may actually see less tax revenue from the annexation than the estimated

       cost of providing services to the area. In other words, the expert testified that

       the annexation “doesn’t make sense” if it is “some kind of a money grab.” Tr.

       p. 367.


[31]   The testimony of the mayor and the government fiscal expert was sufficient

       evidence to support the trial court’s conclusion that the annexation is not a

       mere tax grab. The Landowners’ arguments to the contrary amount to a

       request that we assess witness credibility and reweigh evidence, which we

       decline to do.


[32]   In sum, we find as follows: (1) the trial court applied a properly deferential

       standard of review to the annexation ordinance; (2) the trial court did not err by

       concluding that Boonville established that over 60% of the Annexation


       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 18 of 19
       Territory is subdivided; and (3) the trial court did not err by concluding that

       Boonville established that the Annexation Territory is needed and can be used

       for development in the reasonably near future.


[33]   The judgment of the trial court is affirmed.


       Brown, J., concurs, and Riley, J., concurs in result.




       Court of Appeals of Indiana | Opinion 87A01-1502-PL-76 | August 28, 2015   Page 19 of 19
