                                                                          FILED
                                                                     Oct 11 2017, 8:47 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                              ATTORNEY FOR APPELLEES
Nicholas K. Kile                                     Stephen R. Buschmann
Mark J. Crandley                                     Thrasher Buschmann & Voelkel, P.C.
Hillary J. Close                                     Indianapolis, Indiana
Barnes & Thornburg, LLP
Indianapolis, Indiana
David M. Austgen
Austgen Kuiper Jasaitis P.C.
Crown Point, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Town of Cedar Lake, Indiana,                               October 11, 2017

Appellant-Respondent,                                      Court of Appeals Case No.
                                                           45A03-1703-MI-589
        v.                                                 Appeal from the Lake Superior Court
                                                           The Honorable Calvin D. Hawkins,
Certain Cedar Lake 2014                                    Judge
Annexation Territory                                       Trial Court Cause No.
Landowners,                                                45D02-1510-MI-20

Appellees-Petitioners.


Bradford, Judge




Court of Appeals of Indiana | Opinion 45A03-1703-MI-589 | October 11, 2017
                                                                                              Page 1 of 21
                                           Case Summary                    1




[1]   Appellant-Respondent the Town of Cedar Lake, Indiana (“the Town”), appeals

      from the trial court’s setting aside of the annexation of approximately 2800

      acres (“the Annexation Territory”) in Lake County. In 2014, the Town enacted

      an ordinance to annex the Annexation Territory, and Appellees-Petitioners

      Certain Cedar Lake 2014 Annexation Landowners (“the Remonstrators”)

      petitioned to set aside the annexation. The parties agree that the only issue of

      contention was whether the Town established that the Annexation Territory

      was “needed and can be used by the municipality for its development in the

      reasonably near future” as required by Indiana Code 36-4-3-13(c).


[2]   Following a bench trial, the trial court set aside the annexation, concluding that

      the proposed annexation did not satisfy the “needed and can be used” standard.

      The Town argues that (1) we should review the annexation ordinance at issue

      to determine if has a “rational basis” rather than review the trial court’s

      judgment for clear error; (2) the trial court improperly failed to give its

      legislative judgment any deference and applied, essentially, an incorrect de novo

      standard of review; and (3) the trial court improperly applied the “needed and

      can be used” standard. Because we conclude that the trial court’s judgment

      must be reviewed only for clear error, the trial court did not employ an incorrect




      1
        We heard oral argument in this case on September 26, 2017. We wish to commend counsel on both sides
      for the high quality of their oral advocacy.
      Court of Appeals of Indiana | Opinion 45A03-1703-MI-589 | October 11, 2017
                                                                                                 Page 2 of 21
      legal standard, and the trial court’s judgment was not otherwise clearly

      erroneous, we affirm.



                             Facts and Procedural History
[3]   In the early 1900’s, the Town originated as a vacation spot for Chicagoans with

      “a little bit of money[,]” who patronized the hotels on the lake that eventually

      gave the Town its name. Tr. Vol. II p. 14. The Great Depression brought

      decline, and, in the 1960’s a group of residents decided to incorporate the Town

      “and try to reclaim its glory[,]” which finally occurred in October of 1968. Tr.

      Vol. II pp. 14–15. Over the past forty years or so, Lake County’s population

      has steadily migrated from the northern part of the county to the southern,

      where the Town is located. Currently, the Town’s borders include a section of

      U.S. Highway 41, which runs north-south a short distance west of the Town’s

      center. The Town’s population increased by approximately 25% between 2000

      and 2010. The 2010 census determined that the Town’s population was 11,560.


[4]   In November of 2014, the Town adopted Ordinance 1212, proposing the

      annexation of the Annexation Territory, consisting of 232 parcels and 2795

      acres. On June 2, 2015, the Town adopted Ordinance 1212A and resolution

      1228B, providing for the annexation of the Annexation Territory and approving

      a fiscal plan, respectively. The fiscal plan contained no information regarding

      specific development in the Annexation Territory but did project a net increase

      in tax revenues to the Town of more than $350,000 per year. On August 28,


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                                                                                   Page 3 of 21
      2015, the Remonstrators, consisting of owners of 185 of the 232 parcels in the

      Annexation Territory, filed their remonstrance against the annexation.


[5]   On January 5, 2017, the trial court held a bench trial on the remonstrance. The

      Town introduced evidence regarding five major projects that could potentially

      add additional economic development in the Annexation Territory in the

      future. First, Indiana and Illinois have proposed construction of the “Illiana

      Toll Road,” connecting Interstates 55 and 65, with the intersection of the toll

      road with U.S. 41 occurring within the Annexation Territory (“the Toll Road

      Project”). Second, the Northern Indiana Commuter Transportation District is

      proceeding with plans to extend the South Shore commuter rail line to Dyer,

      which would allow access to commuter rail service to Chicago at a point

      approximately a twenty-minute drive from the Annexation Territory (“the

      Commuter Rail Project”). Third, Amazon has announced a new warehouse in

      Monee, Illinois, the site of which is approximately one half-hour from the

      Town, significantly larger than an Amazon warehouse in Joliet, Illinois, which

      employs 1500 persons (“the Amazon Project”). Fourth, the Great Lake Basin

      Railroad is planning an extension of its freight line, with the proposed route

      running parallel to the proposed Toll Road Project (“the Freight Rail Project”).

      Fifth, planning continues for a “South Suburban Airport” to serve as a third

      major airport for the Chicago metropolitan area, which would be in nearby

      Peotone, Illinois, and could spur growth in the annexation area (“the Airport

      Project”).



      Court of Appeals of Indiana | Opinion 45A03-1703-MI-589 | October 11, 2017
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[6]   The Town presented testimony that the planning for future development should

      be occurring now, regardless of when actual construction begins. The Town

      purchased a water utility and invested approximately $1,000,000.00 to extend

      water mains to the edge of the Annexation Territory and has studied the

      extension of sewer service to the Annexation Territory and plans to begin

      construction as soon as annexation occurs. The Town, however, did not

      introduce evidence that any developers have expressed an interest in developing

      land in the Annexation Territory.


[7]   The owners of approximately 40% of the land in the Annexation Territory

      testified at trial and indicated that none of them had been approached by any

      developer. Instead, several landowners have purchased land from developers

      for agricultural use. The President of the Town Council testified that he and

      the rest of the council had no objection if farming continued in the Annexation

      Territory for the next ten or twenty years and that the Town knew of no

      development proposals in the Annexation Territory for the next three to five

      years.


[8]   On February 21, 2017, the trial court issued its written judgment, which

      included the following relevant findings of fact and conclusions:


               FINDINGS OF FACT
                     1. In November, 2014, the Town of Cedar Lake adopted
               Ordinance 1212 proposing to annex certain land that is adjacent to
               the Town. In conjunction with that Ordinance the Town of Cedar
               Lake also adopted Resolution 1128, which was a Fiscal Plan dated
               November 12, 2014. (Ex 1)

      Court of Appeals of Indiana | Opinion 45A03-1703-MI-589 | October 11, 2017
                                                                                   Page 5 of 21
               2. The 2014 Annexation Territory consists of 232 parcels of
        property totaling 2795 acres, most of which is used for agricultural
        purposes.
               3. On January 20, 2015, the Town of Cedar Lake adopted
        Resolution 1128A amending the Fiscal Plan by a document dated
        January 19[,] 2015. (Ex B, Ex 2)
               4. On June 2, 2015, the Town of Cedar Lake adopted
        Ordinance 1212A annexing the 2014 Annexation territory together
        with Resolution 1128B, approving an amended fiscal Plan dated
        May 22, 2015. (Ex A, Ex C)
               5. On June 6, 2015, the Town of Cedar Lake caused notice
        of the passage of Ordinance 1212A to be published.
               6. On August 28, 2015, Certain Cedar Lake 2014
        Annexation Territory Landowners, the Petitioners, owning 185 of
        the 232 parcels in the 2014 Annexation Territory (79.7%) filed
        their remonstrance against the annexation.
               7. On December 7, 2015, this Court entered its Order
        certifying the sufficiency of the remonstrance petitions.
               8. The Court held a hearing on the remonstrance on
        January 5, 2017. The Court heard evidence and was presented
        with a Stipulation from the parties.
               9. The Town of Cedar Lake created three Fiscal Plans
        respectfully dated November 12, 2014 (Ex 1); January 19, 2015
        (Ex 2) and May 22, 2015 (EX C) each of which projected costs
        and revenues for the succeeding five (5) year period. Each of the
        Plans projected that the costs of government services such as
        police protection, fire and EMS protection would increase as
        development occurred. The projected costs and revenues over the
        five (5) year period make no provision for any significant growth
        in revenues or costs of services that would be expected if the 2014
        Annexation Territory was to be developed during that period.
               10. In addition the Town of Cedar Lake’s amended
        annexation ordinance delayed the effective date of the annexation
        for three years, thus establishing that the Town of Cedar Lake did
        not need and could not use the 2014 Annexation Territory for its
        development by the Town of Cedar Lake for the next three years.
        (Ex C)
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                                                                             Page 6 of 21
                11. The Fiscal Plan granted the “agricultural exemption”
        for properties zoned as agricultural land under Ind. Code §36-4-3-
        4.1, which would exempt such properties from the additional
        municipal taxes until such time as the properties were rezoned.
        Despite this exemption, the Fiscal Plan showed that as a result of
        the Annexation the Town of Cedar Lake would receive an
        estimated $350,000 in additional tax revenues, exclusive of any
        additional utility charges. The Petitioners presented evidence that
        for those that would pay the municipal rates, the increased taxes
        would be significant. (Ex C)
                12. The Town of Cedar Lake asserted that the construction
        of the Illiana Tollway, which had a proposed route through the
        2014 Annexation Territory would create development in the
        Annexation Territory. The Tier I and Tier II Environmental
        Impact Studies on the portion of the Tollway running through
        Illinois have been declared invalid by the United States District
        Court, Southern District of Illinois and the Governor of the State
        of Illinois has stated that Illinois will not spend money to advance
        this project. (Stipulation 4, Ex T). The construction of the Iliana
        Tollway in this location is speculative and will not lead to
        development in the 2014 Annexation Territory in the reasonably
        near future.
                13. The Town of Cedar Lake provided evidence of other
        regional projects that would promote development in Northwest[]
        Indiana. These projects include:
                A. The West Lake Corridor Project NICTD railway is
                    projected to become operational across Northern Lake
                    County, with a spur running to Dyer, Indiana by 2023.
                    While this project if completed on time, would benefit
                    Northwest Indiana, there was no evidence that it would
                    result in development in the 2014 Annexation Territory
                    in the reasonably near future.
                B. The State of Illinois is considering the construction of a
                    South Suburban Airport in Illinois. (Ex S, Ex W).
                    Pursuant to the website of the Illinois Department of
                    Transportation, this is an ongoing process. The
                    completion of this project at this location is speculative
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                                                                             Page 7 of 21
                  and the Town of Cedar Lake provided no evidence that
                  this proposal would result in development in the 2014
                  Annexation Territory in the reasonably near future.
               C. Amazon has announced plans for a fulfillment center in
                  Monee, Illinois. While this project could potentially
                  have a positive impact for Northwest Indiana, the Town
                  of Cedar Lake provided no evidence this project would
                  result in development in the 2014 Annexation Territory
                  in the reasonably near future.
               D. The Great Lakes Basin Transportation Inc. proposed to
                  construct a freight rail line emanating from Chicago and
                  running east, with a proposed route that could run
                  through the 2014 Annexation Territory. (Ex S, Ex Z).
                  As noted on the Great Lakes Basin website, the precise
                  alignment of the railroad has not been determined and
                  alternative routes for part or all of the project will be
                  considered. A primary factor in the route selection is to
                  provide a one to two-mile buffer zone between the
                  railroad and towns along the route. (Ex Z). The
                  construction of this railroad in or near the Annexation
                  Territory is speculative and the Town of Cedar Lake
                  provided no evidence this project would result in
                  development in the 2014 Annexation Territory in the
                  reasonably near future.
               14. The Town of Cedar Lake provided evidence from
        several comprehensive plans that development is working its way
        South on US 41, and is projected to occur in the 2014 Annexation
        Territory over the next couple of decades; However, the Town of
        Cedar Lake provided no evidence this projected development
        would occur in the 2014 Annexation Territory in the reasonably
        near future.
               15. The Town of Cedar Lake presented evidence of
        building permits over the last 7 years on US 41 within the current
        Town limits. (Ex 0). Of the 44 permits contained on that list, few
        appeared to be new construction. The Town of Cedar Lake also
        presented evidence of building permits in other areas within the
        Town limits. (Ex N) While some are new construction, most
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                                                                             Page 8 of 21
        were not. The Town of Cedar Lake presented no evidence of
        construction in the 2014 Annexation Territory and the Petitioners
        testified that there had been little to no development occurring in
        the 2014 Annexation Territory. The “Development” maps (Ex R)
        confirmed that testimony.
                16. The Town of Cedar Lake presented a number of
        reasons that it desired to annex the Annexation Territory,
        including:
                A. Per the Fiscal Plan, the annexation would produce
                    additional tax revenues for the Town. (Ex 2, pg 5).
                B. The desire to control zoning outside of the Town limits,
                    to regulate anticipated long term growth.
                C. The desire to control sewer service outside the Town
                    limits although the Town of Cedar Lake currently has an
                    agreement with the Town of Lowell to have the
                    exclusive right to place sewers in the 2014 Annexation
                    Territory North of 159th Street. (Ex 5, Ex 6, & Ex 7).
                D. The desire to expand its sewer service territory into areas
                    South of 159th Street which areas have previously been
                    assigned by agreement to the Town of Lowell; even
                    though the Town of Lowell presented evidence that it
                    would provide sewer service in that area, if requested,
                    but no one had made such a request.
                E. The desire to protect water service areas, although:
                    (1) There was no evidence that the Town of Cedar Lake
                        had any intent to attempt to provide water service to
                        the 2014 Annexation Territory unless development
                        occurs;
                    (2) The Town of Cedar Lake has the authority to extend
                        water service outside its corporate boundaries and
                        into the 2014 Annexation Territory anytime it
                        wishes, thus establishing water service control in the
                        area.
                17. Petitioners owning or holding long term leases on
        farmland which comprise approximately 40% of the 2014
        Annexation Territory provided evidence that they and their
        families intend to continue farming that land for the foreseeable
Court of Appeals of Indiana | Opinion 45A03-1703-MI-589 | October 11, 2017
                                                                             Page 9 of 21
        future. None of those Petitioners had been approached by
        developers to acquire their land for development. Dale Huseman
        provided evidence that he had acquired land to be used in his
        farming operations from developers in and adjacent to the 2014
        Annexation Territory.
               18. The Town of Cedar Lake presented evidence that a
        piece of farmland in the 2014 Annexation Territory on US 41 near
        the southern boundary of the Territory was listed for sale and that
        without zoning control the property could be developed in a less
        desirable way. The Petitioners presented evidence that the
        particular parcel had been for sale for at least a decade and the
        same owner had sold land just north of that parcel to Paul Kleine
        for use as farmland.
               19. The Town of Cedar Lake also offered as evidence of
        potential development that Frank Shilling owned 160 acres
        adjacent to, but outside of the 2014 Annexation Territory, which
        he planned to develop if the annexation took place. (Ex 4,
        Response No. 8). The Petitioners presented evidence that Frank
        Shilling had sold some of the property to an adjoining landowner;
        that Frank Shilling was negotiating the sale of 120 acres of the
        property to a family for farming; and the parcel of property was
        located at the end of an FAA certified landing strip, thus limiting
        its usefulness for development.
               20. The Town of Cedar Lake expressed, through the town
        council President that it would not use eminent domain for
        development purposes in the 2014 Annexation Territory and that
        it would allow the farmers in the area to self-determine when and
        whether to develop their farmland.
               21. The Town of Cedar Lake presented no specific plans
        for development within the 2014 Annexation Territory.
               22. The Town of Cedar Lake identified no developers who
        had expressed any interest in developing the agricultural land in
        the 2014 Annexation Territory.
               23. None of the Town of Cedar Lake’s expressed reasons
        for desiring to annex the 2014 Annexation Territory provided a
        basis to establish that the 2014 Annexation Territory is needed and

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        can be used by the Town of Cedar Lake for its development in the
        reasonably near future.
                24. The Petitioners introduced evidence which established
        that the 2014 Annexation Territory is not likely to be developed in
        the reasonably near future.
                25. To the extent any of these Findings of Fact are deemed
        Conclusions of Law they are hereby incorporated as additional
        Conclusions of Law. To the extent any of the Conclusions of Law
        are deemed Findings of Fact, they are hereby incorporated as
        additional Findings of Fact.
        PRINCIPLES OF LAW
                1. Annexations are governed by IC 36-4-1 et seq. More
        specifically a remonstrance proceeding, such as herein, is governed
        by IC 36-4-3-13.
                2. The Respondent, the Town of Cedar Lake, Indiana, has
        the burden of proving its case of annexation pursuant to IC 36-4-3-
        13.
        ANALYSIS
                In this case the parties have stipulated that the requisites of
        IC 36-4-2-13 (b) have not been met; moreover, the parties have
        stipulated that the requisites of Ind. Code § 36-4-2-13(d) have been
        met. And the parties have stipulated the 2014 Annexation
        Territory is at least one quarter (1/4) contiguous to the boundaries
        of the Town of Cedar Lake pursuant to IC 36-4-13(c)(1).
                The Town of Cedar Lake has the burden of establishing that
        the 2014 Annexation Territory is needed and can be used by the
        Town of Cedar Lake for its development in the reasonably near
        future.
                The herein proceeding has brought into being the dialectic
        tension of possibility versus probability. Those
        possibility/probability dialectics were the third major Chicagoland
        airport (Peotone), the Illiana Tollway, an Amazon base of
        operations in nearby Illinois and the construction of a freight rail
        line from eastern Illinois projected to go through a portion of
        western Indiana. Each of these projects is possible; nevertheless,
        notwithstanding the fact that funding has been allocated for same
        the probability of any of these projects coming into being---even
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                                                                             Page 11 of 21
        within the next decade---is remote. For example, the Peotone
        airport site has been discussed for at least two decades. Abell v
        City of Seymour, 275 N.E.2d[ ]547 (1971).
                In the herein case there was no evidence that the Town of
        Cedar Lake had any major project for the proposed annexed
        territory other than for future planning for potential projects,
        potential programs and potential trends for the area in question.
        Again, the possibility/probability dialectic. Town of Fortville v
        Certain Fortville Annexation Territory Landowners, 51 N.E.
        3rd 1195 (2016).
                The Town of Cedar Lake provided no evidence that it had
        any plans for development of the 2014 Annexation Territory in the
        reasonably near future. Furthermore, the Petitioners provided
        evidence that no developers have contacted them regarding
        development in the said territory and that developers have been
        selling land in and adjacent to the 2014 Annexation Territory to
        farmers to be used for farming purposes.
                Consequently, this Court can only find, pursuant to the
        requisite statutes, that there is no probative evidence supporting
        the Town of Cedar Lake’s allegations that the 2014 Annexation
        Territory is needed and can be used by the Town of Cedar Lake
        for its development in the reasonably near future.
        CONCLUSIONS OF LAW
                Based on the foregoing findings of fact, the Court’s
        conclusions of law are:
                1. The proposed annexed territory cannot be used by the
        Town of Cedar Lake in the reasonably near future.
                2. The Town of Cedar Lake has not met its burden to
        annex the proposed territory pursuant to statutory requisites. IC
        36-4-3-5 et seq.
        ORDER
                1. The annexation of the 2014 Annexation Territory as
        provided in Ordinance 1212-A shall not take place; and
                2. The Town of Cedar Lake may not make further attempts
        to annex the 2014 Annexation Territory or any part thereof during
        the four (4) years after the later of (A) entry of this Judgment; or
        (B) the date of final disposition of all appeals to a higher court,
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               unless the annexation is petitioned under Ind. Code § 36-4-3-5 or
               5.1.

      Order pp. 2-10.


                                                  Discussion
          I. Background: Annexation Law in Indiana, Generally
[9]   Annexations are governed by Indiana Code chapter 36-4-3, “Municipal

      Annexation and Disannexation[.]” Remonstrances are governed by Indiana

      Code sections 36-4-3-11 through -15, and the issues to be determined by the trial

      court are set out in section 36-4-3-13. A municipality subject to chapter 36-4-32

      has the burden of proving that the elements of Indiana Code subsections 36-4-3-

      13(b) or (c) and 36-4-3-13(d) have been satisfied. The sole issue in this appeal is

      whether the trial court properly found that the Town failed to meet its burden of

      establishing the elements of Indiana Code subsection 36-4-3-13(c), i.e., “[t]hat

      the territory sought to be annexed is … needed and can be used by the

      municipality for its development in the reasonably near future.” 3


               “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



      2
        Indiana Code section 36-4-3-1 provides that “[t]his chapter applies to all municipalities except consolidated
      cities.” Indianapolis is the only consolidated city in Indiana.
      3
        During the pendency of this case, Indiana Code section 36-4-3-13 has been amended twice—the first
      amended statute was effective from July 1, 2015, to June 30, 2016, and the second became effective on July
      1, 2016. Although subsection (c) has been altered by the amendments, the requirement that municipality
      establish that the land sought to be annexed is “needed and can be used by the municipality for its
      development in the reasonably near future” remains the same in all three versions.
      Court of Appeals of Indiana | Opinion 45A03-1703-MI-589 | October 11, 2017
                                                                                                        Page 13 of 21
        within a fixed period of time; (2) an opportunity for remonstrance
        by affected landowners; and (3) judicial review.” City of Carmel v.
        Steele, 865 N.E.2d 612, 615 (Ind. 2007) (citation omitted).
        Although the applicable statutes have undergone several revisions
        over the years, certain general propositions of law have long
        applied. Id. at 615–16. For instance, annexation statutes invest in
        the governing body of a municipality the exclusive authority to
        annex territory. Id. at 616. And as a legislative function
        annexation becomes a question subject to judicial intervention
        only upon review as provided by statute. Id.
        Because a municipality’s authority to annex territory is defined by
        statute, the court’s role is to determine whether the municipality
        has exceeded its statutory authority, and whether it has met the
        conditions imposed by the statute. Rogers v. Mun. City of Elkhart,
        688 N.E.2d 1238, 1239–40 (Ind. 1997). Although the burden of
        pleading is on the landowner, “the burden of proof is on the
        municipality to demonstrate compliance with the statute.” Id.
        The court sits without a jury and enters judgment on the question
        of annexation after receiving evidence and hearing argument from
        both sides. Ind. Code § 36-4-3-12.
        Once the trial court has decided whether to approve an annexation
        ordinance, either the municipality or the landowner may seek
        appellate review. Where, as here, the trial court upon its own
        motion enters special findings of fact and conclusions of law, we
        apply the standard of review set forth in Indiana Trial Rule 52.
        Chidester v. City of Hobart, 631 N.E.2d 908, 909 (Ind. 1994). We
        review issues of fact for sufficiency of the evidence and look to the
        record only for inferences favorable to the judgment. Id. at 910.
        We will not set aside findings or judgments unless clearly
        erroneous. “Findings are clearly erroneous only when the record
        contains no facts to support them either directly or by inference.”
        Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997) (quotation and
        citation omitted). And a “judgment is clearly erroneous if it
        applies the wrong legal standard to properly found facts.” Id.
        (citation omitted). In order to determine that a finding or
        conclusion is clearly erroneous, an appellate court’s review of the
Court of Appeals of Indiana | Opinion 45A03-1703-MI-589 | October 11, 2017
                                                                             Page 14 of 21
                evidence must leave it with the firm conviction that a mistake has
                been made. Id. (citation omitted).
       Fortville, 51 N.E.3d at 1197–98 (footnote omitted).


[10]   Moreover, because the Town had the burden to establish compliance with the

       requirements of Indiana Code section 36-4-3-13, it is appealing from a negative

       judgment.


                A judgment entered against a party who bore the burden of proof
                at trial is a negative judgment. Garling v. Ind. Dep’t of Natural Res.,
                766 N.E.2d 409, 411 (Ind. Ct. App. 2002). On appeal, we will not
                reverse a negative judgment unless it is contrary to law. Mominee
                v. King, 629 N.E.2d 1280, 1282 (Ind. Ct. App. 1994). To
                determine whether a judgment is contrary to law, we consider the
                evidence in the light most favorable to the appellee, together with
                all the reasonable inferences to be drawn therefrom. J.W. v.
                Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 482
                (Ind. Ct. App. 1998). A party appealing from a negative judgment
                must show that the evidence points unerringly to a conclusion
                different than that reached by the trial court. Mominee, 629 N.E.2d
                at 1282.
       Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct. App.

       2012).


                                  II. Our Standard of Review
                                “Clearly Erroneous” v. “Rational Basis”

[11]   One issue that we must resolve at the outset is the overall standard of review to

       be applied. The Town argues that the trial court did not apply the proper

       standard of review because it did not specifically explain how the proposed

       annexation was “‘arbitrary or capricious; that is, the board or commission has
       Court of Appeals of Indiana | Opinion 45A03-1703-MI-589 | October 11, 2017
                                                                                    Page 15 of 21
       taken willful and unreasonable action without consideration and in disregard of

       the facts or circumstances of the case.’” Appellant’s Br. p. 23–24 (quoting Bd. of

       Comm’rs of Cnty. of Vanderburgh v. Three I Props., 787 N.E.2d 967, 976 (Ind. Ct.

       App. 2003)). The town urges us to apply this same “rational basis” standard of

       review to evaluate the annexation ordinance at issue in this case.


[12]   We conclude that the standard stated above, which was drawn from a zoning

       case, is the improper standard to be used in a remonstrance case. In Three I

       Properties, the court elaborated on the standard to be used in reviewing a zoning

       ordinance:


               Rezoning is a legislative process. [Bryant v. Cnty. Council of Lake
               Cnty., 720 N.E.2d 1, 5 (Ind. Ct. App. 1999), trans. denied.] There is
               no provision for an appeal of the Board’s denial of a zoning
               ordinance. City of Anderson v. Associated Furniture & Appliances, Inc.,
               398 N.E.2d 1321, 1323 (Ind. Ct. App. 1979). The procedure for
               review of such legislative action is to bring a suit for declaratory
               judgment or other similar attack. Id. By this process, a party may
               seek review of the action to determine constitutionality, procedural
               soundness or whether it was an arbitrary, capricious or
               unreasonable action. Id. Because the action is “legislative” and
               not “judicial” in nature, the reviewing court is much more limited
               in its scope of review. Id.
               Generally, whether to rezone a particular piece of property is a
               matter left to the sound discretion of the local legislative body.
               Bryant, 720 N.E.2d at 5. We will not intervene in the local
               legislative process as long as it is supported by some rational basis.
               Id. The courts may reverse a board or commission’s decision
               regarding rezoning only if it is arbitrary or capricious; that is, the
               board or commission has taken willful and unreasonable action
               without consideration and in disregard of the facts or

       Court of Appeals of Indiana | Opinion 45A03-1703-MI-589 | October 11, 2017
                                                                                    Page 16 of 21
                circumstances of the case. Ogden v. Premier Properties, USA, Inc.,
                755 N.E.2d 661 (Ind. Ct. App. 2001).
       787 N.E.2d at 976.


[13]   This, however, is a remonstrance case, in which we are not directly reviewing

       the annexation ordinance. A statutory avenue for a court challenge to a

       proposed annexation exists, which means the Town is challenging that decision,

       not the annexation ordinance itself. In summary, use of a “rational basis”

       standard of review is inappropriate in remonstrance cases because it does not

       involve the direct review of a legislative act. Instead, we will apply the clearly

       erroneous standard (as mandated by the Indiana Supreme Court in Fortville) in

       a straightforward manner,4 keeping in mind, of course, that the Town’s

       judgment in annexation matters is entitled to be shown some deference.


                                III. Whether the Trial Court’s
                               Judgment was Clearly Erroneous
[14]   In order to prevail on appeal, then, the Town must establish that the trial

       court’s conclusion that the Town failed to carry its burden to establish that the

       Annexation Territory was needed and could be used in the reasonably near

       future was clearly erroneous. As mentioned, this court’s review of the trial

       court’s judgment is limited to determining whether it committed clear error.




       4
         The binding precedent of Fortville requires us to review the trial court’s judgment for clear error, but it is
       also worth noting that research has uncovered no Indiana cases from any court reviewing a remonstrance
       using a “rational basis” standard or suggesting that the trial court in a remonstrance should have used that
       standard.
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                                                                                                            Page 17 of 21
[15]   The Town does not argue that there is insufficient evidence to sustain the trial

       court’s findings; rather, it claims that the trial court did not apply the proper

       legal standard, i.e., show the proper amount of deference to the Town’s

       legislative judgment. The Town is correct that a trial court in a remonstrance

       owes substantial deference to the municipality’s judgment regarding the

       proposed annexation. As the Indiana Supreme Court has stated,


               “annexation ‘is essentially a legislative function’” and that “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) (citing City of Fort Wayne v. Certain
               Southwest Annexation Area Landowners, 764 N.E.2d 221, 224 (Ind.
               2002)). But that does not mean a trial court’s role is to sustain
               blindly an annexation decision simply because it is the product of
               legislative decision-making. Rather, the court is obligated to
               ensure the annexing municipality has “not exceeded its authority
               and that the statutory conditions for annexation have been
               satisfied.” [Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind.
               1994)]; accord Bradley v. City of New Castle, 764 N.E.2d 212, 216
               (Ind. 2002) (“The trial court’s role is to decide whether the
               municipality has operated within its authority and satisfied the
               statutory conditions for annexation.”); City of Aurora, 165 N.E.2d
               at 145 (“The court is … simply given the power to determine, in
               the event there is a remonstrance filed, whether certain conditions
               imposed by the statute are met.”). The judgment of the court
               simply establishes the fact that the conditions of the statute
               necessary to overcome a remonstrance have or have not been met;
               and if they have met the statutory requirements then the trial court
               is bound to approve annexation of the affected territory. Chidester,
               631 N.E.2d at 910.
       Fortville, 51 N.E.3d. at 1198.


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                                                                                    Page 18 of 21
[16]   We conclude that the record contains no solid basis for the Town’s assertion

       beyond the fact that the Town lost. Although the trial court did not explicitly

       state the standard it was using to decide the case, it certainly did not state that it

       was reviewing the matter de novo. It is difficult to imagine what de novo would

       even mean in this context, as the trial court is not really “reviewing” anything

       in a remonstrance. Pursuant to the relevant statutes, the trial court, sitting

       without a jury, hears and determines the remonstrance and enters “judgment on

       the question of the annexation according to the evidence that either party may

       introduce.” Ind. Code § 36-4-3-12. In other words, a remonstrance is, in

       essentials, just like any other bench trial, where the fact-finder hears evidence,

       finds facts, applies the law to those findings, and enters judgment. And, while

       the Fortville Court clarified that the trial court evaluating a remonstrance should

       show substantial deference to the municipality’s legislative judgment, there is

       no requirement that this be stated explicitly. The Town has failed to establish

       that the trial court did not show sufficient deference to its legislative judgment.


[17]   That said, we have little trouble concluding that the record contains more than

       enough evidence to support the trial court’s findings that the Toll Road Project,

       the Commuter Rail Project, the Amazon Project, the Freight Rail Project, and

       the Airport Project were either more in the realm of speculation than reality at

       this time, not expected to be completed in the near future, or would have

       undetermined effect on the Annexation Parcel even upon completion.

       Moreover, the Remonstrators produced evidence tending to prove that no

       developer had yet expressed interest in the Annexation Territory or purchased

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                                                                                    Page 19 of 21
       any land; some land had, in fact, been purchased by farmers from developers

       who had apparently abandoned whatever plans they once had for development;

       and the Town could not identify any specific development expected to occur in

       the Annexation Territory within the next three to five years. 5 We conclude that

       the above evidence is sufficient to sustain the trial court’s conclusion that the

       Town failed to establish that the Annexation Territory is needed and could be

       used in the reasonably near future.


[18]   The Town points to evidence (1) that it has invested significant amounts of

       money already in extending services to the Annexation Territory, (2) of

       migration from northern to southern Lake County, (3) comparing and

       contrasting the Town’s situation to those of other similar municipalities, and (4)

       that the major projects could mean significant development in the Annexation

       Territory. While it may be true that the above would provide a “rational basis”

       for the proposed annexation in this case, we have already concluded that this is

       a wholly inappropriate standard for remonstrance cases. The Town’s argument

       is nothing more than an invitation for this court to reweigh the evidence, which

       we will not do. See, e.g., Chidester, 631 N.E.2d at 910 (“We review issues of fact

       for sufficiency of the evidence and look to the record only for inferences

       favorable to the judgment.”). In order to prevail on appeal, the Town was




       5
         At oral argument, the Remonstrators seemed to suggest that a municipality seeking to annex land should
       have to establish that some specific development is expected to occur within three to five years on the land in
       question. We decline the Remonstrators’ seeming invitation to impose any such requirement when each case
       has unique facts.
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                                                                                                        Page 20 of 21
       required to establish that “the evidence points unerringly to a conclusion

       different than that reached by the trial court[,]” Smith, 977 N.E.2d at 4, which it

       has failed to do.



                                                Conclusion
[19]   We conclude that in remonstrance cases, this court should review the trial

       court’s ruling for clear error and not evaluate the annexation ordinance for a

       rational basis. Reviewed for clear error, the Town has failed to establish that

       (1) the trial court employed the wrong legal standard and (2) the trial court’s

       judgment was otherwise clearly erroneous.


[20]   We affirm the judgment of the trial court.


       May, J., and Barnes, J., concur.




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