MEMORANDUM DECISION
                                                                       Jan 08 2016, 5:45 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Jim Brugh                                                Nicholas K. Kile
Logansport, Indiana                                      Mark J. Crandley
                                                         Hillary J. Close
                                                         Barnes & Thornburg, LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of Ordinance                               January 8, 2016
#2013-09, as amended, the                                Court of Appeals Case No.
South and West Area                                      09A05-1504-PL-170
Annexation Ordinance, an                                 Appeal from the Cass Superior
Ordinance Seeking to Annex                               Court
Certain Property to the City of                          The Honorable Douglas A. Tate,
Logansport, Indiana                                      Special Judge
                                                         Trial Court Cause No.
Lindsay R. Ruby, Cass County,                            09D02-1310-PL-36
Indiana, acting by and through
the Cass County Commissioners,
and also, 78% of the Affected
Landowners too numerous to be
listed in the caption,
Appellants-Remonstrators,




Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016         Page 1 of 28
              v.

      The City of Logansport, Indiana,
      acting by and through Ted
      Franklin, in his capacity as
      Mayor of the City of Logansport,
      and the Logansport Common
      Council,
      Appellees-Respondents




      Crone, Judge.


                                             Case Summary
[1]   The City of Logansport (“the City”), acting by and through the Logansport

      Common Council (“the Council”), introduced an ordinance proposing to annex

      territory to the south and west of the City’s boundaries (“the Annexation

      Territory”). The Council and Logansport Mayor Ted Franklin (“the Mayor”)

      adopted a written fiscal plan for the proposed annexation. After a public

      hearing, the Council amended and adopted the annexation ordinance, which

      the Mayor approved. Landowners in the Annexation Territory filed

      remonstrance petitions objecting to the proposed annexation. The landowners

      and the Cass County Commissioners (collectively “the Remonstrators”) filed a

      complaint against the City. The trial court held a hearing and entered a

      judgment ordering that the annexation take place.


[2]   On appeal, the Remonstrators argue that the trial court’s judgment is clearly

      erroneous, claiming that (1) the ordinance does not adequately describe the
      Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 2 of 28
      Annexation Territory’s boundaries; (2) the City did not present sufficient

      evidence regarding the requisite contiguity of its boundaries with those of the

      Annexation Territory; (3) the City did not present sufficient evidence that the

      Annexation Territory is needed and can be used for its development in the

      reasonably near future; (4) the City’s fiscal plan is inadequate; and (5) the

      Remonstrators established that the annexation will have a significant financial

      impact on residents or landowners. We disagree in all respects and therefore

      affirm the trial court.


                                  Facts and Procedural History 1
[3]   In March 2013, the Council introduced Ordinance #2013-09 (“the

      Ordinance”), which proposed to annex the Annexation Territory. The Council

      and the Mayor adopted a written fiscal plan for the proposed annexation. In

      May 2013, the Council held a public hearing on the Ordinance. In July 2013,

      the Council amended the Ordinance in response to public comments and

      adopted it. The Mayor approved the amended Ordinance.


[4]   Landowners in the Annexation Territory filed remonstrance petitions objecting

      to the proposed annexation, and in October 2013 the Remonstrators filed a

      complaint against the City. In February 2015, the trial court held a three-day



      1
        An appellant’s statement of the case “shall briefly describe the nature of the case, the course of the
      proceedings relevant to the issues presented for review, and the disposition of these issues by the trial
      court[.]” Ind. Appellate Rule 46(A)(5). A substantial portion of the Remonstrators’ statement of the case is
      legal argument. An appellant’s statement of facts “shall be stated in accordance with the standard of review
      appropriate to the judgment or order being appealed” and “shall be in narrative form[.]” Ind. Appellate Rule
      46(A)(6). The Remonstrators’ statement of facts is argumentative, self-serving, and disjointed.

      Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016           Page 3 of 28
      hearing on the matter. In a March 2015 judgment containing extensive findings

      of fact and conclusions thereon, the trial court ordered that the annexation take

      place. The Remonstrators now appeal. Additional facts will be provided as

      necessary.


                                      Discussion and Decision
[5]   The trial court entered findings of fact and conclusions thereon at the parties’

      request pursuant to Indiana Trial Rule 52. 2 “The purpose of specific findings

      and conclusions is to provide the parties and reviewing courts with the legal

      theory upon which the trial court relied in reaching its decision.” Estate of

      Kappel v. Kappel, 979 N.E.2d 642, 652 (Ind. Ct. App. 2012). “[W]e use a two-

      tiered standard of review: we determine whether the evidence supports the

      findings, and whether the findings support the judgment.” Kahn v. Baker, 36

      N.E.3d 1103, 1112 (Ind. Ct. App. 2015), trans. denied. “We neither reweigh the

      evidence nor assess the credibility of witnesses, but consider only the evidence

      most favorable to the judgment.” Id. “The trial court’s findings or judgment

      will be set aside only if they are clearly erroneous. A finding of fact is clearly

      erroneous if the record lacks evidence or reasonable inferences from the

      evidence to support it.” E.W. v. J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014)

      (citation omitted), trans. denied (2015). “A judgment is clearly erroneous if it is

      unsupported by the conclusions, and conclusions are clearly erroneous if they




      2
       We commend the trial court for the thoughtfulness and thoroughness of its findings and conclusions, which
      greatly facilitated our review.

      Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016         Page 4 of 28
      are unsupported by the findings.” A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d

      120, 124 (Ind. Ct. App. 2004), trans. denied (2005). We defer substantially to

      findings of fact but review questions of law de novo. Estate of Kappel, 979

      N.E.2d at 651-52. “We may affirm a judgment on any legal theory, whether or

      not relied upon by the trial court, so long as the trial court’s findings are not

      clearly erroneous and support the theory adopted.” Id. at 652.


[6]   The Indiana Supreme Court has stated that “[a]nnexation is essentially a

      legislative process, and courts should not micromanage it.” Bradley v. City of

      New Castle, 764 N.E.2d 212, 214 (Ind. 2002). “Generally, the annexation

      process formally begins when a municipality adopts an ordinance annexing

      territory …. The legislative adoption of the ordinance is followed by an

      opportunity for remonstrance by affected landowners and judicial review.”

      Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 801

      (Ind. Ct. App. 2015) (citation omitted).


[7]   “Indiana Code § 36-4-3-13 lists the prerequisites for annexation.” City of Carmel

      v. Certain Sw. Clay Twp. Annexation Territory Landowners, 868 N.E.2d 793, 797

      (Ind. 2007). “If the municipality meets the requirements of subsections 13(b) or

      13(c) and subsection 13(d), the court must order the annexation to proceed.”

      Id.; see Ind. Code § 36-4-3-13(a) (providing that trial court “shall order a

      proposed annexation to take place” if foregoing requirements are met)

      (emphasis added). In this case, the trial court found that the City met the

      requirements of subsections 13(c) and 13(d). “Even if those findings are

      favorable to the municipality, however, the remonstrators can still prevail if

      Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 5 of 28
      they establish grounds listed in subsection 13(e).” City of Carmel, 868 N.E.2d at

      797-98; see Ind. Code § 36-4-3-13(e) (providing that trial court “shall” order “a

      proposed annexation not to take place” if certain conditions exist) (emphasis

      added). The trial court found that the Remonstrators failed to establish two of

      those grounds here.


[8]   On appeal, the Remonstrators contend that the Ordinance does not adequately

      describe the Annexation Territory’s boundaries. They also contend that the

      City failed to carry its burden as to subsections 13(c) and 13(d) and that they

      satisfied their burden as to subsection 13(e). We address each contention and

      relevant subsection in turn.


         Section 1 – The trial court did not clearly err in concluding
           that the adequacy of the Ordinance’s description of the
         Annexation Territory’s boundaries is outside the scope of
                                judicial review.
[9]   Indiana Code Section 36-4-3-3.5 states that an annexation ordinance “must

      contain,” among other things, “[a] description of the boundaries of the territory

      to be annexed, including any public highway or right-of-way.” The Ordinance

      in this case describes the Annexation Territory’s boundaries by referring to state

      property tax parcel identification numbers and public highways. See, e.g.,

      Defendants’ Ex. A at 295 (“Beginning at the point of intersection of the

      southern corporate boundary of the City of Logansport and the township line

      separating Clinton Township and Washington Township and which also

      coincides with the southwest corner of parcel #09-17-02-200-037.000-025, Then

      Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 6 of 28
       turning southward along that township line separating Clinton Township and

       Washington Township to the point of intersection with the southern right of

       way line of County Road 400 S ….”). 3


[10]   In the judgment’s preamble, the trial court stated,

                  The remonstrators have argued that the description of the
                  proposed annexed territory was not legally sufficient. To this
                  end, a local surveyor provided a lengthy, detailed analysis of how
                  the city’s description was not a sufficient metes and bounds legal
                  description.[ 4] However, a detailed metes and bounds description
                  is not required. The description must simply be sufficient to
                  identify the area to be annexed. In this instance the city has
                  satisfied the requirements of the current annexation statute.


       Appellants’ App. at 14-15. Elsewhere in its judgment, the trial court concluded

       that the Remonstrators’ arguments regarding the sufficiency of the description

       “are allegations of procedural violation that are beyond the subject of Section

       13 and thus are outside the scope of judicial review.” Id. at 30 (citing Bradley,

       764 N.E.2d at 217-18).




       3
         The parties’ appendices contain copies of numerous exhibits in violation of Appellate Rule 50(F), which
       states, “Because the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should
       not reproduce any portion of the Transcript in the Appendix.” Appellate Rule 2(K) defines “Transcript” as
       “the transcript or transcripts of all or part of the proceedings in the trial court or Administrative Agency that
       any party has designated for inclusion in the Record on Appeal and any exhibits associated therewith.”
       (Emphasis added.)
       4
           Black’s Law Dictionary (10th ed. 2014) defines legal description as follows:

                A formal description of real property, including a description of any part subject to an easement
                or reservation, complete enough that a particular piece of land can be located and identified. •
                The description can be made by reference to a government survey, metes and bounds, or lot
                numbers of a recorded plat.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016                Page 7 of 28
[11]   On appeal, the Remonstrators again argue that the Ordinance was required to

       contain a metes and bounds legal description of the Annexation Territory. We

       agree with the trial court that this issue is outside the scope of judicial review.

       See Bradley, 764 N.E.2d at 218 (disagreeing with Court of Appeals’ conclusion

       that remonstrators “could challenge the annexation based on noncompliance

       with statutes that do not deal specifically with remonstrances”: “According to

       Ind. Code § 36-4-3-13, ‘a court shall order a proposed annexation to take place if

       the following requirements are met.’ (Emphasis added.) These requirements

       are contiguity (or specified alternatives to contiguity) plus a fiscal plan that

       covers enumerated subjects. This language seems plain enough: if the City

       satisfies Section 13’s listed requirements, the court shall order annexation.”). 5


[12]   Notwithstanding, Indiana Code Section 36-4-3-3.5 simply does not say that an

       ordinance must contain a metes and bound legal description of the territory to

       be annexed. The legislature knows how to say “legal description” when it

       wants to. See, e.g., Ind. Code § 36-4-3-2.2 (stating that notice of hearing on

       ordinance must include a “legal description of the real property proposed to be

       annexed.”). But it did not do so in Section 3.5, and we will not read that

       requirement into the statute. See McGee v. McGee, 998 N.E.2d 270, 271 (Ind. Ct.

       App. 2013) (“Our court will not read into a statute that which is not the




       5
         The Bradley court acknowledged that “annexing municipalities may commit procedural wrongs so severe
       that courts must act to protect remonstrators’ substantial rights.” 764 N.E.2d at 217. The Remonstrators do
       not specify which, if any, of their substantial rights are affected by the adequacy of the Ordinance’s
       description of the Annexation Territory’s boundaries.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016           Page 8 of 28
       manifest intent of the General Assembly. Thus, it is as important to recognize

       what a statute does not say as it is to recognize what it does say.”) (citation

       omitted). The Remonstrators’ argument regarding the sufficiency of the

       description is essentially an invitation to reweigh evidence and reassess witness

       credibility, which we may not do. The Remonstrators have failed to establish

       clear error on this point.


             Section 2 – The trial court did not clearly err in concluding
              that the City presented sufficient evidence of contiguity.
[13]   At the time relevant to our discussion, Indiana Code Section 36-4-3-13(c) read

       in pertinent part as follows: 6


                  The requirements of this subsection are met if the evidence
                  establishes the following:


                           (1) That the territory sought to be annexed is contiguous to
                           the municipality as required by section 1.5 of this
                           chapter,[ 7] except that at least one-fourth (¼), instead of
                           one-eighth (⅛), of the aggregate external boundaries of the
                           territory sought to be annexed must coincide with the
                           boundaries of the municipality.

                           (2) That the territory sought to be annexed is needed and




       6
           The statute was amended effective July 1, 2015. We refer to the prior version of the statute throughout.
       7
         Prior to July 1, 2015, Indiana Code Section 36-4-3-1.5 read in pertinent part, “For purposes of this chapter,
       territory sought to be annexed may be considered ‘contiguous’ only if at least one-eighth (⅛) of the aggregate
       external boundaries of the territory coincides with the boundaries of the annexing municipality.”

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016               Page 9 of 28
                        can be used by the municipality for its development in the
                        reasonably near future.


[14]   Regarding the contiguity requirement, the trial court found that “Logansport’s

       expert, registered land surveyor Randall Miller, presented evidence in support

       of the contiguity finding contained in the Fiscal Plan based upon direct

       surveying measurements, prior surveys, historical deed informative and

       controlling calls, taxation parcel data, and tax classification status as

       maintained by Cass County” and showed “that the contiguous portion of the

       Annexation Territory is greater than 25%.” Appellants’ App. at 19-20. The

       trial court also found that “Andrew Lanam, a Manager with Reedy Financial

       Group, testified that he verified that the parcels shown on the Cass County GIS

       [Geographic Information Survey] as inside the City limits actually are inside the

       City limits” by examining county treasurer forms “for each of the parcels

       contiguous to the Annexation Territory.” Id. at 21. Lanam explained that the

       forms “indicated whether a property is being assessed -- and whether the

       taxpayer is paying -- the municipal tax rate for the City of Logansport and is

       therefore contained within the City corporate limits.” Id. The trial court found

       Miller’s and Lanam’s testimony “to be persuasive” and further found “that at

       least one-fourth (1/4) of the aggregate external boundaries of the Annexation

       Territory coincide with the boundaries of the City and that contiguity therefore

       satisfies the requirement stated in Ind. Code § 36-4-3-13(c)(1).” Id.


[15]   The Remonstrators argue that the perimeter distance of the Annexation

       Territory “must be certain in order to calculate the percentage of its contiguity

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 10 of 28
or coincidence with the City boundary” and that “[b]ecause measurements

derived from the GIS system are imprecise, a precise, accurate measurement of

the perimeter distance of the annexation area has not been supplied by the

City.” Appellants’ Br. at 26. The Remonstrators’ characterization of the

measurements as “imprecise” alludes to a GIS website disclaimer, which states,


         The data provided herein may be inaccurate or out of date. Any
         person or entity who relies on said information for any purpose
         whatsoever does so solely at their own risk. Neither the county,
         or [sic] any agency, offices, or [sic] employee of any other
         information provider warrants the accuracy, reliability, or
         timeliness of any of the data provided herein. This data is
         provided ‘as is’ without warranty of any kind.


Plaintiffs’ Ex. 28. Miller was aware of the disclaimer and testified that he did

not “identify any inaccuracies in the GIS data that would impact [his]

calculation of contiguity[.]” Tr. at 45, 56-57. The Remonstrators offered no

evidence that the GIS measurements are actually imprecise, and their

additional criticisms of Miller’s testimony are merely invitations to reweigh

evidence and reassess credibility, which we may not do.8 They have failed to

establish clear error here.




8
  For example, the Remonstrators assert that “Miller did not know the measurements of each line segment
(Exhibit RR) which separately presume to describe the annexation area, compared to the annexation area
contiguity to the corporation line.” Appellants’ Br. at 26-27. Miller’s testimony indicates that he did know
those measurements at one time but did not have them with him at the hearing. Tr. at 55.

Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016            Page 11 of 28
          Section 3 – The trial court did not clearly err in concluding
              that the City presented sufficient evidence that the
            Annexation Territory is needed and can be used for its
                  development in the reasonably near future.
[16]   Under Indiana Code Section 36-4-3-13(c)(2), a municipality must establish

       “[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.” The trial court

       made the following relevant findings on this issue:


               17. The Hoosier Heartland Corridor is a new limited access
               highway connecting the City of Fort Wayne to the City of
               Lafayette and Interstate 69 to Interstate 65. The Hoosier
               Heartland Corridor runs directly through the Annexation
               Territory. Through two new interchanges located within the
               Annexation Territory, the Hoosier Heartland Corridor is directly
               connected to the Logansport Industrial Park. These two
               interchanges are currently not developed.

               18. The Mayor of Logansport testified that one of the
               considerations of the Council in adopting the Annexation
               Ordinance was the location of the Annexation Territory in
               relation to the Hoosier Heartland Corridor and the potential for
               capturing economic development opportunities.…

               ….

               20. The Mayor also testified that the City needs the Annexation
               Territory in order to proceed with the consolidation of its existing




       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 12 of 28
        tax increment financing (TIF) districts.[ 9]

        21. The City currently has three TIF districts: (1) the already-
        consolidated East End/Highway 35 TIF district, (2) the Logan’s
        TIF district in the City’s downtown area, and (3) the Industrial
        Park TIF district. The Industrial Park and its TIF district are
        separated from the rest of the City by the Annexation Territory.

        22. The Mayor testified that the City has plans to combine the
        Industrial Park TIF district with the combined East
        End/Highway 35 consolidated TIF district to make one
        consolidated district, but the City cannot consolidate TIF districts
        that are not connected, and the City cannot create a TIF district
        outside its corporate limits. Therefore, the Annexation Territory
        must be within the City limits in order for Logansport to connect
        and consolidate the Industrial Park TIF district with one of the
        City’s two other TIF districts.

        23. The Mayor testified there [is] currently approximately $1.7
        million in the Industrial Park TIF district fund. He also stated
        that consolidation of the TIF districts would allow TIF funds to
        flow back and forth throughout the consolidated TIF areas,
        including the Industrial Park and the Annexation Territory.

        24. The Annexation Territory is needed and can be used by the
        City for its development in the reasonably near future.


Appellants’ App. at 21-23 (citations to exhibits omitted). The trial court also

made the following conclusion:




9
  Black’s Law Dictionary (10th ed. 2014) defines tax-increment financing as “[a] technique used by a
municipality to finance commercial developments usu. involving issuing bonds to finance land acquisition
and other up-front costs, and then using the additional property taxes generated from the new development to
service the debt.”

Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016         Page 13 of 28
               5. The Annexation Territory is needed to consolidate TIF
               districts, which can be used by the City for the development of
               the City as a whole, including the Annexation Territory, in the
               reasonably near future. Logansport has also shown that as a
               result of the construction of the Hoosier Heartland Corridor, the
               territory is needed for transportation linkages, to control and
               promote adjacent development, and to prevent conflicting land
               uses on its borders.


       Id. at 30. And in the preamble, the trial court stated,


               The completion of the Hoosier Heartland Corridor will
               significantly increase traffic in this area. As a result of this
               increase in traffic, it would be difficult to argue that the city
               would not benefit from annexing this area. The city will be able
               to control any growth along the corridor and reap the financial
               benefit of this development. The remonstrators have pointed to
               the fact that no development has taken place in the area for many
               years. The completion of this highway will make it almost a
               foregone conclusion that some development will come to this
               area. If not, it would be one of the only places in Indiana where
               growth did not come to a limited access highway.


       Id. at 15.


[17]   The Remonstrators contend that the trial court’s conclusion regarding the

       development of the Hoosier Heartland Corridor is not supported by the

       evidence, noting that the City’s population “has been steadily declining over the

       last several years” and that “[t]he City introduced no plan for the development

       of the large tracts of agricultural land which make up the majority of the”

       Annexation Territory. Appellants’ Br. at 28. But this argument disregards the

       trial court’s undisputed finding that economic development and increased

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 14 of 28
       traffic almost certainly will occur along the Corridor. A city with a declining

       population needs the employment opportunities and other economic benefits

       that such development brings, and the Remonstrators do not specifically argue

       that the City cannot use the Annexation Territory for its development in the

       reasonably near future. The Remonstrators have failed to demonstrate clear

       error in this regard. 10


            Section 4 – The trial court did not clearly err in concluding
                       that the City’s fiscal plan is adequate.
[18]   The City was also obligated to meet the requirements Indiana Code Section 36-

       4-3-13(d), which states,

                The requirements of this subsection are met if the evidence
                establishes that the municipality has developed and adopted a
                written fiscal plan and has established a definite policy, by
                resolution of the legislative body as set forth in section 3.1 of this
                chapter. The fiscal plan must show the following:


                         (1) The cost estimates of planned services to be furnished
                         to the territory to be annexed. The plan must present
                         itemized estimated costs for each municipal department or
                         agency.

                         (2) The method or methods of financing the planned



       10
          The Remonstrators cite Chidester v. City of Hobart, 631 N.E.2d 908 (Ind. 1994), for the proposition that the
       sole purpose of an annexation may not be to increase tax revenue, and they argue that “[t]he sole reason for
       the annexation is to gain control of the Industrial Park TIF account … and to spend that money for an
       uncertain development … at the eastern edge of the City.” Appellants’ Br. at 29. Because the annexation has
       at least one other purpose, namely to facilitate development along the Hoosier Heartland Corridor, we need
       not address this argument.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016            Page 15 of 28
                 services. The plan must explain how specific and detailed
                 expenses will be funded and must indicate the taxes,
                 grants, and other funding to be used.

                 (3) The plan for the organization and extension of services.
                 The plan must detail the specific services that will be
                 provided and the dates the services will begin.

                 (4) That planned services of a noncapital nature, including
                 police protection, fire protection, street and road
                 maintenance, and other noncapital services normally
                 provided within the corporate boundaries, will be provided
                 to the annexed territory within one (1) year after the
                 effective date of annexation and that they will be provided
                 in a manner equivalent in standard and scope to those
                 noncapital services provided to areas within the corporate
                 boundaries regardless of similar topography, patterns of
                 land use, and population density.

                 (5) That services of a capital improvement nature,
                 including street construction, street lighting, sewer
                 facilities, water facilities, and stormwater drainage
                 facilities, will be provided to the annexed territory within
                 three (3) years after the effective date of the annexation in
                 the same manner as those services are provided to areas
                 within the corporate boundaries, regardless of similar
                 topography, patterns of land use, and population density,
                 and in a manner consistent with federal, state, and local
                 laws, procedures, and planning criteria.


Our supreme court has stated that “a trial court hearing a remonstrance is not

an examiner conducting an audit of a challenged fiscal plan. Rather, it should

focus on whether that plan represents a credible commitment by the




Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 16 of 28
       municipality to provide the annexed area with comparable capital and non-

       capital services.” Bradley, 764 N.E.2d at 216.


[19]   In this case, the trial court found that the City’s fiscal plan “represents a credible

       commitment to provide comparable capital and non-capital services to the

       Annexation Territory” and “is sufficiently detailed to explain Logansport’s

       strategies for providing … capital and non-capital services within the time

       period allotted by law ….” Appellants’ App. at 25. More specifically, the trial

       court found as follows:

               27. Water and sewer services have already been extended to
               some areas in the Annexation Territory. The Fiscal Plan and the
               evidence at the hearing are clear that Annexation Territory
               landowners are not required to connect to utility service and that
               utility service will not be further extended unless the further
               extension is requested. Such future extensions will be pursuant
               to the City’s policy for extension of storm sewer service, sewer
               service, and water services within the corporate limits [as] set
               forth in Logansport City Code Section[s] 50-92 and -93. That
               policy is that “the cost of constructing such public works facilities
               shall be the primary responsibility of the properties receiving the
               benefit of such facilities.… It is not the policy of the city to
               provide such public works facilities for any property or at any
               location at no cost to the properties receiving the benefit from
               such facilities. Sec. 50-92(b) and [-](c).

               28. With respect to capital storm sewer projects, the City’s policy
               is that the City does not install storm sewers except under one of
               the enumerated circumstances described in Defendant’s Exhibit
               I. Mr. [Michael] Shaver [who prepared the policy narrative of
               the City’s fiscal plan] testified that currently, none of those sets of
               circumstances exist in the annexation territory. As a result,
               capital storm sewer service will be provided in the same manner

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 17 of 28
               in which such capital service is provided within the City limits.
               This is also done pursuant to City Code § § 50-92 and [-]93.

               29. The City’s Ordinance 2013-28 exempting the annexation
               area from City stormwater fees confirms that the City will
               manage stormwater in the Annexation Territory.

               30. With respect to street lights, Mr. Shaver testified that no
               landowners have vocalized a desire for street lights in the
               annexation area. He testified that street lights are only
               anticipated to be extended as needed when development comes
               to the area, which is consistent with how the written Fiscal Plan
               addresses street lights. At the hearing, he further explained that if
               there were some desire on the part of landowners for street lights
               that would not be in connection with development, they would
               be extended pursuant to the City’s existing policy described in
               [City Code § § 50-92 and -93 and Ordinance 92-3].

               31. Most of the Remonstrators who testified stated that they did
               not want to be urbanized.

               32. The Fiscal Plan commits within three years of the effective
               date of annexation to extending services in the same manner in
               which such capital service is provided within the corporate limits.


       Id. at 24-25 (citations to exhibits and underlined emphasis omitted).


[20]   The trial court also made the following conclusions:

               6. This Court concludes, based upon its review of all of the
               evidence, that Logansport has demonstrated that the Fiscal Plan
               satisfies all of the requirements of Ind. Code § 36-4-3-13(d).
               Logansport’s Fiscal Plan establishes a definite policy, and was
               duly adopted by the Council, in compliance with Ind. Code § 36-
               4-3-3.1. Under subsection (d), non-capital services must be
               provided in a manner “equivalent in standard and scope”; capital

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 18 of 28
               services, however, must only be supplied “in the same manner.”
               Capital services need not be supplied to the annexation territory
               at no cost to those requesting such services because the City does
               not extend such services within the corporate limits at no cost.

               7. The standard for determining whether the Fiscal Plan
               commits to extend capital services to the Annexation Territory in
               the same manner as those services are extended in the City is not
               what the City agreed to do in prior annexations ten or even
               twenty years ago. The Court looks to what the City’s current
               policy is with respect to extending capital services and whether
               the Fiscal Plan is consistent with that policy. The evidence
               establishes that the City has a codified written policy with respect
               to extension of sewer, storm sewer, water, street lights, and other
               capital public works services within the City. This policy is
               currently being applied in the area annexed [to the south and east
               of the City] pursuant to Ordinance No. 2013-10. It was also
               applied to the three properties within the corporate limits when
               the City extended water and sewer service to the Northern
               Heights area. The Fiscal Plan specifically cites to the City Code
               Sections setting forth this policy as governing how capital
               services will be extended to the Annexation Territory. There is
               no inconsistency.


       Id. at 31-33 (citations omitted).


[21]   The Remonstrators first contend that the trial court erred in concluding that

       local law requires landowners to bear the primary responsibility for the cost of

       extending capital improvement services such as sewer and water mains and




       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 19 of 28
street lights into (or further into) the Annexation Territory. 11 They criticize the

trial court’s reliance on City Code Sections 50-92 (“General standard of

construction of facilities”) and 50-93 (“New public works facilities construction

policy”) and assert that the court should have followed Section 50-95

(“Annexation”), which reads as follows:


        (a) Before annexing contiguous territory into the city, an
        assessment will be made by the board of public works and safety,
        Logansport Municipal Utility, planning department and street
        department determining the adequacy and status of the existing
        physical amenities referred to as “public works.” Prior to
        annexing territory, the city must determine that it has the
        capacity to maintain existing public works to the standard in
        which they were received, and the Logansport Municipal Utility
        must have the capacity to extend water, sewer and electrical
        services for present and projected future needs. Costs of
        extending public works within individual properties or
        subdivisions will be the responsibility of the property owners or
        developers.

        (b) The city will consider construction and/or replacement of
        public works into individual properties or subdivisions in
        annexed territory if petitioned as specified in section 50-94.

        (c) The city and/or Logansport Municipal Utility may, at its



11
   One of the Remonstrators’ proposed findings states in part, “The City did prove the requirements of
Indiana Code[] 36-4-3-13(d), proving that it had developed and adopted a written Fiscal Plan containing all
of the required information.” Appellants’ App. at 492. The City argues that this “amounts to invited error,”
in that the Remonstrators “may not request a trial court to take an action – in this case, by proposing a
finding that the requirements of Section 13(d) were met – and later claim that such action is erroneous.”
Appellees’ Br. at 28. We note, however, that the Remonstrators also submitted a proposed finding stating
that “[t]he City’s fiscal plan is inadequate as a matter of law because it does not provide for the City’s
extension of water mains and sewer mains, at City expense, into the proposed annexation area.” Appellants’
App. at 478. Consequently, we address the merits of the Remonstrators’ argument.

Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016          Page 20 of 28
                discretion, agree to participate financially in the construction
                and/or replacement of some public works into individual
                properties or subdivisions in the course of annexation
                negotiations if it determines such participation is warranted and
                financially feasible in a fiscal plan.


       Defendants’ Ex. K at 410, 412. Contrary to what the Remonstrators suggest,

       Section 50-95 is silent on the issue of cost allocation for extending capital

       improvement services into annexed territory; it deals strictly with allocating

       costs for connecting landowners to such extensions. Consequently, we are

       unpersuaded by the Remonstrators’ reliance on Section 50-95 and agree with

       the trial court that Sections 50-92 and 50-93 are controlling here. 12


[22]   On a related note, the Remonstrators argue that the fiscal plan is inadequate

       because it does not call for capital improvement services to be provided at the

       same cost as in prior annexations, that is, at no cost to the landowners. Indiana

       Code Section 36-4-3-13(d) states that capital improvement services must be

       provided to the annexed territory “in the same manner as those services are

       provided to areas within the corporate boundaries,” not at the same cost as in

       prior annexations. We agree with the trial court that the City’s policy in past

       annexations is irrelevant and that the City need not provide capital




       12
          The Remonstrators also reference City Code Section 2-2 (“Annexation procedure”), which states in
       pertinent part that the utilities superintendent will “supply cost estimates of planned services to be furnished
       to the territory to be annexed,” the utility service board “will supply a fiscal plan describing the methods for
       financing the planned services,” and the city engineer “will report on how to pay for” additional street lights
       and other infrastructure. Plaintiffs’ Ex. 1 at 8. Like Section 50-95, Section 2-2 is silent on the issue of cost
       allocation for extending capital improvement services; at the very least, it does not specifically require the
       City to pay the entire cost.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016              Page 21 of 28
       improvement services at no cost to landowners in the Annexation Territory

       because the City does not do so within its corporate boundaries in accordance

       with the City Code. See Ind. Code § 36-4-3-13(d)(5) (fiscal plan must show that

       capital improvement services will be provided “in a manner consistent with …

       local laws”).


[23]   Finally, the Remonstrators contend that the fiscal plan is inadequate because

       the estimated cost of providing certain capital improvement services is zero.

       But that is because those services will be provided on an as-needed or as-

       requested basis and, pursuant to the City Code, landowners must bear the

       primary responsibility for their cost. 13 Cf. Chem. Waste Mgmt. of Ind., LLC v. City

       of New Haven, 755 N.E.2d 624, 637 (Ind. Ct. App. 2001) (concluding that city

       was “not required to provide a cost estimate greater than zero for capital

       improvements that are not needed in the annexation area,” where city had

       policy of making improvements on “as-needed” basis). In sum, the

       Remonstrators have failed to establish that the trial court’s findings and

       conclusions regarding the fiscal plan are clearly erroneous.




       13
          The Remonstrators criticize the fiscal plan for failing “to provide for stormwater drainage facilities as a
       capital service.” Appellants’ Br. at 41. Before the annexation, Cass County was responsible for stormwater
       drains in the Annexation Territory. At the hearing, two of the three members of the County Drainage Board
       opined that the drains would become the City’s responsibility after annexation, but both acknowledged that
       other options were possible, including the County retaining control. Tr. at 345, 352. And Michael Shaver,
       who prepared the fiscal plan, expressed his understanding that the County would retain control over
       stormwater drains. Id. at 188. In light of the foregoing, we cannot conclude that the fiscal plan is fatally
       flawed in this respect.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016            Page 22 of 28
          Section 5 – The trial court did not clearly err in concluding
        that the Remonstrators failed to establish that the annexation
            will have a significant financial impact on residents or
                                  landowners.
[24]   Indiana Code Section 36-4-3-13(e) reads as follows:


               At the [remonstrance] hearing, the court shall do the following:


                        (1) Consider evidence on the conditions listed in
                        subdivision (2).

                        (2) Order a proposed annexation not to take place if the
                        court finds that all of the conditions set forth in clauses (A)
                        through (D) and, if applicable, clause (E) exist in the
                        territory proposed to be annexed:


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


                                         (i) Police and fire protection.

                                         (ii) Street and road maintenance.


                                (B) The annexation will have a significant financial
                                impact on the residents or owners of land.

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

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

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 23 of 28
                                         (i) At least sixty-five percent (65%) of the
                                         owners of land in the territory proposed to be
                                         annexed.

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


                                Evidence of opposition may be expressed by any
                                owner of land in the territory proposed to be
                                annexed.


[25]   The trial court found that the parties had stipulated that police, fire protection,

       street, and road maintenance services are adequately furnished to the

       Annexation Territory by a provider other than the City. The trial court also

       made the following relevant findings:

               36. Landowners in the Annexation Territory on City water and
               sewers currently pay a 25% surcharge for service outside of City
               limits, which will be eliminated for those properties upon
               annexation. Landowners in the Annexation Territory connected
               to City electric utilities pay an additional facilities charge for
               service outside of the City limits, which will also be eliminated
               for those properties upon annexation.

               37. Trash removal service will be available to residential
               properties in the Annexation Territory after annexation at a
               savings compared to what those landowners would currently be
               required to pay for those same services.

               38. Logansport offered a financial impact analysis prepared by
               Reedy Financial Group. The City’s witness Andrew Lanam, a
               Manager with Reedy Financial Group, helped to prepare the
               report. He testified that the report showed that only one property

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 24 of 28
        in the Annexation Territory (owned by Pasquale Trucking
        Company, Inc.) is projected to see an annual property tax
        increase of greater than $1,000 per year and this is a commercial
        property. No one testified on behalf of this owner regarding
        whether this impact would be significant.

        39. After giving effect to offsets for lower utility bills and free
        residential trash service, as applicable, 106 parcels in the
        Annexation Territory are projected to see either no increase in
        cost or a net reduction in total cost as a result of annexation.

        40. After factoring in the cost decreases for utility service and
        residential trash service, as applicable, only one property in the
        Annexation Territory (Pasquale Trucking Company) is projected
        to see an annual net increase of greater than $1,000 as a result of
        annexation and only one other property is projected to see an
        annual net increase of greater than $500. One of the joint owners
        of the latter property (Douglas Weaver) is the only landowner
        who testified in this case who is projected to experience a net
        annual increase in property taxes as a result of the annexation.

        41. Nearly all of the parcels in the Annexation Territory that are
        projected to see a net increase as a result of annexation are
        estimated to see an increase of less than $1 per day.

        ….

        43. The Annexation Ordinance as amended exempts property
        which is classified for zoning purposes as agricultural from the
        municipal tax rate for so long as the property remains zoned
        agricultural pursuant to Ind. Code § 36-4-3-4.1 (the “ag
        exemption”).

        ….

        45. The Remonstrators attempted to show that the annexation
        would have an adverse financial impact as a result of the

Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 25 of 28
        “inevitability” of failure of septic systems and the costs to
        connect to City sewer service. It was confirmed at the hearing
        that the City’s Fiscal Plan provides that landowners can continue
        to operate their septic tanks, including repairing or replacing as
        necessary, so long as the County Health Department will allow
        the repair or replacement. Sue Norris, a former environmental
        health specialist for the Cass County Health Department,
        testified that in her experience the County Health Department
        does not deny a permit to repair or replace a septic system based
        upon the availability of a sewer.

        ….

        47. The Court does not find the annexation will have a
        significant financial impact on the residents or owners of land in
        the Annexation Territory.

        48. Of the landowners who testified, several of them stated they
        did not want to give up their rural lifestyle.

        49. The City has adopted a number of ordinances to enable the
        property owners in the Annexation Territory to continue their
        “rural” lifestyle, including: (1) allowing the raising of livestock in
        the Annexation Territory; (2) allowing the discharge of firearms
        in the Annexation Territory (subject to restrictions imposed by
        state law); (3) allowing the use of fertilizers, herbicides, chemicals
        and/or compounds commonly used for agriculture; and (4)
        allowing burning of fence rows and other vegetation and grilling
        food or burning firewood using campfires or outdoor fireplaces.

        50. The City has also adopted Ordinance 2013-28, As Amended,
        to exempt property in the Annexation Territory from storm water
        rates until a cost of service study is conducted and a new storm
        water rate ordinance is adopted. That ordinance specifies that
        property used for agricultural purposes anywhere in the City
        limits will be assigned a multiple of zero (0) under the stormwater
        rate structure established in Ordinance No. 2012-18, meaning

Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 26 of 28
                that agricultural property does not pay a stormwater rate.[ 14]

                51. The Court does not find that 65% of the property owners or
                the owners of 75% of the assessed value in the Annexation
                Territory continued to be opposed to annexation at the
                hearing.[ 15]

                52. Annexation will not be in the best interests of landowners in
                the Annexation Territory.


       Appellants’ App. at 26-29 (citations to exhibits omitted).


[26]   The Remonstrators do not challenge any specific findings regarding the

       annexation’s financial impact. They assert that Cass County Deputy Auditor

       Candy Heath’s “spot check of the Remonstrators’ property tax increases, as a

       result of annexation, ranged from 43% to 100%,” Appellants’ Br. at 43, but this

       disregards the impact of the ag exemption and the elimination of utility

       surcharges and fails to actually prove a significant financial impact. The

       Remonstrators raise concerns about being forced to connect to sewer systems

       after their septic systems fail, but these were addressed to the trial court’s



       14
          The Remonstrators claim that the City has no authority to enact such an exemption. The City points out
       that under Indiana Code Section 8-1.5-5-7(e), it may exercise “reasonable discretion” in “adopting different
       schedules of fees or making classifications in schedules of fees” based on whether “property is used primarily
       for residential, commercial, or agricultural purposes.” The City also notes that “there was no challenge filed
       to the ordinance granting the stormwater exemption and so it is final.” Appellees’ Br. at 38 (citing Tr. at
       420).
       15
         Because the Remonstrators had the burden of proof as to all four relevant subparagraphs of Indiana Code
       Section 36-4-3-13(e)(2), we need not address their argument that the trial court erred in concluding that they
       had failed to establish that at least sixty-five percent of the landowners in the Annexation Territory oppose
       the annexation. We note, however, that each remonstrance petition states that the petitioner agrees that it
       “shall remain binding and valid throughout the duration of any legal proceedings challenging” the
       Ordinance. See, e.g., Appellants’ App. at 64.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016             Page 27 of 28
       satisfaction. See Finding 45. The Remonstrators also claim that “[t]he future

       cost of extension of water and sewer mains will cost millions of dollars[,]” id.,

       but the mains will be extended only on an as-needed or as-requested basis, per

       the landowners’ specific request. See Tr. at 172 (testimony of Michael Shaver:

       “[T[he [fiscal] plan says exactly what the people asked for it to say which was

       that we won’t require them to connect and we won’t extend the services unless

       they request the services.”). Once again, the Remonstrators have failed to

       establish that the trial court’s findings and conclusions are clearly erroneous.


                                                 Conclusion
[27]   We agree with the trial court that the City met its burden as to subsections (c)

       and (d) of Indiana Code Section 36-4-3-13 and that the Remonstrators failed to

       meet their burden as to subsection (e). Therefore, we affirm the trial court’s

       judgment.


[28]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016   Page 28 of 28
