                                                                      Sep 10 2014, 9:07 am
FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

THOMAS M. BEEMAN                              DEBRA A. MASTRIAN
KYLE B. DEHAVEN                               LIBBY Y. GOODKNIGHT
Anderson, Indiana                             CATHERINE E. SABATINE
                                              Krieg DeVault LLP
                                              Indianapolis, Indiana

                                              ASHLEY HOPPER
                                              City of Anderson
                                              Anderson, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

TOWN OF LAPEL, INDIANA,                       )
                                              )
     Appellant-Defendant,                     )
                                              )
            vs.                               )       No. 48A02-1403-PL-142
                                              )
CITY OF ANDERSON, INDIANA,                    )
                                              )
     Appellee-Plaintiff.                      )


                  APPEAL FROM THE MADISON CIRCUIT COURT
                   The Honorable J. Richard Campbell, Special Judge
                           Cause No. 48C06-1308-PL-119



                                 September 10, 2014

                            OPINION – FOR PUBLICATION
BAKER, Judge

      The Town of Lapel (Lapel) appeals the trial court’s order granting summary

judgment to the City of Anderson (Anderson). After Lapel annexed a parcel of real

property located in Madison County, Anderson filed a declaratory judgment action

seeking to have the annexation declared invalid and void. The general rule is that the

only way to challenge an annexation is via a statutory remonstrance or statutory appeal.

Anderson does not meet the criteria to be a remonstrator or a statutory appellant. There

are limited exceptions to the general rule, providing that under certain circumstances, a

complainant may bring a declaratory judgment action to challenge an annexation. We

find that Anderson does not meet these exceptions and that, consequently, it does not

have standing to challenge Lapel’s annexation. Therefore, we reverse and remand with

instructions to enter summary judgment in favor of Lapel.

                                        FACTS

      Lapel and Anderson are both municipalities located in Madison County.

Anderson recently developed “Anderson Fast Forward,” a fiscal and land plan that

includes a proposed annexation on the southwest side of Anderson (the Southwest

Annexation). On March 14, 2013, however, the Anderson Common Council voted down

the Southwest Annexation. Appellant’s App. p. 42-43. The end result of that vote was

that Anderson elected not to annex the Territory and, as put by Lapel, the vote

“effectively kill[ed] the ‘Southwest Annexation’ if not ‘Anderson Fast Forward’ all

together.” Appellant’s Br. p. 15.

                                           2
       On May 16, 2013, Lapel adopted an annexation ordinance (the Ordinance)

annexing approximately fifty-seven acres (the Territory) along the I-69 corridor and

declaring the Territory to be part of Lapel. The Territory is more than one mile beyond

Anderson’s corporate limits and only a very small percentage of the Territory is

contiguous to Lapel. The Territory passes through the Southwest Annexation, so the

annexation of the Territory precludes Anderson from pursuing the Southwest Annexation

in the future.

       On August 9, 2013, Anderson filed a complaint for declaratory judgment against

Lapel, seeking, among other things, a declaratory judgment that (1) the Territory is not

contiguous with the corporate boundaries of Lapel, (2) the Ordinance is null and void

because it violated the Home Rule Act, and (3) that the Ordinance is invalid and

unlawful.     On November 18, 2013, Lapel moved for summary judgment, and on

December 20, 2013, Anderson filed a cross-motion for summary judgment. Following a

hearing, the trial court denied Lapel’s summary judgment motion and granted Anderson’s

cross-motion for summary judgment on February 5, 2014. Lapel now appeals.

                              DISCUSSION AND DECISION

                                   I. Standard of Review

       The standard of review we apply when reviewing a trial court’s order granting or

denying summary judgment is well settled:

            [a] trial court should grant a motion for summary judgment only
            when the evidence shows that there is no genuine issue as to any
            material fact and that the moving party is entitled to a judgment as a

                                              3
          matter of law. The trial court’s grant of a motion for summary
          judgment comes to us cloaked with a presumption of validity.

          An appellate court reviewing a trial court summary judgment ruling
          likewise construes all facts and reasonable inferences in favor of the
          non-moving party and determines whether the moving party has
          shown from the designated evidentiary matter that there is no
          genuine issue as to any material fact and that it is entitled to
          judgment as a matter of law. But a de novo standard of review
          applies where the dispute is one of law rather than fact. We examine
          only those materials designated to the trial court on the motion for
          summary judgment.

          [Where] the trial court ma[kes] findings of fact and conclusions of
          law in support of its entry of summary judgment, . . . we are not
          bound by the trial court’s findings and conclusions, [but] they aid
          our review by providing reasons for the trial court’s decision. We
          must affirm the trial court’s entry of summary judgment if it can be
          sustained on any theory or basis in the record.

Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind. Ct. App. 2012) (internal citations and

quotation marks omitted).

                                II. Anderson’s Standing

      Lapel argues on appeal that the trial court erred by granting summary judgment in

Anderson’s favor because Anderson did not have standing to bring a declaratory

judgment claim against Lapel. Whether a party has standing is a pure question of law

that is ripe for resolution by summary judgment. Common Council v. Board of Zoning

Appeals, 881 N.E.2d 1012, 1014 (Ind. Ct. App. 2008).

                               A. Annexation Generally

      Before we turn to standing, we must first consider the confines and purpose of

annexation. Annexation is a legal process whereby a municipality incorporates additional

                                            4
territory into its corporate boundaries. The statutory framework for annexation “consists

of three stages: (1) legislative adoption of an ordinance annexing of certain territory and

pledging to deliver certain services within a fixed period; (2) an opportunity for

remonstrance by affected landowners; and (3) judicial review.” Madison County Bd. of

Comm’rs v. Town of Ingalls, 905 N.E.2d 1022, 1025 (Ind. Ct. App. 2009). Our Supreme

Court has cautioned that “[a]nnexation is a legislative function and becomes a question

subject to judicial cognizance only upon review as provided by statute.” City of Hobart

v. Chidester, 596 N.E.2d 1374, 1375 (Ind. 1992) (emphasis added).

       There are three types of annexations: voluntary, involuntary, and super-voluntary.

Ind. Code §§ 36-4-3-4, -5, -5.1. Lapel’s annexation of the Territory was super-voluntary,

meaning that 100% of the landowners in the Territory sought to be annexed and initiated

the petition for annexation. I.C. 36-4-3-5.1(a).

                         B. Statutory Remonstrance and Appeal

       As a general rule, a remonstrance is the exclusive means available for challenging

an annexation proceeding. City of Boonville v. Am. Cold Storage, 950 N.E.2d 764, 769

(Ind. Ct. App. 2011). Indiana Code section 36-4-3-5.1(i) provides, however, that a

remonstrance may not be filed in response to a super-voluntary annexation. Instead, the

statute in place at the time the Ordinance was enacted provides that the sole way in which

judicial relief may be sought following an annexation is an appeal that can only be filed




                                             5
by a landowner whose property is located within one-half mile of the annexed property.

I.C. § 36-4-3-15.5.1

        Anderson concedes that it did not and could not have filed a remonstrance or an

appeal pursuant to the annexation statutes.              With no statutory recourse, therefore,

Anderson turned to a declaratory judgment as the vehicle for its sought-after relief.

                                     C. Declaratory Judgment

        Lapel argues that the trial court erroneously found that Anderson had standing to

seek relief via a declaratory judgment. The Indiana Declaratory Judgment Act provides

that any person, including a municipality, “whose rights, status, or other legal relations

are affected by a . . . municipal ordinance” may seek a declaratory judgment regarding

the ordinance. Ind. Code § 34-14-1-2.

        As noted earlier, in the realm of annexation law, it has always been the case that as

a general rule, remonstrance is the only remedy for challenging an annexation.

Boonville, 950 N.E.2d at 769. Historically, however, Indiana courts have carved out a

number of exceptions to the general rule, providing that under certain circumstances, a

challenge may be filed via a declaratory judgment action. E.g., Langbehn v. Town of

Merrillville, 413 N.E.2d 680 (Ind. Ct. App. 1980); Reafsnyder v. City of Warsaw, 155

1
  Following this litigation, the General Assembly amended this statute. It now provides that, in addition
to a landowner within one-half mile of the annexed territory, a municipality located in the same county as
the territory proposed to be annexed may file an appeal. I.C. § 36-4-3-15.1(a). The amended statute has
an effective date of March 27, 2014, however, and all parties agree that it does not govern the instant
appeal. As an aside, we note that the legislature’s decision to amend the statute immediately following
this litigation suggests that the General Assembly acknowledged the absence of a remedy available to
municipalities in situations such as Anderson found itself herein. If such a remedy had existed, there
would have been no need for the legislative amendment. That remedy now exists, but is of no help to
Anderson in this case.
                                                    6
Ind. App. 455, 293 N.E.2d 540 (Ind. Ct. App. 1973). The Boonville Court observes that

“[d]eclaratory judgment actions are for the most part available only to taxpayers of the

annexing city.” 950 N.E.2d at 769.

      In Bradley v. City of New Castle, our Supreme Court construed judicial review of

annexation proceedings very narrowly. 764 N.E.2d 212 (Ind. 2002). As explained by a

panel of this Court, the Bradley Court

          found that the only judicial review of annexation provided by statute
          is found in Indiana Code sections 36-4-3-11 through 13.
          Accordingly, our [S]upreme [C]ourt determined that judicial review
          of annexation should not extend beyond the confines of Sections 11
          through 13 dealing with remonstrances. The court recognized
          exceptions to this rule where “plausible claims of fraud or
          discrimination are established” or where the annexing municipality
          commits procedural wrongs so severe that remonstrators’ substantial
          rights are violated.

In re Annexation Proposed by Ordinance No. X 01 95, 774 N.E.2d 58, 64 (Ind. Ct. App.

2002) (quoting Bradley, internal citations omitted) (hereinafter referred to as In re

Annexation). In In re Annexation, the remonstrators argued that Bradley did not apply to

their case because Bradley only involved an appeal from a remonstrance action, whereas

In Re Annexation involved an appeal from a denial of declaratory relief. Id. at 64. This

Court disagreed:

          in Bradley, our [S]upreme [C]ourt made very clear that absent fraud,
          discrimination, or impairment of the remonstrator’s substantive
          rights, judicial review shall not extend beyond the confines of
          Sections 11 through 13. Determination of whether the Remonstrators
          are entitled to declaratory relief would necessarily entail the very
          review that our [S]upreme [C]ourt has expressly prohibited.


                                           7
Id. at 65 (internal citation omitted). Another panel of this Court has likewise found that

Bradley prohibits landowners from seeking declaratory relief from an annexation absent

fraud, discrimination, or impairment of substantive rights. Boonville, 950 N.E.2d at 769-

70.

       Also instructive to the matters at issue in this appeal is this Court’s opinion in

Madison County Board of Commissioners v. Town of Ingalls, 905 N.E.2d 1022 (Ind. Ct.

App. 2009), trans. denied. In that case, the town of Ingalls passed three ordinances that

annexed strips of land from a Madison County planned unit development. Madison

County filed a declaratory judgment action, arguing, essentially, that the annexation was

invalid because the annexed territory was not contiguous to the town. Id. at 1024. The

trial court found that Madison County lacked standing, and the county appealed, arguing

that it was adversely affected because the annexations interfered with the county’s ability

to tax. Id. at 1025. This Court disagreed: “[a] court is not authorized to act unless a

remonstrance is filed. . . . [T]he sole means for challenging an annexation is

remonstrance.    And Madison County does not satisfy any of the requirements for

standing to remonstrate against the acts of annexation.” Id. at 1025-26 (internal citations

omitted). Consequently, the Ingalls Court found that Madison County lacked standing to

bring a declaratory judgment action and affirmed the trial court’s judgment. Id. at 1026.

       Reading Bradley, In re Annexation, Boonville, and Town of Ingalls together, it is

apparent that the general rule still applies: the sole means for challenging an annexation

is a statutorily-based remonstrance. And the only exceptions to that rule—the only time

                                            8
in which a complainant has standing to bring a declaratory judgment action—are those

set forth in Bradley: fraud, discrimination, or wrongs so severe that the complainant’s

substantial rights have been violated. See City of Greenwood v. Town of Bargersville,

930 N.E.2d 58, 66-67 (Ind. Ct. App. 2010) (holding that city had standing to bring a

declaratory judgment action where its substantial rights had been violated because

annexed territory was within its three-mile buffer zone and it contended that it had not

been afforded its statutory right to consent to the annexation).

       In this case, Anderson does not argue that there was fraud or discrimination

involved in the annexation. The only possible way in which it could have standing to

bring a declaratory judgment action, therefore, is if it can establish that its substantial

rights have been violated. The record reveals that the Territory is not within Anderson’s

one-mile buffer zone, and as a result, Anderson did not have a statutory right to consent

to the annexation. I.C. § 36-4-3-9. The record further reveals that months before Lapel’s

annexation, Anderson had considered annexing the Territory, but it chose not to.

Anderson argues that it is possible, in the future, that it may change its mind. But we

cannot find that a purely speculative future interest in the property serves to show that

Anderson’s substantial rights have been violated.         Were we to so hold, it would

essentially give Anderson a sole right to the Territory in perpetuity, even though it has

taken no legal action to claim the Territory as its own. Under these circumstances, we do

not find that the annexation harmed Anderson’s substantial rights.



                                              9
      Anderson also directs our attention to the Home Rule Act, arguing that it has a

right to seek redress under this statutory scheme. See Ind. Code § 36-1-3-1 et seq.

Specifically, Anderson argues that the annexation violates the Home Rule Act because

the Territory is not contiguous to Lapel as required by statute.      While we do not

necessarily disagree with Anderson on the contiguity of the Territory, the Home Rule Act

does not afford a distinct cause of action to redress wrongs committed thereunder.

Instead, a complainant must either file a remonstrance, a statutory appeal, or meet the

exceptions listed above to qualify as a plaintiff in a declaratory judgment action. As we

have already found that these options are foreclosed to Anderson, it has no standing to

complain regarding alleged violations of the Home Rule Act.

      Anderson does not have standing to seek the requested-for relief. Consequently,

the trial court erred as a matter of law by granting summary judgment in favor of

Anderson and denying Lapel’s cross-motion for summary judgment.

      The judgment of the trial court is reversed and remanded with instructions to enter

summary judgment in Lapel’s favor.

KIRSCH, J., and ROBB, J., concur.




                                           10
