                                                                                Jul 29 2015, 9:09 am




      ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEES
      Stephen C. Unger                                            Kent M. Frandsen
      Curtis T. Jones                                             Parr Richey Obremskey Frandsen &
      Bose McKinney & Evans LLP                                   Patterson LLP
      Indianpolis, Indiana                                        Lebanon, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Town of Whitestown, Indiana,                                July 29, 2015

      Appellant-Respondent,                                       Court of Appeals Case No.
                                                                  29A05-1409-MI-437
              v.
                                                                  Appeal from the Hamilton Superior
                                                                  Court
      Rural Perry Township
      Landowners,                                                 The Honorable Steven R. Nation,
                                                                  Special Judge
      Appellees-Petitioners.
                                                                  Cause No. 29D01-1308-MI-8547




      Bailey, Judge.



                                            Case Summary
[1]   In 2013, the Town of Whitestown (“Whitestown”) adopted an ordinance

      annexing unincorporated portions of Perry Township adjacent to the town.

      Rural Perry Township landowners (“the Remonstrators”) filed a petition to


      Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015                          Page 1 of 26
      defeat the annexation. The trial court found that the Remonstrators had

      satisfied statutory conditions required to defeat the annexation and ordered that

      the annexation not occur. Whitestown now appeals.


[2]   We reverse and remand for entry of judgment in favor of Whitestown.



                                                     Issues
[3]   Whitestown presents three issues for our review. We restate these as two

      issues:

                 I.    Whether the trial court erred when it found that Whitestown
                       had not satisfied the requirements of Indiana Code subsection
                       36-4-3-13(c); and
                II.    Whether the trial court erred when it found that Remonstrators
                       proved the elements of subsection 36-4-3-13(e)(2)(B),
                       concerning the financial impact of annexation.


                             Facts and Procedural History
[4]   During the events associated with this case, Whitestown has been one of the

      fastest-growing municipalities in Indiana. Located in Boone County,

      Whitestown grew through annexation to encompass portions of several

      unincorporated townships, including Perry Township. Whitestown’s growth

      has been aided by its presence along the corridor for Interstate 65 (“I-65”), and

      Whitestown has actively encouraged businesses to locate their operations

      within the town. From a population of 471 in the 2000 United States Census,

      Whitestown’s population reached 2,860 in the 2010 Census. At the time of trial


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      in this case, Whitestown’s planners estimated that the town’s population was

      around 4,500, and would reach nearly 14,000 by 2022. Tr. at 228-29, 233.


[5]   On March 26, 2013, Whitestown adopted Ordinance 2012-22 (“the

      Ordinance”), whereby the town annexed to itself 28 parcels of land

      encompassing a total of 621.87 acres in an unincorporated portion of Perry

      Township adjacent to Whitestown (“the Annexation Area”). Ex. W-001. Prior

      to adopting the Ordinance, Whitestown had acquired from one of the eventual

      Remonstrators a parcel of land in unincorporated Perry Township. The parcel

      was on the western end of the Annexation Area, and was to be the site for a

      new Waste Water Treatment Plant (“WWTP” or “the Plant”), which was to

      provide service for Whitestown. A new water main line was to be run to the

      Plant along County Road 750 South, which ran through the northern end of the

      Annexation Area. There was a possibility that the Remonstrators would be

      offered access to Whitestown’s water service for a yet-to-be-determined

      connection fee. Connection would not be compulsory, however, and

      construction of the Plant was set to commence and would proceed without

      regard to the result of the Remonstrators’ challenge to the Ordinance.


[6]   The Annexation Area itself was zoned as agricultural land under the Boone

      County Comprehensive Zoning Ordinance. Single family homes, a historic

      school structure, and a cemetery were scattered throughout the area. None of

      the plots in the Annexation Area had water service from Whitestown, and most

      properties used on-site septic systems for sanitation. Police service was

      provided by the Boone County Sheriff’s Department, and fire service was

      Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015     Page 3 of 26
      provided by a volunteer fire department. Whitestown’s police and fire services

      occasionally assisted with police- and fire-related incidents in the Annexation

      Area, but did so only on an occasional, voluntary basis. The Boone County

      Highway Department provided road and highway maintenance for roads

      running through the Annexation Area.


[7]   Property tax rates in Whitestown displayed a marked and consistent upward

      trend, whereas rates for unincorporated portions of Perry Township showed

      year-over-year declines. Annexation into Whitestown would result in the

      addition of municipal property taxes assessed upon the Remonstrators’ property

      beyond those already assessed by the township and other taxing authorities.

      Property tax rates for real property incorporated in Whitestown ranged from

      between 64.1% (in 2008) and 94.2% (in 2012) higher than the rates assessed for

      unincorporated land in Perry Township. The difference in municipal taxes for

      other municipality/township comparisons in Boone County for the 2012 tax

      year averaged 33%, ranging from an 18% rate difference in Zionsville as

      compared to Eagle Township, to a 45% rate difference in Lebanon as compared

      to Center Township. To address these issues, the Annexation Ordinance

      included provisions delaying the effective date of the annexation for three years

      after the final enactment of the annexation, and abating property tax for the

      parcels in the Annexation Area for a period of ten years after that.


[8]   On June 7, 2013, the Remonstrators filed their petition challenging the

      Ordinance.



      Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015   Page 4 of 26
[9]    On March 17, 2014, Whitestown filed a written motion requesting that the trial

       court enter written findings and conclusions under Trial Rule 52.


[10]   The case proceeded to a bench trial on March 18, 19, and 20, 2014. After the

       trial, the parties provided the trial court with proposed findings and

       conclusions.


[11]   On August 27, 2014, the trial court adopted the Remonstrators’ proposed

       findings and conclusions and entered judgment, finding the Ordinance invalid

       and blocking Whitestown’s annexation of the Annexation Area. The trial court

       found that Whitestown had not satisfied the statutory requirement of proving

       that the subdivision of the territory to be annexed was satisfied, see I.C. § 36-4-3-

       13(b)(2); and that Whitestown had not carried the burden of proof as to its need

       for future use of the Annexation Area. See I.C. § 36-4-3-13(c)(2). Accordingly,

       the court concluded that the annexation ordinance was invalid. The trial court

       also found, as a separate basis for defeating the annexation, that the

       Remonstrators had carried their burden of proof as to Subsection 36-4-3-13(e),

       which afforded a separate avenue to challenge annexation ordinances.


[12]   This appeal ensued.



                                   Discussion and Decision
                                          Standard of Review
[13]   In its appeal, Whitestown challenges a judgment presented in the form of

       written findings and conclusions, entered by the trial court upon Whitestown’s

       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015    Page 5 of 26
       written motion. See Ind. Trial Rule 52(A). Our standard of review in these

       cases is well settled.

                 Upon appellate review, a judgment under Trial Rule 52 may be
                 reversed only when clearly erroneous, that is, “when the judgment is
                 unsupported by the findings of fact and conclusions entered on the
                 findings.” Nelson v. Marchand, 691 N.E.2d 1264, 1267 (Ind. Ct. App.
                 1998). Findings are clearly erroneous when there is no evidence or
                 reasonable inference from the evidence to support the findings, and we
                 review only the evidence and reasonable inferences therefrom that are
                 favorable to the judgment without reweighing evidence or reassessing
                 the credibility of witnesses. Id. We owe no deference to a trial court,
                 however, on matters of law, reviewing these de novo. Briles v. Wausau
                 Ins. Cos., 858 N.E.2d 208, 213 (Ind.Ct.App.2006).
       Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind. Ct. App. 2011), trans.

       denied.


[14]   We may affirm the trial court’s judgment on any legal theory, so long as the

       trial court’s findings are not clearly erroneous and support the theory adopted.

       Estate of Kappel v. Kappel, 979 N.E.2d 642, 652 (Ind. Ct. App. 2012). Findings

       are only clearly erroneous when our review of the record leaves us firmly

       convinced that a mistake has been made. Id. at 651 (citing Balicki v. Balicki, 837

       N.E.2d 532, 535-36 (Ind. Ct. App. 2012), trans. denied.) “The purpose of special

       findings is to provide the parties and the reviewing court with the theory upon

       which the trial judge decided the case in order that the right of review for error

       may be effectively preserved.” Carmichael v. Siegel, 670 N.E.2d 890, 891 (Ind.

       1996).


[15]   Here, the trial court adopted verbatim the Remonstrators’ proposed findings

       and conclusions, a matter Whitestown draws to our attention.
       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015         Page 6 of 26
               As our supreme court has observed, the practice of accepting verbatim
               a party’s proposed findings of fact “weakens our confidence as an
               appellate court that the findings are the result of considered judgment
               by the trial court.” Cook v. Whitsell-Sherman, 796 N.E.2d 271, 273 n.1
               (Ind. 2003) (citing Prowell v. State, 741 N.E.2d 704, 708-09 (Ind. 2001)).
               However, as the court also noted, verbatim reproductions of a party’s
               submissions are not uncommon, as “[t]he trial courts of this state are
               faced with an enormous volume of cases and few have the law clerks
               and other resources that would be available in a more perfect world to
               help craft more elegant trial court findings and legal reasoning.”
               Prowell, 741 N.E.2d at 708. The need to keep the docket moving is
               properly a high priority for our trial bench. Id. at 709. For this reason,
               the practice of adopting a party’s proposed findings is not prohibited.
               Id. Thus, although we by no means encourage the wholesale adoption
               of a party’s proposed findings and conclusions, the critical inquiry is
               whether such findings, as adopted by the court, are clearly erroneous.
               See Saylor v. State, 765 N.E.2d 535, 565 (Ind. 2002) (citing Woods v.
               State, 701 N.E.2d 1208, 1210 (Ind. 1998)).
       In re Marriage of Nickels, 834 N.E.2d 1091, 1096 (Ind. Ct. App. 2005).


[16]   Whitestown challenges both the trial court’s findings of fact and its conclusions

       from those findings. The bulk of Whitestown’s argument, however, centers

       upon the trial court’s interpretation of statutory language and whether the court

       afforded proper deference to the town’s decisions. As we noted above, we

       review the trial court’s application of law de novo. Argonaut, 953 N.E.2d at 614.

       This is particularly so when questions of statutory construction come into play,

       as is the case here:

               Statutory interpretation is a question of law reserved for the court and
               is reviewed de novo. In re K.J.A., 790 N.E.2d 155, 158 (Ind. Ct. App.
               2003). The cardinal rule of statutory construction is that if a statute is
               unambiguous, then we need not and cannot interpret it; rather, we
               must apply its plain and clear meaning. Bolin v. Wingert, 764 N.E.2d
               201, 204 (Ind. 2002); Coplen v. Omni Rests., Inc., 636 N.E.2d 1285, 1287

       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015          Page 7 of 26
               (Ind. Ct. App. 1994). Additionally, when construing a statute, the
               legislature’s definition of a word binds us. Ind. Office of Envtl.
               Adjudication v. Kunz, 714 N.E.2d 1190, 1193 (Ind. Ct. App. 1999).
               When the legislature has not defined a word, we give the word its
               common and ordinary meaning. Id. In order to determine the plain
               and ordinary meaning of words, courts may properly consult English
               language dictionaries. Id.
       Vanderburgh Cnty. Election Bd. v. Vanderburgh Cnty. Democratic Cent. Comm., 833

       N.E.2d 508, 510 (Ind. Ct. App. 2005).


                                               Legal Standard
[17]   The legal standard for a remonstrance is largely prescribed by statute. The trial

       court found that the Remonstrators’ challenge to the Ordinance succeeded

       under Indiana Code subsections 34-6-3-13(b), (c), and (e).1 The court’s fact-

       finding and its application of those provisions form the core of Whitestown’s

       appeal.


[18]   The statutory scheme that provides for municipal annexation of unincorporated

       township land has historically presumed the validity of an annexation

       ordinance. Even with statutory amendments over time, “the object of

       annexation has remained the same: ‘to permit annexation of adjacent urban

       territory.’” City of Carmel v. Certain Sw. Clay Twp. Annexation Territory

       Landowners, 868 N.E.2d 793, 796 (Ind. 2007) (quoting Rogers v. Mun. City of

       Elkhart, 688 N.E.2d 1238, 1242 (Ind. 1997)). “The statutory framework has




       1
         The General Assembly enacted revisions to these statutes effective July 1, 2015. We refer throughout to the
       statutes as enacted at the time of the proceedings before the trial court.

       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015                          Page 8 of 26
       also retained the same three stages: ‘(1) legislative adoption of an ordinance [of

       annexation]… (2) an opportunity for remonstrance…, and (3) judicial review.’”

       Id. (quoting City of Hobart v. Chidester, 596 N.E.2d 1374, 1375 (Ind. 1992)).


[19]   Because annexation is generally favored as the goal of the statutory scheme,

       “[a]nnexation is subject to judicial review only so far as the General Assembly

       has authorized it by statute.” Id. at 797. Thus, trial courts must conduct

       hearings on remonstrance petitions “without a jury,” I.C. § 36-4-3-12(a)(1), and

       must, “without delay, enter judgment on the question of the annexation

       according to the evidence that either party may introduce.” I.C. § 36-4-3-

       12(a)(2).


[20]   Indiana Code section 36-4-3-13 sets forth the substantive criteria upon which a

       trial court must review a municipality’s annexation of unincorporated land. A

       municipality must satisfy the statutory requirements set forth in 1) either

       Subsection 36-4-3-13(b) or (c), and 2) Subsection 36-4-3-13(d).2 I.C. § 36-4-3-

       13(a). The municipality must bear the burden of establishing these

       requirements. City of Carmel, 868 N.E.2d at 797. But as another panel of this

       Court has recently observed in applying Section 36-4-3-13(c), which is directly

       implicated in this appeal, the annexation statutes do not exist to allow a holding

               that a city—if it does not have impending plans to build on land that it
               seeks to annex—must sit and watch the land be used and developed in




       2
        The trial court concluded that Whitestown established the requirement embedded in Subsection 36-4-3-
       13(d), which concerns the adoption of a fiscal plan, and the parties do not dispute this point.

       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015                      Page 9 of 26
                ways that might harm or impede its future plans for urban
                management of the land, until the “long-term inevitability” of
                annexation takes place.
       Town of Fortville v. Certain Fortville Annexation Territory Landowners, No. 30A01-

       1410-MI-442, Slip op. at 9 (Ind. Ct. App. Jul. 2, 2015).


[21]   Subsection 36-4-3-13(b) provides:

                The requirements of this subsection are met if the evidence establishes
                the following:
                (1) That the territory sought to be annexed is contiguous to the
                municipality.
                (2) One (1) of the following:
                         (A) The resident population density of the territory sought to be
                         annexed is at least three (3) persons per acre.
                         (B) Sixty percent (60%) of the territory is subdivided.
                         (C) The territory is zoned for commercial, business, or
                         industrial uses.
[22]   An annexing municipality may establish either these requirements, or it may

       establish the elements of Subsection 36-4-3-13(c):3

                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, 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.




       3
         As noted above, a municipality must also satisfy the requirements of I.C. § 36-4-3-13(d), in addition to
       establishing the satisfaction of either I.C. § 36-4-3-13(b) or (c). Here, the parties stipulated to Whitestown’s
       satisfaction of Subsection (d). Thus, we do not address the question further in our decision today.

       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015                             Page 10 of 26
               (2) That the territory sought to be annexed is needed and can be used
               by the municipality for its development in the reasonably near future.
[23]   Yet even where these requirements are met, the remonstrance statute provides

       an alternate route by which remonstrators may block a municipality’s

       annexation efforts. Indiana Code subsection 36-4-3-13(e) provides:

               At the hearing under section 12 of this chapter, 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:
                                 (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.
                        (E) This clause applies only to an annexation in which eighty
                        percent (80%) of the boundary of the territory proposed to be
                        annexed is contiguous to the municipality and the territory
                        consists of not more than one hundred (100) parcels. At least

       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015            Page 11 of 26
                        seventy-five percent (75%) of the owners of land in the territory
                        proposed to be annexed oppose the annexation as determined
                        under section 11(b) of this chapter.
[24]   The remonstrators must bear the burden of proof for all of these elements,

       except that of Subsection 36-4-3-13(e)(2)(C). That provision includes within it

       the requirements of Subsection 36-4-3-13(f). Subsection 36-4-3-13(f) provides:

               The municipality under subsection (e)(2)(C) bears the burden of
               proving that the annexation is in the best interests of the owners of
               land in the territory proposed to be annexed. In determining this issue,
               the court may consider whether the municipality has extended sewer
               or water services to the entire territory to be annexed:
                        (1) within the three (3) years preceding the date of the
                        introduction of the annexation ordinance; or
                        (2) under a contract in lieu of annexation entered into under IC
                        36-4-3-21.
               The court may not consider the provision of water services as a result
               of an order by the Indiana utility regulatory commission to constitute
               the provision of water services to the territory to be annexed.
       Thus, an annexing municipality may, despite remonstrators’ proof of all the

       other elements of Subsection 36-4-3-13(e)(2), defeat the remonstrance by

       proving that annexation is in the territory’s best interest.


[25]   Thus, Subsection 36-4-3-13(e) establishes a kind of burden-shifting test: if the

       annexing municipality can prove its annexation is proper under Subsections 36-

       4-3-13(a) through (d), the remonstrators must, to defeat the annexation, prove

       the conditions of Subsections 36-4-3-13(e)(2)(A), (B), (D), and, when applicable

       (E). If they do so, the annexing municipality must prove the contrary of

       Subsection 36-4-3-13(e)(2)(C)—that despite the remonstrators’ contentions,

       annexation is nevertheless in the best interests of the territory to be annexed.

       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015         Page 12 of 26
       When Subsections 36-4-3-13(a) through (d) are satisfied, failure of the

       remonstrators to satisfy any one of the elements of Subsection 36-4-3-13(e)(2)

       permits the annexation to go forward.


[26]   Against this background, the trial court concluded that Whitestown had failed

       to satisfy several of the requirements associated with Subsections 36-4-3-13(a)

       through (d). The trial court concluded that while Whitestown was contiguous

       to the Annexation Area, the evidence did not establish that any of the three

       requirements of Subsection 36-4-3-13(b)(2) had been satisfied. The trial court

       also found that Whitestown had failed to prove the requirement of Subsection

       36-4-3-13(c) that Whitestown needed and could use the Annexation Area for

       development in the reasonably near future. Whitestown also challenges this

       conclusion. Finally, the trial court concluded that the Remonstrators had

       carried their burden of proof as to Subsection 36-4-3-13(e), including that

       Whitestown had failed to carry its burden of proof as to the best interests of the

       Annexation Area under Subsection 36-4-3-13(f).


[27]   We address each designated error in turn.


                               Subsections 36-4-3-13(b) and (c)
[28]   We turn first to Whitestown’s arguments concerning Subsections 36-4-3-13(b)

       and (c). As noted above, to establish the validity of the annexation upon

       remonstrance, Whitestown was required to prove the requirements of either of

       these two subsections. The trial court concluded that Whitestown had failed to

       do so.

       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015   Page 13 of 26
                                        Subsection 36-4-3-13(b)
[29]   Whitestown argues that the trial court misinterpreted the statute to require that

       Whitestown prove both Subsection 36-4-3-13(b) and (c), rather than either one.

       The trial court stated:

               Remonstrators in addition to satisfying the elements of subsection
               13(e), have an alternative basis for challenge to this annexation that
               arises under subsection 13(b) and (c) of the statute. Such subsections
               allow the Town to annex this land only if (1) the resident population
               density is at least three persons per acre, or 60% of the land is
               subdivided, or the land is zoned for commercial, business or industrial
               use and territory and (2) the land is at least ¼ contiguous to existing
               town boundaries and “it is needed and can be used by the municipality
               for its development in the reasonably near future.” Ind. Code § 36-4-3-
               13(b) and (c).
       App’x at 17-18 (emphasis added).


[30]   We agree with Whitestown that the trial court appears to have misinterpreted

       the law. Based upon the language of the statute, Whitestown need only have

       carried its burden as to either Subsection 36-4-3-13(b) or 36-4-3-13(c), and the

       trial court erred when it concluded otherwise. In conducting our review, we

       assess the trial court’s legal conclusions de novo and apply the statute as written.


                                         Subsection 36-4-3-13(c)
[31]   Whitestown does not, in its brief, argue that the trial court erred when it

       concluded that Whitestown failed to satisfy the requirements of Subsection 36-

       4-3-13(b). Rather, Whitestown identifies as error the trial court’s conclusions as

       to Subsection 36-4-3-13(c), and directs us to the distinctions between what it

       characterizes as the “mathematical urbanization tests” of Subsection 36-4-3-

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       13(b)(2) and the focus in Subsection 36-4-3-13(c) on future use of the area to be

       annexed. (Appellant’s Br. at 28.)


[32]   Thus, on appeal, Whitestown argues for the validity of the annexation,

       exclusive of the shifting of the burden of proof to the Remonstrators under the

       five elements of Subsection 36-4-3-13(e)(2), under Subsection 36-4-3-13(c).

       Again, the parties stipulated to the question of contiguity, so that Subsection 36-

       4-3-13(c)(1) was satisfied, and the question at trial was whether the

       requirements of Subsection 36-4-3-13(c)(2) had been met. To satisfy that

       requirement, Whitestown was required to prove that the Annexation Area was

       “needed and [could] be used by the municipality for its development in the

       reasonably near future.” The trial court found that Whitestown had failed to

       satisfy this requirement:

               54.     As to [Subsection § 36-4-3-13(c)], the Court must find that this
               annexation is needed for the Town’s development in the reasonably
               near future. The Court notes that no project other than the wastewater
               plant has been identified as being on the drawing board. The
               treatment plant will presumably obtain the needed IDEM permits and
               be constructed regardless of the outcome of this remonstrance. Plans
               for the plant predate adoption of the Annexation Ordinance and
               permitting has continued while this challenge has been underway. The
               evidence is the plant is not dependent on the annexation of this area.
               The Town may use the County road right-of-way to access the
               treatment plant, as permitted by Ind. Code § 8-20-1-28, and that is the
               Town’s intent.
               55.    The Court cannot find based upon the evidence that this
               annexation is driven by the Town’s development needs in the
               reasonably near future, and therefore the requirements of [Subsection §
               36-4-3-13(c)] are not met.



       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015      Page 15 of 26
[33]   App’x at 18-19. The court construed the statutory language, “reasonably near

       future,” as requiring some known and well-defined anticipated future use of the

       Annexation Area, concluding:

                27.     The term “reasonably near future” in subsection 13(c)(2) is not
                defined in the statute or construed in case law, but based on the facts
                of this case, there are no projects except for the wastewater plant, and
                the possibility of the Ronald Reagan Parkway is remote and
                speculative.
       App’x at 24-25.


[34]   In its brief, Whitestown observes that the statutory framework for annexation

       favors the determination that an annexation is appropriate, and that the scope

       of judicial review in such cases is circumscribed by the statutes. City of Carmel,

       868 N.E.2d at 796. As a result, courts are to “afford legislative judgment

       considerable deference” and “avoid scrutinizing legislative processes.” Bradley

       v. City of New Castle, 764 N.E.2d 212, 216 (Ind. 2002). Thus, as in Bradley, we

       do not take on the role of “an examiner conducting an audit of a challenged

       fiscal plan.” Id. Nevertheless, an annexing municipality must bear the burden

       of proof in establishing the validity of the annexation under Subsection 36-4-3-

       13(c).


[35]   In addressing the requirements of Subsection § 36-4-3-13(c), our courts have

       largely focused on the question of the annexing municipality’s purpose in

       initiating the annexation measure. There is an established requirement that

       additional tax revenues not be the sole reason for the annexation. See West v.

       City of Princeton, 901 N.E.2d 1141, 1148-49 (Ind. Ct. App. 2009), trans. denied;

       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015         Page 16 of 26
       Crothers v. City of Fort Wayne, 155 Ind. App. 153, 156-57, 291 N.E.2d 702, 704

       (1973). Beyond that limitation, courts have focused on other advantages that

       might accrue to the annexing municipality from an annexation. Crothers, 155

       Ind. App. at 156-57, 291 N.E.2d at 704-05 (finding as advantages the ability of

       an annexing municipality to increase its financial power, improve traffic

       control, add recreational facilities, and advance its planning efforts); Smith v.

       Inc. Town of Culver, 229 Ind. 665, 670, 234 N.E.2d 494, 497 (1968) (concluding

       that there was sufficient, if conflicted, evidence to sustain an annexation where

       the land to be annexed was desirable and fit with a plan to develop land beyond

       the territory to be annexed). As this Court explained in In re Annexation

       Ordinance No. X-07-91 (Blackhawk Annexation), 645 N.E.2d 650 (Ind. Ct. App.

       1995): “[t]he test is whether the ‘city need[s] and can use the territory’” for a

       purpose other than the consumption of additional tax revenues. Id. at 656

       (quoting Chidester v. City of Hobart, 631 N.E.2d 908, 913 n.6 (Ind. 1994)).


[36]   Further, as noted above, the scope of judicial review of annexation and other

       legislative measures is limited to that provided by the statute enabling such

       review. City of Carmel, 868 N.E.2d at 796. And the Indiana Supreme Court has

       made it clear that avoiding “a ‘Dillonist’ mindset is in the best interests of

       public policy in Indiana,” because “it is far less burdensome on both the courts

       and the Legislature for the law to presume the existence of local authority to act

       absent some express prohibition.” Kole v. Faultless, 963 N.E.2d 493, 498 (Ind.

       2012). And, as we noted above, the purpose of the annexation statutes is not to

       impose requirements that “harm or impede [a municipality’s] future plans for

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       urban management of the land, until the ‘long-term inevitability’ of annexation

       takes place.” Town of Fortville, No. 30A01-1410-MI-442, at 9.


[37]   In this case, the trial court heard testimony from both the Remonstrators and

       Whitestown. The evidence that favors the judgment indicates, as the trial court

       concluded, that construction of the WWTP would proceed regardless of the

       success of the annexation effort, and that there was nothing barring Whitestown

       from using County Road 750 South as an entry and exit path to the Plant.

       Based upon this, the trial court concluded that there was no need for

       Whitestown to use Annexation Area, and in the absence of any clear future

       construction in the area, the court concluded that Whitestown could not use the

       Annexation Area in the reasonably near future.


[38]   Yet the test prescribed under the statute is not whether the annexing

       municipality can make do without the territory it seeks to annex. The statutory

       test, as interpreted by Indiana’s appellate courts, is whether Whitestown could

       use the Annexation Area for a purpose other than increased collection of

       property taxes in the reasonably near future. The trial court’s findings

       recognized that this was the case, but construed the language of the statute too

       narrowly in light of the deference properly accorded under our case law.


[39]   We further observe that there was ample testimony concerning the town’s rapid

       growth and the efforts Whitestown put into encouraging, predicting, and

       planning that growth—and how the Annexation Area could be used for those

       ends. Witnesses testifying for both the Remonstrators and Whitestown


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       acknowledged that, other than the WWTP, there were no ongoing, confirmed

       projects in the Annexation Area. However, numerous witnesses for

       Whitestown testified concerning the rapid growth of the town, including the

       ongoing construction of the Eagle’s Nest housing subdivision immediately to

       the east of the Annexation Area on the same side of County Road 750 South;

       Whitestown’s existing plans to run forced water mains along County Road 750

       South leading into the Plant; the intent of at least one remonstrator to sell

       property on the north side of County Road 750 South immediately across from

       the Annexation Area; the sale of the WWTP site to Whitestown by still another

       of the Remonstrators; and ongoing questions concerning the City of Lebanon’s

       claims to exclusivity over water and sewer service within portions of Perry

       Township. The trial court also heard extensive testimony concerning

       Whitestown’s plan to connect the WWTP to water lines from the Eagle’s Nest

       housing division, which was adjacent to the Annexation Area. Further, several

       witnesses testified that leaving a portion of the road under the control of the

       Boone County Highway Department might cause substantial expenses to

       Whitestown in the event of road construction, as in that situation the county

       could insist Whitestown relocate its utility lines at the town’s expense.


[40]   There was no evidence presented to the trial court that Whitestown’s only

       purpose in pursuing the Annexation Ordinance was to bolster its tax base, and

       no evidence presented by the Remonstrators to counter any number of the other

       reasons advanced by Whitestown for the annexation. The trial court’s

       findings—wholly adopted from those proposed by the Remonstrators—were


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       not representative of the bulk of the evidence presented on whether Whitestown

       needed and could use the Annexation Area in the reasonably near future. The

       trial court’s findings and conclusions acknowledged little of this evidence—even

       for the purposes of concluding that none of the evidence presented was credible

       or worthy of any weight. We cannot, then, conclude that Whitestown failed to

       carry its burden of proof under the statute—and we remind trial courts of both

       the deferential standard accorded to annexing municipalities, and the risks

       associated with wholesale adoption of a party’s strongly one-sided proposed

       findings and conclusions.


[41]   We accordingly conclude that the trial court erred in its application of the law

       in Subsection 36-4-3-13(c).


                                       Subsection 36-4-3-13(e)
[42]   Whitestown also contends that the trial court erred in its findings and

       conclusions under Subsection 36-4-3-13(e). The statute permits remonstrators

       to defeat an otherwise-permissible annexation if five elements can be

       established related to the availability of adequate local government services for

       police, fire protection, and street and road maintenance from a source other

       than the annexing municipality, I.C. § 36-4-3-13(e)(2)(A); the financial impact

       of the annexation upon residents or landowners, I.C. § 36-4-3-13(e)(2)(B); the

       best interests of the territory to be annexed, I.C. § 36-4-3-13(e)(2)(C); and the

       proportion of landowners opposed to the annexation. I.C. §§ 36-4-3-13(e)(2)(D)

       & (E). The remonstrators must establish all elements of the statute, except for


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       the best-interests element; as to that element, the annexing municipality must

       bear the burden of proof to establish that the annexation is in the best interests

       of the residents or landowners affected. I.C. §§ 36-4-3-13(e)(2)(C) & 36-4-3-

       13(f).


[43]   Whitestown’s argument upon appeal centers on whether the trial court erred

       when it concluded that annexation would, if put into effect, have a significant

       financial impact upon the Remonstrators, and that the annexation was not in

       the best interests of the landowners.


[44]   Both parties observe that while several cases decided by Indiana appellate

       courts have addressed Subsection 36-4-3-13(e), the specific questions presented

       here have not been addressed. See City of Carmel, supra (recognizing the

       enactment of I.C. § 36-4-3-13(e) but not applying the statute); In re Annexation of

       Certain Territory to the City of Muncie, Ind., 914 N.E.2d 796, 806 (Ind. Ct. App.

       2009) (reversing a trial court’s grant of a remonstrance petition on the basis of a

       failure to satisfy evidentiary requirements under I.C. § 36-4-3-13(e)(2) by failing

       to present any specific evidence as to the actual increase in taxes or the financial

       effect of that increase upon specific landowners, rather than reversing based on

       misapplication of the law), trans. dismissed.


[45]   As a result, we are presented with a question of statutory interpretation. As we

       observed earlier in our opinion, the principles of statutory interpretation in

       Indiana courts are well established. See Vanderburgh Cnty. Election Bd., 833

       N.E.2d at 510.


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[46]   We turn, then, to the question of “significant financial impact.” Neither City of

       Carmel nor City of Muncie provides direct guidance on the interpretation of the

       statute. City of Muncie recognized that in any annexation of unincorporated

       land by a municipality, landowners could expect to see some difference—

       generally an increase—in their property tax rates as a result of the “municipal

       tax layer,” that is, an additional layer of taxation related to the greater number

       and variety of services offered by a municipality and the costs associated with

       those services. City of Muncie, 917 N.E.2d at 806. Yet City of Muncie addressed

       the significant financial impact question only with respect to the quantum of

       evidence that might be required, and concluded that the remonstrators in that

       case had failed to provide any evidence showing any financial impact that

       would be incurred by any of the landowners. Id.


[47]   As the trial court recognized in this case, some increase in taxation associated

       with the municipal tax layer was inevitable. The question presented was

       whether that increase would impose a “significant financial impact” upon the

       landowners in the Annexation Area. The parties presented evidence related to

       comparative municipal tax layers in other areas of the state and within Boone

       County. Evidence was also presented that pertained to the difference in tax

       rates between unincorporated Perry Township and Whitestown during the tax

       years from 2008 (payable in 2009) to 2012 (payable in 2013). The evidence

       included indications of an upward trend in the Whitestown rates during this

       period.




       Court of Appeals of Indiana | Opinion 29A05-1409-MI-437 | July 29, 2015   Page 22 of 26
[48]   Based upon this evidence, the trial court found that “an increase of 52% to 74%

       in property taxes is a significant financial impact on the residents of the

       Annexation Area.” App’x at 14. The trial court stated in its conclusion that

       “[t]he trend line of this disparity in recent years…does not give the Court

       comfort that the rate difference will materially decline in the foreseeable future”

       and that “project[ing] tax rates thirteen years in the future requires speculation.”

       App’x at 22-23. This statement relates to provisions within the Annexation

       Ordinance limiting when the ordinance itself would go into effect—three years

       after its final adoption date—and a ten-year abatement in the imposition of the

       municipal layer of taxes. That is, the Annexation Ordinance included within it

       provisions that would leave property taxes in the Annexation Area at their pre-

       annexation levels for thirteen years after the full enactment of the annexation.

       As to the thirteen-year period during which the Remonstrators would pay taxes

       as if their land were still within unincorporated Perry Township, the trial court

       opined that the need for speculation as to tax rates after that period “cuts

       against a municipality which proposes to delay imposition of municipal taxes

       and suggest that by the time those taxes take effect the gap will be significantly

       reduced.” App’x at 23.


[49]   We find no error in the trial court’s findings of fact in this respect: the evidence

       supports the findings as to the amount of the municipal tax layer at the time of

       trial and the differences between the Whitestown layer and those of other

       municipalities. These findings do not, however, settle the question of what




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       must be satisfied to establish that an annexation “will have a significant

       financial impact.”


[50]   Addressing the thirteen-year period during which no municipal layer would be

       imposed, the trial court took the apparent view that Whitestown was

       attempting to “game the system”:

               In allowing municipalities to postpone the tax impact of annexation,
               the General Assembly surely didn’t intend that to make it more
               difficult for remonstrators to satisfy the “significant financial impact[”]
               element of the statute. Using current and recent tax rates for this
               locale is the most reliable indicator of the municipal gap.
       App’x at 23. Yet the question is not whether a particular approach to tax relief

       is contrary to the unexpressed spirit of the legislature in enacting the statute.

       Rather, it is whether the annexation “will have a significant financial impact”

       upon landholders or residents of the Annexation Area.


[51]   On that point, we conclude that the trial court erroneously applied the law.

       The terms of the statute require that the Remonstrators prove that annexation

       “will have”—that is, would necessarily result in—a significant (and,

       presumably, adverse) financial effect. The trial court was free to reject as not

       credible the projections of Eric Reedy, Whitestown’s accountant, who testified

       that Whitestown’s municipal layer would be below that of other nearby

       municipalities by the time the thirteen-year period of annexation and abatement

       came to a close. (Tr. at 613-14) So, too, could it disregard the testimony of

       Michael Shaver, one of the town’s planning consultants, that property values




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       would likely increase within the Annexation Area as a result of the availability

       of town-provided water and sewer connections. (Tr. at 649)


[52]   Even doing so, however, there was no evidence that established that the

       annexation would necessarily result in an adverse financial impact to the

       Remonstrators once the thirteen-year annexation and abatement period ended.

       The only evidence of certain financial impact upon the Annexation Area is that

       the Remonstrators would see no imposition of a municipal tax layer in their

       property taxes for thirteen years after the annexation ordinance was finally

       adopted. And in the absence of any legislative provision barring such an

       accommodation to property owners in an area to be annexed, we disagree with

       the trial court’s conclusion that Whitestown was somehow gaming the system

       simply by construing the statute in conformity with its plain language.


[53]   We accordingly conclude that the trial court erred when it applied the statute

       and concluded that, after a thirteen-year period of tax delay and abatement, an

       uncertain future tax situation constituted a significant financial impact that

       would result from the annexation. The Remonstrators failed to carry their

       burden of proof under Subsection 36-4-3-13(e), and thus the trial court erred

       when it blocked the Annexation Ordinance.



                                                 Conclusion
[54]   The trial court erred in its interpretation of Indiana Code subsections 36-4-3-

       13(c) and (e), and in its application of the statutory provisions to its findings of


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       fact. We accordingly reverse the trial court’s judgment, and remand the case

       with instructions to enter judgment in favor of Whitestown with respect to the

       Remonstrators’ challenge to the Annexation Ordinance.


[55]   Reversed and remanded with instructions.


       Riley, J., and Barnes, J., concur.




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