Brownsburg North Group Against Annexation
www.noannexbrownsburg.com
Oct. 22, 2014 Presentation to Annexation Study Committee
1
The population in the town of Brownsburg is larger
than many cities.
• According to Wikipedia the town is 11.16 sq
miles; estimated population in 2012---- 22,603
• The size of the Brownsburg North Annexation
Area is 4,462 acres which is 6.97 sq miles,
includes 1,193 property parcels (with 996
Dwellings), Resident Population of this area is
2,639 (estimated)
• 77% of this area is agriculture property
• This annexation will increase the size of the town
by over 50%
2
We have formed a PAC
(political action committee) titled
Fight Against Brownsburg Annexation (FABA)
to help offset the costs associated with litigation.
Please join the cause and donate.
Make checks or money orders payable to FABA and mail to
FABA P.O. Box 258, Brownsburg, IN 46112
For questions call 317-286-7316
The Internal Revenue Service (IRS) forbids individuals from taking charitable
contribution deductions for gifts to PACs, political candidates and political
organizations.
“contributions to the organization are not deductible for federal income tax
purposes as charitable contributions”
3
Congratulations to Fortville annexation remonstrators (they were at the last
meeting) They received a favorable ruling from the trial court and the
annexation has been stopped; That is until Fortville takes the case to the
appellant court for appeal- which will most likely happen.
Congratulations to the Whitestown remonstrators on their favorable ruling
to stop the annexation (who were also at the last meeting) they already
know that Whitestown has filed an appeal with the appellant court.
Apologies to the Ward remonstrators (Brownsburg annexation) on Oct 2,
2014 the trial court granted Town’s motion to dismiss.
Apologies to the Martinsville remonstrators, Appeal court decision Oct 2,
2014 dismissed appeal because remonstrators did not request a stay of the
annexation prior to the appeal and during that time the annexation because
final. (In this appeal court decision, Judge Baker, writes a separate
opinion to express his concerns regarding the time period during
which remonstrators may request a stay. While he agrees that, the
appeal court had to dismiss the remonstrators appeal as moot
because the annexation had become final. He fears that the clerk of
a municipality may be able to finalize an annexation without allowing
a reasonable time for remonstrators to request a stay.)
4
Involuntary forced annexations
must be stopped
Indiana is only one of two states that continues to allow this
archaic practice.
Tennessee banned forced annexations last year; the year before
North Carolina banned this practice because it was determined
that involuntary annexation was in violation of the United States
Constitution– violating the fourteenth amendment right of
equal protection. -----Stating that representation in state and
local government is a fundamental right and involuntary
annexation violates principles of equal protection since no
representation in the annexation process is given to residents of
the annexation area .
5
• In 2012 North Carolina banned involuntary
annexation (the new annexation process requires
a voter referendum of those residing in the
annexation area).
• Additionally, in 2012 North Carolina passed
House bill 5 which deannexed legal, pending and
completed annexations in nine involuntary
annexations from across the state and imposed a
12-year prohibition on any annexation attempt of
these areas. (The nine annexations are from Kinston,
Lexington, Rocky Mount, Wilmington, Asheville/Biltmore
Lake, Marvin, Southport, Goldsboro, and
Fayetteville/Gates Four.)
6
Some changes to the Indiana
annexation statute (Indiana Code
36-4-3) has occurred over the years
in an attempt to preserve property
owner rights.
• Unfortunately , these changes have done little to help
property owners, in fact the changes have sparked a
concern and a fear of potential changes that are likely
to occur and has resulted in a surge in involuntary
annexations across the state.
7
• Requirements placed on landowners in an area
targeted for annexation clearly establishes an
unfair playing field and makes it almost
impossible for landowners to conduct a
successful remonstrance due to:
– lack of municipality accountability
– difficulty acquiring needed public documents from the
municipality; documents request are frequently
denied
– time limitations for filling written remonstrance
– signature requirements needed to file a claim
– the legal cost associated with bringing a remonstrance
action to court (Municipalities have access to legal
resources while property owners do not)
8
How many property owner
annexation remonstrance cases
have been truly successful in the
History of Indiana?
9
I could be wrong, and if anyone knows otherwise
Two
let me know, but I can only find
truly
successful property owner remonstrance cases in
the History of Indiana.
In a recent Indiana Appeal Court memorandum decision
not for publication dated August 5,2014( this decision cannot
be used a precedent or cited before any court)
Remonstrators met all requirements of Indiana code 36-4-3-13 (e)
and won. “City of Sullivan v North American Latex Corporation et al”
(remonstration Nov 2012- August 5, 2014)
June 6, 2002 Indiana Appeal Court found in favor of
remonstrators, because parcels included in serial annexations
were not contiguous to the town. “Town of Lizton vs. Storm and Shelton”
(remonstration May 1998- June 6, 2002)
10
On going remonstrance case
• The City of Boonville vs American Cold Storage remonstrance
started in July 2008. A January 21, 2014 Supreme Court
decision has remanded this case back to the trial court for
further proceedings.
– This remonstrance has been on going for 6 years
– I wonder how much money the remonstrators have spent
in legal fees?
– But the bigger question is, How many hundreds of
thousands of taxpayer dollars have been wasted fighting
against this remonstrance?
– These taxpayer dollars could have been better utilized
updating infrastructure, instead of being thrown away on
legal fees.
This is one of the many reasons why involuntary
forced annexation must be stopped
11
Clarification of information presented
at the last meeting
• Cities and town representatives at the last meeting indicated
that towns and cities can offer exemptions that allows
agricultural property to remain exempt from property tax
liability for municipal purposes and that this zoning
classification cannot be changed without the consent of the
owner.
• While this may be true, I doubt and I am surprised that after
section 4.1 of the statute changed in 2013 that any
municipality would use this section of the statute for any
involuntary annexation. As a result of the 2013 change—
“territory annexed under this section may not be considered a
part of the municipality for purposes of annexing additional
territory under section 3 or 4 of this chapter.” This means that
the municipality cannot use this boundary to meet the
12
contiguity requirement for future involuntary annexations.
• The Town of Brownsburg amended our
annexation ordinance to clearly state, “The town
is not annexing this territory under I.C. 36-4-34.1”.
• It never was annexing this territory under Section
4.1, but the town felt the need to add this for
clarification.(probably because it had been
brought to the attention of the town that the east
annexation boundary could not be included in
our annexation to determine continuity.)
13
• If involuntary forced annexation is going to be
allowed to continue, an addition to sec 4.1
needs to be added
• The recommended change: legislative addition to
section 4.1----Require that all land zoned or used for
agricultural purposes at the time of annexation
must be given the agricultural exemption under IC
36-4-3-4.1. Municipality cannot state that
annexation territory is not being annexed under
section 4.1(recommended change)
14
I agree with many of the things that attorney, Steve Buschmann spoke of at the last
meeting. I want to applaud Mr. Buschmann for suggesting changes to the
annexation statute, even though these changes are not in his best interest given the
fact that annexation remonstrators are a large part of his client base.
I am going to talk about some of the things he addressed at the last
meeting.
• He said that in 1999 the Indiana Code changed that required a court to
order an annexation not to take place if certain requirements were met.
Before this change, this only applied to an annexation in St. Joseph
County.
• The intent of the addition to the statute in 1999 was to allow this to
apply to all areas involved in annexation and not just St. Joseph County,
but due to the wording of the addition---all other annexation areas
continued to be excluded.
• It was not until the change in 2003 that allowed the court to order an
annexation not take place if certain requirements were met.
• In 2003 this was removed from (e) “this subsection does not apply to a
city located in a county having a population of more than two hundred
thousand but less than three hundred thousand.”
15
• The reason I bring this up is because when changes are made
to the statute the changes must be reviewed by several
individuals to assure that the wording will create the intended
result
• Example: Steve Buschmann suggested: Require that all land
zoned or used for agricultural purposes at the time of
annexation qualify for the agricultural exemption under IC 364-3-4.1. (He wrote this so that properties that are not zoned
agricultural but are using their property for agricultural
purposes would qualify for the agricultural exemption.)
• However, the word “qualify "as stated above, will not provide
the intended result of allowing all land zoned or used for
agricultural purposes to receive the agricultural exemption;
because the municipality can (as ours did) say the annexation
is not being adopted under the section 4.1.
16
• Mr. Buschman also spoke about statute
requirements by municipalities and indicated that
the courts do not apply consequences if the
municipalities do not follow these requirements.
– This is because there is nothing written into the statute
that applies any consequences to municipalities for
failure to follow requirements and this does not void
the annexation even if the annexation is illegal.
• If involuntary annexation is going to be allowed to
continue, many changes need to be made to the
statute so that the courts will understand the
actual legislative intent.
Forced involuntary annexation must be stopped
17
Unless remonstrators met the 65% signature requirement they cannot void an
annexation even if the annexation is illegal and there are no consequences to
municipalities for failure to follow statute requirements even if remonstrators
met the signature requirement.
• A section needs to be added to the statute that reads:
if a municipality fails to follow all of the statute requirements
that any property owner can challenge the legality of the annexation in
court…. And if the court finds that the municipality did not follow ALL
requirements in the statute, then the annexation will be declared void.
(recommended change)
This should also be added:
If the court finds that the municipality failed to follow statute
requirements the plaintiff will be awarded all attorney fees and cost
incurred in relation to the claim. (recommended change)
----If remonstrators fail even one of the statute requirement’s
they lose---18
• The statute currently allows an owner of land within ½
mile of territory proposed to be annexed to appeal the
annexation only if the territory sought is not contiguous
to the municipality.
– This does not even allow property owners in the
proposed territory to appeal if the area is not
contiguous.
– And this does not allow for an appeal for any other
reason---even if the annexation is illegal
• IC 36-4-3-15.5
Appeals after final publication of annexation ordinance; procedure; effective
date
Sec. 15.5. (a) Except as provided in subsection (b), an owner of land within
one-half (1/2) mile of territory proposed to be annexed under this chapter
may, not later than sixty (60) days after the publication of the annexation
ordinance, appeal that annexation to a circuit court or superior court of a county
in which the annexed territory is located. The complaint must state that the
reason the annexation should not take place is that the territory sought to be
annexed is not contiguous to the annexing municipality.
(*subsection (b) refers to voluntary annexation)
19
• Further, cities and towns claim that
involuntary annexation is necessary to bring in
property that is completely surrounded by a
municipality and to square up municipal
boundaries.
20
The town included these 3 parcels as pretext to contiguity to connect
the west and east areas which would otherwise be 2 separate
annexations. Done in an effort to circumvents the legislative
contiguity requirement. This does not square the boundary.
These areas are excluded from the
annexation and will be completely
surrounded by the incorporated area
This is not
squaring the
boundary
21
If you look at the previous map
• The Town of Brownsburg is creating the very situation
that cities and towns claim to be a reason for the
continued need for involuntary annexations. (The
white areas inside of the blue proposed annexation
area are excluded from the annexation and will be
completely surrounded by the incorporated area if
this annexation is allowed to continue.)
• Many property owners in the excluded areas have
failing septic systems and had previously petitioned
the town wanting water and sewer services and
wanted to be annexed. (actually this has been on
going since early 2000) These property owners were
very upset to find out that their property was
excluded from the annexation.
22
• Further, cities and towns claim that
involuntary annexation is necessary to bring in
property that is completely surrounded by a
municipality.
24
Previous map is the Town of Brownsburg. The
x’s show 4 of 5 involuntary annexations that
were introduced in March 2013.(the other
annexation introduced in March was the North
annexation territory) Notice all of the territory
surrounded by the town that is not being
annexed.
Size of annexation areas(27 Acres, 68 Properties 60
Dwellings, 159 Resident Population (Estimated), 44 Acres, 1
Property 1 Dwelling, 3 Resident Population (Estimated), 36
Acres, 2 Properties No Dwellings, 0 Resident Population
(Estimated), 404 Acres, 131 Properties 86 Dwellings, 228
Resident Population (Estimated)
25
The Indiana Advisory Commission on Intergovernmental Relations
(IACIR) municipal annexation survey completed by the Town of
Brownsburg indicates that these annexations were done to square
municipal boundaries, absorb islands of unincorporated land and
various other reasons---Further, Brownsburg claims in the survey that fire protection for all
of the annexation areas is provided by the municipality, when in
fact our fiscal plan states that fire protection is not provided by
the municipality but by the fire territory. (this will not change even
if annexed)
Most of the other information provided by the town in this survey
is also incorrect.
This would suggest that the results of this survey will provide a
gross misrepresentation of “facts” as it relates to the annexations
across the State of Indiana.
Maybe the survey that should be done is a survey to determine
how many billions of taxpayer dollars has been used (wasted) to
pay legal fees fighting against annexation remonstrance and
declaratory judgment cases?
26
This area is completely surrounded
by the incorporated area and it is
not included in theses annexations.
Elkhart annexations
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
This island is being created by one of the proposed
annexations
Proposed annexation 1 (Phase 1)
Proposed annexation 2 (Phase 1)
Proposed annexation 3 (Phase 1)
Proposed annexation 4 (Phase 1)
Proposed annexation 5 (Phase 2)
Proposed annexation 6 (Phase 2)
Proposed annexation 7 (Phase 2)
Proposed annexation 8 (Phase 2)
Proposed annexation 9 (Phase 3)
Proposed annexation 10 (Phase 4A)
Proposed annexation 11 (Phase 4)
Proposed annexation 12 (Phase 3)
Proposed annexation 13 (Phase 4)
Proposed annexation 14 (Phase 3)
Proposed annexation 15 (Phase 3)
Proposed annexation 16 (Phase 4)
The colored areas
indicate the proposed
annexations areas, these
annexations are
definitely not squaring
up the municipal
27
boundaries
• Elkhart map shows that the City is not
annexing the areas completely
surrounded by the municipality and the
16 proposed involuntary annexations
certainly are not being done to square
the municipal boundaries.
–IACIR municipal annexation surveys
completed by Elkhart did not even include
information on any of these 16 proposed
involuntary annexations.
28
• I disagree with City and Towns statement--- that
most involuntary annexations are not adversarial.
If by not adversarial they meant, that a
remonstrance was not filed--- then they are
correct.
• The reason property owners do not remonstrate
is because remonstration takes an enormous
amount of time, money and effort. (All provided
by property owners.)
• And as previously stated-- there has only been
two truly successful property owners annexation
remonstrance in the history of Indiana.
• Municipalities use their employees and taxpayer
dollars to fund the involuntary forced annexation.
29
Cities and towns representative spoke about selling
owners on the annexation
With involuntary annexation many towns and
cities are trying to sell something that properties
owners do not want, do not need and simply
cannot afford; but property owners have no say
in the matter.
The only way to avoid buying what the town is
selling is to take them to court. (at the property
owners expense)
30
The fiscal plan, according to the statute, must show the following:
(5) That services of a capital improvement nature,
including street construction, street lighting, sewer
facilities, water facilities, and storm water 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.
31
• By “will be provided” did the legislative intend that
the services were to be provided at the municipality
expense or was the legislative intent that the services
be provided largely, if not wholly, at the expense of
the property owner -----as stated in our fiscal plan
(Brownsburg North fiscal plan)
• So either:
– the services will not be extended unless property owners
pay
– or the services will be extended and the property owners
will be forced to pay.
Obviously it the later of the two, because the statute
says “Capital services…. will be provided… within three
years after the effective date of the annexation.”
32
How would you feel if I made you buy
something that you did not want?
• Too bad you have to buy it anyway
– It does not matter if you cannot afford it
• Municipalities' do not care if property
owners are forced into bankruptcy or
foreclosures on their property because of the
associated cost of annexation (increased
taxes, availability fees, water and sewer hook
up fees, monthly water and sewer fees, etc.)
33
*More about Elkhart annexation
• Property owners from Area 8 filed a
remonstrance against the annexation.
• Area 8 has 24 parcels(the city claims 33 parcels)
• The City claims the area is needed and can be
used but does not indicate what the area is
needed and can be used for.
• 19 parcel owners signed opposing the annexation
which is 79 % of the landowners (65% is required)
(There are actually only 12 different property
owners because some of the owners have more
than one parcel)
34
35
• *Of these 12 owners opposing this annexation --most of these
owners are retired and are on fixed incomes.
• The city plan indicates that all property owners will have to
connect to city water and sewer services (they will have a abandon
there septic system as by statue, but will be allowed to use their
well for lawn watering, washing cars, filling pools etc, but the well
must be disconnected from the house plumbing)
• The property owners will be responsible for paying availability fees,
tap fees, and connection fee for these city services; this is not an
option, it is a requirement. The property owners that cannot
afford this will likely lose their property.
• They have filed a written remonstrance but due to their limited
financial resources they were unable to afford an attorney to
represent them.
• They filed together and each property owner will be representing
themselves as required by law.
Note: I recently looked at the City of Elkhart web site to obtain the actual cost
indicated for water and sewer connection and I can no longer find this
36
information; so it has either been moved or changed.
*They meet all of the requirements in the annexation
statue to successfully stop this annexation• the Remonstrators are adequately furnished with police, fire
protection, and street and road maintenance (see IC 36-4-313(e)(2)(A))
• the annexation will have a significant financial impact on the
owners of land (see IC 36-4-3-13(e)(2)(B))
• Annexation is not in the best interests of the owners of land in
the territory proposed to be annexed (see IC 36-4-313(e)(2)(C))
• Remonstrators have attached hereto the signed remonstrance
petitions of more than “sixty-five percent (65%) of the owners
of land in the annexation territory” (see IC 36-4-313(e)(2)(D)(i)).
Fiscal plan for this area indicates that police, fire protection,
street and road maintenance services are furnished by a
provider other than the municipality.
37
*After filing their written remonstrance the
City’s representing attorney responded claiming:
• The petition is barred because it fails to state a
claim upon which relief can be granted.
• The petition is barred by the doctrines of
laches and unclean hands.
• The petition is barred because petitioners lack
standing to assert their claims.
The city request that the Court enter judgment
in its favor and against the petitioners.
38
*What are these remonstrators to do?
• They cannot not afford an attorney and they are
unsure of how to proceed.
• Remonstrators are likely to lose this fight simply
because they cannot afford to fight….. They not
only will lose this fight…. Many will lose their
property because they will be unable to pay for
what the City has forced them to buy!!!!
Involuntary annexation must be stopped
39
*More Elkhart Annexation
• Area 6 is 265 parcels– the city claims it is 60%
subdivided
– When in fact it is not subdivided, which is required by
the annexation statute
• The City did not include contiguous area of I-80
(toll road) in the annexation territory even
though the Indiana code clearly indicates that it
must be included
IC 36-4-3-2.5
"Public highway" defined
Sec. 2.5. (a) As used in this section, "public highway" has the meaning set
forth in IC 9-25-2-4.
(b) An annexation of territory under this chapter after June 30, 1996, that
includes land contiguous to a public highway must also include contiguous
areas of:
(1) the public highway; and
(2) rights-of-way of the public highway.
As added by P.L.232-1996, SEC.1.
40
41
*If the Toll road would have been included as required
by statute the city would have also had to notify
adjacent property owners--- which the city did not do
• IC 36-4-3-2.2
Notice by certified mail
(c) For purposes of an annexation of territory described
in section 2.5 of this chapter, if the hearing required
under section 2.1 of this chapter is conducted after
June 30, 2010, the notice required by this section must
also be sent to each owner of real property, as shown
on the county auditor's current tax list, whose real
property is adjacent to contiguous areas of rights-ofway of the public highway that are only included in the
annexation of territory by operation of IC 36-4-3-2.5 on
the side of the public highway that is not part of the
annexed territory.
42
*This is just another example of a municipality not
following the statute requirements but the property
owners cannot do anything about it.
• These property owners also have limited resources---the
remonstrators just got their first bill from the attorney for
$4,000; and that was just to file the written remonstrance.
• These remonstrators will likely lose their remonstrance if they
cannot afford to be represented in court by an attorney; and a
remonstrator cannot represent the group because that would be
practicing law without a license.
• If a remonstrator wanted to represent themselves they would
lack standing, because in order to have standing 65% of the
owners must oppose the annexation. (now we are back to
practicing law without a license)
Involuntary forced annexations must be stopped
43
Here is the Indiana Code that applies
remonstrance filing and determination
of signatures --Our group felt this section of the
statute was clear ---- apparently it
was not as clear as we thought…..
44
IC 36-4-3-11
Remonstrances; filing; determination of
signatures; hearing
•
Sec. 11. (a) Except as provided in section 5.1(i) of this
chapter and subsections (d) and (e), whenever territory is
annexed by a municipality under this chapter, the
annexation may be appealed by filing with the circuit or
superior court of a county in which the annexed territory is
located a written remonstrance signed by:
(1) at least sixty-five percent (65%) of the owners of
land in the annexed territory; or
(2) the owners of more than seventy-five percent
(75%) in assessed valuation of the land in the annexed
territory.
The remonstrance must be filed within ninety (90) days
after the publication of the annexation ordinance under
section 7 of this chapter, must be accompanied by a copy of
that ordinance, and must state the reason why the
annexation should not take place.
45
The Indiana Code indicates how to determine
the total number of landowners.
•
(b) On receipt of the remonstrance, the
court shall determine whether the
remonstrance has the necessary signatures.
In determining the total number of landowners
of the annexed territory and whether signers of
the remonstrance are landowners, the names
appearing on the tax duplicate for that territory
constitute prima facie evidence of ownership.
47
The Indiana code goes on to say
• Only one (1) person having an interest in each single
property, as evidenced by the tax duplicate, is considered
a landowner for purposes of this section.
• IC 36-4-3-13
Remonstrances; hearing; order; requirements
(e) ……(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.
51
Now our annexation:
We filed a remonstrance with over 65% of parcel
owners signatures. Actually we submitted
signatures of 70.66% (843 parcel owners out
of 1193 total parcels)
(Subtract a few waivers, not current owner
because property transfer took place after
owner had signed, we ended up with a total of
829 parcels signatures ) total now is 69.48%
which is still well above the 65% requirement.
54
The town filed a motion to dismiss claiming we did not meet
the 65% requirement for two reasons:
1. Town claims that signatures of a landowner had to
be signed after the ordinance was passed and
published. (all of our signed parcels signatures came
after the ordinance was introduced and after property
owners had received the certified notice in the mail)
2. Town claims that if a parcel is multi-owned that all
landowners signatures have to be signed for that
parcel for that parcel to be counted for the purposes
of the 65% rule.
55
IC 36-4-3-11
Remonstrances; filing; determination of signatures; hearing
Sec. 11. (a) Except as provided in section 5.1(i) of this chapter and subsections (d)
and (e), whenever territory is annexed by a municipality under this chapter, the
annexation may be appealed by filing with the circuit or superior court of a county in
which the annexed territory is located a written remonstrance signed by:
(1) at least sixty-five percent (65%) of the owners of land in the annexed
territory; or
(2) the owners of more than seventy-five percent (75%) in assessed valuation of
the land in the annexed territory.
The remonstrance must be filed within ninety (90) days after the publication of the
annexation ordinance under section 7 of this chapter, must be accompanied by a
copy of that ordinance, and must state the reason why the annexation should not
take place.
(b) On receipt of the remonstrance, the court shall determine whether the
remonstrance has the necessary signatures. In determining the total number of
landowners of the annexed territory and whether signers of the remonstrance are
landowners, the names appearing on the tax duplicate for that territory constitute
prima facie evidence of ownership. Only one (1) person having an interest in each
single property, as evidenced by the tax duplicate, is considered a landowner for
purposes of this section.
56
Trial court found we did not meet the 65%
requirement because of the date of some parcel
signatures.
The town attorneys’ misrepresented the “City of Carmel v
Certain Southwest Clay Township Annexation Territory
Landowners”, 868 N.E.2d 793, 800 (Ind.2007) Supreme
court ruling. ; the Judge obviously failed to read the ruling
and the Judge, in error, relied on town's interpretation. (The
Indiana statute does not state nor imply that signatures have
to be dated after the ordinance is passed; and no one signed
opposing the annexation ordinance until after it was
introduced.)
We have filed an appeal with the appellant court.
57
Now the town once again is going to use both arguments
as to why we do not meet the 65% requirement.
This will cost the property owners even more money.
From the start, the Town of Brownsburg has filed many
frivolous motions in an effort to run us out of money.
Unlike the town, our resources are limited.
The town is using and wasting taxpayers dollars fighting
this annexation remonstrance; they do not care, after all it
is not coming out of their pockets.
58
Clarifications need to be added to the filing and determination of
signature section of the annexation statute.
IC 36-4-3-11 Remonstrances; filing; determination of signatures; hearing
The remonstrance must be filed within ninety (90) days after the publication of the
annexation ordinance under section 7 of this chapter, must be accompanied by a
copy of that ordinance, and must state the reason why the annexation should not
take place.
(clarification should read)Parcels owner signatures opposing the
annexation can be obtained any time after the introduction of
the annexation ordinance. (recommended change)
(There has never been a court decision as to this issue, probably
because before the Town of Brownsburg used this argument—it
was understood that signatures could be obtained anytime after
the introduction of the ordinance since the statute does not state
otherwise; and the town simply used this argument in a desperate
attempt to invalidate our signatures;--- our group had been
informed that the town said we would never be able to get the
65% required to file a written remonstrance)
59
The other clarification to this section:
• (b) On receipt of the remonstrance, the court shall
determine whether the remonstrance has the necessary
signatures.
In determining the total number of landowners of the
annexed territory and whether signers of the remonstrance
are landowners, the names appearing on the tax duplicate
for that territory constitute prima facie evidence of
ownership. (clarification should read) Only one parcel
owner signature is required for parcel to count toward the
% required to remonstrate. (recommended change)
(Supreme court decision March 29, 2000 “Arnold v City of Terre Haute”
already supports this addition; the clarification will help to prevent
City's and Towns from filling frivolous motions claiming otherwise—
which is done in an effort to deplete remonstrators financial
resources.)
60
• One of the farmers (that owns multiple
parcels) in our annexation area told me that
he was against annexation but would not sign
the petition to remonstrate the annexation
because he had been told that if he did not
fight the annexation that the town would
allow him to continue to farm. He was afraid
that if he signed a petition against the
annexation and we lost that the town would
make sure to change zoning to prohibit
farming of his property.
61
• The town also had told him that even if we got
the required of signatures that the annexation
cannot be stopped because the town has met
the requirements in the statute.
• I was told the same thing by one of the council
members. Apparently the town attorneys
failed to realize that the annexation statute
had changed in 2003. ( it was implied that we
did not have enough money to fight the town)
62
*Town of Brownsburg
Ward annexation (404 Acres, 131 Properties 86
Dwellings, 228 Resident Population) remonstrance got
dismissed even though the town failed to meet the
requirements in the annexation statute.
(IC 36-4-3-3.1Written fiscal plan states: the municipality shall establish
and adopt the written fiscal plan before mailing the notification to
landowners in the territory proposed to be annexed)
– the town completely changed the fiscal plan after the
notifications had been sent to property owners.
– Actually the fiscal plan was not changed, it was an
entirely new fiscal plan, the fiscal plan still did not
meet the requirement in section 13(d) and this fiscal
plan was adopted the same night the annexation
ordinance was passed on third and final reading.
– And the town provided no reason as to why they
claimed the area was needed and can be used.
63
• *The remonstrators lost because they did not
meet the 65% signature requirement. (Their
attorney failed to file signatures of all property owners
that had signed opposing the annexation because he was
worried about the wording of the signed documents)
The number fell just below the percentage
required.
• And remonstrators lacked standing to bring a declaratory
judgment claim against the town because they were not
tax payers of the town. An amended complaint was filed
on behalf of town tax payers, but the court still ruled on
behalf of the town and dismissed the case.
• Remonstrators cannot afford to file an appeal.
Forced involuntary annexations must be stopped
64
• Cities and towns are abusing the annexation
process simply to increase municipality revenue
without regard to the effects on the people and
the other taxing bodies.
• In our situation, had the annexation went into effect
in Feb 2013 as planned, the Brownsburg School
corporation would have lost over $400,000 in
revenue in 2015 and that yearly loss of revenue
would most likely increase each year if this territory
is annexed. The fire territory would have lost approx.
$80,000 in revenue yearly, the public library loss of
revenue would have been approx. $23,000 yearly,
and Brown township loss of revenue would have
been approx. $12,000 yearly. (See provided letter to
parents from the Brownsubrg School corporation) 65
• Filing a remonstrance to annexation requires a
tremendous (huge, vast, enormous, massive,
gigantic, immense, colossal) amount of time,
effort and money;
– Large annexations make it difficult to get the required
signatures --it takes a huge amount of time to contact
all property owners needed to meet the 65%
requirement.
66
• Small areas annexation are difficult because
remonstrators do not have the financial resources
necessary to file a written remonstrance (not to
mention that one of the criteria to win an
annexation remonstrance is that remonstrators
must show it will have a significant financial impact
on them.)
• If involuntary forced annexation is going to be
allowed to continue then the requirement that
remonstrators' must show that the annexation will
have a significant financial impact should be
removed from the statute. (IC 36-4-3-13(e)(B))
(recommended change)
Cities and towns are aware of both of these hurdles
and use these situations to their advantage.
67
• Financial resources are hard to come by.
– The majority of people know this is a fight that few win.
• *Contacting owners can be difficult---Brownsburg certified letter notification was dated March 07,
2013 and the list of property owners used by the town had not been
updated since March of 2012. According to the statute-(IC 36-4-3-2.2
Notice by certified mail)
(b) …. notice must be sent by certified
mail… to each owner of real property, as shown on the county
auditor's current tax list.
Between March 16, 2012 and February 28, 2013, there were 30
property transfers (2.5 percent of the 1193 parcels that were being
annexed). In addition, 75 of Brownsburg’s certified mailings to parcel
owners were returned as undeliverable (6.3 percent of the 1193
parcels).
(statute goes on to read---(e) If the municipality complies with this
section, the notice is not invalidated if the owner does not receive the
notice.)
68
• *As a result, 100 parcel owners were not properly
notified(as required by statute) and were denied
their rights to adequate notice of and information
about the proposed annexation.
• Further, in seeking petitions of remonstrance,
Remonstrators spent significant time and
resources understanding this error and
identifying the correct parcel owners.
• Although 8.4 percent may seem like an
insignificant number, the failure to notify these
parcel owners was significant to each of them.
Further, 8.4 percent is a significant portion of the
65 percent of the parcels required to remonstrate
under IC 36-4-3-11(a)(1).
69
• *There is no penalty to the town for using an out
dated property owner list and no penalty that 75
property owners did not get their certified letter.
• *We submitted our written remonstrance and
found out that 10 of the parcels had changed
ownership and therefore that was 10 less signed
parcels that we had…… There is nothing in the
statute that allows us a chance to get the new
owner to sign opposing the annexation. (of these
new owners, I have spoken with most of them
and they too oppose the annexation, but they are
not allowed to sign and have their signature
count toward the required 65 percent.)
70
There needs to be an addition to the statute that requires the
municipality to provide a list identifing each parcel in the
annexation area.
IC 36-4-3-2.2
Notice by certified mail
•
(d) The notice required by this section must include the
following:
(7) A statement that the municipality will provide a
copy of the fiscal plan after the fiscal plan is adopted
immediately to any landowner in the annexed territory who
requests a copy.
a statement that the municipality will provide a
copy of the list identifying each parcel to be annexed
immediately to any landowner in the annexed territory who
request a copy. This list will include each parcel number,
owner name, property address, and owner contact address.
(also to be made available in spreadsheet format)
(recommended change)
71
There needs to be an addition to IC 36-4-3-11
• Signatures requirements---- after parcel signatures have
been submitted to the court with written remonstrance
and it is found that any of the signatures are no longer
valid because the person is not the current owner of the
property, the municipality must provide the
remonstrators a list of the new property owners and
after this notification is received remonstrators have an
additional 90 days to contact new property owners to
determine if they are for or against annexation.
(recommended change)
• If the municipality fails to notify remonstrators of
property owner changes, then the submitted parcel
owner signatures are valid even if the property has
changed ownership. (recommended change)
72
Most of the previous recommended
changes will be unnecessary if
Involuntary Annexation is prohibited
• Require all municipal annexations to have
51% of parcels approval at the outset; this
would be an addition to the statute and would
require multiple changes in the annexation
chapter---sections of the statue to be
repealed. (recommended change)
73
There are so many changes that need to be made to
the annexation chapter if involuntary forced
annexations are allowed to continue.
If legislature does not ban involuntary forced annexation
• Provide that in an involuntary annexation fails, if 51% of the
parcels or 51% of the assessed value files remonstrance
petitions within 180 days after publication.(currently it is 90
days after publication) Upon certification of the validity of
the remonstrance, the municipality cannot involuntarily
annex any part of the territory for 4 years.( this also prohibits
any other municipality from involuntarily annexing any area
of this territory during the 4 year period.) Removing the
remonstrance hearing process all together. (recommended
change)
• Recommend that this statute change take effect upon
passage and applies to all annexations not yet in effect
and/or in litigation. (recommended changes)
• The above changes need to be added even if involuntary
74
annexations are banned
• IC 36-4-3-1.5
Contiguous territory; determination
Sec. 1.5. For purposes of this chapter, territory sought to be
annexed may be considered "contiguous" only if at least oneeighth (1/8) of the aggregate external boundaries of the territory
coincides with the boundaries of the annexing municipality. In
determining if a territory is contiguous, a strip of land less than
one hundred fifty (150) feet wide which connects the annexing
municipality to the territory is not considered a part of the
boundaries of either the municipality or the territory. Proposed
involuntary annexation territory cannot exclude areas from the
annexation by going around the area, all areas have to be
included. Boundary lines must be squared or straight.
(recommended change)
This change will prevent towns and city's from “Cherry Picking”
areas that will bring in increased revenue and excluding areas
with problems or low revenues; as has been done with our
75
annexation area
*Addition to remonstrance hearing process
• Recommended addition to section 13--The municipality
cannot request discovery, production of documents
and/or admissions from remonstrators. (municipalities
simply use this tactic to further deplete remonstrators
financial resources; what documents would
remonstrators have that would be of any value to the
municipality.) (recommended change)
• This change probably cannot be added, but something
needs to be added to protect remonstrators financial
resources.
(discovery requested by the town from the North remonstrators--- include
33 interrogatories, 6 request for documents, 4 request for admissions) 76
*IC 36-4-3-15
Remonstrances; judgment; repeal of annexation;
effective date of annexation
• Addition to (c) (d) and (e)time periods regarding
further attempts to annex territory following a
municipality repeal of an annexation ordinance
applies to all annexation ordinances in which a
claim of appeal has been filed with the court.
(recommended changes)
Remonstrators involved in the case of “Town of Georgetown
v Edwards Community INC” , Indiana appeal decision May 8,
2008 was denied the forty-two month moratorium on
future annexation attempts by the Town because
remonstrance was facially insufficient under Section 11.
77
• Do what North Carolina did and
pass a bill that will deannex legal,
pending and completed
annexations in which the
municipalities failed to follow all
statute requirements or tried to
circumvent annexation statute
requirements. (recommend change)
78
Recommend that clarifications added to sections of
the annexation statue are retroactive. Specifically,
signature requirements for filing and determining
the % of landowners. (recommended change)
Previous clarification recommendations :
Parcels owner signatures opposing the annexation can be obtained any time after
the introduction of the annexation ordinance.
Only one parcel owner signature is required for parcel to count toward the %
required to remonstrate.
79
• The Town of Brownsburg has budgeted $450,000 in legal
fees for 2015 … this amount is budgeted due to anticipated
legal fees associated to the remonstrance to annexation.
• Legal fees budgeted for 2014 was $425,000 due to the
anticipated legal fees associated with annexations; we do
not know how much the town has spent so far in legal fees,
we do know that they have paid $90,000 in legal fees
related to request for public documents
----to me that seems a little excessive---Why do so many of our public documents request go
through the town attorneys’? One may think that the town is
trying to hide something. This type of action by the town
makes me question governmental transparency.
Public documents are supposed to be just that---PUBLIC.
80
Involuntary forced
annexations must be
stopped
This is the end of the presentation, but not the
end of the fight.
Brownsburg North Group Against Annexation
81
Please
Put a Stop to Involuntary Forced
Annexations
Thank you
• Recommended changes are on the following
slides 14, 18, 59, 60, 67, 71-79
82
•
•
•
•
Brownsburg North Group Against Annexation.
$18,053.80 is the total expenses paid out of our FABA PAC to date.
$16,019 to date for attorney fees --Keep in mind most of the brief writing has
been done by myself and another individual in our group. Briefs are sent to our
attorney for review, any necessary changes made and then filed; saving over
$40,000 in legal fees. (Our court CCS (chorological case summary) is 5 pages
long—town has filed many frivolous motions in an effort to deplete our financial
resources.)
$450 paid to courts for filing fees-- $200 trial court and $250 to appeal court. (Of
interesting note--- municipalities do not have to pay filing fees even if it is the
municipality that files the appeal.)
$1,584.80 for copying supplies, P.O. Box fees, and other miscellaneous fees.
• Before PAC was formed– approx. $4,000.00 or more was spent for postage, web
site design and maintenance, advertising cost including--- news paper ad, yard
signs, t-shirts, public documents request coping fees, etc.
• This does not include the thousands upon thousands of hours spent by many
gathering information, learning and understanding annexation law, reviewing
past annexation remonstrance cases, collecting signatures, stuffing envelopes,
tracking signed petitions, organizing materials, tracking donations and filing
required periodic PAC information forms, finding an attorney, writing briefs, etc.
83
Download

The recommended change