ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK E. GIAQUINTA JAMES P. FENTON
ROBERT W. EHERENMAN ALAN VERPLANCK
Haller & Colvin, P.C. Eilbacher Scott, P.C.
Fort Wayne, Indiana Fort Wayne, Indiana
CHEMICAL WASTE MANAGEMENT ) OF INDIANA, L.L.C., a Delaware limited ) liability Company, and as successor in interest ) to Chemical Waste Management of Indiana, ) Inc. and TC, Inc., ) ) Appellant-Plaintiff, ) ) vs. ) No. 02A03-0008-CV-299 ) THE CITY OF NEW HAVEN, ALLEN ) COUNTY, INDIANA, ) ) Appellee-Defendant. )
OPINION FOR PUBLICATION
Montagano v. City of Elkhart, 149 Ind. App. 283, 286, 271 N.E.2d 475,
As a threshold matter, we must address New Havens contention that CWMI lacks standing to bring a taxpayer declaratory judgment action. See footnote According to New Haven, one who qualifies as a remonstrator may not also bring a taxpayer action and, therefore, CWMI lacks standing to pursue its taxpayer declaratory judgment claim. Appellees brief at 31.
In addressing New Havens contention, we initially note that there are only two methods of challenging a citys annexation. Deaton v. City of Greenwood, 582 N.E.2d 882, 885 (Ind. Ct. App. 1991). The first, remonstrance, is the exclusive manner for landowners [of the annexation area] to obtain relief from annexation proceedings. Id. The second, a declaratory judgment suit, is available only to taxpayers of the annexing city. Id.
New Haven relies upon Montagano, 149 Ind. App. 283, 271 N.E.2d 475 and City of Muncie v. Lowe, 705 N.E.2d 528 (Ind. Ct. App. 1999), trans. denied, for its assertion that CWMI lacks standing to bring both a taxpayer declaratory judgment action and a remonstrance claim. The plaintiffs in Montagano were resident taxpayers of the annexing city but did not own land in the annexation area. 149 Ind. App. at 285, 271 N.E.2d at 477. The issue before our supreme court was whether resident taxpayers of a city who are neither residents nor owners of land in the area to be annexed may challenge an annexation ordinance by a taxpayers [declaratory judgment] suit. Id. at 477. The court concluded that the plaintiffs had standing to bring their claim. Id. at 480. In direct contrast to Montagano, the plaintiffs in Lowe were property owners in the annexation area but were not taxpayers of the annexing city. 705 N.E.2d at 533. This court observed that under these circumstances, the plaintiffs exclusive means of challenging the annexation was to file a remonstrance petition. Id. Inasmuch as the plaintiffs in Montagano and Lowe were not qualified as both remonstrators and city taxpayers, we reject New Havens assertion that those cases stand for the proposition that remonstrance is the exclusive avenue of relief for one who fits both criteria.
Here, CWMI owns property in the annexation area as well as other real estate within New Havens municipal jurisdiction. R. at 408. As such, CWMI qualifies as both a remonstrator and as a taxpayer of the annexing city. Because neither statutes nor case law establish that a remonstrance petition and a taxpayer declaratory judgment action are mutually exclusive, we conclude that CWMI has standing to bring both causes of action.
I.C. § 36-4-3-7(a) (emphasis supplied). New Havens annexation ordinance was published on
October 21, 1998. Thus, according to I.C. § 36-4-3-7(a), absent any
remonstrance and appeal, the ordinance could come into effect, at the earliest, on
December 21, 1998.
However, Section four of the annexation ordinance states: This Ordinance shall be in full force and effect from and after its passage by the Common Council, approval by the Mayor and legal publication required by law. R. at 68. The ordinance was passed and adopted by the Common Council and approved by the Mayor on October 15, 1998, and became effective according to the language in Section four on the publication date of October 21, 1998. As such, the annexation ordinance came into effect by its own terms within sixty days of publication in contravention of I.C. § 36-4-3-7(a) and before expiration of the mandatory sixty-day remonstrance period. According to CWMI, the ordinance is void ab initio because New Haven does not have the power or jurisdiction to enact an annexation ordinance containing an effective date that falls within the sixty-day remonstrance period provided for by the annexation statute.
Similarly, CWMI asserts that New Havens annexation of the Annexation area is void because Section three of the ordinance illegally expedites the effective date of annexation before the expiration of the remonstrance period. Appellants brief at 21. I.C. § 36-4-3-7(a) states that an annexation ordinance is effective at least sixty days after its final publication absent a remonstrance proceeding, and I.C. § 36-4-3-8, permits a municipality to delay the effective date of the annexation beyond the remonstrance period. Drake v. City of Fort Wayne, 543 N.E.2d 1145, 1149 (Ind. Ct. App. 1989), disapproved of in part on other grounds by City of Hobart v. Chidester, 596 N.E.2d 1374, 1378 (Ind. 1992). Moreover, I.C. § 36-4-3-14 provides that pending [any] remonstrance, and during the time within which the remonstrance may be taken, the territory sought to be annexed is not considered a part of the municipality. Thus, the earliest that New Havens annexation could become legally effective was after expiration of the sixty-day remonstrance period on December 21, 1998, but New Haven could designate a later effective date. However, Section three of New Havens annexation ordinance states that the annexed area shall become part of the City of New Haven on December 1, 1998, which is twenty days before the legally permissible effective date. R. at 68. Thus, Section three contains an illegal effective date for the annexation.
In addressing whether the illegal effective dates render the entire annexation ordinance invalid, we note that an ordinance is presumed valid. City of Fort Wayne v. Kostopoulos, 704 N.E.2d 1069, 1070 (Ind. Ct. App. 1999). We also note that rules relating to statutory construction are to be applied in construing ordinances. Hobble ex rel. Hobble v. Basham, 575 N.E.2d 693, 699 (Ind. Ct. App. 1991). A basic rule of construction is that if one section of a city ordinance or legislative act can be separated from the other sections and upheld as valid, it is the duty of the court to do so. Id. Where the invalid portion is distinctly separable from the remainder and the remainder is in itself complete, sensible, and capable of execution, the invalid portion may be rejected and the remainder permitted to stand as valid. Id. However, where the invalid provisions of an ordinance are not distinct and separable from the other portions of the ordinance, the entire ordinance is void. S. Ind. Ry. Co. v. City of Bedford, 165 Ind. 272, 274 75 N.E. 268, 269 (1905).
Here, the annexation statute contains no language mandating the inclusion of a specific effective date and, therefore, New Havens inclusion of an effective date was purely discretionary. See I.C. §§ 36-4-3-1 to 22. Absent a specific effective date in the annexation ordinance, the annexation would take effect pursuant to the terms of the statute. Specifically, I.C. § 36-4-3-7(a) establishes that, absent a remonstrance, the ordinance will take effect at least sixty (60) days after its publication and upon the filing required by section 22(a) of this chapter. Similarly, I.C. § 36-4-3-14 establishes that the annexation becomes effective after the remonstrance period or, if a remonstrance is pending, when the remonstrance is resolved. Inasmuch as the statute provides a default mechanism for determining the effective date of the ordinance and annexation, if the section of the ordinance that contains the illegal effective date can be separated from the other sections, that section will be rejected and the ordinance and annexation will be upheld as valid. See Hobble, 575 N.E.2d at 699.
New Havens annexation ordinance is composed of four sections. Section one describes the annexation area and declares that it is to be annexed to New Haven. Section two states that the annexation area shall become a part of Councilmanic District Number 5 of New Haven. Section three contains the illegal effective date and states that the annexed area will become part of New Haven on that date, and Section four states that the ordinance shall be in force and effect from and after its passage by the Common Council, approval by the Mayor, and legal publication as required by law. R. at 68. Section three, containing the illegal effective date of the annexation, and Section four, which results in an illegal effective date of the ordinance, are plainly severable from Sections one and two, which are complete and capable of execution by themselves
Nevertheless, CWMI asserts that, when a city includes effective dates that fail to comply with the annexation statute, the whole ordinance fails of its purpose and is void. Appellants brief at 23. However, CWMI has failed to establish why separating the invalid provisions will not cure the defect, and the cases it cites in support of its argument are inapposite to the case at bar. Specifically, CWMI relies upon Southern Indiana Railway Co. v. City of Bedford, 165 Ind. 272, 75 N.E. 268 (1905), City of Indianapolis v. College Park Land Co., 187 Ind. 541, 118 N.E. 356 (1918), and Lohm v. State, 177 Ind. App. 488, 380 N.E.2d 561 (1978).
The ordinance at issue in Southern Indiana Railway Co., is distinguishable from the New Haven ordinance at issue here, inasmuch as the ordinance in Southern Indiana Railway Co., contained no separate provisions and was, therefore, incapable of severance. In City of Indianapolis, 187 Ind. at 541, 547, 118 N.E. 356, 359 (1918), our supreme court addressed, among other things, the validity of a 1915 city ordinance pertaining to the provision of gas and water services to the municipality. The court determined that if the laying of service pipes abutting property with gas mains could not be enforced under the provisions of the ordinance at issue, the whole ordinance failed of its purpose. Id. The invalid provision of the ordinance could not be separated from the whole to give effect to the purpose of the ordinance and, thus, the court concluded that the entire ordinance was void. Id. Here, the purpose of the ordinance is the annexation of designated property by New Haven. The annexation area and the Councilmanic District to which it will be assigned are clear from Sections one and two of the ordinance, and the effective annexation date is ascertainable by the terms of the statute. Thus, deletion of the invalid portion of the New Haven ordinance does not defeat the objective of the ordinance.
CWMI cites Lohm, 177 Ind. App. 488, 380 N.E.2d 561, to support its argument that, once New Haven voluntarily included an effective date in its annexation ordinance, it was required to choose a date beyond the sixty-day remonstrance period. Appellants brief at 24. However, Lohm holds that a statute containing an invalid effective date cannot take effect until after the filing in the counties as required by the Indiana Constitution. Lohm, 177 Ind. App. at 491, 380 N.E.2d at 565. It does not stand for the proposition that an improper effective date renders an entire statutory enactment void ab initio.
Thus, we conclude that upon applying the doctrine of severability to separate Sections three and four from the ordinance, the remainder of the ordinance is sensible and capable of execution. Accordingly, the ordinance is valid and the trial court did not err. See S. Ind. Ry. Co., 165 Ind. at 274, 75 N.E. at 269.
. . . .
(5) That services of a capital improvement nature, including street construction, street
lighting, sewer facilities, water facilities, and stormwater drainage facilities, will be provided to
the annexed territory within three (3) years after the effective date of the
annexation, in the same manner as those services are provided to areas within
the corporate boundaries, that have similar topography, patterns of land use, and population
density, and in a manner consistent with federal, state, and local laws, procedures,
and planning criteria.
I.C. § 36-1-3-13(d). According to our supreme court:
The main concern of Ind.Code § 36-4-3-13(d)(4) and (5) is ensuring that services
provided to the annexed territory are equivalent to services existing in the City.
The qualification in (d)(4) and (5), that services be equivalent to those
in the City with similar topography, patterns of land use, and population density,
provides a guidepost for cities in determining what services should be provided to
the annexed territory. It would be unreasonable to require the City to
provide services to the annexed territory that are not needed because of differences
in topography, patterns of land use, and population density. For example, storm
drains may be provided in neighborhoods which are very flat and have no
natural drainage; such drains are not often provided in areas where the topography
provides natural drainage. The idea is to provide like services to like
Chidester I, 596 N.E.2d at 1378.
CWMI relies upon our supreme courts opinion in Chidester I, for its contention that New Havens policy of providing the annexation area with certain capital improvement services on an as needed basis is inconsistent with the requirements of I.C. § 36-1-3-13(d)(5). Appellants brief at 38. In that case, our supreme court determined that I.C. § 36-1-3-13(d)(5) requires the city to spell out what services it plans to provide to the annexed area. Chidester I, 596 N.E.2d at 1377. According to CWMI, this requirement comports with the purpose of the fiscal plan, which is to: 1) allow landowners to make an intelligent decision about remonstrating against an annexation; 2) allow the trial court to review the annexation to ensure that the municipality is making more than vague promises regarding the municipal services to be provided; and 3) provide a basis for landowners to enforce a municipalitys promise of services after the annexation is complete. Appellants brief at 38; see Chidester I, 596 N.E.2d at 1378.
In Chidester I, the issue before our supreme court was whether comparisons between the annexation area and the comparable area must be set out in the citys fiscal plan. 596 N.E.2d at 1377. It was not until this case came before the court for the second time, in Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994) (Chidester II), that the court was called upon to decide whether the citys fiscal plan met the statutory requirement of providing capital and non-capital services to the annexation area equivalent to those provided in the comparable areas. In addressing this issue, our supreme court accepted the trial courts interpretation of I.C. §36-4-3-13(d)(5), as requiring that the city employ the same policy with regards to the capital services in the annexed area that it uses in the comparable area. Id. at 912 (emphasis supplied). Specifically, the court considered Hobarts policy with respect to the provision of sanitary sewers in the annexation area. Id. It observed that many residential areas in the City of Hobart were on a septic system or served by private sanitary facilities; that Hobarts policy was that if it was a large lot, relatively low density residential development, it would remain on a septic system unless the developer provided a sewer, and that the same policy had been adopted for the annexation area. Id. The court concluded that this uniform policy fulfilled the requirements of I.C. § 36-4-3-13(d)(5) that services be provided to the annexed area in the same manner as they are provided to the comparable area. Id.
In the case at bar, New Haven has adopted a policy of extending capital services into the annexation area on an as-needed basis. Under this policy, New Haven will not extend capital services for industrial or other development until it receives firm commitments for development. New Haven apparently employs this policy because proposed development plans do not always come to fruition, because the type and extent of the services required often depends upon the nature and scope of the development, and because it is a waste of municipal resources to provide services that are not required. R. at 1090-91, 1511. The fiscal report and evidence establishes that New Haven also makes capital improvements on an as needed basis in the comparable area. R. at 612-13, 724-25. As New Haven applies a uniform policy for the provision of capital services to both the annexation area and the comparable area, we conclude that New Haven has fulfilled the requirements of I.C. § 36-4-3-13(d)(5) that services be provided to the annexed area in the same manner as they are provided to the comparable area. See id. We also conclude that New Haven is not required to provide a cost estimate greater than zero for capital improvements that are not needed in the annexation area.
Nevertheless, CWMI contends that New Havens policy of providing capital services as needed, is insufficient to fulfill the requirements of I.C. § 36-4-3-13(d)(5) and the enforcement purpose of the statute because CWMI has no ability to enforce such an illusory promise. Appellants brief at 41; Appellants reply brief at 1. However, New Havens evidence at trial established that New Haven makes its determination on the basis of a firm commitment for development, the nature of that development, and the results of feasibility studies regarding the type and scope of services required. R. at 1091-93, 1502, 1511. Accordingly, New Havens policy is reasonable and sufficiently definite to satisfy the requirements of the statute.
CWMI also contends that New Haven must provide the annexation area with a paved road and accessibility to fire hydrants and municipal water service in order to comply with the requirement of I.C. § 36-4-3-13(d)(5) that like services be provided to like areas. Appellants brief at 12-13. In addressing this contention, we are mindful that the New Havens determination of which capital improvement services are required must be judged as of the date of passage of the annexation ordinance. § 36-4-3-13(d).
According to CWMI, because Seiler Road is paved, New Haven is obliged to upgrade Paulding Road from a gravel to a paved surface in order to comply with the like services requirement of § 36-4-3-13(d)(5). However, it is undisputed that Seiler Road services a residential subdivision, whereas Paulding Road is presently used only for agricultural services and is one of the least traveled roads in the New Haven area. R. at 1025-26. See footnote Professor Kelly, CWMIs planning expert, conceded that a gravel road is perfectly adequate for agricultural uses. R. at 1373. He also testified that the gravel surface is adequate to service the three dwellings presently located in that area. R at 1375. Further, it is undisputed that there are no present plans for industrial or other development in the annexation area, Appellants App. at 15, and, while the annexation area is zoned for industry, New Havens policy and plan for extending capital services to that area is based upon concrete and firm development plans, not upon zoning. Thus, when the annexation ordinance was passed, an upgraded road service was not warranted in the annexation area. Therefore, New Haven did not violate I.C. § 36-4-3-13(d)(1) and (5) by failing to provide for an upgrade to Paulding Road in its fiscal plan.
CWMI also asserts that New Haven must provide municipal water service and fire hydrants to the annexation area, because such services are available in the annexation area. In its fiscal plan, New Haven promises to extend the current water services as needed due to industrial or other development. Appellants App. at 24. The record reveals that there were no existing plans for industrial or other development in the annexation area at the time that the ordinance was passed. Appellants App. at 15. Further, while CWMI asserts that municipal water service is available to the comparable area, the municipal water lines lie in the vicinity of the comparable area and are used to supply nearby fire hydrants, but they have not been extended to the residences in that area. R. at 1339, 1511. Moreover, while fire hydrants are located to the north and east of the comparable area, they are not there to serve that locale. Indeed, Chief Bennett of the New Haven Fire Department testified that it was more efficient to use the tanker trucks to suppress a fire in the comparable area than to hook up to the hydrants. R. at 675. Thus, with respect to municipal water and fire hydrants, the annexation area is not being deprived of capital services that are being provided to the comparable area and there is no current need for those services in the annexation area. Accordingly, New Haven is under no obligation to provide for the extension of municipal water and fire hydrants to the annexation area in its fiscal plan or to include a cost estimate greater than zero for those services. Thus, the trial court did not err in denying CWMIs T.R. 41(B) motion and in its application of I.C. § 36-4-3-13(d)(1) and (5).
After the plaintiff or party with the burden of proof on an issue,
in an action tried by the court without a jury, has completed the
presentation of his evidence thereon, the opposing party, without waiving his right to
offer evidence in the event the motion is not granted, may move for
a dismissal on the ground that upon the weight of the evidence and
the law there has been shown no right to relief.