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Wednesday, February 02, 2011

Ind. Decisions - Supreme Court reaches decision on Bargersville annexation dispute

On Jan. 20, 2011 the Supreme Court heard oral argument in the case of City of Greenwood v. Town of Bargersville. (Here is a list of earlier ILB entries.)

The Court apparently came to its conclusion on Saturday, January 29, 2011. There is no ruling or order available online, but the information may be gleaned from the Clerk's docket. Justice Sullivan had recused himself on the day of the oral argument, January 20, 2011. On Jan. 29, when the remaining justices split 2-2, Appellate Rule 58C kicked in and the Court of Appeals decision was reinstated (see quotes from the now certified COA decision below). First, here are the pertinent docket provisons:

DATE TEXT
1/07/11 ISSUED THE ENCLOSED ORDER REVISING TIME FOR ORAL ARGUMENT:
1/07/11 THE COURT HAS DETERMINED THAT THE TIME SCHEDULED FOR THE
ORAL ARGUMENT IN THE ABOVE-CAPTIONED CASE NEEDS TO BE CHANGED.
THE ARGUMENT, WHICH WILL STILL BE HELD IN THE COURTROOM OF THE
INDIANA SUPREME COURT, 317 STATEHOUSE, 200 W. WASHINGTON ST.,
INDIANAPOLIS, INDIANA, NOW WILL TAKE PLACE AT THE FOLLOWING
DATE AND TIME:
JANUARY 20, 2011, AT 10:45 A.M.
ALL OTHER ASPECTS AND DIRECTIVES CONTAINED IN THIS COURT'S
PREVIOUS "ORDER SCHEDULING ORAL ARGUMENT" REMAIN IN PLACE.
RANDALL T. SHEPARD, CHIEF JUSTICE
(ORDER REC'D. 1/7/11 AT 10:00 A.M.) ENTERED 1/7/11 KM
1/07/11 ****** ABOVE ENTRY MAILED ******
1/11/11 APPELLEE'S_ ACKNOWLEDGMENT OF ORDER SETTING ORAL ARGUMENT (6)
CERTIFICATE OF SERVICE (6) BY MAIL 1-11-11
ENTERED ON 01/11/11 LH
1/13/11 APPELLEE'S ACKNOWLEDGMENT OF ORDER SETTING ORAL ARGUMENT (6)
CERTIFICATE OF SERVICE (6) MAIL 01/13/11
ENTERED ON 01/13/11 MS
1/14/11 AMICI CURIAE ACKNOWLEDGMENT OF ORDER SETTING ORAL ARGUMENT (6)
CERTIFICATE OF SERVICE (6) BY MAIL 1-14-11 *INDIANA MUNICIPAL
MANAGERS ASSN, ET AL* ENTERED ON 01/14/11 LH
1/20/11 ISSUED THE ENCLOSED ENTRY:
1/20/11 IT IS MY PRESENT INTENTION NOT TO PARTICIPATE IN THIS
CASE.
FRANK SULLIVAN, JR.
JUSTICE OF THE INDIANA SUPREME COURT
(ENTRY REC'D. 1/20/11 AT 9:45 A.M.) ENTERED 1/20/11 KM
1/20/11 ****** ABOVE ENTRY MAILED ******
1/29/11 ISSUED THE ENCLOSED ORDER:
1/29/11 ACCORDINGLY, THE COURT OF APPEALS OPINION REPORTED AS CITY
OF GREENWOOD V. TOWN OF BARGERSVILLE, 930 N.E.2D 58 (IND. CT.
APP. 2010), IS NO LONGER VACATED AND IS REINSTATED AS COURT OF
APPEALS PRECEDENT. SEE APP. R. 58(A) & (C).
THIS APPEAL IS AT AN END.
RANDALL T. SHEPARD, CHIEF JUSTICE
SHEPARD, C.J., AND DAVID, J., WOULD AFFIRM THE TRIAL COURT.
DICKSON AND RUCKER, JJ., WOULD REVERSE THE TRIAL COURT.
SULLIVAN, J., DID NOT PARTICIPATE.
(ORDER REC'D 01/31/11 AT 9 A.M.) ENTERED ON 01/31/11 KJ
1/31/11 ****** ABOVE ENTRY MAILED ******
From the COA opinion, certified Feb. 1, 2010:
The City of Greenwood, Indiana ("Greenwood'), Felson and Jane Bowman, and Zinkan & Barker Development Company, LLC ("ZBDC") (collectively, "Appellants"), appeal the trial court‘s order denying their cross-motion for summary judgment and granting the motion for summary judgment filed by the Town of Bargersville, Indiana ("Bargersville"), in which the court upheld Bargersville‘s annexation of 1847 acres ("the Territory') within three miles of Greenwood‘s city limits and voided Greenwood‘s attempted annexation of the Territory. Because we find as a matter of law that fewer than 51% of the Territory‘s landowners consented to Bargersville‘s annexation pursuant to Indiana Code Section 36-4-3-9, we reverse and remand. * * *

In sum, based solely on the plain language of the sewer service agreements affecting at least 407 of the parcels in the Territory – that is, at least 55% of the total number of parcels – we conclude as a matter of law that those agreements (as well as any other agreements with the same or similar wording) do not constitute valid consent to Bargersville‘s annexation pursuant to Indiana Code Section 36-4-3-9. In so concluding, we express no opinion on Appellants‘ collateral arguments regarding the validity of those agreements. Likewise, we express no opinion on the validity of the remaining documents on which both the Bargersville Town Council and the trial court relied in finding that 51% of the landowners in the Territory had consented to Bargersville‘s annexation. Even assuming the validity of those documents, far fewer than 51% of the landowners in the Territory consented to Bargersville‘s annexation. Therefore, we reverse the trial court‘s grant of summary judgment in favor of Bargersville and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on February 2, 2011 03:10 PM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions