The opinion
Jun 02 2015, 8:28 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Nicholas K. Kile Stephen C. Unger
Mark J. Crandley Paul D. Vink
Barnes & Thornburg LLP Bradley M. Dick
Indianapolis, Indiana Bose McKinney & Evans LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Town of Zionsville, Indiana, June 2, 2015
Appellant-Defendant, Court of Appeals Cause No.
06A01-1410-PL-432
v. Appeal from the Boone Superior
Court
The Honorable Rebecca M. McClure
Town of Whitestown, Indiana, Cause No. 06D02-1406-PL-64
and Angel Badillo,
Appellee-Plaintiff
Bailey, Judge.
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Case Summary
[1] The Town of Zionsville (“Zionsville”) appeals the entry of summary judgment
against it and in favor of the Town of Whitestown and Angel Badillo
(collectively, “Whitestown”) with respect to the parties’ claims and
counterclaims concerning 1) Zionsville’s proposed reorganization with Perry
Township, in Boone County, and 2) Whitestown’s proposed annexation of
portions of Perry Township.
[2] Zionsville’s appeal presents novel questions concerning the construction of
numerous provisions of the Indiana Government Modernization Act of 2006
(“the Act”), see Ind. Code § 36-1.5-1-1 et seq., and how provisions of the Act
operate in conjunction with other statutes that regulate the operation of local
governments in Indiana. The trial court concluded at summary judgment that,
even with the Act’s significant liberalization of the rules concerning
reorganization and territorial boundary-drawing at the level of local
government, Zionsville cannot “leap-frog” Whitestown in an effort to
reorganize with portions of Perry Township which are not contiguous with
Zionsville. Appellees’ Br. at 1.
[3] Zionsville appeals. We reverse and remand.
Issue
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[4] Zionsville presents for our review several issues, which we present as the single
issue of whether the trial court erred when it granted summary judgment for
Whitestown on its claims and on Zionsville’s counterclaims. 1
Facts and Procedural History
[5] In 2010, Zionsville reorganized with two townships in Boone County, Eagle
Township and Union Township (“the 2010 Reorganization”). Zionsville’s
town boundaries were entirely within Eagle Township prior to the
reorganization. The 2010 Reorganization resulted in the dissolution of the
separate township governments of Eagle and Union. All government functions
previously carried out by the townships were consolidated into Zionsville’s
governmental bodies, and portions of the territory previously held by the
townships were absorbed into Zionsville.
[6] At the time of the 2010 Reorganization, portions of Whitestown were in Eagle
Township. Other portions of Whitestown were in Perry Township, which
shared a border with the southwest corner of Eagle Township, and still other
portions lay in Worth Township. See Appellees’ Br. at 7.
[7] In 2013, Whitestown adopted an ordinance to annex a portion of land in Perry
Township, which was to be used as a home for Whitestown’s planned Waste
1
The trial court’s order addresses a counterclaim by Zionsville alleging breach of contract related to certain
interlocal agreements. Zionsville did not address this matter in its appeal, and we accordingly leave the trial
court’s entry of summary judgment on that question undisturbed.
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Water Treatment Plant (“the 2013 Annexation”). A remonstrance was filed
and the case is presently pending before this Court. See Docket for Ind. Ct.
App. Cause No. 29A05-1409-MI-00437.
[8] On April 18, 2014, Perry Township adopted a resolution to consider plans to
reorganize with Zionsville. On April, 21, 2014, Zionsville also adopted a
similar resolution.
[9] On April 22, 2014, one day after Zionsville adopted its resolution, Whitestown
introduced four proposed annexation ordinances for territory within Perry
Township, and for territory within the boundaries of Eagle Township that
Zionsville had not included in the 2010 Reorganization (“the 2014
Ordinances”). All of the territory sought to be annexed under the 2014
Ordinances was also within the scope of territory to be incorporated in
Zionsville under the 2014 Zionsville Plan. Appellees’ Br. at 7.
[10] On May 20, 2014, Zionsville and Perry Township each adopted an identical
plan for reorganization (“the 2014 Zionsville Plan,” “the 2014 Plan,” or “the
plan”). The plan would reorganize Perry Township’s government with that of
Zionsville. Perry Township’s government would cease to exist, and all
township government functions and offices would be incorporated into those of
Zionsville.
[11] As to the territorial scope of the 2014 Zionsville Plan, all of the land included
within Perry Township but outside of Whitestown—including territory subject
to the 2013 Annexation—would be incorporated into Zionsville. Further, the
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2014 Zionsville Plan included provisions that would redraw the existing
boundaries of Zionsville to include portions of land that had previously been
part of Eagle Township prior to the 2010 Reorganization, but which had not
been included in that reorganization. In sum, then, the 2014 Plan would
incorporate into Zionsville all the territory encompassed by the 2014
Ordinances adopted by Whitestown, as well as the remainder of Perry
Township.
[12] None of the portions of Perry Township that the 2014 Zionsville Plan identified
as being part of a reorganized Zionsville included land physically adjacent to
territory that had been incorporated into Zionsville in the 2010 Reorganization.
Zionsville, however, had been providing township services within Whitestown
throughout the geographic areas that previously belonged to Eagle Township,
up to the boundary between Perry and Eagle Townships.
[13] On June 24, 2014, Whitestown filed suit against Zionsville, challenging the
validity of the 2014 Zionvsille Plan and seeking a declaratory judgment
invalidating the Plan. Zionsville answered and filed a counterclaim, contending
that Whitestown lacked authority to pursue its annexation plans as reflected in
the 2014 Ordinances, which had been made available for public comment. 2
Whitestown and Zionsville filed cross-motions for summary judgment, which
proceeded to a hearing on September 9, 2014.
2
The 2014 Ordinances were not adopted prior to the initiation of this appeal.
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[14] On October 7, 2014, the trial court granted summary judgment in favor of
Whitestown, concluding that the 2014 Zionsville Plan was contrary to the
provisions of and therefore was not authorized by the Act. The court also
concluded that, contrary to Zionsville’s counterclaim, Whitestown had the
necessary statutory authority to pursue its annexation plans. Zionsville sought
a stay of the trial court’s order pending appeal, which the trial court denied on
October 9, 2014.
[15] This appeal ensued.3
Discussion and Decision
Standard of Review
[16] This case comes to us on appeal from the trial court’s order granting summary
judgment in Whitestown’s favor upon cross-motions for summary judgment.
On appellate review of an entry of summary judgment, we use the same
standard as that used by the trial court. Bushong v. Williamson, 790 N.E.2d 467,
473 (Ind. 2003). Summary judgment is appropriate only when the designated
evidence establishes that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). We
construe all facts and inferences therefrom in favor of the non-moving party.
3
In the interim, the public question on the 2014 Zionsville Plan proceeded to voters. Voters approved the
plan on November 4, 2014. On November 24, 2014, the Indiana Supreme Court denied a petition by
Zionsville for transfer of jurisdiction for purposes of direct appellate review.
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Bushong, 790 N.E.2d at 473. We limit our review of factual matters to the
materials the parties designated to the trial court. Id.
[17] A trial court’s entry of summary judgment comes “clothed with a presumption
of validity.” Kader v. State, 1 N.E.3d 717, 725-26 (Ind. Ct. App. 2013) (citations
and quotation marks omitted). Where, as here, the trial court enters its
summary judgment order in the form of findings and conclusions, these offer
valuable insight into the trial court’s rationale for its decision and facilitate our
review. Spudich v. NIPSCO, 745 N.E.2d 281, 290 (Ind. Ct. App. 2001), trans.
denied. A trial court’s findings and conclusions at summary judgment do not
limit our review of the order, and we may affirm a grant of summary judgment
upon any theory supported by the evidence. Id.
[18] That an appeal is from cross-motions for summary judgment does not alter our
standard of review. Mahan v. Amer. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind.
Ct. App. 2007), trans. denied. We consider each motion separately to determine
whether the moving party is entitled to judgment as a matter of law. Id.
[19] Where, as here, the core of the dispute centers upon the interpretation of
statutes, we use established rules of statutory construction “to give effect to the
General Assembly’s intent.” Ballard v. Lewis, 8 N.E.3d 190, 194 (Ind. 2014).
The best evidence of the legislature’s intent is the statutory text. Adams v. State,
960 N.E.2d 793, 798 (Ind. 2012). When a statute’s language is clear and
unambiguous, there is “no room for judicial construction.” Ballard, 8 N.E.3d at
194.
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[20] Ambiguous language, however, is open to judicial construction. Id. A statute
is ambiguous when it admits of more than one reasonable interpretation, and in
such situations we resort to rules of statutory construction to give effect to the
legislature’s intent. Adams, 960 N.E.2d at 798. We read the statute as a whole
and avoid “excessive reliance on a strict, literal meaning or the selective reading
of individual words.” Id.
The 2006 Government Modernization Act
[21] This case raises for the first time for this Court’s consideration the interpretation
of numerous provisions of 2006’s Government Modernization Act.4 First
enacted by our Legislature in 2006 with specific portions subsequently
amended, the Act affords local governments “broad powers to enable political
subdivisions to operate more efficiently by eliminating restrictions under
existing law” that might otherwise impede the efficient and cooperative
administration and functioning of local governments. I.C. § 36-1.5-1-1(1). The
Act thus “contains full and complete authority for … reorganization of political
subdivisions.” I.C. § 36-1.5-1-2(1). Where conflicts arise between the Act and
other law, compliance with the Act serves to satisfy the requirements for
complying with any conflicting laws, I.C. § 36-1.5-1-6, and the Act is to be
liberally construed to effect its purposes. I.C. § 36-1.5-1-5.
4
The Indiana Supreme Court has considered portions of the Act in the limited context of a certified question
from a U.S. District Court in a challenge to certain voting provisions of a reorganization plan. See discussion
infra of Kole v. Faultless, 963 N.E.2d 493 (Ind. 2012).
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[22] In furtherance of its purposes, the Act sets forth a new framework for the
reorganization of, and the redrawing of boundaries between, local
governments. Previously-enacted statutes concerning annexation of territory by
a local government generally required that the annexing government and the
annexed territory be contiguous with one another. See, e.g., I.C. § 36-4-3-
4(a)(1). The Act leaves those statutes undisturbed. However, the Act provides
an alternate route for local governments to incorporate other territory by means
of the wholesale reorganization of subdivisions of local government. That is,
the Act provides that certain political subdivisions may, with the consent of
certain classes of voters, adopt and enact plans that allow local government
bodies to merge with one another while redrawing territorial boundary lines.
I.C. § 36-1.5-4-1 et seq.
[23] Like prior statutes, the Act ensures that no portion of any Indiana county that
does not participate in a reorganization will be deprived of township services.
The Act does so, however, in a different manner. In prior statutes governing
the establishment and abolition of townships, our statutes provided that “any
territory in a county…not included in one (1) of the townships…is included in
the township that: (1) is contiguous to that territory; and (2) contains the least
population of all townships contiguous to that territory.” I.C. § 36-6-1-12.
[24] In contrast, the Act distinguishes between portions of a township whose
political offices have been reorganized and the remainder of the township.
Thus, when the political bodies of a township reorganize and some areas of the
township do not participate in that plan:
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the reorganized political subdivision continues to be responsible after
the reorganization for providing township services in all areas of the
township, including within the territory of a municipality in the
township that does not participate in the reorganization.
I.C. § 36-1.5-4-40.5(2)(A). This provision affords flexibility in the
reorganization of township governing bodies, while also ensuring that areas of
municipalities not participating in township reorganizations are not deprived of
township services.
[25] The flexibility envisioned by the Act is the culmination of a long period of
development in the Indiana General Assembly’s delegation of authority to local
governments, from a Dillon Rule-based approach of limited delegated authority
to a home-rule regime. See Kole v. Faultless, 963 N.E.2d 493, 495-96 (Ind. 2012)
(discussing the Dillon Rule and the use of ultra vires challenges to local
government action, and exploring forty years’ development of liberalized local
government authority in Indiana). Thus, in 2007, the General Assembly
amended the Indiana Home Rule Act such that “a unit is presumed to possess
broad powers of local government, unless the Indiana Constitution or a statute
expressly denies the unit that power, or expressly grants it to another entity.”
Id. at 496 (citing I.C. § 36-1-3-5).
[26] “Against this ever-liberalizing landscape,” the Act has afforded even broader
powers to local government to permit not only the exercise of authority and
power, but also “‘full and complete authority’ to reorganize, exercise
governmental functions under a cooperative agreement, and transfer
responsibilities between offices and officers.” Id. (quoting I.C. § 36-1.5-1-2).
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The Act creates new mechanisms vis-à-vis traditional annexation for the
incorporation into municipalities of unincorporated areas of townships. These
mechanisms favor reorganization of local governments by consent of the
governed to forced annexation.
[27] In light of all this, at issue here is whether Zionsville, as reorganized under the
2010 Plan, was denied the power to reorganize with Perry Township under the
2014 Zionsville Plan, and if Zionsville was denied such power, whether
Whitestown could properly move forward with its annexation efforts.
Mootness
[28] As a threshold issue, Whitestown argues that because Zionsville did not
successfully obtain a stay of the trial court’s summary judgment order, the 2014
Zionsville Plan was ipso facto void. The results of the election as to the 2014
Zionsville Plan were therefore of no effect, and as a result, Whitestown
contends, Zionsville’s appeal is moot. For its part, Zionsville contends that the
public question concerning the reorganization appeared on the ballot and
received a majority vote. Further, Whitestown did not seek emendation of the
ballot from county election officials, Zionsville argues, and thus the appeal can
proceed.
[29] We find the Indiana Supreme Court’s opinion in White v. Ind. Democratic Party
ex re. Parker, 963 N.E.2d 481 (Ind. 2012), instructive. In White, the Indiana
Democratic Party brought an (ultimately untimely) challenge to the eligibility of
Charlie White for the office of the Secretary of State of Indiana. Id. at 490.
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Surveying Indiana case law on election challenges, part of the White Court’s
rationale rested on the principle that Indiana law seeks to honor voters’
decisions so that “the will of the people in the choice of public officers may not
be defeated by any merely formal or technical objections.” Id. at 486 (citations
and quotation marks omitted). “[V]oters who are lawfully qualified to
participate in our democratic process may not be disenfranchised except by
their own willful or deliberate act to the extent that one who did not receive the
highest vote cast may still be declared elected.” Id. (citations and quotation
marks omitted). Thus, “[t]he existence of a fact which disqualifies, and of the
law which makes that fact operate to disqualify, must be brought home so
closely and so clearly to the knowledge or notice of the elector, as that to give
his vote therewith indicates an intent to waste it.” Id. (quoting Oviatt v. Behme,
238 Ind. 69, 74, 147 N.E.2d 897, 900 (1958)).
[30] Here, as in White, we are confronted with litigation over the proper
qualification of a choice posed to Indiana voters on an election ballot. There is
no evidence that voters intentionally sought to waste their votes on the public
question, and a majority of voters appear to have ratified the 2014 Zionsville
Plan. Law and public policy in our state favor recognizing the validity of the
choices of voters absent specific evidence that voters necessarily sought to waste
their votes. We accordingly decline Whitestown’s invitation to conclude that
Zionsville’s appeal is moot.
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Reorganization of Zionsville and Perry Township
Zionsville’s Claim to Hybrid Status under the Act
[31] Zionsville claims it was authorized to reorganize with Perry Township under
either of two provisions of the Act, in Indiana Code section 36-1.5-4-1(a):
Any of the following may reorganize under this chapter:
(2) Two (2) or more townships located entirely within the same
county. A township reorganizing under this subdivision must be
adjacent to at least one (1) other township participating in the
reorganizations;
***
(7) A township and a municipality that is located in any part of the
same township….
I.C. § 36-1.5-4-1(a).
[32] These provisions, as well as most other provisions of the Act, have not yet been
interpreted by Indiana’s appellate courts. The sole case interpreting the Act is
the Indiana Supreme Court’s decision in Kole, supra. In Kole, which involved a
certified question from the U.S. District Court for the Southern District of
Indiana, the plaintiffs sought to challenge a plan of reorganization involving the
Town of Fishers and Fall Creek Township; the two governments sought to
reorganize into a city with an elected city commission but an appointed mayor,
a novel structure for a second class city.5 Id. at 495-97. Characterizing the
5
A second class city is defined by our statutes as a city with a population of between 35,000 and 599,999.
I.C. § 36-4-1-1(a).
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General Assembly’s direction on principles of local government operation as
“ever-liberalizing,” id. at 496, and noting that the Act does not by its terms in
Section 36-1.5-4-1(a) “limit the resulting forms the reorganized political
subdivision may take,” id. at 497, the Kole Court observed:
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, than it is to require legislation spelling out every
detail of every permissible action a municipality may take. So the
General Assembly has said, several times over multiple recent decades.
Id. at 498. Based on this reasoning, the Kole Court concluded that Fishers and
Fall Creek Township could, within the scope of powers afforded by the Act,
reorganize into a city without an elected mayor.
[33] Here, Zionsville contends that it was acting within statutory authority under
Subsection 36-1.5-4-1(a) to reorganize with Perry Township. Whitestown
argues to the contrary. It contends—and the trial court agreed—that Subsection
36-1.5-4-1(a)(2) does not apply because Zionsville is a town, not a township. 6
[34] Zionsville acknowledges that it is a town in terms of its formal structure.
However, Zionsville argues that as a result of the 2010 Reorganization, it no
longer bears only the powers of a town, but also those of a township.
Specifically, Zionsville relies upon the following statutory provision:
6
The trial court also concluded that Zionsville could not proceed with the Plan based upon Subsection 36-
1.5-4-1(a)(7); because we resolve this appeal on the basis of Subsection (a)(2), we do not address Subsection
(a)(7) further.
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The following apply in the case of a reorganization under this article
that includes a township and another political subdivision:
***
(2) Except as provided in subdivision (3):7
(A) the reorganized political subdivision continues to be responsible
after the reorganization for providing township services in all areas of
the township, including within the territory of a municipality in the
township that does not participate in the reorganization; and
(B) the reorganized political subdivision retains the powers of a
township after the reorganization in order to provide township services
as required by clause (A).
I.C. § 36-1.5-4-40.5
[35] Based upon these provisions, Zionsville contends that after the 2010
Reorganization it continued to exercise the powers of a town and that it gained
the powers of a township, including the authority under Subsection 36-1.5-4-
1(a)(2) to exercise reorganization powers in the same manner as a township.
Zionsville contends that this is the meaning of the legislative language in
Subsection 36-1.5-4-40.5(2)(B), “retains the powers of a township…in order to
provide township services as required by clause (A).” In short, Zionsville
contends that it assumed a town/township hybrid status as a result of the 2010
Reorganization, and this hybrid status permitted it to act in the manner of a
township in its efforts to reorganize with Perry Township.
7
Subsection 36-1.5-4-40.5(3) pertains to the operation of interlocal agreements for provision of local
government services. Neither party argues that Subsection 36-1.5-4-40.5(3) has any bearing upon the case.
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[36] While township governments provide an array of services, see I.C. § 36-6-4-3
(designating as among the duties of a township executive fire protection in
some circumstances, provision of township assistance, weed control,
cemeteries, and insulin distribution to the poor), the Act does not delineate
what township powers are necessary to provide township services under
Subsection 36-1.5-4-4.5(2). However, some provisions of the Act make specific
exceptions from the powers accorded to municipalities that reorganize with
townships. For example, Subsection 36-1.5-4-40.5(6) specifically restricts
political subdivisions that reorganize with townships from borrowing money
under Indiana Code subsections 36-6-6-14(b) and (c), which govern the
procedures by which townships may borrow from township funds to pay for
firefighting or other emergency services.
[37] Still other provisions of the Act treat a political subdivision reorganized under
the Act as a township regardless of the formal structure selected as a result of
the reorganization plan. For example, Subsection 36-1.5-4-40.5(7) provides for
a different calculation of the ad valorem property tax levy for a reorganized
political subdivision’s firefighting fund under Indiana Code section 36-8-13-4.
Section 36-8-13-4 addresses aspects of the property tax levy pertinent to
township firefighting funds. Thus, under the terms of the Act, a reorganized
political subdivision’s firefighting fund is treated as though it is that of a
township—without regard to whether the ultimate form of the reorganized
subdivision is itself a town, a township, or some other entity.
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[38] These statutory provisions thus permit broad changes to the functioning of local
governments with few of the limitations attendant to prior statutory schemes
regulating local government, and are consonant with the Act’s express
statements of purpose, including enabling the streamlining and greater
efficiency of local government, reducing the costs to taxpayers of the operation
of local government, I.C. §§ 36-1.5-1-1(1), (2)(A) & (3), and improving the
ability of local governments to provide “critical and necessary services.” I.C. §
36-1.5-1-1(2)(B). They are also consonant with the legislature’s guidance that
the Act should be liberally construed to effect the Act’s purposes, I.C. § 36-1.5-
1-5, and with the Kole Court’s reasoning.
[39] The Act neither expressly precludes Zionsville, having reorganized with and
assumed the duties of a township, from functioning in a hybrid town/township
capacity, nor from exercising the powers of a township when initiating a
reorganization. The provisions of Subsections 36-1.5-4-40.5(6) and (7) of the
Act indicate that the legislature contemplated that reorganized political
subdivisions involving a township and another structure of government would
retain broad township powers: if the legislature had intended otherwise, there
would have been no need to restrict a reorganized political subdivision from
borrowing money for firefighting and other emergency services in the same
manner as a township. And as the Indiana Supreme Court observed in Kole,
our legislature has continually departed from the Dillon Rule regime of limited
powers, and “it is far less burdensome … to presume the existence of local
authority to act absent some express prohibition.” 963 N.E.2d at 498.
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[40] The Act affords local governments a free hand in determining their subsequent
structures, and lacks express prohibitions on Zionsville’s exercise of township
powers after its reorganization with Eagle and Union Townships. We
accordingly conclude that pursuant to Subsection 36-1.5-4-40.5(2)(B) of the Act,
Zionsville was authorized as a result of its reorganization with Eagle and Union
Townships in 2010 to act as a township under Subsection 36-1.5-4-1(a)(2) when
it adopted the 2014 Zionsville Plan to reorganize with Perry Township.
Adjacency
[41] We turn next to whether Zionsville was adjacent to Perry Township as that
term is defined within the Act.
[42] In a case where two or more townships plan to reorganize together, Subsection
36-1.5-4-1(a)(2) requires that “[a] township reorganizing under this subdivision
must be adjacent to at least one (1) other township participating in the
reorganizations.” Defining adjacency for its purposes, the Act provides, “two
(2) political subdivisions may not be treated as adjacent if the political
subdivisions are connected by a strip of land that is less than one hundred fifty
(150) feet wide.” I.C. § 36-1.5-4-2.
[43] Whitestown argues that even if, as we decided above, Zionsville could properly
proceed under Subsection 36-1.5-4-1(a)(2) with the 2014 Zionsville Plan,
Zionsville is nevertheless precluded from reorganizing with Perry Township
because no part of Zionsville’s boundaries are adjacent to those of Perry
Township. This is so, Whitestown argues, because Zionsville’s westernmost
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boundary ends where Whitestown’s easternmost boundary begins. That
boundary line is entirely within territory that belonged to Eagle Township
before the dissolution of its township government into that of Zionsville,
without any of the boundary touching on the line between Perry Township and
Eagle Township. Whitestown insists that the 2014 Zionsville Plan would see
Zionsville “leap-frog” over Whitestown to reach Perry Township, something
that was not within the legislature’s intent when it promulgated the Act.
Appellees’ Br. at 1.
[44] We think, in light of Section 36-1.5-4-40.5, that a liberal construction of the
adjacency provision cuts differently. While the Act permits political
subdivisions to reorganize and redraw their boundaries, a successor political
subdivision must still perform the duties of a predecessor political subdivision.
See I.C. § 36-1.5-4-40.5(2)(A). The language of that provision is instructive:
the reorganized political subdivision continues to be responsible after
the reorganization for providing township services in all areas of the
township, including within the territory of a municipality in the
township that does not participate in the reorganization.
Id. (emphasis added). And despite providing for boundary changes in a
reorganized political subdivision, I.C. § 36-1.5-4-37, nevertheless a reorganized
body of local government must continue to provide services for territory outside
its redrawn lines.
[45] In setting forth the effects of reorganization, however, the Act provides “all of
the participating political subdivisions, except the reorganized political
subdivision, cease to exist,” I.C. § 36-1.5-4-6(1), and goes on to set forth what
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happens to the political offices, property, and debts of the reorganizing
subdivisions. I.C. §§ 36-1.5-4-6(2)-(5). That is, the statute addresses not the
disposition of territory, but the disposition of the bureaucratic bodies of a
township, municipality, or other body of local government.
[46] Thus, the Act differentiates between the land within a township, i.e., territory
that is part of the “area[] of the township,” and the governing bodies of a
township or municipality. The statute provides that the township, including
those portions “that [did] not participate in the reorganization,” remains as a
geographic entity, even as the bureaucracy associated with governance is
reorganized. Thus, a municipality that does not participate in a reorganization
of a township remains in the township—the language of township abolition is
not used, see I.C. § 36-6-1-5, nor does the statute contemplate the prospect of a
portion of territory being entirely outside a township. See § I.C. 36-6-1-12.
[47] After the 2010 Reorganization, Section 36-1.5-4-40.5 required that Zionsville
provide township services for the parts of Whitestown that lay in Eagle
Township. The corporate political boundaries of the reorganized Zionsville
extended to the boundaries of Whitestown. But Zionsville’s role as provider of
township services extended farther than this: Zionsville was required to provide
township services within Whitestown and to the geographical boundary
between Eagle Township and Perry Township. Whitestown acknowledges that
Zionsville provided the township services of Eagle Township within the
boundaries of Whitestown—portions of Eagle Township that were not part of
the reorganization of the Eagle Township and Zionsville governments in 2010.
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Nevertheless, the language of Section 36-1.5-4-40.5(2)(A) contemplates the
ongoing status of territory outside a reorganization as still being within the
same township.
[48] Thus, the Act anticipates home rule reorganization of local government
functions unencumbered by the existing township system, but also anticipates
that reorganized local governments will be required—without the operation of
any interlocal agreement—to provide township services outside their own
boundaries. Given the statutory requirement that Zionsville provide township
services throughout the geographic territory of Eagle Township, we cannot
conclude that Eagle Township simply disappeared, with nothing in its place.
Indeed, that result would give rise to precisely the “zombie township” situation
that Whitestown argues the legislature did not intend to create. Appellee’s
App’x at 32. Zionsville’s continued operation as a township in the space left
behind by reorganization, however, places Zionsville-as-township within the
otherwise-township-less space in Whitestown, and addresses the “zombie
township” contention.
[49] Understood in this light, and interpreted liberally to give effect to the
legislature’s intent, the adjacency requirement is not to be taken as a kind of
technical, “gotcha” provision. Rather, the adjacency requirement ensures that
townships with like interests and common borders may reorganize together in
the interests of efficiency. This adjacency provision ensures that far-flung
municipalities and townships without any meaningful geographical relationship
to one another cannot reorganize together—as would have been the case had
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Zionsville, as the successor governing body of Eagle Township, sought to
reorganize with a more distant township than Perry Township. All of this
serves the purposes of the Act: to permit better cooperation among local
governments, improve the ease of operation of local government, enhance the
provision of government services, and reduce the cost of local government to
taxpayers and to the state-level government of Indiana. I.C. § 36-1.5-1-1.
[50] Crucially, the purposes of the Act and the adjacency rules of Section 36-1.5-4-2
function to differentiate the reorganization at issue in the 2014 Zionsville Plan
from an older means of extending the geographic reach of local government—
annexation. Annexation under the Indiana Code requires contiguity:
[T]erritory sought to be annexed may be considered “contiguous” only
if at least one-eighth ( ⅛ ) 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.
I.C. § 36-4-3-1.5. In certain cases involving annexation of privately-owned
land, contiguity also requires the consent of the landowners of the property
sought for annexation. Delph v. Town Council of Town of Fishers, 596 N.E.2d 294,
297 n. 4 (Ind. Ct. App. 1992).
[51] Here, Zionsville provided township services throughout the geographical
bounds of Eagle Township up to the boundary with Perry Township. That is,
Zionsville served as the township-level government for portions of Eagle
Township that, while incorporated within Whitestown, received Eagle
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Township services before and after the 2010 Reorganization. Perry Township’s
legislature adopted a plan to reorganize with Zionsville under the provisions of
the Act in order to deliver township services more efficiently within the
geographic scope of Perry Township. Whitestown, while not participating in
the reorganization, will continue to see township services provided by
Zionsville as the successor to the governmental bodies of Perry and Eagle
Townships, a necessary result of the application of the Act after successive
reorganizations of township government in Boone County.
[52] The language employed by the Act requiring that “the reorganized political
subdivision…be responsible after the reorganization for providing township
services in all areas of the township,” I.C. § 36-1.5-4-40.5(2)(A), does not
contemplate the abolition of township boundaries—only the reorganization of
township governing bodies. Zionsville prior to the 2014 Zionsville Plan was
providing township services throughout the full geographical scope of Eagle
Township—that is, up to the boundary line between Eagle and Perry
Townships—after having reorganized with the governing body of Eagle
Township. Under the 2014 Plan, Zionsville would continue to provide these
township services in Eagle and Perry Townships. The townships remain in
name and with geographic boundaries set forth in the descriptions maintained
by the county executive. See I.C. § 36-6-1-2. But the manifestation of the body
responsible for governance and services within these boundaries is established
by the Plan created in accordance with the Act. And, while the Plan may
change the form and structure of the governing body traditionally responsible
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for these matters, this flexibility in local government structure at various levels
of operation is at the heart of the Act.
[53] In light of the foregoing, we conclude that the adjacency requirement in Section
36-1.5-4-2 was satisfied. Accordingly, the trial court erred when it entered
summary judgment against Zionsville as to its ability to reorganize with Perry
Township under Section 36-1.5-4-1(a)(2).
Voting Districts
[54] Zionsville also challenges the trial court’s entry of summary judgment with
respect to the determination of voting districts for the public question on the
2014 Zionsville Plan. The applicable provision of the Act for voting districts in
a public question concerning the reorganization of two townships under
Subsection 36-1.5-4-1(a)(2), based upon which we have held Zionsville could
proceed with the 2014 Plan, provides:
A reorganization as specified in the plan of reorganization is approved
if a majority of the voters in each reorganizing political subdivision
voting on the public question approve the public question on the
reorganization. If a reorganizing political subdivision includes the
territory of another reorganizing political subdivision, the vote of
voters of a reorganizing political subdivision who also are voters in a
second reorganizing political subdivision that is geographically larger
than the first political subdivision and that includes the territory of the
first political subdivision shall be included only in the tally of votes for
the first reorganizing political subdivision in which the voters reside.
I.C. § 36-1.5-4-32(a).
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[55] Because the trial court concluded that Zionsville could not properly pursue
reorganization with Perry Township, it addressed the foregoing statute only in a
cursory manner, concluding:
The Court does find…that the [2010 Zionsville] Plan’s voting areas do
not comply with either I.C. 36-1.5-4-32(a) or (b). The Plan provides
only that a majority of voters in two (2) voting areas must approve it:
(1) the Town of Zionsville, and (2) Perry Township. Therefore, [the
Plan’s] voting areas are not consistent with the Act’s requirements for
townships reorganizing under I.C. 36-1.5-4-1(a)(2) or for a
municipality reorganizing with a township under I.C. 36-1.5-4-
1(a)(7)…
Appellant’s App’x at 25.
[56] Zionsville argues on appeal that the entire question of voting districts is moot
because an election occurred in November 2014, the issue was put to voters on
ballots, and the voters accepted the 2014 Zionsville Plan. Zionsville argues
that, mootness notwithstanding, the voting districts were proper, and in any
event Whitestown waived this aspect of its challenge because it took no action
to obtain relief from local elections officials. In response, Whitestown proposes
several possible permutations of voting districts, none of which the 2014
Zionsville Plan set forth; in the absence of these, Whitestown contends, the
2014 Zionsville Plan must fail.
[57] Because we have concluded that Zionsville could proceed under Subsection 36-
1.5-4-1(a)(2), only Subsection 36-1.5-4-32(a)’s requirements for voting districts
applies. The terms of that provision govern the counting of votes for purposes
of determining the outcome of a voter referendum on a public question where
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there are overlapping political subdivisions, both of which are reorganizing.
They apply only “[i]f a reorganizing political subdivision includes the territory
of another reorganizing political subdivision.” Id.
[58] Whitestown insists that, under the Act, Zionsville’s standing in the place of
Eagle Township (and, for that matter, Union Township) requires that each
township’s voters be counted separately, and that the pre-2010 reorganization
Town of Zionsville also be counted separately. This contention does not take
into account the difference created by the Act between political subdivisions—
that is, the political bodies elected by voters—and the territorial boundaries
established as the townships. As we observed above, it is the aim of the Act to
streamline the operation of the political subdivisions. Consonant with this,
under the terms of the Act, the votes in each of the separate “reorganizing
political subdivisions” must reach a majority. I.C. § 36-1.5-4-32(a).
[59] Here, there were only two political subdivisions at issue in the reorganization:
Perry Township and the reorganized Town of Zionsville. These were the two
political bodies seeking to reorganize together; the political subdivisions of
Eagle and Union Township had ceased to exist, and the Act thus did not
require that the votes of Eagle and Union Township be separated and counted
separately from those of the rest of Zionsville. And because Perry Township
and Zionsville did not overlap with one another, there was no statutory
requirement for the type of vote-counting procedures contemplated by Section
36-1.5-4-32.
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[60] We accordingly conclude that the trial court erred on a matter of law when it
construed the Act to require more than the two voting districts representing
Perry Township and Zionsville.8
Annexation
[61] We turn now to the counterclaim Zionsville presented to the trial court, which
alleged that Whitestown could not proceed with an effort to annex territory that
had already been identified as part of the area to be incorporated into Zionsville
under the 2014 Zionsville Plan.
[62] In the summary judgment proceedings, neither party presented evidence that
Whitestown had completed the annexation of the areas of Perry Township
designated by the 2014 Ordinances. Because we have concluded that Zionsville
was not precluded from reorganizing with Perry Township under the 2014
Zionsville Plan, thereby reversing the trial court’s entry of summary judgment,
we must address the implications of that decision for Whitestown’s annexation
efforts.
[63] Annexation and disannexation of land by municipalities is governed by Indiana
Code chapters 36-4-3 and -4. The procedures and requirements for annexation
under these statutes are distinct from the reorganization mechanisms set out by
8
We observe further that, even if the trial court had not erred on this question, nevertheless Indiana’s law and
public policy, which favors the recognition of the decisions of voters despite apparent substantive questions of
disqualification, disfavors vacation of election results where there is no evidence of the intentional wasting of
votes. See White, 963 N.E.2d at 486.
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the Government Modernization Act. In addition to the congruity requirements
discussed above, incorporated municipalities must conform to other substantive
and procedural requirements. Of particular note in the present case is the
annexation statute’s provision governing annexation of territory within
municipalities: “a municipality may not annex territory that is inside the
corporate boundaries of another municipality, although municipalities may
merge under IC 36-4-2.” I.C. § 36-4-3-2.
[64] The Act adds an additional restriction to annexations. Protecting the territories
of reorganizing political subdivisions, the Act provides:
(b) A political subdivision may not take any of the following actions
partially or wholly within a reorganizing political subdivision after the
date on which a plan of reorganization is finally adopted by all
reorganizing political subdivisions unless all reorganizing political
subdivisions agree by adopting identical resolutions:
(1) Initiate an annexation of territory.
***
(c) This chapter does not prohibit:
(1) a political subdivision subject to the reorganization from
taking an action under subsection (b) within the political
subdivision’s own boundaries; and
(2) any of the reorganizing political subdivisions from taking an
action under subsection (b) for the purpose of implementing the
plan of reorganization.
(d) A political subdivision may take an action described in subsection
(b) after the date on which the reorganization is rejected by the voters
under section 33 of this chapter.
(e) If a reorganization is approved by the voters under section 34 of
this chapter, a political subdivision may not take an action under
subsection (b) until the earlier of the following:
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(1) The plan of reorganization has been implemented.
(2) One (1) year after the date on which the reorganization is
approved under section 34 of this chapter.
I.C. § 36-1.5-4-45.
[65] In conjunction with this provision, the statute governing municipal annexations
generally provides, “If a township is a participant in a proposed
reorganization…[under the Act]… a municipality may not adopt an annexation
ordinance annexing territory within the township within the period set forth in
IC 36-1.5-4-45.” I.C. § 36-4-3-1.4.
[66] Zionsville, in its counterclaims, alleged that Whitestown could not properly
seek to annex portions of Perry Township’s territory because the annexation
was not initiated prior to the 2014 Zionsville Plan. Zionsville and Whitestown
disagree upon the meaning of “initiate” in Subsection 36-1.5-4-45(b)(1).
Zionsville would define that term as requiring, in the broad scheme of an
annexation, the adoption of a fiscal plan by Whitestown as required under
Indiana Code section 36-4-3-3.1. Whitestown disagrees, and argues that
initiating an annexation for purposes of the Act means to begin the statutory
process for annexation by first proposing an annexation in the municipal
legislature.
[67] To determine the meaning of “initiate” as used in Subsection 36-1.5-4-45(b)(1),
we turn to the plain language of Sections 36-1.5-4-45 and 36-4-3-1.4 in
conjunction with one another. “Initiate” as used in the Act must be construed
in light of the limitations upon annexation imposed by Section 36-4-3-1.4.
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Section 36-4-3-1.4, defines “initiate” for purposes of Subsection 36-1.5-4-
45(b)(1) Act by providing that “a municipality may not adopt an annexation
ordinance … within the period set forth in IC 36-1.5-4-45.” To initiate an
annexation in that context is to “adopt an annexation ordinance.” I.C. § 36-4-
3-1.4. This is a statutory requirement distinct from prior case law, which
addressed initiation of proceedings outside the context of the Act. See, e.g.,
Ensweiler v. City of Gary, 169 Ind. App. 642, 644-645, 350 N.E.2d 658, 659
(1976) (noting that “in order to be ‘first,’ a proceeding must have been validly
instituted,” and that “the city’s annexation ordinance had been introduced and
had passed two readings” before a competitive measure was filed with a county
commission).
[68] Whether the trial court erred in its summary disposal of Zionsville’s
counterclaim challenging Whitestown’s annexation effort, then, turns upon
when Whitestown adopted its annexation ordinances. Generally, “[a]n
ordinance…passed by the legislative body [of a town] is considered adopted
when it is signed by the executive. If required by statute, an adopted
ordinance…must be promulgated or published before it takes effect.” I.C. § 36-
5-2-10(a). However, our annexation statutes set forth numerous prerequisites to
the adoption of an annexation ordinance. An annexation ordinance may be
adopted between thirty and sixty days after a public hearing on the ordinance.
I.C. § 36-4-3-2.1(c). But that hearing must occur “not earlier than sixty (60)
days after the date the ordinance is introduced,” I.C. § 36-4-3-2.1(b), and the
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annexing municipality must provide written notice of the proposed annexation
ordinance and the public hearing. I.C. §§ 36-4-3-2.1(b) & (d).
[69] Under the statutes, then, if Whitestown had adopted its annexation ordinances
before Zionsville and Perry Township adopted the final 2014 Zionsville Plan,
Whitestown would have initiated its annexation before the final 2014 Plan was
adopted. But this is not the case.
[70] Both parties argue that the conventional first-in-time rules, as discussed in
Covered Bridge Homeowners Ass’n v. Town of Sellersburg, should apply in
determining when action to establish exclusive control over a subject matter has
occurred. 971 N.E.2d 1222 (Ind. Ct. App. 2012), trans. denied. In Covered
Bridge, this Court held:
[W]hen two governmental entities may possess “concurrent and
complete” authority over a subject matter, the authority becomes exclusive
in the one before which proceedings are first validly instituted, and that entity
has a duty to retain its authority and “proceed to a final hearing and
disposition.” Taylor [v. City of Fort Wayne], 47 Ind. [274,] 282 [(1874)].
This is not to say that the second entity cannot attempt to exercise its
own authority (perhaps because it believes that the first entity invalidly
exercised its authority), only that it risks ending up on the losing side
of a declaratory judgment action.
Id. at 1232 (emphasis added).
[71] The 2014 Zionsville Plan was adopted on May 20, 2014, with intent to proceed
toward a public question presented to the electorate in 2014. Whitestown first
proposed the annexation ordinances on April 22, 2014. Proposal of the
ordinances, while a first step toward annexation, is not the measure of initiation
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of an annexation under Section 36-1.5-4-45. Rather, as we concluded above,
initiation of an annexation under Section 36-1.5-4-45 is measured by the date
upon which an annexation ordinance is adopted. Adoption of the ordinances is
subject to the statutory procedures and timeframes discussed above. By
creating a kind of “race” between annexation and reorganization, with a set of
formal requirements that favors reorganization, the legislature expressed its
intent to favor local governments’ reorganization efforts, involving the consent
of voters, over more traditional annexation measures.
[72] Here, by May 20, 2014, Whitestown had not yet satisfied the statutory
prerequisites to adoption of the annexation ordinance.9 Zionsville’s 2014 Plan
was therefore first-in-time over and against Whitestown’s annexation efforts.
Whitestown did not initiate the annexation within the terms of the Act, and
Zionsville was entitled to summary judgment on its counterclaims challenging
Whitestown’s ability to annex the portions of Perry Township that were
included in the 2014 Zionsville Plan.
[73] Because we have concluded that there was no bar to the 2014 Zionsville Plan,
and because voters approved that plan, those portions of Perry Township that
were within the scope of the 2014 Plan’s reorganization were incorporated into
Zionsville. And because Whitestown cannot annex land incorporated into
9
Because we conclude that the required public hearing period had not yet elapsed before the 2014 Zionsville
Plan was formally adopted on May 20, 2014, we do not address Zionsville’s specific contention that adoption
of a fiscal plan is the proper measure for when an annexation is initiated as contemplated by the Act.
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another municipality, see I.C. § 36-4-3-2, Whitestown’s 2014 Ordinances must
necessarily fail.
[74] Excluded from this holding, however, is a single parcel of land: that land which
is the subject of the 2013 Whitestown annexation for the Waste Water
Treatment Plant, designated in the 2013 Annexation that was adopted under
the annexation statutes prior to the 2014 Zionsville Plan. An appeal of the 2013
Annexation is pending. Upon resolution of the litigation on the 2013
Annexation, the statutes then in effect would govern any subsequent
reorganizations or annexation efforts by Zionsville, Whitestown, or other local
government.
[75] We accordingly conclude that the trial court erred when it granted summary
judgment in favor of Whitestown as to Zionsville’s counterclaims challenging
Whitestown’s annexation plans. We decline to consider the effect of the 2014
Plan on the 2013 Waste Water Treatment Plant Annexation.
Conclusion
[76] Zionsville’s appeal is not moot. The trial court erred when it entered summary
judgment for Whitestown and against Zionsville on the question of whether
Zionsville was denied authority under the Act to reorganize with Perry
Township. The trial court also erred as to the question of the voting districts
associated with the 2014 Zionsville Plan. Zionsville was improperly denied
summary judgment as to its claims concerning the viability of Whitestown’s
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annexation efforts. We therefore vacate the order, but decline to consider the
effect of the 2014 Plan on Whitestown’s effort to annex territory for their Waste
Water Treatment Plant, because that matter is the subject of another pending
appeal.
[77] We accordingly reverse the entry of summary judgment and remand this case to
the trial court with instructions to enter judgments consistent with our opinion
today.
[78] Reversed and remanded.
Robb, J., and Brown, J., concur.
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