The Brownsburg North Group Against Annexation, at no cost, is helping remonstrators across the state. If you have have questions or need information, please call 317-286-7316 (click here for a map of our annexation area)
Who would have thought they could make a bad bill worse?
Well they did!
House Bill 1298 passed. Senators told us that if this was the kind of bill that the House was going to send to them then there would be no changes to the annexation statute this year and they would try to make changes next year. Apparently they lied!!
This bill allows the municipality to provide valid waivers to remonstrate to the auditor’s office. What a joke.
Apparently, they have failed to listen to any of the remonstrators, because we all know that many remonstrators across the state are in litigation simply because of waivers that municipalities claim are valid.
This addition to SB 330 is what they claim to be a technical correction. Some technical correction.
I am unsure why it is even written into the statute that we can remonstrate, when it is apparent that they are doing everything they can to make it impossible to win a remonstrance.
Click here for the adopted annexation Senate Bill 330. This is the information that I sent to all Representatives and Senators concerning the bill.
I have reviewed this bill and while there are many good things in this bill, there are many many problems and this bill will actually make it much harder for remonstrators in large areas to get the required signatures.
The new process and requirements for obtaining signatures was tailored after the bond statute. Apparently, the person that decided on this change did so knowing it would increase remonstrators’ burden or they simply failed to realize that the bond statute truly is a race for signatures. In that statute, voters can sign petitions for or sign remonstration against the issue at hand. At the end of the 90 days, these petitions and remonstrance are counted and whoever has the most wins. Sounds like a great plan and that is how it should be, but unfortunately, that is not how it works in an annexation remonstrance.
We have to get at least 51% of all parcels owners to sign opposing the annexation within this short time period to simply be allowed to go to court.
Signature process requirements.
The signature process requirement puts a tremendous burden on remonstrators, especially when it comes to the “neutral” property owners that IACT spoke about.
In our annexation area approximately 250-300 signed property owner remonstration petitions were mailed to us. They included a phone number in case there was a question as to the validity of the signatures. (Our area had 1193 parcels and we were required to obtain 65% or 776 parcel owner signatures)
Do you actually think that a “neutral” owners is going to take the time to go and get their remonstration form notarized or bother to go to a designated location to have someone watch them sign their name? Answer: NO
Also, for large annexation areas either we need to be allowed to sign before the annexation ordinance is adopted or we need more than 90 days after publication to obtain the required signatures.
I am very concerned about the fact that it seems the municipality will be responsible for handling the signed remonstration forms that are signed at the municipality location.
In our remonstration fight, a few individuals that had received petitions from our group-then signed the remonstrance petitions and dropped the petition off at the municipality. We requested that these signed petitions be returned to us, yet they never were provided.
Therefore, do you think that we are going to trust that the municipality? Answer: NO
Next issue… the adopted bill does not indicate how the auditor’s office will know who has valid waivers. I fear that after the auditor’s office makes a determination then the town will dispute the number due to waivers and by this time the 15 day time period for the allowance of filing a remonstration will have expired.
Then what… we lose… because the municipality will claim that a remonstration can no longer be filed.
In our situation the waivers did not really matter because we had enough signatures but many of the waivers the town claimed as valid were invalid.
In Elkhart the City is claiming waivers for some properties; these waivers are not valid because some are water waivers and according to the Indiana case law, water waivers are not valid.
The other waivers were signed years after these properties had already been connected to the sewer service. Many of these waivers were forced because the City had threatened to disconnect the properties from the sewer if they did not sign.
According to the Indiana Code these sewer waivers are not valid; for the waivers to be valid they had to be signed before connection to the sewer.
IC 36-9-22-2 (2) states: "however, the contract does not apply to any owner of real property who is not a party to it unless it has been recorded in the office of the recorder of the county in which the real property of the owner is located before the owner taps into or connects to the sewers and facilities ."
I am certain that the City is well aware of these facts.
Despite this information, the City is still allowed to make the claim which will likely exhaust these remonstrators financial resources and they will lose.
Page 16 line 10-12. “A person is entitled to sign a petition only one (1) time during a remonstration process, regardless of whether the person owns more one (1) parcel of real property”
Since it has not been specified that the other parcels owned by this owner be subtracted from the total owners, a situation could be created in which property owners could not validly even reach 51%.
Example: 100 properties, and let’s say that 51 of the properties belong to one owner. If all owners’ sign a remonstration petition and the property owner with these multiple properties also signs a remonstrance petition, they would only have 50%---which would not allow owners to file a remonstration.
So actually There needs to be an emergency amendment added which states that, “if a person has interest in more than one parcel, that additional parcels owned by this owners cannot be counted in calculating the total number of owners of land in the annexation territory.”
Or state that "a petition signed by an owner of multiple parcels counts as a vote for each parcel in which this person has an interest"
A fellow remonstrator wrote back to me about my above statement.
Stating this:
(1) An annexation ordinance does not proceed if (a) at least 65% of owners of nontax exempt land in the annexation territory sign a remonstrance or (b) the owners of 80% of the assessed value of nontax exempt land in the annexation territory sign a remonstrance.
(2) A person is entitled to sign a petition only one (1) time during a remonstration process, regardless of whether the person owns more one (1) parcel of real property.
Let’s review how these provisions would apply if there are 100 nontax exempt parcels in an annexation territory, and 49 of the parcels have 49 different owners and 51 of the parcels have a single owner. There are a total of 50 owners. If 33 owners sign a remonstrance, then the annexation ordinance does not proceed. What is the problem with this scenario?
I responded back to this person with this explanation:
I would like to think your reasoning is sound but the municipalities will use this as a litigation tactic. That is why we (Brownsburg Remonstrators, Remington Remonstrators and the Elkhart Remonstrators) are in the mess we are in here today in our remonstration; because the municipalities are themselves interpreting the statute the way they want it to read.
The municipality will claim that because the statue states, (Page 16 line 10-12) “A person is entitled to sign a petition only one (1) time during a remonstration process, regardless of whether the person owns more one (1) parcel of real property”, that this means that that owner clearly only gets one vote.
For example, the statute clearly states that tax-exempt parcels are not to be counted.
The statute does not indicate that the if a person has interest in more than one parcel, that additional parcels owned by this owners cannot be counted in calculating the total number of owners of land in the annexation territory.” Nor does it state "a petition signed by an owner of multiple parcels counts as a vote for each parcel in which this person has an interest".
The reason there is such confusion is because they use word parcel, property and owner interchangeably instead of clarifying how the total number of owners is determined.
Rep Negele and Senator Boots did try to add a clarification for one of the issues in the current statute. They added the info in bold to the existing statute--
Only one (1) person having an interest in each single property as evidenced by the tax duplicate is considered an owner of property for purposes of this section “and may sign a remonstrance”.
Now the municipality will litigate and try to claim that if all owners of a parcel sign a remonstrance petition that the signed petition would become void because it was signed by more than one owner and the statute says, “only one may sign a remonstrance.”.
I know all of these claims are unreasonable but this is what we are fighting .
See our CCS https://mycase.in.gov/CaseDetail.aspx?CaseID=14281043 . The Town is simply trying to run us out of money by filing multiple frivolous motions; this is happening to remonstrators across the state.
If you have not done so, watch our appeal court oral argument and you will see the stupidity of it all.
IF we win (and I believe we will), what do we win? Have we stopped the annexation? NO!
We win the right to have our remonstrance evidentiary hearing; and it only cost us thousands of hours unpaid volunteer time and approx. $38,000 in legal fees and expenses and has cost the Town taxpayers approx. $500,000.
This cost has resulted because the Town felt that by filing frivolous motions that we would run out of money and we would be forced to give up. This happened to the Brownsburg Ward Remonstrators and other remonstrators across the state.
FABA v Town of Brownsburg annexation oral argument link.
This information was taken directly from the 2014 annexation study committee recommendations.
Recommendations:
Require approval of the owners of 51% of parcels before annexation may proceed. (Approved by consent 12-0.)
An annexation remonstrance should prevail if 50% +1 of the owners of parcels to be annexed object. (Approved by consent 12-0.)
Why were neither of these recommendations applied to the adopted annexation SB 330?
The adopted bill urges the legislative council to assign a committee the topic of the effect of SEA 330-2015, which amended the annexation laws, on economic development projects.
Why would the general assembly want a committee assigned to this topic, when it is apparent that the recommendations of a committee are not followed?
I could go on and on…..
Please feel free to call with question or comments.