ATTORNEYS FOR APPELLANTS			ATTORNEY FOR APPELLEE

John C. Hamilton				Paul D. Eash

Don G. Blackmond				Elkhart, Indiana

South Bend, Indiana

IN THE

SUPREME COURT OF INDIANA

LANNY ROGERS AND CAROLYN			)

ROGERS, et al.,				) 

							)  20S03-9605-CV-317

	Appellants (Plaintiffs Below),)  in the Supreme Court

							)

		v.					)  20A03-9501-CV-13

							)  in the Court of Appeals

THE MUNICIPAL CITY OF ELKHART,	)  

INDIANA,						)

							)

	Appellee (Defendant Below).	)

APPEAL FROM THE ELKHART SUPERIOR COURT

The Honorable Worth N. Yoder, Judge

Cause No. 20D03-9209-CP-111

SHEPARD, Chief Justice.

	The Court of Appeals held in this case that only land which

has been subjected to the regulatory process for platting and recording can be considered "subdivided" territory eligible for

annexation by a contiguous municipality.  We conclude that this

holding exceeds the standard set by law.

Case History

	The City of Elkhart enacted an ordinance to annex 439 acres of

Cleveland Township, Elkhart County, under the authority granted by

Indiana Code § 36-4-3-13.  Several residents of the annexed

territory remonstrated, and the Elkhart Superior Court heard

evidence on the remonstrance over several months.  Ultimately, the

court upheld the annexation on multiple, alternative grounds.  It

held that the land being annexed was (1) needed for the city's

development, (2) already 60% subdivided, and (3) zoned for business, commercial, or industrial uses.

	Remonstrators' arguments on appeal may be characterized as

raising three legal issues:

I.  	Whether the trial court could properly approve the  	ordinance on the first of the grounds above when the

	City expressly waived relying upon it;

II.	Whether the trial court employed an improper  	reading of the "subdivided" requirement of our 

	code;

III.	Whether the trial court erred by finding that all  	but a de minimis amount of the land was zoned  	for business and industry.

Annexation Procedure and the Standard of Review

	The framework of Indiana's annexation laws has long featured

three basic stages:  (1) legislative adoption of an ordinance

annexing certain territory and pledging to deliver certain services

within a fixed period;,:; (2) an opportunity for remonstrance by

affected landowners, and (3) judicial review.

	Although the applicable statutes have undergone many changes

over the years, certain general propositions of law have long

applied.  The statutes invest exclusive authority to annex

territory in the governing body of a municipality.  City of Aurora v. Bryant, 240 Ind. 492, 165 N.E.2d 141 (1960).  Annexation is a legislative function and becomes a question subject to judicial

cognizance only upon review as provided by statute.  City of Indianapolis v. Wynn, 239 Ind. 567, 157 N.E.2d 828 (1959).  Indeed, to the extent annexation statutes have seemed to require courts to

make determinations of a non-judicial nature, courts have refused,

finding themselves to be without the power to do so under the

separation of powers clause of the Indiana Constitution, Art. 3 §

1.  See, e.g., In re City of Mishawaka, 259 Ind. 530, 289 N.E.2d 510 (1972).  A court is not authorized to act unless a remonstrance is filed; if a remonstrance is not filed, the annexation becomes

effective.  Wynn, 239 Ind. 567, 157 N.E.2d 828.  The effect of filing a remonstrance is to abate the culmination of the annexation

pending review in the courts, where the burden is on the municipality to sustain the annexation by showing that it has

complied with the requirements of the statute.  Id.  

	Because the city's authority to annex territory is defined by

statute, the court's duty is to determine whether the city has

exceeded its authority and met the conditions imposed by the

statute.  King v. City of Bloomington (1959), 239 Ind. 548, 159 N.E.2d 563 (19659); Bryant (1959), 165 N.E.2d at 147.  City of Hobart v. Chidester, 596 N.E.2d 1374 (Ind. 1992).  Even though the burden of pleading is

on the remonstrator, the burden of proof is on the municipality to

demonstrate compliance with the statute.  The court sits without a

jury and enters judgment on the question of annexation after

receiving evidence and hearing argument from both parties.  Ind.

Code Ann. § 36-4-3-12 (West 1997).

	Once the trial court has decided whether to approve an

annexation ordinance, either the municipality or the remonstrators

may appeal.  Where, as here, special findings are volunteered by

the trial court, we apply the standard of review set out in Trial

Rule 52.  Chidester v. City of Hobart, 631 N.E.2d 908 (Ind. 1994).  Issues of fact are reviewed for sufficiency of the evidence, and

the appellate court looks to the record only for evidence favorable

to the judgment.  Id. at 910.  Questions of law, of course, are purely the stuff of appellate work, and we review them de novo.  MacLeod v. Hunter, 671 N.E.2d 177, 178 (Ind. Ct. App. 1996).

	While annexation appeals commonly revolve around disputes over

the provision of services, the adequacy of the City's fiscal plan

is not at issue in this case.  Instead, the dispute focuses on

rather more technical matters relating to whether the land in

question is adequately urban to meet the code requirements for

annexation.  The "urban character" provisions of our present law

permit annexation if the land is contiguous to the municipality and

if one of the following is true:

(A) 	The resident population density of the territory  	sought to be annexed is at least three (3) persons 

	per acre;

(B)	Sixty percent (60%) of the territory is subdivided;  	

(C)	The territory is zoned for commercial, business, or  	industrial uses.

Ind. Code Ann. § 36-4-3-13(b) (West Supp. 1997).  Relatively rural

territory may also be annexed without meeting any of these three

standards if it is "needed and can be used by the municipality for

its development in the reasonably near future."  Ind. Code Ann. §

36-4-3-13(c)(2) (West Supp. 1997).

I.  Land "Needed for Future Development"

	Remonstrators challenge the trial court's decision that the municipality satisfied alternative subsection 36-4-3-13(c)(2), the "needed for future development" provision.1  Remonstrators claim the City expressly waived reliance on this provision.  

	The record reveals that the City did waive reliance on this

provision.  To his credit, counsel for the City does not contest

the Remonstrators' claim on appeal.  Without pausing to determine

whether the trial court might be sustained on these grounds if the

City asserted otherwise, we pass on to the two issues the parties

now contest.  

II.  Land "Sixty Percent Subdivided"

	Another of the four alternative grounds for approval is that

"[s]ixty percent (60%) of the territory is subdivided."  Ind. Code

Ann. § 36-4-3-13(b)(2)(B) (West Supp. 1997).  The annexation

statute does not contain a definition of "subdivided."

	The Remonstrators initially asserted that in deciding whether

land is "subdivided" for annexation purposes, the courts should

apply the definition of "subdivision" the legislature wrote for

application in the article governing operation of plan commissions, redevelopment authorities, economic development districts, and the

like.2  That article defines "subdivision" as: "The division of a parcel of land into lots, parcels, tracts, units, or interests in

the manner defined and prescribed by a subdivision control

ordinance adopted by the legislative body under I.C. 36-7-4."  Ind.

Code Ann. § 36-7-1-19 (West 1997).

	The legislative body for Elkhart County has adopted such an

ordinance.  It is a relatively modern ordinance, applying to land

subdivided after September 1, 1982.  The Elkhart County Subdivision

Control Ordinance defines "subdivision" in this way:

n.  SUBDIVISION.  A division or redivision of land in

which two (2) or more parcels, lots or sites are

established for residential or business purposes and any

one (1) of these parcels, lots or sites are less than

three (3) acres in area, which may include a public way

through the tract of land.  A division or redivision of

land is not a subdivision if:

	1.	the sale or exchange of parcels of land to or  		between adjoining property owners where those 

		sales or exchanges does not create additional 

		building lots, or

	2.	A Court orders the division of land, or

	3.	A parent transfers adjacent land to a child.

(R. at 562) (quoting Elkhart County, Ind., Code § 36-7-4-700, County Subdivision Control Ordinance art. 2 § n, at Z-90 (1993)). 

This definition is geared to the creation of new development lots3 and must be read in parallel with the definitions of "industrial subdivision."4  

	The City maintains that the evidence shows that the territory

is seventy-eight percent (78%) subdivided in accordance with the

definition of "subdivision" contained in the Elkhart County

Subdivision Control Ordinance.  In their reply brief, counsel for

the Remonstrators make it clear that they believe meeting this

definition requires more than land subdivided in a way consistent

with this definition.  They assert that the City must demonstrate

that 60% of the land became subdivided through the local

subdivision approval process.

	This assertion asks courts to add too much to statutes that

consign decision-making power to legislators, local and state.  The

theme of Indiana annexation law has long been that adjoining

territory of an urbanizing character was subject to annexation.  As

counsel for the Remonstrators observe, "Generally speaking, land

next to a city has already begun taking on attributes of urbanorgan

ization or it reflects the immediate likelihood of such

urbanization."  Appellant's Brief, p. 19.  The earliest statutes permitted virtually automatic annexation of adjacent platted land.5  In this century, the law permitted annexation of subdivided land "whether platted or not."  Act of March 6, 1905, ch. 129 § 242,

1905 Ind. Acts.  

1905 Ind. Acts, Ch. 29 § 242.  By 1935, the reference to platting was removed

altogether.  Act of March 7, 1935, ch. 153 § 1, 1935 Ind. Acts

(amending Act of March 6, 1905).  

1935 Ind. Acts, Ch. 153 § 1, Ind. Code § 18-5-10-20.  In 1955, the legislature chose to

use the phrase "The area is urban in character, being an economic

and social part of the annexing city."  Act pfpfof March 11, 1955, ch.

269 § 1 and 3, 1955 Ind. Acts (amending Act of March 7, 1935).   

1955 Ind.

Acts,  Ch. 269 § 1 and 3,

Burns Ind.

Annot.

Stat. § 48-702.    TThe

current method of proving urban character were adopted in 1969: 

(1) 60% subdivided, (2) 3 persons per acre, or (3) zoned for

commercial, business, or industrial uses.  City and Town Act pgof

1969, ch. 239 § 407, Ind. Acts 1969 (

Ind. Code § 18-5-10-25(b) ((now codified as amended at

Ind. Code Ann. § 36-4-3-13(b) (West Supp. 1997)).

	Inasmuch as the present statute contains no definition of

"subdivided," the trial court might well have looked in several

directions if it perceived the need for greater definition.  The

definition of a "subdivision" found in that part of the code

applicable to planning and redevelopment is a plausible place to

look, though that article in the code addresses rather different

activities than the annexation article.  We conclude that the definition a municipality uses for these purposes is one yardstick 

a court may employ, although there may be others not suggested to

us by the parties to this case.

	It is apparent that the 439 acres at issue meet the definition

of "subdivided" under Elkhart's 1982 ordinance.  Remonstrators'

assertion that the City must prove that all the land was subdivided

pursuant to Elkhart's 1982 subdivision approval ordinance, however,

demands far more than the straightforward language of the code

provides.  The evidence showed, for example, that many of the

subdividings occurred before Elkhart's 1982 ordinance was enacted,

indeed, before current Title 36 itself became a part of the Indiana

Code.

	The larger object of the annexation statute is, as it has

always been, to permit annexation of adjacent urban territory.  The

trial court's use of Elkhart's ordinance for subdivisions was

consistent with this statutory purpose and the language of the code

itself.  The trial court's finding that the land was "subdivided"

was sufficient based on the record.

III.  "Zoned for Commercial, Business, or Industrial Uses"

	The trial court also upheld the annexation on grounds the

territory is zoned for commercial, business, or industrial use as permitted by Ind. Code Ann. § 36-4-3-13(b)(2)(C) (West Supp. 1997). 

Remonstrators argue that a territory must be 100% zoned for the

enumerated uses to be eligible under this provision.  The trial

court disagreed, concluding that a de minimis exception for other zoning uses exists within the statute.  The court noted that 6.6

percent of the territory was zoned for residential use and

concluded that this is de minimis.

	The Court of Appeals agreed that a de minimis analysis is appropriate, but held that 6.6 percent is too substantial to be

called de minimis. 

	We agree with both courts that a de minimis rule may be applied to section 36-4-3-13(b)(2)(C).  The trial court's

description of the annexed territory suggests why a practical

approach is appropriate:

The immediate issue is whether or not any residential

zone, however small, and whether or not, as here, an

enclave, or enclaves, within commercial, business or

industrial zones precludes annexation of the whole

territory.  The answer by this court is that an area

overwhelmingly zoned for industrial, commercial, and

business uses should be considered as meeting the

statutory requirements for annexation even if a small

shard, island, or enclave of land is zoned residential.

	. . . .

	. . . The territory is urban in character but only

a small portion is either zoned for or used for

residential purposes.  The whole territory contains about

29 dwellings and 59 businesses, commercial, and

industrial establishments of all sizes, with about 100

buildings for those establishments.  These non-

residential buildings are scattered through the whole

territory, even on the three streets having all but two of the houses, and are even scattered among houses on the

streets which have houses.  No street is purely

residential.

(R. at 63-65.)

	It is apparent from the record that the 6.6% of the land zoned

residential consists of a regular, full-fledged residential

subdivision that would itself likely qualify under the "subdivided"

provision in the code.  While a court might view cautiously any

attempt to annex under a single ordinance territories that might

not meet the statutory criteria standing alone, here, the trial

court seems to have been justified in finding that 93.4% was

sufficient to meet the business zoning test.

Conclusion

	We affirm the judgment of the trial court.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.