IN THE

Indiana Supreme Court

Supreme Court Case No. 19S-PL-342

Town of Brownsburg, Indiana, et al.,

Appellants/Cross-Appellees,

–v–

Fight Against Brownsburg Annexation, et al.,

Appellees/Cross-Appellants.

Argued: September 20, 2018 | Decided: June 5, 2019

Appeal from the Hendricks Superior Court, No. 32D02-1310-PL-109

The Honorable Heather Welch, Special Judge

On Petition to Transfer from the Indiana Court of Appeals,

No. 32A01-1702-PL-215

Opinion by Justice Slaughter

Chief Justice Rush and Justices David, Massa, and Goff concur.
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Slaughter, Justice.

In this municipal-annexation case, we hold that a trial court hearing a 

remonstrance proceeding on judicial review must consider the evidence 

submitted by both the municipality and the remonstrators. The trial court 

need not defer to either the municipality’s own evidence supporting the 

annexation or its determination that it met the statutory requirements. 

Whether the annexation was lawful is a legal question for the trial court. If 

the court enters special findings of fact and conclusions of law, appellate 

courts are to apply the standard of review provided in Trial Rule 52. We 

provide guidance for applying the undefined statutory terms

“subdivided” and “reasonably near future” and, on this record, affirm the 

trial court’s judgment for the Remonstrators and against the Town of 

Brownsburg.

Factual and Procedural History

In 2013, Brownsburg adopted an ordinance to annex 4,462 acres of 

property adjacent to the Town. A group of affected landowners, acting 

through a political action committee, Fight Against Brownsburg 

Annexation, remonstrated and sought a declaration that the Town did not 

meet the statutory annexation requirements.

Under the statute, a municipality wanting to annex land must prove 

several things. Ind. Code § 36-4-3-13(a) (2013 Repl.). Among them are, 

first, that the municipality has adopted a written fiscal plan to ensure the 

municipality can afford to provide services to those living in the proposed 

annexation territory, id. § 36-4-3-13(d); second, that the proposed territory 

is sufficiently contiguous to the municipality’s current boundaries, id. §§ 

36-4-3-13(b)(1), 36-4-3-13(c)(1); and, third, that either the proposed 

territory is sufficiently urban under criteria recited in the statute, id. § 36-

4-3-13(b)(2), or the municipality will use the territory for development in 

the “reasonably near future”, id. § 36-4-3-13(c)(2).

After a three-day bench trial, the court entered extensive findings of 

fact and conclusions of law and determined that the Town had not met all 

statutory requirements for annexing the proposed territory. The court thus 
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entered judgment for the Remonstrators and against the Town. The Town 

then appealed, the Remonstrators cross-appealed, and the court of appeals 

affirmed. Town of Brownsburg v. Fight Against Brownsburg Annexation, 98 

N.E.3d 114 (Ind. Ct. App. 2018). The Town sought transfer, which we now 

grant, thus vacating the appellate decision.

Discussion and Decision

A. Standards of Review

At issue here are two standards of review. The first deals with the 

nature and extent of an appellate court’s review of a trial court’s findings 

of fact, conclusions of law, and entry of judgment in an annexation case. 

The second is the degree to which a trial court must defer to a 

municipality’s determination that it has met the applicable criteria under 

the annexation statute. The Town argues that the trial court paid 

insufficient deference to the Town’s determination to annex the proposed 

territory in a manner consistent with the governing statute.

Our standard of appellate review in annexation cases is well-settled. 

When a trial court enters special findings of fact and conclusions of law, as 

the court below did here, we apply the standard of review set forth in 

Trial Rule 52. Town of Fortville v. Certain Fortville Annexation Territory 

Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016). For purposes of appellate 

review, that means we review what the trial court found and concluded, 

not what the municipality did. In other words, we ask not whether the 

record supports the municipality’s decision to enact the annexation 

ordinance, but whether it supports the trial court’s decision to uphold or 

reject the annexation.

First, we consider whether the evidence supports the trial court’s 

findings. We will not set aside findings unless they are clearly 

erroneous—i.e., the record contains no facts supporting them either 
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directly or inferentially. Id. This standard is highly deferential. If a factual 

finding is plausible given the entire record, we will not reverse it even if 

we would have decided the matter differently were we sitting as finders 

of fact. We give great deference to a court’s findings because of its 

capacity to judge witness credibility. This standard applies equally to 

expert testimony. “The weight to be accorded expert testimony as well as 

lay testimony[] is the exclusive province of the trier of fact which is at 

liberty to discount it or to reject it in the face of lay testimony, which it 

finds more persuasive.” Fordyce v. State, 425 N.E.2d 108, 110 (Ind. 1981)

(citation omitted). Thus, the trier of fact—not a reviewing court—decides 

the weight and credibility to give the testimony of dueling experts. We 

will reject a finding as clearly erroneous only if we are left with the 

definite and firm conviction, based on all the evidence, that the court 

erred. Fortville, 51 N.E.3d at 1198 (citing Yanoff v. Muncy, 688 N.E.2d 1259, 

1262 (Ind. 1997)). 

Next, we ask whether the findings support the court’s legal 

conclusions. We give no deference to conclusions of law but review them 

de novo. In re Marriage of Gertiser, 45 N.E.3d 363, 369 (Ind. 2015). The 

court’s ultimate judgment—who wins on which counts or claims, and 

who loses—must follow from the conclusions of law and is clearly 

erroneous if the court applied the “wrong legal standard to properly 

found facts.” Fortville, 51 N.E.3d at 1198 (citing Yanoff, 688 N.E.2d at 1262). 

Here, the Town appeals from a negative judgment—one adverse to the 

party with the burden of proof at trial. Under our case law, the party 

challenging a negative judgment generally must show on appeal that “the 

evidence as a whole ... leads unerringly and unmistakably to a decision 

opposite that reached by the trial court.” Spranger v. State, 650 N.E.2d 1117, 

1119 (Ind. 1995) (citations omitted). The Town argues that the court of 

appeals erred by referencing the negative-judgment standard, 98 N.E.3d at 

118-19, and emphasizes that Fortville, which also involved a municipality 

appealing from a negative judgment, applied only the Rule 52 standard.

Given our analysis and holding in Fortville, we agree with the Town 

that the negative-judgment standard does not apply in annexation cases. 

Although the court of appeals mentioned this standard, it does not seem 
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to have applied it. Throughout its opinion, the court assessed the trial 

court’s decision under Rule 52’s “clearly erroneous” standard, id. at 125, 

130, which is the correct standard. We note that commentators have 

questioned whether there is any appreciable, discernible difference 

between these two standards of appellate review—the negative-judgment 

standard and the Rule 52 standard. As Professor Stroud observed in his 

influential treatise on Indiana practice, “there is no apparent reason to 

conceive of a negative judgment review in terms different than sufficiency 

review.” Spranger, 650 N.E.2d at 1120 n.1 (quoting Kenneth M. Stroud, 4A 

Indiana Practice, § 12.7 at 144 (1990)). He continued: “the burden imposed 

upon either losing party on appeal in order to realize reversal, and the 

standards by which the judgment will be evaluated, are in the final 

analysis, functionally indistinguishable.” Id.

There is much practical wisdom in Professor Stroud’s observation. It is 

hard to conceive of a situation where an appellant would satisfy the 

sufficiency-based “clearly erroneous” standard of Rule 52 yet would fail to 

meet the supposedly more onerous negative-judgment standard. We 

yielded to Professor Stroud, in part, in Spranger when we “distinguished” 

the two standards this way: “In one, the inquiry is essentially whether 

there is any way the trial court could have reached its decision. In the 

other, it is whether there is no way the court could have” done so. 650 

N.E.2d at 1120 (emphasis in original). Then, we concluded, “Arguably, 

this is a distinction without a difference.” Id. (footnote omitted).

Indeed, the practical difference, if any, between these two standards of 

appellate review is far from clear. But for now, we need not explore 

further the scope or extent of any such distinction because the parties did 

not ask us to reconsider prevailing law or to merge these two standards.

Cf. United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995) (Posner, J.) (“as we 

have sometimes heretically suggested, there are operationally only two

degrees of review, plenary (that is, no deference given to the tribunal 

being reviewed) and deferential”) (citations omitted).
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Annexation is the statutory process by which municipalities acquire 

additional territory outside their existing corporate boundaries. 

Annexation cases today involve two “legislative” choices, by which we 

mean policy choices for the political branches and not legal questions for 

the courts.

First, the General Assembly determines whether to permit a 

municipality to annex additional territory at all and, if so, under what 

conditions. Over the past two centuries, the legislature has answered this 

policy question differently, as is its prerogative. For example, on whether 

to subject municipal annexations to judicial review, this requirement has, 

at various times, been expressly conferred, expressly withheld, and 

completely unmentioned.

Second, when the General Assembly allows it, the other “legislative” 

choice is the municipality’s to decide which specific territory to annex, 

subject to the power of remonstrators to challenge the annexation and of 

courts to pass on the annexation’s legality. “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 of time; (2) an opportunity 

for remonstrance by affected landowners; and (3) judicial review.” 

Fortville, 51 N.E.3d at 1197 (quoting City of Carmel v. Steele, 865 N.E.2d 612, 

615 (Ind. 2007)).

Apart from the current scheme, one can imagine a wide array of 

legislative options concerning whether to allow annexations at all; 

whether annexations can be challenged; and whether courts are to assess 

their legality. Regardless of which annexation protocols the General 

Assembly enacts, it has considerable leeway to subject its own (or 

municipalities’) annexation decisions to varying degrees of judicial 

review—plenary, limited, or none.

Under current law, remonstrators cannot oppose annexation merely 

because they do not want to live in the municipality or because they 

believe annexation will affect them adversely, such as by raising their 
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taxes or altering their way of life. The General Assembly has created 

statutory requirements for valid remonstration. These requirements place 

the burden of pleading on the remonstrators challenging the annexation. 

Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1240 (Ind. 1997). But 

“the burden of proof is on the municipality to demonstrate compliance 

with the statute.” Fortville, 51 N.E.3d at 1198 (citation omitted).

If those objecting to the annexation satisfy the remonstrance 

procedures, a court must determine whether the municipality satisfied the 

statutory requirements for annexation. The trial court sits as finder of fact 

and, after receiving evidence and hearing argument, assesses whether the 

legal requirements were met. The court does not weigh competing views 

about the wisdom or desirability of the proposed annexation. Instead, it 

plays a “limited role” in annexations and must afford “substantial 

deference” to the municipality’s legislative judgment—i.e., to its policy 

choice to annex the disputed territory. Id. (citation omitted). The court’s 

role, however, is not to “sustain blindly” an exercise of such judgment, but 

to ensure that the municipality did “not exceed[] its authority”, and that 

the “statutory conditions for annexation [were] satisfied.” Id. (quoting 

Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994)). Stated 

differently, whether and what to annex are policy choices for the 

municipality; whether the annexation was lawful is a legal question for 

the courts.

Neither the governing annexation statute nor separation-of-powers 

principles compel a different result, despite the Town’s contrary 

argument. In its transfer petition, the Town argues that the “substantial 

deference” courts owe municipalities’ policy choices also applies to legal 

questions: “If substantial deference is to mean anything, it has to mean 

that a municipality’s reasoned and factually informed understanding of 

the statutory criteria and the evidence supporting that [sic] criteria must 

be given priority over the remonstrator’s and the trial court’s contrary 

conclusions.” What the Town seeks, in effect, is an interpretation that 

renders the Remonstrators’ evidence superfluous—i.e., either the Town 

provided enough evidence to satisfy the statutory criteria, or it did not, 

but nothing the Remonstrators might put forward could contradict the 

sufficiency of the Town’s evidence.
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The statute nowhere supports giving municipalities a “blank check”

with its annexation decisions. To the contrary, by its terms the statute 

requires courts to enter judgment “according to the evidence that either

party”—municipality or remonstrator—“may introduce.” I.C. § 36-4-3-

12(a)(2) (emphasis added). Thus, the statute itself refutes the Town’s 

argument. A trial court assessing the legality of a disputed annexation

must weigh and balance the evidence submitted by both sides and not put 

its thumb on the scale for either.

Nor does separation of powers require the kind of deference the Town 

urges here. This doctrine neither requires judicial review nor forecloses it.

Rather, “the judicial role in annexation cases is limited to that prescribed 

by statute.” Chidester, 631 N.E.2d at 910 (footnote omitted). In Rogers, we 

explained that Article 3, Section 1 of the Indiana Constitution precludes 

courts from making “determinations of a non-judicial nature”. 688 N.E.2d

at 1239 (citing In re City of Mishawaka, 259 Ind. 530, 532, 289 N.E.2d 510, 

512 (1972)). That much was and remains true. A statute violates separation 

of powers to the extent it calls for courts to make value judgments based 

on criteria not judicially administrable. Id. In the cited Mishawaka case, the 

trial court found portions of the governing annexation statute 

unconstitutional. The trial court held that certain statutory requirements—

e.g., that annexation must reflect a municipality’s “best interests” and be 

“fair and just”—“were of a non-judicial nature” and thus “in conflict with 

Art. 3, § 1 of the Indiana Constitution.” 259 Ind. at 531-33, 289 N.E.2d at 

511, 512-14. Thus, Rogers—along with Mishawaka—stands for the 

unremarkable proposition that statutory standards so value-laden that 

they amount to policy choices are not susceptible to judicial enforcement.

Likewise, Bradley v. City of New Castle, 764 N.E.2d 212 (Ind. 2002), does 

not advance the Town’s argument. There, we cautioned courts not to 

“micromanage” or “scrutiniz[e]” the policy choices reflected in a 

municipality’s annexation decision. Id. at 214, 216. We repeat the 

admonition here. But that does not entitle the Town to kid-gloves 

treatment on judicial review. For good or ill, the legislature now subjects

annexations to judicial review to ensure their legality. A trial court does

not fulfill that role simply by taking a municipality’s word for it. What the 

court must follow is the legislature’s requirement that municipalities meet 
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certain criteria before annexation can proceed, not a municipality’s claim 

that the statutory criteria are satisfied on a given evidentiary record. Just 

as there was no separation-of-powers violation when the legislature gave

courts no role in annexation decisions, neither does the legislature violate 

separation of powers today in charging courts to ensure municipalities 

meet the statute’s requirements. Thus, the judicial role is to decide 

whether the municipality has met the statutory requirements or flouted 

them. Fortville, 51 N.E.3d at 1197-98. Courts may do no more; but we must 

do that much.

Next, we consider the statutory annexation requirements and the trial 

court’s merits conclusion that the Town did not satisfy them.

B. Annexation requirements under Section 13(a)

A municipality’s authority to annex territory is defined by statute.

Section 13 of the municipal-annexation chapter, I.C. ch. 36-4-3, recites the 

annexation requirements a municipality must satisfy.

(a) Except as provided in subsections (e) and (g), at the hearing 

under section 12 of this chapter, the court shall order a 

proposed annexation to take place if the following 

requirements are met:

(1) The requirements of either subsection (b) or (c).

(2) The requirements of subsection (d).

I.C. § 36-4-3-13(a). Even if a municipality satisfies these requirements

under subsection 13(a), remonstrators can still defeat an annexation if they 

prove the elements of subsections 13(e) or 13(g). Id.

As discussed next, we have no occasion to address subsections 13(e) or 

13(g) because we agree with the trial court that the Town did not satisfy 

its threshold burden to prove it met “[t]he requirements of either 

subsection [13](b) or (c).” Id. § 36-4-3-13(a)(1).
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Although the terminology has changed over the years, “[t]he larger 

object of the annexation statute is, as it has always been, to permit 

annexation of adjacent urban territory.” Rogers, 688 N.E.2d at 1242. 

Consistent with that goal, subsection 13(b) requires both contiguity 

between the municipality and the proposed annexation territory and one 

of three conditions to exist showing the territory is sufficiently urban to 

warrant annexation—as measured by population density, how much of 

the territory is subdivided, and how the territory is zoned.

(b) The requirements of this subsection are met if the evidence 

establishes the following:

(1) That the territory sought to be annexed is contiguous to 

the municipality.

(2) One (1) of the following:

(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.

Id. § 36-4-3-13(b). The Town agrees it cannot meet either the populationdensity or zoning requirements. So we consider whether the trial court 

was correct in concluding that the Town failed to prove the territory to be 

annexed is at least sixty-percent “subdivided”.

We begin by noting that the municipal-annexation chapter, I.C. ch. 36-

4-3, does not define “subdivided”. The legislature has defined some terms 

that apply throughout Title 36. Id. § 36-1-2-1. But “subdivided” is not 
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among them. Elsewhere in Title 36, “subdivision” is defined, id. § 36-7-1-

19, but this definition expressly applies only to Title 36, Article 7—

concerning planning and development—and not to municipal 

annexations in Article 4, Chapter 3. “The definitions in IC 36-1-2 and in 

this chapter apply throughout this article.” Id. § 36-7-1-1. 

The result is that the legislature has left “subdivided” undefined for our 

purposes. When that happens, we prefer to interpret the term using its 

“plain, or ordinary and usual, sense.” Id. § 1-1-4-1(1). And, relevant here, 

the meaning of a statutory term is a question of law we decide de novo 

and not a matter on which we will accede to litigants or lower courts. 

Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010). When determining a 

statute’s meaning, “we start with the plain language of the statute, giving 

its words their ordinary meaning and considering the structure of the 

statute as a whole.” West v. Office of Indiana Sec'y of State, 54 N.E.3d 349, 

353 (Ind. 2016) (citation omitted). We thus reject the Town’s plea that we 

defer to its “authority to make reasonable judgment calls ... as to what 

undefined terms in a governing statute mean.”

Merriam-Webster defines “subdivide” as follows:

transitive verb

1 : to divide the parts of into more parts

2 : to divide into several parts 

especially : to divide (a tract of land) into building lots

intransitive verb

: to separate or become separated into subdivisions

MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/subdivide

(last visited June 4, 2019). The two definitions most relevant to the 

annexation chapter concern dividing a tract of land into building lots and 

separating land into subdivisions. But these definitions do not illuminate 

how they are to apply in a given annexation case. A literal definition 
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makes no sense because all land has been divided to some degree. See 

generally Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 548, 551-52 (1823)

(Marshall, C.J.) (discussing at length divisions of North American territory 

both before and after European conquest). And we will not embrace a 

definition that nullifies a legislative requirement. ESPN, Inc. v. Univ. of 

Notre Dame Police Dep't, 62 N.E.3d 1192, 1199 (Ind. 2016). So we look 

elsewhere within the statute for guidance and observe two things from its 

context.

First, we note that the sixty-percent “subdivided” requirement must 

refer to a subdivision that is residential—and not some other zoned use. 

Recall that subsection 13(b)(2) identifies three alternative tests for 

satisfying the annexation statute’s “urban character” requirement. One 

option is 13(b)(2)(C), which says the territory is sufficiently urban if 

“zoned for commercial, business, or industrial uses.” It follows that the 

sixty-percent “subdivided” requirement in 13(b)(2)(B) must refer to a use 

of the land other than commercial, business, or industrial; else, the 

“subdivided” requirement would be redundant of 13(b)(2)(C). Nor is this 

requirement referring to divided agricultural land—which would not 

indicate an “urban character”.

Second, the sixty-percent “subdivided” requirement must be referring 

only to a formal residential “subdivision” and not mere residential parcels 

or tracts of land. Section 8 of the same chapter, which outlines some of the 

required terms and conditions in an annexation ordinance, distinguishes 

between territory that is “subdivided” and that which is “parceled” into 

separate “lots or parcels”:

The territory is subdivided or is parceled through separate 

ownerships into lots or parcels such that at least sixty percent 

(60%) of the total number of lots and parcels are not more than 

one (1) acre.

I.C. § 36-4-3-8(c)(2). This passage notably refers to both “subdivided” and 

“parceled” territory, while subsection 13(b)(2)(B)—the operative provision 

here—refers only to “subdivided” territory. Because the legislature knows 

how to refer to both kinds of territory but referenced only “subdivided” 
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territory in 13(b)(2)(B), we infer that these two kinds of territory are 

distinct, and that the sixty-percent “urban character” requirement refers 

only to residential territory that is formally “subdivided” and not that 

which is merely “parceled”.

We have not previously defined when land is “subdivided” under 

Indiana Code section 36-4-3-13(b)(2)(B), and we decline to do so today. 

But to provide guidance to future litigants and lower courts, we make the 

following three observations. First, all real property has been subdivided 

in the broadest sense of the term, so “subdivided” in subsection 

13(b)(2)(B) is a narrower term referring only to formally recorded, 

residential subdivisions and not other categories of divided real 

property. Second, the only permissible unit of measurement is acreage 

and not the number of parcels or tracts of land. Third, all acreage within 

the proposed annexation territory must be included in the ratio’s 

denominator, and none should be exempted or excluded.

Unlike the trial court, we are agnostic about whether the legislature 

should define “subdivided”—a key statutory term, to be sure, in many 

annexation disputes. That is a matter for the legislature. But until or unless 

the legislature specifies the term’s meaning, courts and communities 

interested in local annexation issues should proceed with these guideposts 

in mind.

a. Trial court’s findings not clearly erroneous

As discussed in Part A., we review the trial court’s factual findings for 

clear error and accord its legal conclusions no deference. The findings here 

are amply supported by the evidence, including testimony of the 

Remonstrators’ expert, and are not clearly erroneous. And we find no 

error in the court’s decision to discount testimony from the Town’s expert, 

who used six different methods for determining whether the annexation 

area was sixty-percent subdivided. Each method resulted in a different 

percentage, and his results varied dramatically depending on whether the 

relevant measuring unit is tracts or acreage. Moreover, of the Town’s six 

methods, only one method considered the urban character of the 

proposed annexed area. Thus, the other five methods did not answer 
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whether the annexation territory meets the “urban character” requirement 

or the statute’s overall goal of enabling municipalities to annex adjacent, 

urban territory. Finally, applying our understanding of “subdivided”,

explained above, we agree with the trial court that the disputed 

annexation area does not meet the statutory sixty-percent “subdivided” 

requirement.

b. Town’s evidence

The Town called an employee within its department of development 

services as an expert witness. The expert used existing land divisions to 

develop six different methods for measuring the extent to which the 

proposed annexation territory is “subdivided”. For each method, he made 

two calculations—one based on the number of parcels or tracts of land; 

the other based on acreage. He thus produced twelve different 

percentages—two for each of his six methods for defining “subdivided”. 

He derived the parcels/tracts percentage by calculating the number of 

subdivided parcels/tracts within the annexed territory (numerator) by the 

total number of parcels/tracts there (denominator). And he derived the 

acreage percentage—as the name suggests—by dividing the number of 

subdivided acres in the annexed territory by the total number of acres. Of 

the expert’s twelve calculations, nine resulted in ratios exceeding the 

required sixty-percent threshold.

The expert’s first method considered only formally recorded 

subdivision plats and traditional rights of way within the annexation area. 

Using this method, he concluded that 957 parcels/tracts out of 1,434 

parcels/tracts were subdivided (66.74%) and 780 acres out of 4,462 acres 

are subdivided (17.5%).

His second method considered all recorded subdivision plats, 

associated rights of way, and metes-and-bounds legal descriptions of 

properties, except those describing so-called “quarter-quarter” sections, 

which refer to forty-acre tracts. One square mile is 640 acres. And a 

“quarter-quarter” section is one-fourth of one-fourth (or one-sixteenth) of 

a square mile, or forty acres. Using this method, the expert found that 

1,326 tracts (92.5%) and 3,440 acres (77.1%) are subdivided.
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The third method considered all recorded subdivision plats, associated 

rights of way, and metes-and-bounds legal descriptions of properties, 

except those describing so-called “parent” tracts. An example of a parent 

tract would be the thirty-eight acres of property that remain after a farmer 

split up his forty-acre field to build a house on two acres. Using this 

method, the expert found that 1,322 tracts (92.2%) and 1,669 acres (37.4%) 

are subdivided.

The fourth method considered all recorded subdivision plats, 

associated rights of way, and metes-and-bounds legal descriptions of 

properties, except those creating fewer than three portions from a quarterquarter section. Using this method, the expert found that 1,327 tracts 

(92.5%) and 3,198 acres (71.7%) are subdivided.

The fifth method considered all recorded subdivision plats, associated 

rights of way, and metes-and-bounds legal descriptions of properties

broken into two or more lots or other divisions of land. Using this method, 

the expert found that 1,350 tracts (94.1%) and 3,804 acres (85.3%) are

subdivided.

And the sixth method considered all recorded subdivision plats, 

associated rights of way, and metes-and-bounds legal descriptions of 

properties broken into two or more lots or other divisions of land, but 

excluding any tract of land larger than twenty acres. Using this method, 

the expert found that 1,296 tracts (90.3%) and 1,810 acres (40.6%) are 

subdivided.

The Town’s expert acknowledged that some of his calculations 

included agricultural portions of the annexed territory but did not 

indicate which methods did so.

c. Remonstrators’ evidence

The Remonstrators’ evidence included a survey by the Indiana 

Advisory Commission on Intergovernmental Relations showing that more 

than three-fourths (76.88%) of the annexation area is agricultural. The 

Remonstrators also presented the expert testimony of the Hendricks 

County cartographer. The expert compiled a list detailing, by name, the 
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thirty-six residential subdivisions and nineteen minor residential plats 

within the annexed territory. Using government records, he recorded the 

actual acreage for each of these subdivisions and plats and concluded that 

782.79 acres of the annexed territory are subdivided—representing 17.54%

of the area’s total acreage.

d. Trial court’s findings and conclusions

The trial court did not have the benefit of our explanation of 

“subdivided” when she decided this matter. But her findings and 

conclusions are largely consistent with the line we have drawn. After 

hearing evidence at a three-day bench trial and receiving the parties’ 

written submissions, the court entered extensive findings of fact and 

conclusions of law. The court began by following our guidance in Rogers

that a municipality’s own definition of “subdivision” in a local code 

pertaining to planning and redevelopment is “one yardstick a court may

employ”, 688 N.E.2d at 1242 (emphasis added), in assessing whether 

disputed annexation territory is sixty-percent subdivided.

Here, the court looked to Brownburg’s and Hendricks County’s 

respective subdivision-control ordinances. These are the local codes that 

specify the obligations developers must undertake when they build 

subdivisions within the Town’s and County’s jurisdiction. The court noted 

that the Town’s ordinance excludes from its definition of “subdivision” 

any land divided into two or more tracts for an agricultural use. 

According to the court, that exclusion, combined with the fact that 76.88% 

of the annexation area is agricultural, leaves just 23.12% of the annexation 

area available to count toward the sixty-percent “subdivided” 

requirement.

In addition, the court found that the County ordinance, like the Town 

ordinance, also is consistent with the statutory purpose of limiting 

annexation to adjacent urban territory. After all, the court observed, the 

ordinance excluded tracts at least twenty acres in size and land 

subdivided only for agricultural use.
Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019 Page 17 of 21

The court chose to credit testimony of the Remonstrators’ expert that 

the annexation area is 17.54% subdivided. And it concluded, based on the 

annexation statute, that the “subdivided” requirement is to be measured 

using total acreage, including agricultural land and large residential 

tracts/parcels. Thus, the court held, the Town failed to satisfy the sixtypercent “subdivided” requirement of subsection 13(b)(2)(B).

e. Our analysis

The trial court, the Remonstrators’ expert, and the Town’s expert’s first 

method, while substantially correct, all embraced a definition of 

“subdivided” that is likely overinclusive. These experts opined and the 

trial court found that the “subdivided” area comprised not just the thirtysix residential subdivisions within the annexation territory but also the 

nineteen minor residential plats there. The record before us is not clear on 

what qualifies as a minor residential plat. Thus, while we agree with the 

court’s legal conclusion that the Town’s proposed annexation territory 

does not meet the sixty-percent “subdivided” threshold, we also note that

the percentage of territory that is subdivided is probably less than the 

17.54% found by the trial court (representing 782.79 acres in the 

numerator and 4,461.98 total acres in the denominator). Though the trial 

court likely erred by including in the fraction’s numerator “parceled” 

plats, lots, and other residential property that may not be part of a formal 

subdivision, on this record any such overinclusion is minimal.

Having concluded that the trial court was entitled to find that the 

proposed annexation territory was not sixty-percent “subdivided”, we 

consider next whether the Town met the alternative requirement under 

subsection 13(a)(1) that the annexation territory is “needed and can be 

used by the municipality for its development in the reasonably near 

future.” I.C. § 36-4-3-13(c)(2). The trial court held the Town did not satisfy 

this requirement. We agree.
Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019 Page 18 of 21

Subsection 13(c)(2)’s requirement that the proposed annexation area

must be “needed and can be used ... in the reasonably near future”

includes an essential temporal element. But as with “subdivided”, the 

legislature did not define “reasonably near future”. So localities and other 

interested parties have had to litigate just how soon or remote the 

prospective development within a proposed annexation area must occur 

to qualify as “reasonably near future”. Although the annexation statute 

provides few clues, one provision relevant here draws a clear temporal 

line, in contrast to the statute’s otherwise gauzy guidance.

Subsection 15(b) instructs that if a proposed annexation does not satisfy 

the statute, the municipality cannot annex that territory or any part of it 

for four years. I.C. § 36-4-3-15(b). Given this clear timeframe, we recognize 

four years as the time period for assessing the “reasonably near future” 

requirement under subsection 13(c)(2). In other words, a municipality 

must prove that it needs and can use the proposed annexation territory for 

development within four years of enacting the annexation ordinance. 

Again, the trial court ruled without the benefit of the clarity we 

announce today. But her findings and conclusions—that the future 

development projects the Town identified for the annexation territory will 

not occur in the reasonably near future—are not clearly erroneous and are 

consistent with our legal pronouncement.

One such project is the Ronald Reagan Parkway, which was first 

conceived in the 1980s as an alternative to Raceway Road and State Road 

267, and would connect to Interstate 65 in Boone County. Construction on 

the Reagan Parkway began in 1996 and has continued in phases since then 

as funding became available. Although portions of the Parkway are 

complete or currently under construction, planning for the Parkway 

through the annexation area includes Hendricks and Boone counties but 

does not include the Town. Even the Town agrees that the timeframe for 

extending the Parkway past its current terminus within the Town’s limits 

through the annexation area is “[o]ver the next five to fifteen years”. And 

even then, the “timing of construction is not precisely known.”

Another future project is the development and construction of a bridge

crossing Interstate 74 in the western portion of the annexation area. The 
Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019 Page 19 of 21

court heard testimony that this project is “targeted for 2026”, and the 

Town itself agrees the project “is still in the planning stages and not 

scheduled for installation for another nine years”.

Other future projects the Town identified include additional residential 

development and school expansion within the annexation area. But the 

trial court rejected these, too, finding that neither proposed development 

is needed and can be used in the reasonably near future. The 

superintendent of the Brownsburg schools testified that the school 

corporation owns 111 acres in the annexation area but has “[a]bsolutely ... 

no planned projects whatsoever for that area.” The court also heard 

testimony that twice in recent years housing developers had tried to build 

on ninety-four acres in the annexation area, but the Town’s zoning board 

rejected the developments because of, among other reasons, drainage 

problems resulting from heavy clay soil confirmed by the county 

surveyor.

Finally, the court found that the Town has no plans for a “substantial 

majority” of the annexation area, and that only “small portions” of the 

area may be needed and used but not for at least “5 to 15 years in the 

future.”

Based on these findings, the court concluded that the Town did not 

satisfy the “reasonably near future” requirement of subsection 13(c). As 

with the sixty-percent subdivided requirement, we hold that the court’s 

findings of fact here are not clearly erroneous, and that the record 

supports its conclusions of law.

* * *

Because we resolve this case on the ground that the Town did not meet 

either statutory requirement under subsection 13(a)(1), we need not 

address other issues the parties raised below, including the contiguity 

requirements under subsections 13(b)(1) and 13(c)(1) and the fiscal-plan 

requirements under subsection 13(d).
Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019 Page 20 of 21

C. Remonstrators’ cross-appeal

Finally, we reject the Remonstrators’ cross-appeal. Remonstrators 

cannot bring a declaratory-judgment action when their remonstrance and 

separate request for declaratory relief challenge the same proposed 

annexation. The legislature has provided a specific statutory procedure for 

challenging the legality of an annexation. The availability of that avenue 

of relief forecloses other legal recourse. Cf. Bradley, 764 N.E.2d at 217-18

(discussing narrow exceptions to exclusivity of remonstrance procedure 

not applicable here). Thus, the trial court was correct in dismissing their

declaratory-judgment action.

Conclusion

For these reasons, we affirm the trial court’s judgment that the Town 

did not satisfy its burden of proving it had met the statutory requirements 

for annexing the disputed territory.

Rush, C.J., and David, Massa, and Goff, JJ., concur.

ATTORNEYS FOR APPELLANTS /CROSS -APPELLEES

Thomas F. Bedsole 

Maggie L. Smith 

Frost Brown Todd LLC

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE ACCELERATE INDIANA 

MUNICIPALITIES AND I NDIANA MUNICIPAL LAWYERS 

ASSOCIATION, INC.

Kevin S. Smith

Brent R. Borg

Church Church Hittle & Antrim

Fishers, Indiana
Indiana Supreme Court | Case No. 19S-PL-342 | June 5, 2019 Page 21 of 21

ATTORNEY FOR APPELLE ES / CROSS -APPELLANTS

Gregory W. Black 

Gregory W. Black, P.C. 

Plainfield, Indiana