MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS

Jim Brugh

Logansport, Indiana

ATTORNEYS FOR APPELLEES

Nicholas K. Kile

Mark J. Crandley

Hillary J. Close

Barnes & Thornburg, LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of Ordinance 

#2013-09, as amended, the 

South and West Area 

Annexation Ordinance, an 

Ordinance Seeking to Annex 

Certain Property to the City of 

Logansport, Indiana

Lindsay R. Ruby, Cass County, 

Indiana, acting by and through 

the Cass County Commissioners, 

and also, 78% of the Affected 

Landowners too numerous to be 

listed in the caption,

Appellants-Remonstrators,

January 8, 2016

Court of Appeals Case No.

09A05-1504-PL-170

Appeal from the Cass Superior 

Court

The Honorable Douglas A. Tate, 

Special Judge

Trial Court Cause No.

09D02-1310-PL-36

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v.

The City of Logansport, Indiana, 

acting by and through Ted 

Franklin, in his capacity as 

Mayor of the City of Logansport, 

and the Logansport Common 

Council,

Appellees-Respondents

Crone, Judge.

Case Summary

[1] The City of Logansport (“the City”), acting by and through the Logansport

Common Council (“the Council”), introduced an ordinance proposing to annex 

territory to the south and west of the City’s boundaries (“the Annexation 

Territory”). The Council and Logansport Mayor Ted Franklin (“the Mayor”) 

adopted a written fiscal plan for the proposed annexation. After a public 

hearing, the Council amended and adopted the annexation ordinance, which 

the Mayor approved. Landowners in the Annexation Territory filed 

remonstrance petitions objecting to the proposed annexation. The landowners 

and the Cass County Commissioners (collectively “the Remonstrators”) filed a 

complaint against the City. The trial court held a hearing and entered a 

judgment ordering that the annexation take place.

[2] On appeal, the Remonstrators argue that the trial court’s judgment is clearly 

erroneous, claiming that (1) the ordinance does not adequately describe the 

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Annexation Territory’s boundaries; (2) the City did not present sufficient 

evidence regarding the requisite contiguity of its boundaries with those of the 

Annexation Territory; (3) the City did not present sufficient evidence that the 

Annexation Territory is needed and can be used for its development in the 

reasonably near future; (4) the City’s fiscal plan is inadequate; and (5) the 

Remonstrators established that the annexation will have a significant financial 

impact on residents or landowners. We disagree in all respects and therefore 

affirm the trial court.

Facts and Procedural History1

[3] In March 2013, the Council introduced Ordinance #2013-09 (“the 

Ordinance”), which proposed to annex the Annexation Territory. The Council 

and the Mayor adopted a written fiscal plan for the proposed annexation. In 

May 2013, the Council held a public hearing on the Ordinance. In July 2013, 

the Council amended the Ordinance in response to public comments and 

adopted it. The Mayor approved the amended Ordinance.

[4] Landowners in the Annexation Territory filed remonstrance petitions objecting 

to the proposed annexation, and in October 2013 the Remonstrators filed a 

complaint against the City. In February 2015, the trial court held a three-day 

1 An appellant’s statement of the case “shall briefly describe the nature of the case, the course of the 

proceedings relevant to the issues presented for review, and the disposition of these issues by the trial 

court[.]” Ind. Appellate Rule 46(A)(5). A substantial portion of the Remonstrators’ statement of the case is 

legal argument. An appellant’s statement of facts “shall be stated in accordance with the standard of review 

appropriate to the judgment or order being appealed” and “shall be in narrative form[.]” Ind. Appellate Rule 

46(A)(6). The Remonstrators’ statement of facts is argumentative, self-serving, and disjointed.

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hearing on the matter. In a March 2015 judgment containing extensive findings 

of fact and conclusions thereon, the trial court ordered that the annexation take 

place. The Remonstrators now appeal. Additional facts will be provided as 

necessary.

Discussion and Decision

[5] The trial court entered findings of fact and conclusions thereon at the parties’ 

request pursuant to Indiana Trial Rule 52.2

 “The purpose of specific findings 

and conclusions is to provide the parties and reviewing courts with the legal 

theory upon which the trial court relied in reaching its decision.” Estate of 

Kappel v. Kappel, 979 N.E.2d 642, 652 (Ind. Ct. App. 2012). “[W]e use a twotiered standard of review: we determine whether the evidence supports the 

findings, and whether the findings support the judgment.” Kahn v. Baker, 36 

N.E.3d 1103, 1112 (Ind. Ct. App. 2015), trans. denied. “We neither reweigh the 

evidence nor assess the credibility of witnesses, but consider only the evidence 

most favorable to the judgment.” Id. “The trial court’s findings or judgment 

will be set aside only if they are clearly erroneous. A finding of fact is clearly 

erroneous if the record lacks evidence or reasonable inferences from the 

evidence to support it.” E.W. v. J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014) 

(citation omitted), trans. denied (2015). “A judgment is clearly erroneous if it is 

unsupported by the conclusions, and conclusions are clearly erroneous if they 

2 We commend the trial court for the thoughtfulness and thoroughness of its findings and conclusions, which 

greatly facilitated our review.

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are unsupported by the findings.” A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 

120, 124 (Ind. Ct. App. 2004), trans. denied (2005). We defer substantially to 

findings of fact but review questions of law de novo. Estate of Kappel, 979 

N.E.2d at 651-52. “We may affirm a judgment on any legal theory, whether or 

not relied upon by the trial court, so long as the trial court’s findings are not 

clearly erroneous and support the theory adopted.” Id. at 652.

[6] The Indiana Supreme Court has stated that “[a]nnexation is essentially a 

legislative process, and courts should not micromanage it.” Bradley v. City of 

New Castle, 764 N.E.2d 212, 214 (Ind. 2002). “Generally, the annexation 

process formally begins when a municipality adopts an ordinance annexing 

territory .... The legislative adoption of the ordinance is followed by an 

opportunity for remonstrance by affected landowners and judicial review.” 

Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 801 

(Ind. Ct. App. 2015) (citation omitted).

[7] “Indiana Code § 36-4-3-13 lists the prerequisites for annexation.” City of Carmel 

v. Certain Sw. Clay Twp. Annexation Territory Landowners, 868 N.E.2d 793, 797 

(Ind. 2007). “If the municipality meets the requirements of subsections 13(b) or 

13(c) and subsection 13(d), the court must order the annexation to proceed.” 

Id.; see Ind. Code § 36-4-3-13(a) (providing that trial court “shall order a 

proposed annexation to take place” if foregoing requirements are met) 

(emphasis added). In this case, the trial court found that the City met the 

requirements of subsections 13(c) and 13(d). “Even if those findings are 

favorable to the municipality, however, the remonstrators can still prevail if 

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they establish grounds listed in subsection 13(e).” City of Carmel, 868 N.E.2d at 

797-98; see Ind. Code § 36-4-3-13(e) (providing that trial court “shall” order “a 

proposed annexation not to take place” if certain conditions exist) (emphasis 

added). The trial court found that the Remonstrators failed to establish two of 

those grounds here.

[8] On appeal, the Remonstrators contend that the Ordinance does not adequately 

describe the Annexation Territory’s boundaries. They also contend that the 

City failed to carry its burden as to subsections 13(c) and 13(d) and that they 

satisfied their burden as to subsection 13(e). We address each contention and

relevant subsection in turn.

Section 1 – The trial court did not clearly err in concluding 

that the adequacy of the Ordinance’s description of the 

Annexation Territory’s boundaries is outside the scope of 

judicial review.

[9] Indiana Code Section 36-4-3-3.5 states that an annexation ordinance “must 

contain,” among other things, “[a] description of the boundaries of the territory 

to be annexed, including any public highway or right-of-way.” The Ordinance 

in this case describes the Annexation Territory’s boundaries by referring to state 

property tax parcel identification numbers and public highways. See, e.g., 

Defendants’ Ex. A at 295 (“Beginning at the point of intersection of the 

southern corporate boundary of the City of Logansport and the township line 

separating Clinton Township and Washington Township and which also 

coincides with the southwest corner of parcel #09-17-02-200-037.000-025, Then 

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turning southward along that township line separating Clinton Township and 

Washington Township to the point of intersection with the southern right of 

way line of County Road 400 S ....”).3

[10] In the judgment’s preamble, the trial court stated,

The remonstrators have argued that the description of the 

proposed annexed territory was not legally sufficient. To this 

end, a local surveyor provided a lengthy, detailed analysis of how 

the city’s description was not a sufficient metes and bounds legal 

description.[4]

 However, a detailed metes and bounds description 

is not required. The description must simply be sufficient to 

identify the area to be annexed. In this instance the city has 

satisfied the requirements of the current annexation statute.

Appellants’ App. at 14-15. Elsewhere in its judgment, the trial court concluded

that the Remonstrators’ arguments regarding the sufficiency of the description 

“are allegations of procedural violation that are beyond the subject of Section 

13 and thus are outside the scope of judicial review.” Id. at 30 (citing Bradley, 

764 N.E.2d at 217-18).

3 The parties’ appendices contain copies of numerous exhibits in violation of Appellate Rule 50(F), which 

states, “Because the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should 

not reproduce any portion of the Transcript in the Appendix.” Appellate Rule 2(K) defines “Transcript” as 

“the transcript or transcripts of all or part of the proceedings in the trial court or Administrative Agency that 

any party has designated for inclusion in the Record on Appeal and any exhibits associated therewith.” 

(Emphasis added.)

4 Black’s Law Dictionary (10th ed. 2014) defines legal description as follows:

A formal description of real property, including a description of any part subject to an easement 

or reservation, complete enough that a particular piece of land can be located and identified. • 

The description can be made by reference to a government survey, metes and bounds, or lot 

numbers of a recorded plat.

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[11] On appeal, the Remonstrators again argue that the Ordinance was required to 

contain a metes and bounds legal description of the Annexation Territory. We 

agree with the trial court that this issue is outside the scope of judicial review. 

See Bradley, 764 N.E.2d at 218 (disagreeing with Court of Appeals’ conclusion 

that remonstrators “could challenge the annexation based on noncompliance 

with statutes that do not deal specifically with remonstrances”: “According to 

Ind. Code § 36-4-3-13, ‘a court shall order a proposed annexation to take place if 

the following requirements are met.’ (Emphasis added.) These requirements 

are contiguity (or specified alternatives to contiguity) plus a fiscal plan that 

covers enumerated subjects. This language seems plain enough: if the City 

satisfies Section 13’s listed requirements, the court shall order annexation.”).5

[12] Notwithstanding, Indiana Code Section 36-4-3-3.5 simply does not say that an 

ordinance must contain a metes and bound legal description of the territory to 

be annexed. The legislature knows how to say “legal description” when it 

wants to. See, e.g., Ind. Code § 36-4-3-2.2 (stating that notice of hearing on 

ordinance must include a “legal description of the real property proposed to be 

annexed.”). But it did not do so in Section 3.5, and we will not read that 

requirement into the statute. See McGee v. McGee, 998 N.E.2d 270, 271 (Ind. Ct. 

App. 2013) (“Our court will not read into a statute that which is not the 

5 The Bradley court acknowledged that “annexing municipalities may commit procedural wrongs so severe 

that courts must act to protect remonstrators’ substantial rights.” 764 N.E.2d at 217. The Remonstrators do 

not specify which, if any, of their substantial rights are affected by the adequacy of the Ordinance’s 

description of the Annexation Territory’s boundaries.

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manifest intent of the General Assembly. Thus, it is as important to recognize 

what a statute does not say as it is to recognize what it does say.”) (citation 

omitted). The Remonstrators’ argument regarding the sufficiency of the 

description is essentially an invitation to reweigh evidence and reassess witness 

credibility, which we may not do. The Remonstrators have failed to establish 

clear error on this point.

Section 2 – The trial court did not clearly err in concluding 

that the City presented sufficient evidence of contiguity.

[13] At the time relevant to our discussion, Indiana Code Section 36-4-3-13(c) read 

in pertinent part as follows:6

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 as required by section 1.5 of this 

chapter,

[7] except that at least one-fourth (1⁄4), instead of 

one-eighth (1⁄8), of the aggregate external boundaries of the 

territory sought to be annexed must coincide with the 

boundaries of the municipality.

(2) That the territory sought to be annexed is needed and 

6 The statute was amended effective July 1, 2015. We refer to the prior version of the statute throughout.

7 Prior to July 1, 2015, Indiana Code Section 36-4-3-1.5 read in pertinent part, “For purposes of this chapter, 

territory sought to be annexed may be considered ‘contiguous’ only if at least one-eighth (1⁄8) of the aggregate 

external boundaries of the territory coincides with the boundaries of the annexing municipality.”

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can be used by the municipality for its development in the 

reasonably near future.

[14] Regarding the contiguity requirement, the trial court found that “Logansport’s 

expert, registered land surveyor Randall Miller, presented evidence in support 

of the contiguity finding contained in the Fiscal Plan based upon direct 

surveying measurements, prior surveys, historical deed informative and 

controlling calls, taxation parcel data, and tax classification status as 

maintained by Cass County” and showed “that the contiguous portion of the 

Annexation Territory is greater than 25%.” Appellants’ App. at 19-20. The 

trial court also found that “Andrew Lanam, a Manager with Reedy Financial 

Group, testified that he verified that the parcels shown on the Cass County GIS 

[Geographic Information Survey] as inside the City limits actually are inside the 

City limits” by examining county treasurer forms “for each of the parcels 

contiguous to the Annexation Territory.” Id. at 21. Lanam explained that the 

forms “indicated whether a property is being assessed -- and whether the 

taxpayer is paying -- the municipal tax rate for the City of Logansport and is 

therefore contained within the City corporate limits.” Id. The trial court found 

Miller’s and Lanam’s testimony “to be persuasive” and further found “that at 

least one-fourth (1/4) of the aggregate external boundaries of the Annexation 

Territory coincide with the boundaries of the City and that contiguity therefore 

satisfies the requirement stated in Ind. Code § 36-4-3-13(c)(1).” Id.

[15] The Remonstrators argue that the perimeter distance of the Annexation 

Territory “must be certain in order to calculate the percentage of its contiguity 

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or coincidence with the City boundary” and that “[b]ecause measurements 

derived from the GIS system are imprecise, a precise, accurate measurement of 

the perimeter distance of the annexation area has not been supplied by the 

City.” Appellants’ Br. at 26. The Remonstrators’ characterization of the 

measurements as “imprecise” alludes to a GIS website disclaimer, which states,

The data provided herein may be inaccurate or out of date. Any 

person or entity who relies on said information for any purpose 

whatsoever does so solely at their own risk. Neither the county, 

or [sic] any agency, offices, or [sic] employee of any other 

information provider warrants the accuracy, reliability, or 

timeliness of any of the data provided herein. This data is 

provided ‘as is’ without warranty of any kind.

Plaintiffs’ Ex. 28. Miller was aware of the disclaimer and testified that he did 

not “identify any inaccuracies in the GIS data that would impact [his] 

calculation of contiguity[.]” Tr. at 45, 56-57. The Remonstrators offered no 

evidence that the GIS measurements are actually imprecise, and their 

additional criticisms of Miller’s testimony are merely invitations to reweigh 

evidence and reassess credibility, which we may not do.8

 They have failed to 

establish clear error here.

8 For example, the Remonstrators assert that “Miller did not know the measurements of each line segment 

(Exhibit RR) which separately presume to describe the annexation area, compared to the annexation area 

contiguity to the corporation line.” Appellants’ Br. at 26-27. Miller’s testimony indicates that he did know 

those measurements at one time but did not have them with him at the hearing. Tr. at 55.

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Section 3 – The trial court did not clearly err in concluding 

that the City presented sufficient evidence that the 

Annexation Territory is needed and can be used for its 

development in the reasonably near future.

[16] Under Indiana Code Section 36-4-3-13(c)(2), a municipality must establish 

“[t]hat the territory sought to be annexed is needed and can be used by the 

municipality for its development in the reasonably near future.” The trial court 

made the following relevant findings on this issue:

17. The Hoosier Heartland Corridor is a new limited access 

highway connecting the City of Fort Wayne to the City of 

Lafayette and Interstate 69 to Interstate 65. The Hoosier 

Heartland Corridor runs directly through the Annexation 

Territory. Through two new interchanges located within the 

Annexation Territory, the Hoosier Heartland Corridor is directly 

connected to the Logansport Industrial Park. These two 

interchanges are currently not developed.

18. The Mayor of Logansport testified that one of the 

considerations of the Council in adopting the Annexation 

Ordinance was the location of the Annexation Territory in 

relation to the Hoosier Heartland Corridor and the potential for 

capturing economic development opportunities....

....

20. The Mayor also testified that the City needs the Annexation 

Territory in order to proceed with the consolidation of its existing 

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tax increment financing (TIF) districts.[9]

21. The City currently has three TIF districts: (1) the alreadyconsolidated East End/Highway 35 TIF district, (2) the Logan’s 

TIF district in the City’s downtown area, and (3) the Industrial 

Park TIF district. The Industrial Park and its TIF district are 

separated from the rest of the City by the Annexation Territory.

22. The Mayor testified that the City has plans to combine the 

Industrial Park TIF district with the combined East 

End/Highway 35 consolidated TIF district to make one 

consolidated district, but the City cannot consolidate TIF districts 

that are not connected, and the City cannot create a TIF district 

outside its corporate limits. Therefore, the Annexation Territory 

must be within the City limits in order for Logansport to connect 

and consolidate the Industrial Park TIF district with one of the 

City’s two other TIF districts.

23. The Mayor testified there [is] currently approximately $1.7 

million in the Industrial Park TIF district fund. He also stated 

that consolidation of the TIF districts would allow TIF funds to 

flow back and forth throughout the consolidated TIF areas, 

including the Industrial Park and the Annexation Territory.

24. The Annexation Territory is needed and can be used by the 

City for its development in the reasonably near future.

Appellants’ App. at 21-23 (citations to exhibits omitted). The trial court also 

made the following conclusion:

9 Black’s Law Dictionary (10th ed. 2014) defines tax-increment financing as “[a] technique used by a 

municipality to finance commercial developments usu. involving issuing bonds to finance land acquisition 

and other up-front costs, and then using the additional property taxes generated from the new development to 

service the debt.”

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5. The Annexation Territory is needed to consolidate TIF 

districts, which can be used by the City for the development of 

the City as a whole, including the Annexation Territory, in the 

reasonably near future. Logansport has also shown that as a 

result of the construction of the Hoosier Heartland Corridor, the 

territory is needed for transportation linkages, to control and 

promote adjacent development, and to prevent conflicting land 

uses on its borders.

Id. at 30. And in the preamble, the trial court stated,

The completion of the Hoosier Heartland Corridor will 

significantly increase traffic in this area. As a result of this 

increase in traffic, it would be difficult to argue that the city 

would not benefit from annexing this area. The city will be able 

to control any growth along the corridor and reap the financial 

benefit of this development. The remonstrators have pointed to 

the fact that no development has taken place in the area for many 

years. The completion of this highway will make it almost a 

foregone conclusion that some development will come to this 

area. If not, it would be one of the only places in Indiana where 

growth did not come to a limited access highway.

Id. at 15.

[17] The Remonstrators contend that the trial court’s conclusion regarding the 

development of the Hoosier Heartland Corridor is not supported by the 

evidence, noting that the City’s population “has been steadily declining over the 

last several years” and that “[t]he City introduced no plan for the development 

of the large tracts of agricultural land which make up the majority of the” 

Annexation Territory. Appellants’ Br. at 28. But this argument disregards the 

trial court’s undisputed finding that economic development and increased 

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traffic almost certainly will occur along the Corridor. A city with a declining 

population needs the employment opportunities and other economic benefits 

that such development brings, and the Remonstrators do not specifically argue 

that the City cannot use the Annexation Territory for its development in the 

reasonably near future. The Remonstrators have failed to demonstrate clear 

error in this regard.10

Section 4 – The trial court did not clearly err in concluding 

that the City’s fiscal plan is adequate.

[18] The City was also obligated to meet the requirements Indiana Code Section 36-

4-3-13(d), which states,

The requirements of this subsection are met if the evidence 

establishes that the municipality has developed and adopted a 

written fiscal plan and has established a definite policy, by 

resolution of the legislative body as set forth in section 3.1 of this 

chapter. The fiscal plan must show the following:

(1) The cost estimates of planned services to be furnished 

to the territory to be annexed. The plan must present 

itemized estimated costs for each municipal department or 

agency.

(2) The method or methods of financing the planned 

10 The Remonstrators cite Chidester v. City of Hobart, 631 N.E.2d 908 (Ind. 1994), for the proposition that the 

sole purpose of an annexation may not be to increase tax revenue, and they argue that “[t]he sole reason for 

the annexation is to gain control of the Industrial Park TIF account ... and to spend that money for an 

uncertain development ... at the eastern edge of the City.” Appellants’ Br. at 29. Because the annexation has 

at least one other purpose, namely to facilitate development along the Hoosier Heartland Corridor, we need 

not address this argument.

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services. The plan must explain how specific and detailed 

expenses will be funded and must indicate the taxes, 

grants, and other funding to be used.

(3) The plan for the organization and extension of services. 

The plan must detail the specific services that will be 

provided and the dates the services will begin.

(4) That planned services of a noncapital nature, including 

police protection, fire protection, street and road 

maintenance, and other noncapital services normally 

provided within the corporate boundaries, will be provided 

to the annexed territory within one (1) year after the 

effective date of annexation and that they will be provided 

in a manner equivalent in standard and scope to those 

noncapital services provided to areas within the corporate 

boundaries regardless of similar topography, patterns of 

land use, and population density.

(5) That services of a capital improvement nature, 

including street construction, street lighting, sewer 

facilities, water facilities, and stormwater drainage 

facilities, will be provided to the annexed territory within 

three (3) years after the effective date of the annexation in 

the same manner as those services are provided to areas 

within the corporate boundaries, regardless of similar 

topography, patterns of land use, and population density, 

and in a manner consistent with federal, state, and local 

laws, procedures, and planning criteria.

Our supreme court has stated that “a trial court hearing a remonstrance is not 

an examiner conducting an audit of a challenged fiscal plan. Rather, it should 

focus on whether that plan represents a credible commitment by the 

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municipality to provide the annexed area with comparable capital and noncapital services.” Bradley, 764 N.E.2d at 216.

[19] In this case, the trial court found that the City’s fiscal plan “represents a credible 

commitment to provide comparable capital and non-capital services to the 

Annexation Territory” and “is sufficiently detailed to explain Logansport’s 

strategies for providing ... capital and non-capital services within the time 

period allotted by law ....” Appellants’ App. at 25. More specifically, the trial 

court found as follows:

27. Water and sewer services have already been extended to 

some areas in the Annexation Territory. The Fiscal Plan and the 

evidence at the hearing are clear that Annexation Territory 

landowners are not required to connect to utility service and that 

utility service will not be further extended unless the further 

extension is requested. Such future extensions will be pursuant 

to the City’s policy for extension of storm sewer service, sewer 

service, and water services within the corporate limits [as] set 

forth in Logansport City Code Section[s] 50-92 and -93. That 

policy is that “the cost of constructing such public works facilities 

shall be the primary responsibility of the properties receiving the 

benefit of such facilities.... It is not the policy of the city to 

provide such public works facilities for any property or at any 

location at no cost to the properties receiving the benefit from 

such facilities. Sec. 50-92(b) and [-](c).

28. With respect to capital storm sewer projects, the City’s policy 

is that the City does not install storm sewers except under one of 

the enumerated circumstances described in Defendant’s Exhibit 

I. Mr. [Michael] Shaver [who prepared the policy narrative of 

the City’s fiscal plan] testified that currently, none of those sets of 

circumstances exist in the annexation territory. As a result, 

capital storm sewer service will be provided in the same manner 

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in which such capital service is provided within the City limits. 

This is also done pursuant to City Code § § 50-92 and [-]93.

29. The City’s Ordinance 2013-28 exempting the annexation 

area from City stormwater fees confirms that the City will 

manage stormwater in the Annexation Territory.

30. With respect to street lights, Mr. Shaver testified that no 

landowners have vocalized a desire for street lights in the 

annexation area. He testified that street lights are only 

anticipated to be extended as needed when development comes 

to the area, which is consistent with how the written Fiscal Plan 

addresses street lights. At the hearing, he further explained that if 

there were some desire on the part of landowners for street lights 

that would not be in connection with development, they would 

be extended pursuant to the City’s existing policy described in 

[City Code § § 50-92 and -93 and Ordinance 92-3].

31. Most of the Remonstrators who testified stated that they did 

not want to be urbanized.

32. The Fiscal Plan commits within three years of the effective 

date of annexation to extending services in the same manner in 

which such capital service is provided within the corporate limits.

Id. at 24-25 (citations to exhibits and underlined emphasis omitted).

[20] The trial court also made the following conclusions:

6. This Court concludes, based upon its review of all of the 

evidence, that Logansport has demonstrated that the Fiscal Plan 

satisfies all of the requirements of Ind. Code § 36-4-3-13(d). 

Logansport’s Fiscal Plan establishes a definite policy, and was 

duly adopted by the Council, in compliance with Ind. Code § 36-

4-3-3.1. Under subsection (d), non-capital services must be 

provided in a manner “equivalent in standard and scope”; capital 

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services, however, must only be supplied “in the same manner.” 

Capital services need not be supplied to the annexation territory 

at no cost to those requesting such services because the City does 

not extend such services within the corporate limits at no cost.

7. The standard for determining whether the Fiscal Plan 

commits to extend capital services to the Annexation Territory in 

the same manner as those services are extended in the City is not

what the City agreed to do in prior annexations ten or even 

twenty years ago. The Court looks to what the City’s current 

policy is with respect to extending capital services and whether 

the Fiscal Plan is consistent with that policy. The evidence 

establishes that the City has a codified written policy with respect 

to extension of sewer, storm sewer, water, street lights, and other 

capital public works services within the City. This policy is 

currently being applied in the area annexed [to the south and east 

of the City] pursuant to Ordinance No. 2013-10. It was also 

applied to the three properties within the corporate limits when 

the City extended water and sewer service to the Northern 

Heights area. The Fiscal Plan specifically cites to the City Code 

Sections setting forth this policy as governing how capital 

services will be extended to the Annexation Territory. There is 

no inconsistency.

Id. at 31-33 (citations omitted).

[21] The Remonstrators first contend that the trial court erred in concluding that 

local law requires landowners to bear the primary responsibility for the cost of

extending capital improvement services such as sewer and water mains and 

Court of Appeals of Indiana | Memorandum Decision 09A05-1504-PL-170 | January 8, 2016 Page 19 of 28
street lights into (or further into) the Annexation Territory. 11 They criticize the 

trial court’s reliance on City Code Sections 50-92 (“General standard of 

construction of facilities”) and 50-93 (“New public works facilities construction 

policy”) and assert that the court should have followed Section 50-95

(“Annexation”), which reads as follows:

(a) Before annexing contiguous territory into the city, an 

assessment will be made by the board of public works and safety, 

Logansport Municipal Utility, planning department and street 

department determining the adequacy and status of the existing 

physical amenities referred to as “public works.” Prior to 

annexing territory, the city must determine that it has the 

capacity to maintain existing public works to the standard in 

which they were received, and the Logansport Municipal Utility 

must have the capacity to extend water, sewer and electrical 

services for present and projected future needs. Costs of 

extending public works within individual properties or 

subdivisions will be the responsibility of the property owners or 

developers.

(b) The city will consider construction and/or replacement of 

public works into individual properties or subdivisions in 

annexed territory if petitioned as specified in section 50-94.

(c) The city and/or Logansport Municipal Utility may, at its 

11 One of the Remonstrators’ proposed findings states in part, “The City did prove the requirements of 

Indiana Code[] 36-4-3-13(d), proving that it had developed and adopted a written Fiscal Plan containing all 

of the required information.” Appellants’ App. at 492. The City argues that this “amounts to invited error,” 

in that the Remonstrators “may not request a trial court to take an action – in this case, by proposing a 

finding that the requirements of Section 13(d) were met – and later claim that such action is erroneous.” 

Appellees’ Br. at 28. We note, however, that the Remonstrators also submitted a proposed finding stating 

that “[t]he City’s fiscal plan is inadequate as a matter of law because it does not provide for the City’s 

extension of water mains and sewer mains, at City expense, into the proposed annexation area.” Appellants’ 

App. at 478. Consequently, we address the merits of the Remonstrators’ argument.

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discretion, agree to participate financially in the construction 

and/or replacement of some public works into individual 

properties or subdivisions in the course of annexation 

negotiations if it determines such participation is warranted and 

financially feasible in a fiscal plan.

Defendants’ Ex. K at 410, 412. Contrary to what the Remonstrators suggest, 

Section 50-95 is silent on the issue of cost allocation for extending capital 

improvement services into annexed territory; it deals strictly with allocating 

costs for connecting landowners to such extensions. Consequently, we are 

unpersuaded by the Remonstrators’ reliance on Section 50-95 and agree with 

the trial court that Sections 50-92 and 50-93 are controlling here.12

[22] On a related note, the Remonstrators argue that the fiscal plan is inadequate 

because it does not call for capital improvement services to be provided at the 

same cost as in prior annexations, that is, at no cost to the landowners. Indiana 

Code Section 36-4-3-13(d) states that capital improvement services must be 

provided to the annexed territory “in the same manner as those services are 

provided to areas within the corporate boundaries,” not at the same cost as in 

prior annexations. We agree with the trial court that the City’s policy in past 

annexations is irrelevant and that the City need not provide capital 

12 The Remonstrators also reference City Code Section 2-2 (“Annexation procedure”), which states in 

pertinent part that the utilities superintendent will “supply cost estimates of planned services to be furnished 

to the territory to be annexed,” the utility service board “will supply a fiscal plan describing the methods for 

financing the planned services,” and the city engineer “will report on how to pay for” additional street lights 

and other infrastructure. Plaintiffs’ Ex. 1 at 8. Like Section 50-95, Section 2-2 is silent on the issue of cost 

allocation for extending capital improvement services; at the very least, it does not specifically require the 

City to pay the entire cost.

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improvement services at no cost to landowners in the Annexation Territory 

because the City does not do so within its corporate boundaries in accordance 

with the City Code. See Ind. Code § 36-4-3-13(d)(5) (fiscal plan must show that 

capital improvement services will be provided “in a manner consistent with ... 

local laws”).

[23] Finally, the Remonstrators contend that the fiscal plan is inadequate because 

the estimated cost of providing certain capital improvement services is zero. 

But that is because those services will be provided on an as-needed or asrequested basis and, pursuant to the City Code, landowners must bear the 

primary responsibility for their cost.13 Cf. Chem. Waste Mgmt. of Ind., LLC v. City 

of New Haven, 755 N.E.2d 624, 637 (Ind. Ct. App. 2001) (concluding that city 

was “not required to provide a cost estimate greater than zero for capital 

improvements that are not needed in the annexation area,” where city had 

policy of making improvements on “as-needed” basis). In sum, the 

Remonstrators have failed to establish that the trial court’s findings and 

conclusions regarding the fiscal plan are clearly erroneous.

13 The Remonstrators criticize the fiscal plan for failing “to provide for stormwater drainage facilities as a 

capital service.” Appellants’ Br. at 41. Before the annexation, Cass County was responsible for stormwater 

drains in the Annexation Territory. At the hearing, two of the three members of the County Drainage Board 

opined that the drains would become the City’s responsibility after annexation, but both acknowledged that 

other options were possible, including the County retaining control. Tr. at 345, 352. And Michael Shaver, 

who prepared the fiscal plan, expressed his understanding that the County would retain control over 

stormwater drains. Id. at 188. In light of the foregoing, we cannot conclude that the fiscal plan is fatally 

flawed in this respect.

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Section 5 – The trial court did not clearly err in concluding 

that the Remonstrators failed to establish that the annexation 

will have a significant financial impact on residents or 

landowners.

[24] Indiana Code Section 36-4-3-13(e) reads as follows:

At the [remonstrance] hearing, the court shall do the following:

(1) Consider evidence on the conditions listed in 

subdivision (2).

(2) Order a proposed annexation not to take place if the 

court finds that all of the conditions set forth in clauses (A) 

through (D) and, if applicable, clause (E) exist in the 

territory proposed to be annexed:

(A) The following services are adequately furnished 

by a provider other than the municipality seeking 

the annexation:

(i) Police and fire protection.

(ii) Street and road maintenance.

(B) The annexation will have a significant financial 

impact on the residents or owners of land.

(C) The annexation is not in the best interests of the 

owners of land in the territory proposed to be 

annexed as set forth in subsection (f).

(D) One (1) of the following opposes the 

annexation:

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(i) At least sixty-five percent (65%) of the 

owners of land in the territory proposed to be 

annexed.

(ii) The owners of more than seventy-five 

percent (75%) in assessed valuation of the 

land in the territory proposed to be annexed.

Evidence of opposition may be expressed by any 

owner of land in the territory proposed to be 

annexed.

[25] The trial court found that the parties had stipulated that police, fire protection, 

street, and road maintenance services are adequately furnished to the 

Annexation Territory by a provider other than the City. The trial court also 

made the following relevant findings:

36. Landowners in the Annexation Territory on City water and 

sewers currently pay a 25% surcharge for service outside of City 

limits, which will be eliminated for those properties upon 

annexation. Landowners in the Annexation Territory connected 

to City electric utilities pay an additional facilities charge for 

service outside of the City limits, which will also be eliminated 

for those properties upon annexation.

37. Trash removal service will be available to residential 

properties in the Annexation Territory after annexation at a 

savings compared to what those landowners would currently be 

required to pay for those same services.

38. Logansport offered a financial impact analysis prepared by 

Reedy Financial Group. The City’s witness Andrew Lanam, a 

Manager with Reedy Financial Group, helped to prepare the 

report. He testified that the report showed that only one property 

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in the Annexation Territory (owned by Pasquale Trucking 

Company, Inc.) is projected to see an annual property tax 

increase of greater than $1,000 per year and this is a commercial 

property. No one testified on behalf of this owner regarding 

whether this impact would be significant.

39. After giving effect to offsets for lower utility bills and free 

residential trash service, as applicable, 106 parcels in the 

Annexation Territory are projected to see either no increase in 

cost or a net reduction in total cost as a result of annexation.

40. After factoring in the cost decreases for utility service and 

residential trash service, as applicable, only one property in the 

Annexation Territory (Pasquale Trucking Company) is projected 

to see an annual net increase of greater than $1,000 as a result of 

annexation and only one other property is projected to see an 

annual net increase of greater than $500. One of the joint owners 

of the latter property (Douglas Weaver) is the only landowner 

who testified in this case who is projected to experience a net 

annual increase in property taxes as a result of the annexation.

41. Nearly all of the parcels in the Annexation Territory that are 

projected to see a net increase as a result of annexation are 

estimated to see an increase of less than $1 per day.

....

43. The Annexation Ordinance as amended exempts property 

which is classified for zoning purposes as agricultural from the 

municipal tax rate for so long as the property remains zoned 

agricultural pursuant to Ind. Code § 36-4-3-4.1 (the “ag 

exemption”).

....

45. The Remonstrators attempted to show that the annexation 

would have an adverse financial impact as a result of the 

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“inevitability” of failure of septic systems and the costs to 

connect to City sewer service. It was confirmed at the hearing 

that the City’s Fiscal Plan provides that landowners can continue 

to operate their septic tanks, including repairing or replacing as 

necessary, so long as the County Health Department will allow 

the repair or replacement. Sue Norris, a former environmental 

health specialist for the Cass County Health Department, 

testified that in her experience the County Health Department 

does not deny a permit to repair or replace a septic system based 

upon the availability of a sewer.

....

47. The Court does not find the annexation will have a 

significant financial impact on the residents or owners of land in 

the Annexation Territory.

48. Of the landowners who testified, several of them stated they 

did not want to give up their rural lifestyle.

49. The City has adopted a number of ordinances to enable the 

property owners in the Annexation Territory to continue their 

“rural” lifestyle, including: (1) allowing the raising of livestock in 

the Annexation Territory; (2) allowing the discharge of firearms 

in the Annexation Territory (subject to restrictions imposed by 

state law); (3) allowing the use of fertilizers, herbicides, chemicals 

and/or compounds commonly used for agriculture; and (4) 

allowing burning of fence rows and other vegetation and grilling 

food or burning firewood using campfires or outdoor fireplaces.

50. The City has also adopted Ordinance 2013-28, As Amended, 

to exempt property in the Annexation Territory from storm water 

rates until a cost of service study is conducted and a new storm 

water rate ordinance is adopted. That ordinance specifies that 

property used for agricultural purposes anywhere in the City 

limits will be assigned a multiple of zero (0) under the stormwater 

rate structure established in Ordinance No. 2012-18, meaning 

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that agricultural property does not pay a stormwater rate.[14]

51. The Court does not find that 65% of the property owners or 

the owners of 75% of the assessed value in the Annexation 

Territory continued to be opposed to annexation at the 

hearing.[15]

52. Annexation will not be in the best interests of landowners in 

the Annexation Territory.

Appellants’ App. at 26-29 (citations to exhibits omitted).

[26] The Remonstrators do not challenge any specific findings regarding the 

annexation’s financial impact. They assert that Cass County Deputy Auditor 

Candy Heath’s “spot check of the Remonstrators’ property tax increases, as a 

result of annexation, ranged from 43% to 100%,” Appellants’ Br. at 43, but this 

disregards the impact of the ag exemption and the elimination of utility

surcharges and fails to actually prove a significant financial impact. The 

Remonstrators raise concerns about being forced to connect to sewer systems 

after their septic systems fail, but these were addressed to the trial court’s 

14 The Remonstrators claim that the City has no authority to enact such an exemption. The City points out 

that under Indiana Code Section 8-1.5-5-7(e), it may exercise “reasonable discretion” in “adopting different 

schedules of fees or making classifications in schedules of fees” based on whether “property is used primarily 

for residential, commercial, or agricultural purposes.” The City also notes that “there was no challenge filed 

to the ordinance granting the stormwater exemption and so it is final.” Appellees’ Br. at 38 (citing Tr. at 

420).

15 Because the Remonstrators had the burden of proof as to all four relevant subparagraphs of Indiana Code 

Section 36-4-3-13(e)(2), we need not address their argument that the trial court erred in concluding that they 

had failed to establish that at least sixty-five percent of the landowners in the Annexation Territory oppose 

the annexation. We note, however, that each remonstrance petition states that the petitioner agrees that it 

“shall remain binding and valid throughout the duration of any legal proceedings challenging” the 

Ordinance. See, e.g., Appellants’ App. at 64.

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satisfaction. See Finding 45. The Remonstrators also claim that “[t]he future 

cost of extension of water and sewer mains will cost millions of dollars[,]” id., 

but the mains will be extended only on an as-needed or as-requested basis, per 

the landowners’ specific request. See Tr. at 172 (testimony of Michael Shaver: 

“[T[he [fiscal] plan says exactly what the people asked for it to say which was 

that we won’t require them to connect and we won’t extend the services unless 

they request the services.”). Once again, the Remonstrators have failed to 

establish that the trial court’s findings and conclusions are clearly erroneous.

Conclusion

[27] We agree with the trial court that the City met its burden as to subsections (c) 

and (d) of Indiana Code Section 36-4-3-13 and that the Remonstrators failed to 

meet their burden as to subsection (e). Therefore, we affirm the trial court’s 

judgment.

[28] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

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