Floyd County and Floyd County Plan Commission v. City of New Albany and New Albany City Plan Commission , 2014 Ind. App. LEXIS 7 ( 2014 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
RICHARD R. FOX C. GREGORY FIFER
STEVEN A. GUSTAFSON Applegate Fifer Pulliam LLC
The Law Office of Richard R. Fox Jeffersonville, Indiana
New Albany, Indiana
Jan 16 2014, 8:44 am
IN THE
COURT OF APPEALS OF INDIANA
FLOYD COUNTY and FLOYD COUNTY )
PLAN COMMISSION, )
)
Appellant-Defendant, )
)
vs. ) No. 22A05-1303-MI-139
)
CITY OF NEW ALBANY and NEW )
ALBANY CITY PLAN COMMISSION, )
)
Appellee-Plaintiff. )
APPEAL FROM THE FLOYD CIRCUIT COURT
The Honorable Roger L. Duvall, Special Judge
Cause No. 22C01-1209-MI-1348
January 16, 2014
OPINION - FOR PUBLICATION
ROBB, Judge
Case Summary and Issues
The City of New Albany and the New Albany City Plan Commission (collectively, the
“City”) sought a declaratory judgment regarding whether it or Floyd County and the Floyd
County Plan Commission (collectively, the “County”) has zoning jurisdiction over an
unincorporated area (the “fringe area”) outside the City limits. The trial court granted
summary judgment for the City. The County appeals, raising several issues for our review
which we consolidate and restate as two: 1) whether the trial court erred in determining as a
matter of law that the County is not entitled to claim zoning jurisdiction over the fringe area
pursuant to Indiana Code section 36-7-4-205(e), and 2) if the trial court did not err, whether
the County’s consent is required for the City to exercise jurisdiction pursuant to Indiana Code
section 36-7-4-205(f). The City cross-appeals, contending the trial court abused its discretion
in striking a supplemental affidavit it submitted after the summary judgment hearing.
Concluding the supplemental affidavit could be, and in fact was, considered by the
trial court, and that as a matter of law, the County is not entitled to exercise jurisdiction over
the fringe area, nor is it required to consent to the City’s exercise of jurisdiction, we affirm.
Facts and Procedural History
From mid-1965 to 1967, the City and County jointly participated in an area plan
commission. In 1968, the County opted out of the joint commission and adopted its own
zoning ordinance, which stated that the zoning regulations therein were “made with regard to
2
a comprehensive Master Plan now being made . . . .” Appellant’s Appendix at 44. A
comprehensive plan1 was not adopted by the County until 2006, however.
Pursuant to statute, when adopting a comprehensive plan, a municipal plan
commission may provide for the development of an unincorporated area up to two miles
outside the corporate boundaries of the municipality. See Ind. Code § 36-7-4-205.2 In 1972,
the City Council adopted a resolution of the City Plan Commission establishing as part of the
City’s comprehensive plan a “Zoning Fringe Area” outside the municipal boundaries, and a
map showing the designated fringe area was recorded in September of that year. The City
thereafter exercised zoning jurisdiction in the fringe area and provided municipal services,
specifically sanitary sewer services, to the fringe area. In 1999, the City amended and
replaced its previous comprehensive plan, but continued to assert jurisdiction over the fringe
area. In 2001, 2002, and 2007, the City adopted resolutions designating additional
unincorporated areas to which it provided sanitary sewer service as part of the fringe area.
As mentioned above, the County adopted a comprehensive plan in 2006, and in 2012,
the County Board of Commissioners adopted an ordinance purporting to amend the County’s
zoning map to terminate the City’s zoning jurisdiction over the fringe area and instead
include it within the County’s jurisdiction. In response to the County ordinance, the City
adopted a resolution in February 2013 which “asserts and reaffirms its exclusive territorial
zoning jurisdiction over and within the Zoning Fringe Area,” which resolution was
1
Sometimes also referred to interchangeably as a “master plan.”
2
At the time the City plan commission designated the fringe area at issue in this appeal, the statute
3
forwarded to the County and recorded. Appellant’s App. at 230-33. The City also filed a
petition for declaratory judgment seeking a declaration that the County ordinance was invalid
as contrary to statute. On February 22, 2013, the City filed a motion for summary judgment.
Shortly thereafter, the County filed a motion for summary judgment, designating evidence in
support of its own motion and in opposition to the City’s motion.3 A hearing was held on
March 8, 2013, and the trial court took the matter under advisement. On March 12, 2013, the
City moved for leave to supplement its designated evidence with an additional affidavit
regarding the City’s provision of building code and enforcement services in the fringe area.
The County moved to strike the supplemental affidavit as untimely.4 On March 18, 2013, the
trial court entered an order granting the County’s motion to strike the supplemental affidavit,
but ultimately granting summary judgment for the City. The order reads in relevant part:
15. At the summary judgment hearing, the County raised for the first
time its assertion that the City’s provision of municipal sanitary sewer service
is insufficient to satisfy the provisions of Ind. Code § 36-7-4-205(f), pursuant
to 1999 amendment, regarding the necessity of County consent unless the City
is providing “municipal services” (pl.).
16. On March 12, 2013, the City then filed a motion for leave to
supplement its designated evidence with the affidavit of City Building
Commissioner David Brewer demonstrating that the City was also providing
building code inspection and enforcement services at all material times with
was found at Ind. Code § 18-7-5-34 (1972).
3
The County’s motion for summary judgment is file-stamped March 6, 2013, although the certificate
of service states it was served on February 28, 2013. See Appellant’s App. at 240-41. The actual date it was
filed is not of particular significance, but we do note that the City filed a response to the County’s motion for
summary judgment that is file-stamped March 4, 2013. See id. at 251. Overall, it is important only to note that
by apparent agreement of the parties, the timeline for consideration of the summary judgment motions was
shortened, which is relevant to our consideration of the City’s cross-appeal.
4
Although the County moved to strike the affidavit and the trial court ruled on that motion, it appears
the affidavit was never actually filed, as the City moved for leave to file the affidavit.
4
the Zoning Fringe Area as of the date that the County adopted its ordinance
purporting to revoke the City’s jurisdiction over the Zoning Fringe Area.
17. The County has moved to strike the Brewer affidavit as untimely,
but has not designated any additional evidence that would refute the City’s
claim that it is also providing building code inspection and enforcement
services within the Zoning Fringe Area.
18. The court grants the motion to strike the Brewer affidavit as
untimely and not consistent with the agreement of the parties at the hearing.
19. There is no genuine issue of material fact that the City Plan
Commission has filed notice with the County Recorder and the County Plan
Commission of its exercise of territorial zoning jurisdiction over the Zoning
Fringe Area as required by the provisions of Ind. Code § 36-7-4-205(f).
20. There is no genuine issue of material fact that the City has been
exercising zoning authority over the Zoning Fringe Area continuously for forty
(40) years.
21. The County’s claim that the provisions of Ind. Code § 36-7-4-
205(e) enable the County to revoke or terminate the City’s territorial
jurisdiction over the Zoning Fringe Area would vitiate the clear provisions of
Ind. Code § 36-7-4-205(f). Statutes must be read in pari materia and in
harmony with related statutes.
22. The provisions of identified sections of the Indiana Code, both as
currently enacted and previous statutes, evidence a clear legislative intent to
allow municipalities within counties of a certain size to exercise zoning
authority over land adjoin[ing] the municipal boundaries without first
obtaining permission of the county executive body where the municipality is
also offering municipal services.
23. Municipal services are not defined in Title 36 of the Indiana Code
or in case law. The offering of sanitary sewer services is not insignificant
when considering the nature and extent of such a capital investment by a
municipality. This court will not replace its judgment for that of the Indiana
Legislature and limit the zoning authority that has been extended to a
municipality by that branch of government by defining the quality and/or
quantity of municipal services that must be provided before a municipality may
exercise Fringe Zoning Area authority. The City is providing municipal
services, if the nature and extent of those services are to be defined or limited,
it is better done in the Indiana Legislature.
24. The City is accordingly entitled to the award of summary judgment
as a matter of law based on the following:
a. The City has, and continues to, exercise territorial jurisdiction
within the Zoning Fringe Area pursuant to the provisions of Ind. Code § 36-7-
4-205(a) and (f).
5
b. The County’s consent to the City’s exercise of such
jurisdiction is not required as the City is providing municipal sanitary sewer
service and building code inspection and enforcement services within the
Zoning Fringe Area.
IT IS THEREFORE ORDERED ADJUDGED AND DECREED as
follows:
A. [County] Ordinance No. FCO 2012-IX adopted by the Board of
Commissioners of the County on September 4, 2012, is hereby declared as
void and of no effect to the extent it was intended to terminate or revoke the
City’s territorial zoning jurisdiction over the Zoning Fringe Area.
B. The County and the County Plan Commission are ordered to
revise the County comprehensive plan and zoning ordinance to reflect the City
Plan Commission’s decision to exercise territorial zoning jurisdiction within
the entirety of the Zoning Fringe Area as required by the provisions of Ind.
Code § 36-7-4-205(f) within sixty (60) days following entry of this judgment.
C. It is further ordered that the County and the County Plan
Commission are permanently enjoined from exercising, or attempting to
exercise, territorial zoning jurisdiction within the Zoning Fringe Area, as such
area may be amended from time-to-time by the City, for so long as (i) the
delegation of statutory authority to the City in accordance with the provisions
of Ind. Code § 36-7-4-205(f) remains in effect, (ii) the population of Floyd
County remains less than that established by the statute to require the County’s
consent, (iii) the City continues to provide municipal sanitary sewer service,
building code inspection and enforcement services, and/or other municipal
services within the Zoning Fringe Area, and (iv) the City Plan Commission
continues to exercise territorial zoning jurisdiction over the Zoning Fringe
Area.
D. The County’s cross-motion for summary judgment is denied in
its entirety.
Appellant’s App. at 7-10 (citations omitted). The County now appeals the trial court’s grant
of summary judgment to the City; the City cross-appeals the trial court’s grant of the
County’s motion to strike the supplemental affidavit they offered.
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Discussion and Decision
I. The City’s Cross-Appeal: Supplemental Affidavit
We begin by addressing the City’s cross-appeal, as the trial court’s exclusion of the
supplemental affidavit has bearing on the merits of the summary judgment itself.
In moving for leave to file the supplemental affidavit, the City contended that the
County raised for the first time at the summary judgment hearing the necessity for the City to
provide multiple municipal services to the fringe area. The trial court in its order also stated
that the County raised the insufficiency of the City’s provision of municipal services to the
fringe area for the first time at the hearing. However, our review of the record shows that the
County’s designation of evidence and memorandum in opposition to the City’s motion for
summary judgment and its cross-motion for summary judgment is primarily addressed to its
assertion that “the City does not provide municipal services to the fringe area.” Appellant’s
App. at 246. Moreover, the City’s response to the County’s motion for summary judgment
asserts that the County has “seemingly abandon[ed] the County’s claim that the adoption of
the County’s comprehensive plan in 2006 vested it with authority pursuant to Ind. Code § 36-
7-4-205(e) to veto or revoke the City’s prior exercise of territorial zoning jurisdiction” and
“apparently now focuses on the fact that the City provides some municipal services (i.e.,
municipal sanitary sewers) . . . but not all municipal services (i.e., fire protection, solid waste
collection, and police protection).” Id. at 251-52. Thus, the County’s argument was not
newly raised at the hearing.
7
Nonetheless, Trial Rule 56(E) provides that “[t]he court may permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories, or further affidavits.” It
is within the trial court’s discretion to do so. See Tom-Wat, Inc. v. Fink, 741 N.E.2d 343,
347 (Ind. 2001). Although the County’s argument was not sprung on the City at the hearing
such that the City had no opportunity to respond, the timeline for summary judgment in this
case was accelerated such that it had little opportunity to respond: a hearing was held just
days after the County filed its cross-motion for summary judgment. Under these
circumstances we would be inclined to say the trial court abused its discretion in striking the
affidavit. Cf. Tannehill by Podgorski v. Reddy, 633 N.E.2d 318, 320 (Ind. Ct. App. 1994)
(noting that granting permission to file a supplemental affidavit is within the trial court’s
discretion and the trial court did not err in denying the plaintiff’s in part because the plaintiff
“had ample opportunity to have timely filed her affidavit . . . .”), trans. denied. Although the
trial court’s order states that the County’s motion to strike the City’s affidavit as untimely is
granted, the trial court also clearly relied on the content of that affidavit when it concluded in
paragraph 24 of its order that the City was entitled to summary judgment in part because the
County’s consent was not required due to the City’s provision of “municipal sanitary sewer
service and building code inspection and enforcement services within the Zoning Fringe
Area.” Appellant’s App. at 9.5 Whether the trial court abused its discretion in striking the
5
Although asserting at the start of the summary judgment hearing that the sanitary sewer service was
“the most substantial service that the City has provided in [the fringe] area and it is the sole service we have
designated into evidence,” transcript at 28, the City’s counsel later noted that “we’re now issuing building
permits, we’re issuing zoning approvals, so it [is] a service in addition to, to municipal sanitary sewer service,”
id. at 52. The notion that the City was providing additional services was therefore offered at the hearing, but
the affidavit is the only evidence that it was doing so.
8
affidavit or merely misspoke and did not intend to strike the affidavit, the result is the same:
the supplemental affidavit was properly considered by the trial court and is before this court
as well.
II. The County’s Appeal: Summary Judgment
A. Standard of Review
Summary judgment is proper if the designated evidence shows there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law.
Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70
(Ind. 2009). We will affirm the trial court’s grant of summary judgment if it is sustainable on
any theory or basis in the record. Beck v. City of Evansville, 842 N.E.2d 856, 860 (Ind. Ct.
App. 2006), trans. denied. The fact that parties have filed cross-motions for summary
judgment does not alter our standard of review. T–3 Martinsville, LLC v. U.S. Holding,
LLC, 911 N.E.2d 100, 109 (Ind. Ct. App. 2009), trans. denied. Questions of statutory
construction are particularly appropriate for resolution by summary judgment, as they are
pure questions of law. HDNet LLC v. N. Am. Boxing Council, 972 N.E.2d 920, 922 (Ind.
Ct. App. 2012), trans. denied. We review questions of law de novo and owe no deference to
the trial court’s legal conclusions. Id. The party appealing the grant of summary judgment
has the burden of persuading this court on appeal that the trial court’s ruling was improper.
Bd. of Comm’rs of Hendricks Cnty. v. Town of Plainfield, 909 N.E.2d 480, 485-86 (Ind. Ct.
App. 2009).
9
B. Indiana Code section 36-7-4-205
The parties agree about the underlying facts; they dispute only which section of
Indiana Code section 36-7-4-205 is applicable to their situation. We begin by noting the
history of the relevant “local planning and zoning” statute concerning territorial authority as
between counties and cities: prior to 1971, if a county had a plan commission which had
adopted a comprehensive plan covering the unincorporated areas of the county, a city could
exercise fringe jurisdiction over contiguous unincorporated areas only with the consent of the
county board of commissioners, and once authorized, the city’s jurisdiction could thereafter
be terminated at the discretion of the county board of commissioners. See Ind. Code § 18-7-
5-34 (1971). Effective February 17, 1972, the statute was amended so that consent of the
county board of commissioners was not required for a city to exercise fringe jurisdiction if
the population of the county was less than 84,000. In such a case, the city could at any time
file notice with the county plan commission that it was exercising or rejecting jurisdiction
over all or part of the fringe area and the county was required to revise its comprehensive
plan to reflect the city’s decision within sixty days of receiving the notice. See P.L.141, SEC.
1 (1972), P.L. 271, SEC. 1 (1971). In 1981, the relevant provision was recodified at Indiana
Code section 36-7-4-205 but remained largely the same in substance. In 1982, the statute
was amended to state that the city could exercise or reject jurisdiction in the fringe area if the
county population was less than 95,000. Acts 1982, P.L.1, SEC. 61. In 1999, the statute was
amended to allow cities adopting a comprehensive plan after July 1, 1999, to provide for the
10
development of a fringe area if the city was providing municipal services to the fringe area or
if the city obtained the county’s approval. P.L. 216-1999, SEC. 1.
In 2011, the statute was amended to its current form, which states in relevant part:
(a) ADVISORY. A municipal plan commission shall adopt a comprehensive
plan, as provided for under the 500 series of the advisory planning law, for the
development of the municipality. For comprehensive plans adopted after July
1, 1999, if:
(1) the municipality provides municipal services to the contiguous
unincorporated area; or
(2) the municipal plan commission obtains the approval of the county
legislative body of each affected county;
the municipal plan commission may provide in the comprehensive plan for the
development of the contiguous unincorporated area, designated by the
commission, that is outside the corporate boundaries of the municipality, and
that, in the judgment of the commission, bears reasonable relation to the
development of the municipality. For purposes of this section, participation of
a municipality in a fire protection territory established under IC 36-8-19 that
includes unincorporated areas contiguous to the municipality may not be
treated as providing municipal services to the contiguous unincorporated areas.
(b) ADVISORY. Except as limited by the boundaries of unincorporated areas
subject to the jurisdiction of other municipal plan commissions, an area
designated under this section may include any part of the contiguous
unincorporated area within two (2) miles from the corporate boundaries of the
municipality. . . .
(c) ADVISORY. Before exercising their rights, powers, and duties of the
advisory planning law with respect to an area designated under this section, a
municipal plan commission must file, with the recorder of the county in which
the municipality is located, a description or map defining the limits of that
area. If the commission revises the limits, it shall file, with the recorder, a
revised description or map defining those revised limits.
***
(e) ADVISORY. If the legislative body of a county adopts a comprehensive
plan and ordinance covering the unincorporated areas of the county, a
municipal plan commission may not exercise jurisdiction, as provided in this
section, over any part of that unincorporated area unless it is authorized by
ordinance of the legislative body of the county. This ordinance may be
initiated by the county legislative body or by petition duly signed and presented
to the county auditor by:
11
(1) not less than fifty (50) property owners residing in the area involved
in the petition;
(2) the county plan commission; or
(3) the municipal plan commission.
Before final action on the ordinance by the county legislative body, the county
plan commission must hold an advertised public hearing as required for other
actions of the county plan commission under the advisory planning law. Upon
the passage of the ordinance by the county legislative body and the subsequent
acceptance of jurisdiction by the municipal plan commission, the municipal
plan commission shall exercise the same rights, powers, and duties conferred
in this section exclusively with respect to the contiguous unincorporated area.
The jurisdiction of a municipal plan commission, as authorized under this
subsection, may be terminated by ordinance at the discretion of the legislative
body of the county, but only if the county has adopted a comprehensive plan
for that area that is as comprehensive in scope and subject matter as that in
effect by municipal ordinance.
(f) ADVISORY. Each municipal plan commission in a municipality located in
a county having:
(1) a population of less than ninety-five thousand (95,000); and
(2) a county plan commission that has adopted, in accord with the
advisory planning law, a comprehensive plan and ordinance covering
the unincorporated areas of the county;
may, at any time, after filing notice with the county recorder and the county
plan commission, exercise or reject territorial jurisdiction over any part of the
area within two (2) miles of the corporate boundaries of that municipality and
within that county, whether or not that commission has previously exercised
that jurisdiction, if the municipality is providing municipal services to the area.
Within sixty (60) days after receipt of that notice, the county plan commission
and the county legislative body shall have the county comprehensive plan and
ordinance revised to reflect the decision of the municipal plan commission
exercising the option provided for in this subsection. If the municipality is not
providing municipal services to the area, the municipal plan commission must
obtain the approval of the county legislative body of each affected county
before exercising jurisdiction.
***
Ind. Code § 36-7-4-205 (2011).
“The first step in interpreting a statute is to determine whether the Legislature has
spoken clearly and unambiguously on the point in question.” City of Carmel v. Steele, 865
12
N.E.2d 612, 618 (Ind. 2007). When a statute is clear and unambiguous, we need not apply
any rules of construction other than to require that words and phrases be taken in their plain,
ordinary, and usual sense. Id. Clear and unambiguous statutes leave no room for judicial
construction. Id. However, when a statute is susceptible to more than one interpretation it is
deemed ambiguous and, thus, open to judicial construction. Id. When faced with an
ambiguous statute, we apply other well-established rules of statutory construction. Id. One
such rule is that our primary goal is to determine, give effect to, and implement the intent of
the Legislature. Id. To effectuate legislative intent, we read the sections of an act together in
order that no part is rendered meaningless if it can be harmonized with the remainder of the
statute. Id. A statute should be examined as a whole, avoiding excessive reliance upon a
strict literal meaning or the selective reading of individual words. Mayes v. Second Injury
Fund, 888 N.E.2d 773, 776 (Ind. 2008). We presume that the legislature intended for the
statutory language to be applied in a logical manner consistent with the statute’s underlying
policy and goals. Id.
The City contends that subsection (f) applies in this situation because Floyd County
has fewer than 95,000 residents as shown by the 2010 census and the City has elected to
exercise jurisdiction in the fringe area and has given notice to the County. The County
contends that subsection (e) applies because the County has now adopted a comprehensive
plan and has adopted an ordinance to terminate the city’s jurisdiction over the fringe area.
In Bd. of Comm’rs of Howard Cnty. v. Kokomo City Plan Comm’n, 263 Ind. 282, 330
N.E.2d 92 (1975), our supreme court considered a constitutional challenge to the version of
13
the statute that first established the population classification. Ultimately, the court held the
county had no standing to raise the constitutional claims. Id. at 295, 330 N.E.2d at 101. For
our purposes, however, it is important to note how the court described the classifications of
the statute:
[It] places cities in two categories and provides two different procedures for a
city’s assumption of extra-territorial planning and zoning authority. In the first
category are all cities located in counties in which there exists no county
master plan and those cities in counties having a county master plan but having
less than 84,000 population. In the second category are those cities located in
counties having more than 84,000 population and a county master plan. A city
in the first category is vested with sole discretion to decide whether it will
exercise such extraterritorial authority. In the second category, a city may not
exercise authority outside its boundaries unless approved by ordinance of the
county.
Id. at 291, 330 N.E.2d at 98 (emphasis added) (citation omitted). Although the statute has
been amended since this case was decided, the amendments have not altered this basic
structure: cities are still placed in two categories: 1) those cities located in counties having a
county comprehensive plan covering the fringe area and population less than 95,000
(subsection f), and 2) those cities located in counties having a county comprehensive plan
covering the fringe area and, although unstated, population more than 95,000 (subsection e).6
The County’s position, that the “statute says, very simply, that once the legislative body of a
county adopts a comprehensive plan and ordinance covering the unincorporated areas of the
county, a municipal plan commission simply may not continue to exercise jurisdiction over
6
Not having a comprehensive plan as in Bd. of Comm’rs of Howard Cnty., is apparently no longer an
option. See Ind. Code § 36-7-4-501 (“A comprehensive plan shall be approved by resolution in accordance
with the 500 series for the promotion of public health, safety, morals, convenience, order, or the general
welfare and for the sake of efficiency and economy in the process of development.”).
14
the fringe unless it is authorized to do so by a county ordinance[,]” Brief of the Appellant at
22, fails to take into account the two-category structure of the statute and would render
subsection (f) meaningless, because the existence of a county comprehensive plan is a part of
both subsections (e) and (f), making the population classification the differentiating factor.
We agree with the trial court that the County’s position is untenable, and because Floyd
County has fewer than 95,000 residents, subsection (f) is the applicable section in this case.
The County also contends that, if subsection (f) is the applicable section, County
approval is still required because the City “is not providing municipal services to the area . .
.” Ind. Code § 36-7-4-205(f). The City first contends that it is not required to provide
municipal services because it was exercising jurisdiction over the fringe area prior to the
1999 amendment adding that requirement. See Brief and Cross-Appeal of the Appellees at
15 (arguing the 1999 amendment “neither operated in any manner to revoke or impair the
prior exercise of extraterritorial jurisdiction by any municipality, nor conferred on counties
the authority to retroactively revoke extraterritorial zoning jurisdiction previously asserted by
municipalities (even where the subsequently requisite ‘municipal services’ were not then
being provided to the area). Instead, the amendment merely established that in any newly
proposed exercise of extraterritorial jurisdiction, the municipality would be required to either
provide undefined municipal services to the area or obtain the county’s prior consent.”). We
need not decide whether the City is correct in this regard, however, because the City also
asserts that it is providing municipal services to the fringe area as required by subsection (f).
15
As the trial court noted, “municipal services” as a term is not defined by the statute or
by caselaw. We begin by acknowledging that section 36-7-4-205(f) uses the term in its plural
form. Indiana Code section 1-1-4-1(3), setting forth general rules for the construction of
Indiana statutes, states that “[w]ords importing the singular number only may be also applied
to the plural of persons and things[,]” but it does not state the opposite is true. In Beneficial
Fin. Co. v. Wegmiller Bender Lumber Co., Inc., 402 N.E.2d 41 (Ind. Ct. App. 1980), it was
noted that
[c]ommon usage in the English language does not scrupulously observe a
discrete difference between singular and plural word forms, especially when
speaking in the abstract, not referring to identified subjects or objects, as in
legislation prescribing a general rule for future application. In recognition of
this, it is well established, by statute as well as by judicial decision, that
legislative terms which are singular in form may apply to multiple subjects or
objects and those which are plural in form may apply to single subjects or
objects if that is the intended or reasonably understood meaning and effect.
Id. at 49 n.3 (Young, J., dissenting) (quoting Sutherland, Statutes and Statutory Construction
§ 47.34 (Sands 4th ed. (1973)). However, other statutes within the Indiana Code specifically
provide that “[t]he singular number includes the plural and the plural number includes the
singular.” Ind. Code § 29-1-1-3(b)(1) (rules of construction applying throughout the probate
code). See also Ind. Code § 5-10.3-1-8(b) (for the article concerning the Public Employees’
Retirement Fund: “The singular form of any noun used in this article includes the plural, and
the plural includes the singular, as appropriate.”); Ind. Code § 6-6-1.1-104(b) (same, in rules
of construction for the chapter on gasoline tax); Ind. Code § 27-7-2-2(g) (same, in definitions
for purposes of worker’s compensation). No such provision is included within Title 36.
16
Therefore, taking section 36-7-4-205 in its plainest terms, “municipal services” implies that
more than one service must be provided.
Other than setting forth the basic proposition that more than one municipal service
must be provided by a city by its use of the plural in section 36-7-4-205, the legislature has
not indicated the nature, kind, or extent of municipal services it intended a city to provide in
order to dispense with county approval of its exercise of jurisdiction over a fringe area. The
County directs us to the annexation statutes found in Title 36 which describe two categories
of services that an annexing municipality must make a commitment to provide to the annexed
area: “noncapital” services, including police protection, fire protection, and street and road
maintenance, and services of a “capital improvement nature,” including street construction,
street lighting, sewer facilities, water facilities, and stormwater drainage facilities. Ind. Code
§ 36-4-3-13(d)(4), (5). The County contends that this defines “municipal services” for Title
36, and that the term therefore “includes all, or at least substantially all,” of these services.
Brief of the Appellant at 25. Even assuming those are the “municipal services” with which
we are concerned for purposes of section 36-7-4-205, we note that annexation is a highly
formalized, legislatively prescribed process, whereas the exercise of extraterritorial
jurisdiction over an unincorporated area, though also granted by the legislature, is
considerably more informal. We cannot say that the requirements for annexation are directly
applicable to this situation.
We can say, though, that the legislature has set a minimum standard for the exercise of
extraterritorial jurisdiction by requiring a city to provide “municipal services,” plural. But it
17
has not set a specific standard by requiring the provision of all or of certain municipal
services. The County asks this court to set a standard beyond that clearly set in the statute
itself, and that is a job reserved to the legislature. The City has been providing sanitary sewer
services in the fringe area for decades. That is clearly the largest and most substantial of the
services provided to the fringe area by the City, but the evidence in the record and considered
by the trial court shows that the City is also providing building code inspection and
enforcement services. The County asserts that by adding the requirement that a city provide
municipal services, the legislature’s intent was to ensure that a municipality has a stake in the
fringe area over which it purports to exercise jurisdiction. The provision of sanitary sewer
services in this case accomplishes that intent because it is, as the trial court noted, not
insignificant due to the capital investment the City has made in offering those services
outside its municipal boundaries. We conclude the City meets the requirements of section
36-7-4-205(f) for exercising jurisdiction over the fringe area.
Conclusion
The City’s supplemental affidavit was properly considered by the trial court and is
therefore before this court, as well, in considering the summary judgment motions. Because
the County has a population of less than 95,000, Indiana Code section 36-7-4-205(f)
determines which entity is entitled to exercise jurisdiction over the fringe area, and because
the City is providing municipal services to the fringe area, it is entitled to the exercise of
jurisdiction without the necessity of County approval. The judgment of the trial court in
favor of the City is therefore affirmed.
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Affirmed.
RILEY, J., and KIRSCH, J., concur.
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