City lays out annexation numbers

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November 3, 2009

Court battle moves into its second year

By SCOTT SMITH The Kokomo Tribune Tue Nov 03, 2009, 11:05 PM EST

The arguments over remonstrance waivers are now in the hands of Special Judge Thomas Lett, and the West Side Annexation is on the cusp of a crucial court date.

Late last week, attorneys for the city of Kokomo filed their response to the West Side Annexation remonstrance, again asserting claims that the city is entitled to annex 4,200 acres to the south and west of Kokomo’s current city limits.

The city’s filing was the last step in a yearlong battle over the remonstrance waivers, clearing the way for a decisive hearing in Tipton Circuit Court.

As of Monday, that hearing date had not been set.

But both sides have now presented their written arguments to Lett, who will ultimately decide whether the westsiders’ lawsuit can proceed.

The key issue, from the start of the court battle, has been whether the residents in the targeted West Side Annexation area can even file a legal remonstrance.

To do so, they must have petition signatures from the owners of 65 percent of the parcels in the annexation area.

That’s a tall order, considering the remonstrators calculate they’ve cleared the 65 percent threshold by just over 100 signatures.

And meeting the threshold becomes impossible if Lett disallows signatures filed by individuals who also signed remonstrance waivers.

According to the city’s filing, 137 of the property owners who signed the remonstrance petitions also personally signed a remonstrance waiver.

A remonstrance waiver is a contract to receive city sewer service, in return for giving up the right to remonstrate against future annexation.

The remonstrators have raised claims as to why some or all of the remonstrance waivers shouldn’t be allowed. They’ve also alleged the city failed to properly count and match the signatures on the remonstrance petitions to the correct property parcels.

Friday, however, the city’s attorneys reiterated previous claims that the issue should be decided solely on the waivers.

Even if, the city argued, the court uses the remonstrators’ numbers for both petition signatures and the number of parcels targeted by the West Side Annexation, the remonstrators still wouldn’t have enough signatures.

According to the city attorneys, there are 532 petition signers who legally signed away their remonstrance rights via a waiver.

Only 137 of those individuals personally signed a waiver, according to the city’s calculations.

If those were the only waivers allowed to stand, city officials said, the remonstrators would still be short of the 65 percent goal.

Then there are another 376 petitioners city officials claim are covered by either a sewer agreement, an individual waiver, or both.

Alan Wilson, the attorney representing the west siders, claims the city made 140 errors in matching the remonstrance forms to the parcels.

According to Wilson, remonstrance waivers are only valid in Indiana if they conform to specific legal criteria.

For instance, cities may seek waivers for extending sewer service to a specific area, Wilson said.

Many of the city’s waivers, Wilson said, refer only to “consideration of city services,” without being specific.

Wilson said the Indiana Supreme Court already has made it clear Indiana law doesn’t allow waivers for any services other than sewer, so the “ambiguous” Kokomo waivers should be thrown out.

In other cases, Wilson said, the city cannot prove the waivers are attached — per Indiana law — to the chain of title.

• Scott Smith is a Kokomo Tribune staff writer. He may be reached at (765) 454-8569 or via e-mail at scott.smith@kokomotribune.com

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