By Joseph S. Pete and Jason Michael White, Daily Journal of Johnson County staff writers
The city of Greenwood and three property owners are asking a judge to stop Bargersville from annexing about 2,250 acres in the Center Grove area.
Bargersville does not have the proper agreements from enough property owners to meet the legal requirements to annex the land between its northern boundary and Stones Crossing Road, the lawsuit filed Wednesday says.
Without the agreements, Bargersville must get permission from Greenwood to annex the land because it is within three miles of the city's borders.
Greenwood will not agree to give the town permission, the lawsuit says.
Besides Greenwood, Felson and Jane Bowman, Zinkan & Barker Development Co. LLC, the developer of the proposed Lone Pine Farms subdivision that Greenwood agreed to provide sewer service to, and Paret LLC, a company owned by Jerry Engle, filed the lawsuit against Bargersville. All own land in the annexation area.
Greenwood disputes that the waivers Bargersville got from developers when the town agreed to provide utilities amount to consent from the majority of landowners. The town is using blanket waivers to claim that current landowners consented to an annexation plan they haven't been asked to approve, according to the lawsuit.
In the lawsuit, Greenwood says it is ready to annex land and has the infrastructure in place to do it. The lawsuit says: "Greenwood has initiated a valid annexation process, in compliance with applicable law. Greenwood has invested substantial resources in sewer infrastructure in the annexation territory and has engaged in substantial planning to annex and provide services to that territory. Landowners have the right to either consent or object to the Bargersville proposal, with knowledge of the more favorable alternative provided by Greenwood's annexation."
Greenwood did propose earlier this year annexing some or all of the same area east of State Road 135 but stopped moving forward after the city didn't gather initial support from surveyed property owners between Lone Pine Farms and the city's current southwest border.
Last month, Mayor Charles Henderson called for a moratorium on annexations in Center Grove area by Greenwood and Bargersville to give residents of the entire township time to decide for themselves whether they wanted to become their own city or merge with Greenwood or Bargersville.
What annexation plan Greenwood is planning is unclear; Henderson could not be reached for comment Thursday.
The lawsuit filed against Bargersville asserts that using developers' sewer service agreements disenfranchises current landowners and goes against the intent of the law.
State law says that a town does not have to ask a city's permission to annex nearby land if at least 51 percent of property owners in the annexation area "consent" to annexation. The law does not specify how the town should get consent or a time frame.
The property owners are fighting it because they do not think Bargersville has the right to annex their property, said their attorney, Wayne Turner with Bingham McHale. The property owners do not want extra property taxes and regulations from a government that doesn't have a right to extend its borders over their land, he said. Greenwood is challenging Bargersville's plan because the city claims it would be better able to provide utility service to the land. The city is installing sewer pipes that would serve the area south of Smokey Row Road east of State Road 135, where Lone Pine Farms is planned.
Once Greenwood's project is complete, sewer service could extend as far south as Whiteland Road, city officials said.
Greenwood and the three property owners are asking a judge to temporarily stop Bargersville's plans until a judge decides whether the annexation is valid, Turner said.
The case is scheduled for a hearing in Johnson County Superior Court 1 at 8:30 a.m. Thursday, a day before the Bargersville Town Council is scheduled to vote on its annexation plans for final approval.
The lawsuit gives a glimpse into the longstanding efforts by both Bargersville and Greenwood to lay claim to property and how a 2005 change in the law put Bargersville on a different path to annexation.
For nearly 10 years, Bargersville and Greenwood have been unable to agree on who should provide sewer service to parts of the Center Grove area. But towns no longer are required to get annexation permission from a nearby city if 51 percent of the landowners consent in writing to the town's annexation plan.
Whichever municipality, Greenwood or Bargersville, is able to provide sewer service to the property will be able to collect fees from homeowners when they tap into the system and the monthly bills for years to come.
A sewer facility that helps move the sewage to treatment plants and could serve the annexation area was built by developer Glenn Brizendine and a partner and turned over to the town of Bargersville, with the agreement that the developers could recoup their investment by collecting the tap-in fees for the next 15 years.
Greenwood is working on a sewer expansion project that would service some of the same area, but that project has been stalled because the city has not been able to obtain all the needed easements through private property to install the sewer lines. Brizendine is being sued by the city; Greenwood's project needs an easement through his personal residential property.
Now, timing is an issue. Annexations are not allowed during the year before a federal census, so the city would have to wait until Jan. 2, 2010, for annexation to go into effect if not completed this year.
The lawsuit claims that the town's sewer agreements with developers or residential subdivisions were not a valid way to get consent to the annexation. Bargersville let developers hook their land into town utilities, and in exchange, the developers agreed in writing not to oppose annexation. But the agreements did not specify exact annexation plans or a time frame for when the annexation might happen, Turner said. "The town should have, with its current proposed annexation in hand, gone to landowners and said, 'Do you favor this? Do you consent?' That didn't happen," Turner said.
A property owner cannot consent to annexation without knowing what the annexation plan is, Turner said.
Town consultant Mike Shaver said Bargersville's consent agreements follow state law.
Attorney Nicholas Kile, who helped Bargersville draft the annexation plans, said any court case would come down to whether the town has consent of 51 percent of landowners in the proposed annexation area, regardless of whether they own a single lot or a subdivision that hasn't been developed.
"The only issue is whether there's consent of 51 percent," he said. "The statute says nothing about the form of the consent, the wording of the consent or even that it be in writing. That's the only relevant issue."
Bargersville's written consent form requires more than just waiving the right to remonstrate, Kile said. They specifically require that property owners make "no objection to any annexation of the real estate," and that's a binding agreement that all subsequent landowners agree to if the property is sold, he said.
Getting consent to annexation through sewer agreements is common, said Shaver, who has worked as a consultant with communities across the state on issues related to growth and economic development.
The lawsuit claims that Bargersville only has the consent of less than 5 percent of the annexation area's property owners. Along with the sewer agreements, the town tried to collect direct annexation consents but failed, according to the lawsuit.
Bargersville collected 39 signed consent forms out of more than 900 parcels in the territory, not counting the sewer agreements which Greenwood's attorneys do not think are valid, according to the lawsuit.Greenwood City Attorney Shawna Koons-Davis and Henderson could not be reached for comment.
Shaver was not sure where the lawsuit got its numbers from.
Zinkan and Barker, the Bowmans and Paret LLC haven't decided whether they want to be a part of Greenwood, Turner said.
But they want to be able to make an informed decision about which direction they would rather go, he said. And they want the city and town to follow annexation laws when extending their borders, he said.