By Scott Olson, The IBJ
solson@ibj.com
Whitestown is a classic "blink-and-youmiss-it" Hoosier hamlet. But blink these days and you might miss the latest lawsuit besieging the tiny Boone County burg.
Six complaints have been filed in the past eight months relating to the town's efforts to expand its borders by more than six square miles. The annexation would take city limits as far south as the Boone-Hendricks county line, snaring tiny Fayette.
The result is a litany of litigation pitting Whitestown against the county and, oddly, even against some of its own 530 residents, who doubt the town can adequately serve the area it wants to annex.
"Whitestown can't even drink its water half the time," said Eileen Simms, lawyer for the county. "I think a lot of people in the county are scratching their heads trying to figure out why Whitestown has taken the position it is taking."
The task of explaining that has fallen on Town Council President Jason Tribby, a newcomer to the government. Carrying no baggage from previous flaps between the town and the county, his mission is to help broker a compromise and get the two sides to kiss and make up.
"We all have to continue to work together, and that's what I'm going to push," Tribby said. "We're moving in a positive direction, and I'm being very careful. I don't want it perceived that Whitestown is beating up on the county."
Officials on both sides acknowledge the legal sparring likely stems from Whitestown's purchase of Zionsville-based Boone County Utilities LLC from bankruptcy for $10 million in 2003. The utility that gets its water from Indianapolis serves the Royal Run subdivision and will supply water to much of Duke Realty Corp.'s 1,700-acre Anson development near Whitestown. The town has its own, separate water and sewer system that lately has been afflicted by filtration problems.
Several suitors, including the county, were drawn to BCU because of its position in a rapidly growing area of suburban Indianapolis. The pursuit of the utility led county commissioners to sue Whitestown, charging that town council members violated the open-door law while meeting to discuss the purchase.
"That created not a very good relationship, and it's hard to re-establish a trust level when you've gone to that extreme," County Commissioner Charles Eaton said. "I'm not going to say there is bad blood today, but those memories don't go away very quickly. It's not totally ameliorated at this point."
Annexation involves Fayette
In fact, much of today's litigation can be traced to water and sewer service. The major factor driving Whitestown's annexation of the land including Fayette is that it falls within the radius where Whitestown legally can provide utility service, Tribby said.
Whitestown plans to build a sewage-treatment plant near Fayette to serve homes and businesses in Perry Township, west of Interstate 65. But if Whitestown were to build the plant, and Fayette decided later it wanted to be in the sewer district, Fayette legally could purchase the plant from Whitestown at net value, Tribby said.
Backed by the county commissioners, Fayette is nearing incorporation to avoid becoming part of Whitestown. Commissioners voted 3-0 in February to incorporate the community-a move that triggered a lawsuit from the Whitestown Town Council a week later. Once Fayette is incorporated, its population would be about 675.
Carmel developer Brenwick Associates LLC brought a related suit in March to remonstrate against Fayette's decision to become a town. Brenwick CEO George Sweet did not return calls to IBJ, but court documents show the developer opposes the move on several fronts.
Key among Brenwick's concerns is the belief that Fayette's incorporation will restrict growth along I-65 between Zionsville and Lebanon. The area slated for commercial development includes property owned by Brenwick.
"Whitestown had already identified parts of the territory of the proposed town as necessary for its natural growth and has proceeded to annex those areas," Brenwick argued in the remonstrance. "Granting the petition can only serve to stymie that growth."
Developers oppose district
The situation gets even more contentious, however. The property Brenwick owns is in an area where the county is creating an economic development district. Commissioners voted in August to approve the tax-increment financing district of more than six square miles where special financing, tax breaks and other incentives would be used to lure investment.
Whitestown's rub is that the district, like Fayette, falls within the disputed area it is annexing. Concerned that creating the district would interfere with its plans, Whitestown joined developers Brenwick and First Industrial Acquisitions Inc. of Chicago in filing an appeal in October to stop it.
First Industrial's involvement stems from its planned purchase of 362 acres from Brenwick for an industrial park in Perry Township that had been granted verbal tax abatements from Whitestown. But the county rejected First Industrial's request to rezone the land from residential to industrial.
Meanwhile, due to a conflict of interest, the developers' appeal to Boone Superior Court was sent to Montgomery Superior Court, where a judge in November sided with the county.
"While it is true that Whitestown does have its own redevelopment commission," the judge wrote, "Whitestown had not yet annexed any of the [economic development] or TIF area and therefore has no jurisdiction."
Nonetheless, the town council voted later in November to appeal the judge's decision to the Indiana Court of Appeals, which has yet to render a decision.
In turn, the county commissioners sued Whitestown in March, charging the town's annexation would cause the county to lose $675,000 annually in county option income tax.
Dispute becomes federal case
Further, Whitestown and Perry Township residents in March brought suit against Whitestown, alleging errors were made in the annexation-planning process. Perry Township citizens are funding the complaint filed March 30 by two Whitestown citizens who also are fighting the town's annexation, on the grounds that it can't provide adequate services to the area it's trying to take.
Plaintiff Daniel Arnold told The Daily Sun newspaper in Lebanon that he "would hate to bring the problems Whitestown is going through into a town that doesn't already have them."
One Whitestown resident even has made a federal case out of the annexation. The American Civil Liberties Union filed a class-action lawsuit on behalf of some Whitestown residents April 26 in U.S. District Court in Indianapolis.
The suit argues that the annexation would cause one of the town's four districts to increase dramatically in size. Yet residents within the larger district still would have only one person representing them on the town council. That violates the "one-person, onevote" principle established by the 14th Amendment, the suit charges.
Despite the turmoil, both county and town officials are confident they can come to a solution on their own, without court mandates, and avoid future turbulence.
Representatives of both sides met twice in April, whereby Whitestown asked the county to remove the 362 acres Brenwick owns from its economic development district. The county declined the request, so the two sides remain at a stalemate.
"We're working hard to come to a compromise," Commissioner Eaton said. "I've been making a career out of this, and enough is enough."