The following items are provided to help educate Prairie Ridge property owners on the substance of our complaint and issue with the involuntary annexation. If you have a question not addressed here please contact us for more assistance.
Why?
Why should I consider joining this organization?
The City of Valparaiso is using expired and illegal waivers to invalidate our signatures, prohibiting us from our Indiana constitutional rights to petition against involuntary annexation.
Beyond having your rights illegally invalidated, the City of Valparaiso taxes are expected to add an additional burden of between $1,000 and $1,500 per year to every property in Prairie Ridge. Additionally, there will be a charge for trash and recycling service from the City, of which they can decide to terminate one or the other at any time.
You should join this organization to protect your citizenship rights and keep your property highly desirable and free from additional taxation.
Complaint Summary
Can you provide a short overview of the issue with the annexation?
While there are a number of complaints in our suit against the City of Valparaiso, the chief complaint is the County Auditor invalidated all of our signatures from our 2021 remonstrance petition without cause. We believe that 84.5% of Prairie Ridge property owners signed the petition legally (60 of 71 property owners) which exceeds the 65% required to void an annexation (IC 36-4-3-11.3(b)(1)). Therefore, in March 2022, we filed a lawsuit to reinstate all signatures and void the annexation.
How did the County Auditor invalidate signatures?
Under Indiana Code 36-4-3-11.2(i) the County Auditor is required to determine if the signature on a remonstrance petition is from a person that legally owns the property as well as determine if the property is subject to a valid waiver of the right of remonstrance. The City of Valparaiso provided the County Auditor with a list of documents recorded between 2007 and 2015 supposedly waiving the rights of all 70 improved properties in Prairie Ridge. However, the County Auditor did not validate that the documents provided were signed by an individual authorized to sign the waiver, nor did they take into account the original waiver for all 30 acres signed in December 2004.
Waivers
What is a Waiver of the Right to Remonstrate?
The Right to Remonstrate is a right given to Indiana property owners to petition against a municipality when said municipality attempts to involuntarily annex property into their limits.
A Waiver of the Right to Remonstrate is therefore a property owner relinquishing their right to petition against a municipality when the municipality performs an involuntary annexation.
How do municipalities get property owners to sign these “waivers”?
The State of Indiana permits municipalities under IC 13-18-15-2 to require a property owner that is outside of city limits to waive their right to remonstrate against future annexation in exchange for being granted sewer service. This document, per Indiana Code, can be executed by any property owner of real property being granted service by a municipality.
How long is a waiver effective?
Per Indiana Code 13-18-15-2(c)(2) the waiver “is considered a covenant running with the land” and has no end date, nor does it go away if a parcel of land is subdivided — as in the case of Prairie Ridge. Should a waiver be executed against a 30 acre parcel of land the waiver covers that entire land area. Should that area be subdivided the waiver remains a covenant on all of the subdivided parcels.
In 2019 the Indiana General Assembly enacted House Bill 1427 which stated that any waiver executed after 2003 had a 15 year validity period, after which the rights were returned to the property owner.
Therefore, a waiver is a covenant that runs with the land in perpetuity, regardless of any redesignation of that parcel. The waiver of rights loses it’s validity however, after 15 years from the date it was executed.
What is required for the City of Valparaiso to accept a waiver?
The City of Valparaiso states in Chapter 50.07 “Extension of Water Services” that a waiver is required whenever the city agrees to furnish water or sewer service. Therefore, only once the City has agreed to provide services to a property owner can the City require a waiver to be provided.
Can the City obtain additional waivers on a piece of property?
No.
Indiana Code 13-18-15-2 and Valparaiso City Code Chapter 50.07 “Extension of Water Services” clearly state that a waiver is given as a condition to the City granting the property owners access to water and/or sewer services by the city. Therefore, the waiver is part of a contract negotiation where there is consideration to both parties. Since these services are granted once by the City of Valparaiso to a parcel there is no legal standing for a second waiver to be executed.
Additionally, Indiana Code 13-18-15-2(c)(2), and then implemented by the City of Valparaiso’s “Waiver of Objection and Consent to Annexation” document, state that “this agreement shall be a covenant running with the land.” This is further substantiated by the Valparaiso City Planner, Ms. Beth Shrader, who has stated multiple times during planning commission public hearings about both annexation attempts that the City does not and will not obtain secondary waivers on properties because the waiver “is a covenant that runs with the land.”
Therefore, based on Indiana Code restrictions on when waivers can be issued, and because Indiana Code states the waiver is a covenant encumbrance on a parcel indefinitely, any waiver beyond the first officially executed and recorded waiver has no bearing on a parcel of property.
How do waivers play a factor in the Prairie Ridge complaint?
In 2004 all 30 acres now known as “Prairie Ridge” were purchased by the organization “Valpo-Sturdy Road LLC”. All 30 acres existed outside of the boundaries of the City of Valparaiso, and therefore were inelligable to obtain water and sewer service. Originally platted for 22-23 lots, Mr. Hornat negotiated with the City of Valparaiso to bring water and sewer service to the development. As permitted by Indiana Code and required by Valparaiso Public Works, Mr. Hornat waived the right to remonstrate for the 30 acre parcel by executing the December 2004 “Waiver of Objection and Consent to Annexation” document, which was counter-signed by Mayor Jon Costas and then recorded with the Porter County Recorder.
Since this waiver was properly executed, and then followed up by numerous communications by the utility department to the Porter County Plan Commission indicating acceptance and approval of water/sewer service for 73 parcels, this waiver signed in 2004 is a legally effective and binding document waiving rights of remonstrance for all 70 property owners in Prairie Ridge with zero need nor authority for secondary waivers.
However, the City of Valparaiso, as homes were constructed and service billing started, required that the individual requesting billing for water/sewer service also sign a Waiver of Objection and Consent to Annexation. These “secondary waivers” were collected without any legal standing by the City between 2007 and 2015, during the entire validity period of the “Hornat Waiver” from 2004.
The City of Valparaiso, when asked by the County Auditor’s office for a list of “valid waivers” provided all of these secondary waiver documents, and omitted the 2004 Waiver.
Therefore, since the only waivers the City used in invalidating our signatures were waivers they were not legally allowed to collect, and furthermore were not signed by individuals owning the property of who’s rights they could possibly be signing away, these documents were not legally binding. The only valid waiver is the one from 2004, and that waiver expired in 2019 before the City started any annexation attempt.
Legal Questions
What is the status of the case?
Please review the Annexation Timeline for a complete history. Our case was dismissed initially by Judge Fish in Porter County Superior Court. The Indiana Appellate court overruled this dismissal unanimously and remanded the case for hearing. The City also tried the Supreme Court to get the case dismissed and were denied their request.
Currently the case in scheduled to start hearing no earlier than March, 2025.
What is our desired outcome?
We have asked for relief in our complaint such that the Judge would determine the “Secondary Waivers” are invalid and ineffective, the 2004 Waiver has expired by legal operation, and therefore all of our signatures are valid. This would allow us to meet the 65% requirement to void the annexation.
Can we recuperate legal funds?
In the event that we are successful the Indiana Code permits us to recuperate legal fees from the City of Valparaiso. Further, because of the additional costs incurred from the dismissal attempts by the City at the Appellate and Supreme court we anticipate to recuperate legal fees from these expenses as well.
Who are the attorneys representing us?
Our case is being represented by Harris Welsh & Lukmann from Chesterton, Indiana. The lead attorneys are Charles Lukmann and Connor Nolan.