ROBB, Judge.
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
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.
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 a comprehensive Master Plan now being made...." Appellant's Appendix at 44. A comprehensive plan
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.
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 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.
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.
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.
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.
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).
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 development of a fringe
In 2011, the statute was amended to its current form, which states in relevant part:
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 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 the statute that first established
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).
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
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
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. 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,
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 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.
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.
Affirmed.
RILEY, J., and KIRSCH, J., concur.