City of Butler v. Bock, 25970

• Decision Date: 05 March 1973
• Docket Number: No. 25970,25970
• Citation: 492 S.W.2d 160
• Parties: CITY OF BUTLER, Missouri, Respondent, v. Fredolin O. BOCK et al., Appellants.
• Court: Missouri Court of Appeals

Page 160

492 S.W.2d 160

CITY OF BUTLER, Missouri, Respondent, v. Fredolin O. BOCK et al., Appellants.

No. 25970.

Missouri Court of Appeals, Kansas City District.

March 5, 1973.

E. J. Murphy, Butler, for appellants.

Harold A. Kyser, Belisle, McNabb & Kyser, Butler, for respondent.

Before SHANGLER, C.J., PRITCHARD and WASSERSTROM, JJ. and ROBERT G. RUSSELL, Special Judge.

PRITCHARD, Judge.

The City of Butler, Missouri, was successful in securing a declaratory judgment that its action in annexing some 3,118 acres of land surrounding its present city limits (containing 1,438 acres of land) was reasonable and necessary to its proper development; and that it had shown its ability to furnish within a reasonable time its normal municipal services to the area sought to be annexed. In the light of the evidence these are the issues to be examined under the Sawyers Act, Section 71.015, RSMo.1969, V.A.M.S.

At the time the original petition was filed, May 6, 1970, Butler had a population of 3,984 persons according to the judicially known United States Census for 1970. In 1960, its population was 3,791, and there were estimates in evidence that in 1965 its population was 4,059 and in 1967, 4,144. It is apparent that the actual increase was 193 persons for the ten year period.

The City says in its brief, 'There is no vacant land in the present City.' There is no testimony in the record which would even tend to support such a statement. The 1968 document containing the Comprehensive Plan for Butler, prepared by Howard, Needles, Tammen & Bergendoff, recites as to existing land use, 'In 1967, only one-half, or 788, of the total 1,438 acres within the Butler corporate limits was developed.' This refutes the City's statement in its brief. There is no showing of what kind of vacant land the 788 undeveloped acres is, or to what uses it might be put. It is thus a reasonable conclusion that Butler is not spilling over its boundaries in population or business growth, or that it needs any more area for use of any type, which is sometimes said to be a factor for consideration in annexation cases. Williams v. City of Illmo, Mo.App., 279 S.W.2d 196, 202(1, 2); and compare City of Cameron v. Stafford, Mo.App., 466 S.W.2d 115, 121(7).

The area here proposed to be annexed lies to the north of Butler along old U.S. Highway 71 and new U.S. Highway 71 (a four-lane divided and very limited access highway leading to Kansas City, Missouri) and generally between them; to the west of the new Highway 71 interchange and beyond it in an approximate square area of about 160 acres; and to the southwest, south, and to the southeast. Appellants concede that the present boundaries of Butler are irregular, and that the annexation would serve the function of squaring up the boundaries, at least on the north, west and south sides of the City.

According to Bill D. McGuire, an abstractor who prepared the legal description of the areas to be annexed, there will be 8 3/4 miles of existing roadways therein which the City will be required to maintain. There are five existing platted subdivisions in the area, three of which were recorded after this suit was begun, but at the time of trial there were only ten houses erected in these subdivisions. He acknowledged that 98% of the area consists of agricultural land.

As to fire protection, Fire Chief Richard Leavitt testified that the City has one full-time fireman besides himself, and that the eleven others are volunteers. It has a 1951 model fire truck and a rural 1946 fire truck and a Jeep equipped for pasture fires. His conclusion was that the City is able to furnish fire service to the area proposed to be annexed; it is presently serving a ten mile radius around Butler; and there would be no additional service to be furnished. On cross-examination he testified that the people in the area were not going to gain anything except elimination of a member $10.00 annual service charge. He has not asked the City to provide additional firemen although they are needed. He has asked for four years, but did not get it. The fire department annual budget is $5,000.00 to $8,000.00. Chief Leavitt could not recall a major fire in Butler since 1968.

Chief of Police, Roy Simpson, testified that the City has six regular patrolmen and five auxiliaries. He saw no problem with adequate police protection in the area proposed to be annexed, but acknowledged on cross-examination that there were no particularly troublesome areas in the immediate vicinity of Butler.

Mrs. Clotiene Bartley, City Clerk, testified that the City has built a new municipal park with a swimming pool, has improved North Field, J. C. Park, and has added to the ball parks. The City has plans for a new park in its eastern part. Mr. Charlie Ott donated the land, around 10 acres, and $25,000.00 cash for the new municipal park.

Frank Fritts, Superintendent of Utilities, testified that with present facilities (six Fairbanks-Morse generators) and a tie-in with Osage Valley Cooperative (REA), electrical power is unlimited. The water plant, which is supplied from a lake and the Marais Des Cynes river seven miles south, with a million gallons a day now used, is unlimited. The City has the capacity to supply electrical power to the area to be annexed, to service its 8 3/4 miles of streets. The City hired Larkin and Associates to run a sewer and water survey, but they had not returned a report. On cross-examination, Mr. Fritts testified that the uses of power has gone up throughout the years by reason of air conditioning the six generators are insufficient to supply Butler's needs; the area outside the City is served by the REA cooperative; and the City would not acquire any new customers from the area to be annexed because Osage Valley already services them, and some of them are served by a rural water district, although some are on city lines. The City is capable of maintaining streets inside its limits 'as fast as machinery and men can do it,' but at the present time (trial) the streets were very much in need of repair, and in the last year the City spent 45% of its street funds. In the area proposed to be annexed, the City will not supply any new streets, the subdivisions would do that, but the City would supply...