City of Cedar Rapids v. Cox

• Citation: 252 Iowa 948,108 N.W.2d 253
• Decision Date: 07 March 1961
• Docket Number: No. 50188,50188
• Parties: CITY OF CEDAR RAPIDS, Appellant, v. Ann COX et al., Appellees.
• Court: Iowa Supreme Court

Page 253

108 N.W.2d 253

252 Iowa 948

CITY OF CEDAR RAPIDS, Appellant, v. Ann COX et al., Appellees.

No. 50188.

Supreme Court of Iowa.

March 7, 1961.

Rehearing Denied May 2, 1961.

William M. Dallas and C. W. Garberson, Cedar Rapids, for appellant.

Wisdom, Sullivan & Golden, Des Moines, and Ernest F. Pence, James E. Bromwell, John K. Von Lackum, Jr., O. W. Lawrence and W. W. Crissman, Cedar Rapids, for appellees cross-appellants.

SNELL, Justice.

Plaintiff, City of Cedar Rapids, brought this action in district court pursuant to Section 362.26 of the Code for annexation of between 12 and 13 square miles of unincorporated territory adjacent to the city. The trial court denied annexation and the city appealed. A cross-appeal by defendants tenders jurisdictional and constitutional questions.

I. The facts are not in material dispute. The dispute involves the premise from which the facts should be considered and of course the conclusions to be drawn therefrom.

Although subsequently repeated, we deem it appropriate to say in the beginning that neither the trial court nor this court has any discretion as to what should or should not be annexed. The Legislature has not, and could not, under the Constitution delegate to courts the power to determine whether the proposed annexation is sound or unsound, good or bad. If the conditions prescribed by the Legislature have been met, the court must order annexation. If the conditions so prescribed have not been met, the court cannot order annexation.

II. Section 362.26, paragraphs 1 to 5, inclusive, of the Code, outline in detail the several steps necessary and preliminary to an action in court seeking annexation and the matters to be set forth in the petition. The trial court found that these conditions precedent had been met, and this finding is not an issue here.

Paragraph 6 provides: 'If the court finds that there is an affirmative showing that the municipal corporation is capable of extending into such territory substantial municipal services and benefits not theretofore enjoyed by such territory, so that the proposed annexation will not result merely in increasing the revenue from taxation of such municipal corporation * * *, the court shall decree the annexation.'

The question in the trial court and here is whether the city made an affirmative showing of its capability under the limitations required by the statute.

The trial court found, and with this finding we agree, that Cedar Rapids, with a population over 90,000, is one of Iowa's finest cities. In population it is increasing. It is favored with substantial and diversified industries and is attracting additional enterprises.

III. Thirty-two years ago territory south of the then city limits was annexed. City water and sanitary sewer facilities were not made available, and the territory is largely undeveloped. At the time of trial an $800,000 sewer facility, known as Prairie Creek Interceptor System, was nearing completion. Its capacity is sufficient to handle the requirements of that part of the present city it was disigned to serve and the territory sought to be annexed. A previously existing handicap to the development of the southern part of the city has thus been removed. This undeveloped territory in the southern part of the city is referred to by defendants in resisting the city's attempt to annex more territory to the south. This argument is pertinent to the question of desirability of present annexation but it does not determine capability of the city.

IV. As originally instituted, the annexation proceedings involved about 12 1/2 square miles. The greater part of the area was south of the city; a smaller part was to the west. At the time of trial relatively small parts of the original area had been annexed by voluntary proceedings, leaving 7,810 acres still involved.

The County Auditor's Plats show that there were approximately 1,400 owners of real estate within the original area. There were originally 1,389 defendants to this action with 502 added later. It was estimated that there are 928 families living within the territory exclusive of those in trailer courts, and 100 families living in trailer courts, making a total of over 1,000 families with an estimated population of about 3,500. Two hundred eighteen families live in a platted housing development named Lincoln Way Village; a smaller number in Worthington Acres. From the size and location of the various tracts of real estate involved, it is obvious that most of the prople live on small plats or acreages around the perimeter of the city.

The trial court found that over 85% of the present area is unplatted land used for agricultural purposes. The issue is not solved by the use of this or other figures alone. The result of computations depends on the premise from which the problem is approached.

It is not for us to say how many acres must be included in a tract to constitute a farm. For municipal taxation purposes, however, the Legislature has set 10 acres as the dividing line. Section 404.15 of the Code exempts tracts of over 10 acres used for agricultural or horticultural purposes from city taxes except 1 1/4 mills for street purposes. Using 10 acres as the dividing line, there are in the area sought to be annexed 68 tracts of over 10 acres with a total acreage of 4,952 acres and an assessed valuation of slightly less than $342,000. There are nearly 900 tracts of 10 acres or less, with a total acreage of 2,858 acres and an assessed valuation of over $2,700,000. The assessed valuation of all real estate in the area is over $7,900,000. Less than 1/10 of the people live on tracts of over 10 acres.

Percentages depend on whether we are figuring people, total acres, size of tracts, assessed value of the land alone or assessed value of all real estate.

V. At this point in connection with the mention of people, areas and services it is interesting to note the witnesses called by defendants, even though mention here is otherwise premature. Twenty-one witnesses testified for defendants. There were nine farmers, three engineers, one manager and one employee of a power company, one municipal consultant, a statistician, a housing developer, the chairman of the county zoning commission, the sheriff, a blacksmith, and the Ely fire chief.

The nine farmers operated farms varying in size from 45 to 343 acres within the territory. All had electric power, private water and sewer facilities, adequate roads, fire department service from neighboring town volunteer departments and no police or sanitary problems. All were satisfied with present facilities, and each said he had no need for any service offered by the city. None expressed any great alarm at the prospect of annexation, although brief mention was made of the use of barbed wire and guns for hunting that might contravene the city ordinance.

According to the figures shown in the county financial report, Defendants' Exhibit 6, farmers with more than 10 acres would have their real estate taxes reduced by incorporation. Their county tax would be reduced from 19.976 mills to 7.462 mills and their added city tax would be limited to 1 1/4 mills.

In the light of Section 404.15 of the Code limiting the city tax on farm land, the fact that 85% of the territory, as found by the trial court, is farm land is of little, if any, importance. Statutory procedure for annexation by cities has varied at times. Succeeding legislatures have obviously contemplated the annexation of farm land but since the 16th General Assembly in 1876 have protected farm land against excessive city taxation. In the light of such legislative policy existing for many years, the fact that a substantial part of the territory sought to be annexed is farm land is not very persuasive for either plaintiff or defendants.

The substance of the testimony of the other witnesses for defendants was that there is no need for any of the services to be offered by the city and no benefits to be derived therefrom.

Taxes upon industrial installations and housing developments within the area would be substantially increased.

Dr. Thomas H. Reed, a municipal consultant of long experience and nation-wide reputation in his field, testified for defendants. He testified that annexation has lond been and still is the principal means of territorial expansion of the city. As a matter of fact, the right of a city to annex under certain circumstances is vital to municipal expansion. On the other hand, there are both good and bad annexations.' After expressing a preference for a special court to pass upon the necessity and expediency of annexation (a procedure not authorized in Iwa), Dr. Reed stated his opinion 'that this annexation is a bad annexation. It belongs in that category because it is excessive in size and premature in timing because it brings into the city a piece of territory, primarily agricultural in character--by far the greater portion of it--and a territory that is as a whole unripe for urbanization.' In his opinion, the city 'will not be capable of extending the water and sewer services through the area within a reasonable limit of time.' In cross-examination the witness admitted that the extension of the services would be possible but unadvisable.

If we were vested with discretionary power in fixing public policy, Dr. Reed's opinion would be entitled to great weight. We are not, however, determining policy and most of the considerations prompting Dr. Reed's opinion are not found in our statute.

VI. Across the railroad track to the south of the present city limits is an electric generating plant owned by Central Iowa Power Cooperative and operated by Iowa Electric Light and Power Company. It is the largest industrial enterprise in the territory sought to be annexed. It had an estimated assessed valuation for 1960 of $5,634,221. The increased tax liability of this property in the event of annexation would be substantial.

Thirty of the...