City of Flat River v. Counts, 40854
| Decision Date | 04 December 1979 |
| Docket Number | No. 40854,40854 |
| Citation | 596 S.W.2d 446 |
| Parties | CITY OF FLAT RIVER, Plaintiff-Respondent, v. David COUNTS et al., Defendants, Judy Weston, Intervenor-Appellant. |
| Court | Missouri Court of Appeals |
William G. Reeves, Gillihan & Reeves, Farmington, for defendants.
Charles W. Medley, Dennis E. McIntosh, Medley, Alexander & McIntosh, Farmington, for plaintiff-respondent.
The City of Flat River instituted a declaratory judgment action pursuant to § 71.015, RSMo 1969, to annex an adjacent unincorporated area in St. Francois County. The trial court entered judgment for the City. Appellant as a resident in the area sought to be annexed and an intervenor in opposition to the annexation asserts on appeal that the trial court erred in finding the annexation necessary and reasonable for the proper development of the City. Appellant Judy Weston grounds her appeal on the following factors developed at trial: (1) the population of the City has declined since 1940 without evidence that the annexation area has provided residential space for those moving; (2) there are substantial undeveloped areas within the City suitable for residential purposes; (3) approximately 40% of the area to be annexed consists of state park land unavailable to the City for its use except as a recreational area; 1 (4) the area which would be available to the City is severed from it and is serviceable only by traversing through the adjoining City of Leadington; (5) the annexation would create extraordinarily irregular boundary lines; (6) there would be no significant benefit to residents of the annexed area. The merits of appellant's argument are worthy and justify reversal of the trial court.
Our scope of review in this Sawyers Act case is to determine whether there is "substantial evidence to show that the annexation was reasonable and necessary" to the City's development. Binger v. City of Independence, 588 S.W.2d 481 (Mo. banc 1979). In following this guidepost we look to a variety of factors with no single factor controlling and with the case being decided on the totality of its own facts. City of Des Peres v. Stapleton, 524 S.W.2d 203 (Mo.App.1975).
Before delving into a review of the evidence, we first dispose of the City's contention that appellant lacks standing to participate in the proceedings as she failed to prove that she was a property owner in the area to be annexed. The City contends that she must be a property owner to be an aggrieved party entitled to participate in the proceedings. The easy answer to this contention is that not only is the City too late in its complaint raised here for the first time, Cryts v. Ford Motor Co., 571 S.W.2d 683 (Mo.App.1978), but residence in the involved area is sufficient qualification of inhabitance for participation. 2 Section 71.015, RSMo 1969; City of St. Charles v. Schone, 569 S.W.2d 769 (Mo.App.1978). As appellant averred in her motion to intervene that she was a resident of the area to be annexed, which was sustained without record objection by the City, she has standing to maintain this appeal.
We now launch into the dispositive merits of the case, starting first with a factual indictment. Flat River, a third class city located in St. Francois County, is the largest of eight incorporated municipalities which form the Mineral Area Urban Complex. In April, 1976, the City passed a resolution to annex 442 acres lying to its south and east and populated by 100-150 persons. The area is contiguous to both Flat River and the City of Leadington. The proposed state park land adjoins Flat River on the south, the only land available for development adjoins Leadington on the east not Flat River and can be served only by a route which runs entirely through Leadington. The following portrays the location of the annexation area in rough estimation:
To justify the annexation of the unincorporated area, it is incumbent upon the City to establish the need for additional space and its inability to meet that need without expansion. City of Jefferson v. Smith, 543 S.W.2d 547 (Mo.App.1976). Considering the evidence in the light most favorable to the City, there is insufficient justification for its expansion in the manner proposed. The population of Flat River declined from 5400 persons from 1940 to 4550 in 1970, although there has been a "slight increase" since 1970. A most sanguinary projection by a regional planner predicted a 36-38% population increase by the year 2000. Support for the City's case came from witnesses urging the need for expansion for residential accommodations with two specific instances of residential sites shortages cited. There was also testimony that the City was "boxed in"; that commercial development appeared to be expanding; and that the state park would attract nearly 600,000 tourists annually with concomitant commercial growth.
We accept that need for expansion is a critical factor in determining the necessity for annexation of property. However, the City's hopes for "projected growth and development must have basis in objective fact and cannot be based on the visions or speculation of city fathers or planners that do not have a firm evidentiary base." City of O'Fallon v. Bethman, 569 S.W.2d 295, 305 (Mo.App.1978). Accord: City of Perryville v. Brewer, 557 S.W.2d 457 (Mo.App.1977). 3 In the absence of such an evidentiary base, we must, as we do here, deny annexation.
Balanced against "the hard, unvarnished and uncontroverted fact . . . that the City has lost, not gained, in population," City of Mexico v. Hodges, 482 S.W.2d 545, 550 (Mo.App.1972), the testimony offered by Flat River is not substantial evidence as to the need for expansion. As in the City of Mexico, the City offered no evidence that the loss of population was attributable to a significant movement of persons from Flat River to the area to be annexed. Also, See : City of St. Joseph v. Hankinson, 312 S.W.2d 4 (Mo.1958). Additionally, testimony at trial established that in 1972 at least 36% of the City was vacant or undeveloped and that subsequent to 1972, as a result of annexation, the City had additional undeveloped areas, land within an industrial park and 200-300 acres along the western edge of Flat Ridge. The presence of undeveloped tracts of land does not preclude annexation, but it is a factor which must be...
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