City of Lake Ozark v. Prewitt, WD

• Decision Date: 16 March 1982
• Docket Number: No. WD,WD
• Citation: 631 S.W.2d 103
• Parties: CITY OF LAKE OZARK, Missouri, Appellant, v. Walter L. PREWITT, et al., Respondents. 32251.
• Court: Missouri Court of Appeals

Page 103

631 S.W.2d 103

CITY OF LAKE OZARK, Missouri, Appellant, v. Walter L. PREWITT, et al., Respondents.

No. WD 32251.

Missouri Court of Appeals, Western District.

March 16, 1982.

H. Ralph Gaw, Tipton, for appellant; Crews & Gaw, Tipton, of counsel.

David T. Welch and Charles E. McElyea, Camdenton, for respondent; Phillips, McElyea, Walker & Carpenter, Camdenton, of counsel.

Before SHANGLER, P. J., and PRITCHARD and DIXON, JJ.

PRITCHARD, Judge.

Lake Ozark sought to annex approximately 1,709 acres of land to its present corporate limits of 2,000 acres. The area sought to be annexed is a strip about one mile wide extending from the Osage River on its north, down to and including part of Section 5, Township 39, Range 15, lying to the east of Highway 42, but excluding an irregular tract thereof which is a part of Osage Beach, Missouri. The strip generally lies to the east of Lake Ozark's present city limits.

Proceeding under the former Sawyer's Act as it existed prior to amendment effective May 13, 1980, Lake Ozark passed a resolution on June 7, 1978, for the annexation and authorized the filing of the petition for declaratory judgment. The resolution recited that Lake Ozark deemed the annexation to be a reasonable and necessary course of action for its proper development and that the city could furnish normal municipal services to the proposed annexed area within a reasonable time.

The trial court denied the declaratory judgment and among other things found that the former Sawyer's Act, § 71.015, RSMo 1969, was unconstitutional as a denial of due process because it denied the citizens of the area proposed to be annexed a vote on their desires to be annexed. However, in City of Branson v. Biedenstein, 618 S.W.2d 665, 670 (Mo. banc 1981), the court followed the rationale of City of Kirkwood v. Allen, 399 S.W.2d 30 (Mo. banc 1966) (which dealt with an amendment to § 71.015, requiring a vote in both the city and in the area to be annexed in First Class Charter counties before declaratory judgment suit is filed, the court holding that the amendment was procedural and applied to the previously filed annexation suit). The City of Branson case held also that the amendments to § 71.015, effective May 13, 1980, were also procedural, and that the dual election procedure of subsection (6) should apply to a pending annexation. Thus, there is no viable constitutional due process issue here, and the trial court was in technical error in declaring former § 71.015 unconstitutional because of the Branson case, and there is no need further to consider the matter.

City Clerk Jacqueline Brown testified that there were 154 licensed businesses in Lake Ozark in 1976, and 181 in 1979, an increase of 27. The assessed valuation was 15cents per $100 assessed valuation for the last two years, and the highest landowner, non-commercial tax payment to the city was between $50 and $60. The highest commercial tax was about $450. The city's primary revenue source was from sales tax. The only business in the area proposed to be annexed was the Atkinson Pump, on D Road. $143,000 sales tax was collected in 1979, compared with $135,000 in 1978. Lake Ozark's population was 693, an increase of 30 persons in the last 3 years, it had 13 or 14 employees, and $256,000 in the bank in all accounts and CD's. The new businesses (27) going in who acquired merchants' licenses were along Business Highway 54, the "strip area".

Chief of Police Max Schutz testified that there were four full-time officers and five part-time officers on the force, and four automobiles. There existed a court system with a municipal judge and bailiff personnel. Schutz was familiar with the proposed annexation area, its terrain and roads, and it was his feeling, his opinion, that Lake Ozark's police force could provide police service for the area within a reasonable time-he could have routine patrol therein immediately after he was told to do it. There are small groups of population in some of the area, and in other places it is sparsely populated. There was one subdivision, that of Bill Campbell, who built the secondary road through it. On cross-examination, Schutz testified that he was giving 24 hour police protection to Lake Ozark, had his own dispatching system with an additional four employees as dispatchers. In the summertime, there are two men and two cars on duty, with reserves on duty weekends. There was no development in the northern part of the area which was mostly wooded land with "hills and hollers". In Lake Ozark, both commercial and residential sites were "starting to get slim". The city has only one industry, the Stanton Novelty, and Mayor Denny testified that another, J. B. Deere Cedarcraft, Inc., had recently moved from the city.

Bill Campbell owned 500 acres in the area along D Road. He had no objection to the annexation and thought the benefits would be police protection, city street maintenance and lighting, and a sewer before long. On his land, 30 or 40 lots were platted, seven of which were sold, and some housing (two) was going in. There was no water in the area, and the two houses that had gone in were drilling their own wells. His land was worth more as development property, nothing very good for farming.

Dr. Hensley, Superintendent of Schools for three years, testified that the district owned 113 acres in the area sought to be annexed, which was purchased by a vote of the people in 1978 for a proposed new senior high school district. Four elections to pass a bond issue to build a building have failed of passage. In the 113 acres, it would be advantageous for the district to have the present Lake Ozark police protection, and water and sewer services in the future, and the city has provided snow removal and street repair services to the present school within the city limits. If there were another election and a senior high school building started, the school's plan was to drill a well and put in a lagoon.

City Engineer, Ralph Wenneker, also street commissioner, for Lake Ozark, testified that the street department had three full-time employees, snow removal equipment, tractors, sweepers and backhoes, and a light grader. D Road is a major road into the area, and his crew would be able within a reasonable time to provide street services to the area proposed to be annexed, because "there's not that much more of it", but the story might change if more streets were built there. The water district was initiated by Lake Ozark, and it serves the Village of Lakeside (to the north), and down Highway 54 to Highway 42. The city has not been able to find a park area within its limits, the price of land therein being so high that it was not available for development.

Lake Ozark's mayor, Ray Denny, held that office for 10 years. The proposed annexation area, abutting the city limits, is the only place available for the city to expand. The gravel road through the Campbell area was maintained by the county. The city presently furnishes police protection, lights, street cleaning and maintenance. It has been unable to afford purchase of land within the city for a park project, and the annexation area would give the opportunity to expand that kind of service to the population. A sewer project was presently on the drawing board, the first phase being completed, which consists of preliminary maps thereof and costs, done by Kreibel, Moore and Chrisenberger, of Springfield. The treatment plant would be located down on the river in the area of the Campbell property, chosen because of its topography and the fact that they did not want the excess to run into the lake but in the river. As far as natural drainage was concerned, that would be the best place for it to go. Assuming that the city would be successful in getting a bond issue and government financing, it would be Mayor Denny's recommendation and plan that the sewer system be available to all people within the city. There is not too much tax base on the property within the area proposed to be annexed, the basic income of the city being from sales tax. If there were development in the area, the city would provide street lighting. The water district is in the city, not a city project, because two towns went together, and it went outside the city limits. Apparently, more money was available to the city for building, and the water service would be provided in time to the proposed annexation area. There are not too many available building sites in Lake Ozark because two people own a lot of it and they will not sell for either residential or business purposes. On the strip, there is one commercial site area not yet levelled, one where a shopping center is to be built, and one by Holiday Inn which nobody can buy. The mayor felt that the development would increase population because more retired people are coming to the area, and if sewers and water are provided, it will grow-"there's more land out there than there are anywhere else. All our land up in town is gullys and people's not going to build in them gullys." The area out there is more suitable for residential purposes.

For respondents, Carl D. Williams testified that he, his two brothers and a sister own 186 acres in the north part of the area proposed to be annexed, the northeast corner of which touches on the Osage River....