City of Lake Winnebago v. Gosewisch
| Decision Date | 22 October 1996 |
| Docket Number | No. WD,WD |
| Citation | 932 S.W.2d 840 |
| Parties | CITY OF LAKE WINNEBAGO, Respondent, v. Steven F. GOSEWISCH, Beverly A. Gosewisch, David M. Magers and Rhonda L. Magers, Appellants. 51495. |
| Court | Missouri Court of Appeals |
Thomas J. Walsh, Lee's Summit, for appellants.
James L. Campbell, Shughart Thomson & Kilroy, P.C., Kansas City, for respondent.
Before ELLIS, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.
Defendants-Appellants argue that the trial court erred in issuing its declaratory judgment authorizing the City of Lake Winnebago to proceed with its annexation of Defendants' property under the involuntary annexation procedures set out in Section 71.015 RSMo 1992. We find that the City's Amended Plan of Intent to annex the property complied with Section 71.015, that we can properly consider the propriety of the Amended Plan despite the fact that a second public hearing was not held once the original Plan was amended, and that the trial court did not abuse its discretion in finding that the annexation was reasonable and necessary. Accordingly, we affirm.
Lake Winnebago (the City) is a Fourth-Class City located in Cass County. The boundary of the City is an irregular shape surrounding Lake Winnebago, a Class A recreational lake owned by a private homeowners' association. The City of Lake Winnebago contains approximately 1,300 lots, of which approximately 339 are currently developed. As shown on the schematic diagram below, the City extends north to the Jackson County line. It is bordered on the north by the cities of Lee's Summit and Greenwood and on the east and south by unincorporated areas of Cass County. On the west, it borders on Lee's Summit and small unincorporated portions of Cass County.
Defendants-Appellants Steven F. and Beverly A. Gosewisch and David M. and Rhonda L. Magers, respectively, own contiguous lots of land in one of the just-mentioned unincorporated areas of Cass County which lie between the City of Lake Winnebago and the City of Lee's Summit. Their property is labeled "Parcel 2" on the diagram below. The Gosewisches own slightly more than seven acres, and the Magers own approximately eight and one-half acres. Each lot contains a house, which serves as the owners' principal residence, as well as several outbuildings. The Magers also raise dogs, horses, and chickens on their land.
As the diagram demonstrates, Defendants' lots are located in an unincorporated area of Cass County; their land is in effect an island bounded on the north, west, and south by the City of Lee's Summit, and on the east by the City of Lake Winnebago.
While their land is bordered on three sides by Lee's Summit, that city has indicated it is not interested in annexing Defendants' land. Since approximately 1990, however, the City of Lake Winnebago has indicated an interest in annexing the land in question, which it labels Parcel 2, as well as six other parcels of land which are contiguous to its current boundaries. See Diagram.
Lake Winnebago presented evidence of two principal reasons why it wants to annex these seven parcels of land: (1) to prevent pollution of the Lake Winnebago watershed by bringing unincorporated land within the watershed into the City; and (2) to control the zoning of the area to be annexed, so as to prevent inappropriate commercial development at the edges of the City, and particularly near a highway exit which is near the entrance to Lake Winnebago.
In preparation for the annexation, the City prepared an initial Plan of Intent that related to the seven parcels. It called for the City to provide most existing city services to the annexed areas, including police protection, sewer service, and the franchise services of electricity, gas, telephone, and cable television. The Plan did not call for any change in the provision of fire protection or water service to the annexed areas.
On December 9, 1992, the City Board of Aldermen passed a resolution of intent to annex the tract designated as Parcel 1, and the tract designated as Parcel 2, containing the two lots owned by the Gosewisches and Magers. The Board held a public hearing on the proposed annexations on January 13, 1993. At this hearing, the City discussed the proposed annexation with the property owners.
After the hearing, the Board enacted ordinances proposing the annexation of Parcels 1 and 2. Parcel 2, which is at issue here, was proposed in Ordinance No. 427. As required by Section 71.015, the City then filed a declaratory judgment action on January 20, 1993, seeking authorization for the annexation.
After that action was filed the City completed its annexation of Parcel 1, and it plans to continue annexation of Parcels 3-7 as soon as annexation of Parcel 2 is complete. Sometime in early 1994, the City also amended the Plan of Intent as to Parcel 2. Because the original Plan of Intent applied to other parcels also, it did not separately list the services the City would provide to Parcel 2 nor the taxes the City would impose on that parcel. The Amended Plan of Intent specifically outlines these services and taxes. The City stated in the Amended Plan that it would maintain the road used as a driveway to access the Gosewisches' and Magers' lots, would arrange for sewer service, and would provide police protection, water service, refuse collection, and fire and ambulance service. The Amended Plan also stated that the City would rezone the lots to a residential classification and listed the City's tax rates and assessed valuations of the lots. At trial, the City further offered evidence that it would chip and seal the county gravel roads, once the annexation was complete.
The trial court found that the annexation was reasonable and necessary and issued its declaratory judgment in favor of the City. The Gosewisches and the Magers appeal.
In reviewing the decision to annex, the only issue is whether there is substantial evidence that the reasonableness and necessity of the annexation are fairly debatable. As the Supreme Court stated the test in Binger v. City of Independence, 588 S.W.2d 481 (Mo. banc 1979), the decision whether to approve annexation:
does not depend on whether a city establishes by a preponderance of the evidence that such annexation is reasonable and necessary or that citizens establish by a preponderance of the evidence that such annexance is unreasonable and unnecessary. There is not in these cases a burden of persuasion by a preponderance of evidence. Instead, the test is whether the evidence shows that the question of reasonableness and necessity of the annexation was fairly debatable.
Id. at 485. If there is substantial evidence on both sides of the issue, we must defer to the council's judgment. Therefore, the extent of our inquiry is limited to whether the City's action was arbitrary and clearly unreasonable. 1
Defendants first argue that the annexation must fail because the City failed to comply with the statutory requirements for annexation.
Section 71.015, known as the Sawyers Act, describes the procedure to be followed when a city seeks to involuntarily annex an area. First, the city must propose an ordinance stating, among other things, that the city has developed a "Plan of Intent" to provide the annexed area with services. § 71.015.1(2)(c) RSMo.1986 Supp.1992. 2 The Plan must contain a list of major services presently provided by the city. § 71.015.1(4)(a). The statute lists as examples police and fire protection, water and sewer systems, street maintenance, parks and recreation, and refuse collection. Id. The Plan of Intent must also include a proposed time schedule to provide those services to the annexed area. It must also state the level at which the city assesses property and the property tax rate, and must set out the proposed zoning classification of the annexed area. § 71.015.1(4)(b)-(d). Finally, the Plan must state when the annexation will become effective. § 71.015.1(4)(e).
The procedure outlined in the statute does not require a city to formally adopt the Plan of Intent. Instead, the city must present the Plan and evidence in support of it at the public hearing on the ordinance. § 71.015.1(3), (4). If, after the hearing on the ordinance, the governing body votes to annex, the city must file an action seeking a declaratory judgment authorizing annexation. § 71.015.1(5).
Defendants contend that Lake Winnebago failed to follow the statutory requirements for annexation in regard to preparation of its original Plan of Intent, adopted by the City on January 13, 1993. That Plan, they say, was not in compliance with the statute because it failed to list bonded indebtedness, failed to adequately list major services it would provide in the annexed area, and failed to include the proposed tax rate, level of assessment and proposed zoning of the area to be annexed. They argue that compliance with the requirement to list these matters in the Plan of Intent is mandatory, and that failure to do so precludes annexation.
We disagree with Defendants that the original Plan was required to set out the City's bonded indebtedness. Nothing in the statute requires it to do so. We also disagree that the original Plan inadequately set out the services to be provided. The statute only requires a listing of services currently provided in the City which the City plans to provide in the annexed area. It is uncontested by the parties that the Plan of Intent included information regarding fire protection, police protection, water service, sewer service, and the franchise services for electricity, gas, telephone, and cable television. While Defendants claim that the Plan should also have included reference to...
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