City of Peculiar v. Effertz Bros Inc., WD 67554.
| Decision Date | 22 January 2008 |
| Docket Number | No. WD 67554.,WD 67554. |
| Parties | CITY OF PECULIAR, Missouri, Respondent, v. EFFERTZ BROS INC., et al., Appellants. |
| Court | Missouri Court of Appeals |
James E. Thompson, Jr., Harrisonville, MO, Steven E. Mauer, Co-Counsel, Megan J. Redmond, Co-Counsel, Kansas City, MO, for Respondent.
Joseph A. Hamilton, Pleasant Hill, MO, Matthew J. Hamilton, Co-Counsel, Pleasant Hill, MO, Alok Ahuja, Co-Counsel, Kansas City, MO, for Appellants.
Before: HOWARD, C.J., and BRECKENRIDGE and ELLIS, JJ.1
Effertz Bros., Inc. and several other landowners (Landowners) appeal from a declaratory judgment authorizing the City of Peculiar (the City) to proceed with an involuntary annexation of unincorporated land in Cass County pursuant to section 71.015.2 The Landowners now claim that the circuit court erred in authorizing the annexation because the City's plan of intent was deficient, the annexation was not reasonable and necessary to the proper development of the City, the evidence did not demonstrate that the City was able to provide municipal services to the annexed area within a reasonable time, and the circuit court's judgment noted that the annexation would allow the City to "defend its border" from other encroaching cities. We affirm the circuit court's judgment.
Section 71.015, commonly known as the Sawyer's Act, provides constitutionally chartered cities a statutory mechanism for the involuntary annexation of adjacent unincorporated land. See § 71.015; City of St. Peters v. Ronald A. Winterhoff Living Trust (Winterhoff I), 77 S.W.3d 17, 19-20 (Mo.App. E.D.2002). The Sawyer's Act contemplates a four-step process designed to accommodate an expanding city. To complete annexation, the city must propose an ordinance detailing the annexation, hold a public hearing concerning the annexation, seek a declaratory judgment authorizing the annexation, and finally hold an election where a majority of the electors of both the city and the land to be annexed approve the annexation. See § 71.015.1.
In the first step of involuntary annexation, the city's ordinance must include a description of the land to be annexed and state that such annexation is reasonable and necessary to the proper development of the city, that the city has developed a plan of intent to provide services to the land to be annexed, that a public hearing be held, and the date that the annexation is to become effective. § 71.015.1(2). The ordinance must also contain a statement that the annexed land is contiguous and that the proposed common boundary of the annexed land and the preexisting city be at least 15% the length of the border of the entire land to be annexed. § 71.015.1(1)(2).
After the ordinance is passed, the City must then notify interested parties and hold a public hearing concerning the annexation. § 71.015.1(3). At the hearing the City must present "the plan of intent and evidence in support thereof," including: a schedule describing when the city will provide municipal services, the level at which the city taxes property, proposed zoning of the annexed area, and when the anticipated annexation will be effective. § 71.015.1(4).
Following a public hearing and passage of the ordinance, the municipality must file a declaratory judgment action in circuit court, seeking authorization for the annexation. § 71.015.1(5). A complete petition consists of facts demonstrating that the city meets the 15% contiguous requirement described above, that "annexation is reasonable and necessary to the proper development of the city," and the city is able to provide municipal services to the annexed area within a reasonable time. § 71.015.1(5)(b)-(c). For the annexation to proceed, the circuit court must conclude that each of the elements pled in the petition is at least "fairly debatable." City of St. Charles v. Schone, 569 S.W.2d 769, 774 (Mo.App.1978).
"An election also must be held in the municipality and the proposed territory, during which the involuntary annexation must be approved by a majority of the total votes cast." City of St. Joseph v. Vill. of Agency, 223 S.W.3d 171, 173 (Mo. App. W.D.2007). The annexation may proceed if majorities of votes cast in both the city and the annexed area both favor annexation. An annexed area may be subject to deannexation if the City does not provide certain services within three years of the annexation. § 71.015.1(7), 71.015.2.
Pursuant to section 71.015, the City initiated an involuntary annexation of sparsely populated unincorporated land adjacent to and northwest of the existing city limits. On December 2, 2002, the City adopted an ordinance authorizing the annexation of the parcel. The Court issued a declaratory judgment authorizing the annexation on July 26, 2006, which found that all of the statutory requirements of 71.015 had been fulfilled. As mandated by statute, an election was later held and the voters approved the annexation. The current appeal follows.
Prior to the annexation, the City's total land area was 2,331 acres and the land to be annexed consisted of 1,445 acres. The City produced evidence that it had experienced "explosive" growth and lacked large, unplanned parcels of land within the city suitable for large-lot residential, commercial, or industrial development. The City also produced evidence that it lacked 80-acre plots within the City suitable for a heavy industrial park. The City's plan of intent referred to the City's need for additional multiple acre residential lots and noted that "[t]he proposed annexation area is on the verge of a significant transition from agriculture to rural and urban residential." At trial, the City's Administrator testified that the land might also be used for commercial, or light or heavy industrial purposes. The annexation did not conform to the County's Future Land Use Plan of 1997 and the City's Comprehensive Plan of 1999, which predicted growth of the city to the northeast and southwest, not to the northwest. Consistent with these forecasts, little or no actual spillover had occurred on the land to be annexed but had occurred in the northeast and southwest of the City.3
The City admitted that over 1,200 acres within the City were not presently developed. All of the land within the City's pre-annexation boundaries was, however, developed or planned for development. The Landowners presented evidence that 65% of the land within the City was undeveloped and that without annexation the City had a twenty-year supply of undeveloped land within its boundaries.
The Landowners, appellants in the current case, owned approximately 70% of the land to be annexed. Of all the land to be annexed, the Landowner's property is located closest to the City. When this appeal was initiated, much of that land was subject to an order of the Circuit Court requiring Board of Zoning Adjustment to issue a Special Use Permit for rock quarrying. However, that order was appealed and we reversed the decision, holding that the Board of Zoning Adjustment need not issue the Special Use Permit for Rock Quarrying. Martin Marietta Materials, Inc. v. Bd. of Zoning Adjustment of Cass County, 246 S.W.3d 9 (Mo.App. W.D.2007).
The remaining 30% of the land to be annexed, the roughly 423 acres farthest away from the City, is owned by the Bockelman Family (Bockelman). Bockelman wished to develop the property into 228 single-family residences. Due to the condition precedent in section 71.015.1(1), which requires that the perimeter of the annexed land that borders the pre-existing city be at least 15% the length of the total annexed land, the City was not able to annex the Bockelman property without also annexing Landowners' property. While nominally defendants in the current action, Bockelman desires annexation in order to provide municipal services to the planned development.
In its plan of intent, the City proposed to provide the annexed area with police, fire, water, refuse collection, and ambulance services. Prior to the annexation, the City was providing police services to the area pursuant to a "mutual aid" agreement with Cass County. The City produced significant evidence that it was able to furnish sanitary sewer service to the annexed area, although the exact funding mechanisms for these improvements remained unclear. The City also intends to maintain the roads presently existing in the area in their present condition until additional development creates a need for improved roads. The plan of intent provides neither a cost estimate of providing municipal services for the annexed area nor a concise timetable describing when those services will be provided nor did it provide plans for rezoning.4
"The decision to annex contiguous unincorporated areas [is] essentially a legislative decision resting within the discretion of the City's governing body." Schone, 569 S.W.2d at 774.
Neither the trial court nor this court on appeal may interpose its judgment as to the advisability or the wisdom of the proposed annexation for that of the City's legislators. Our function, under the Sawyer Act, is to determine whether the City has presented sufficient competent evidence to make compliance with the statutory prerequisites imposed by the Sawyer Act "fairly debatable."
Id. Nevertheless, "[t]he function of this court in reviewing a declaratory judgment authorizing a city to proceed with annexation is to review the case de novo on questions of law." City of Pacific v. Metro Development Corp., 922 S.W.2d 59, 62 (Mo. App. E.D.1996).
It is the City's burden to demonstrate that it was at least fairly debatable that the annexation was proper. City of St. Peters v. Ronald A. Winterhoff Living Trust (Winterhoff II), 117 S.W.3d 698, 700 (Mo.App. E.D.2003). "Under this standard, the...
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