City of Rolla v. Armaly

• Citation: 985 S.W.2d 419
• Decision Date: 11 February 1999
• Docket Number: No. 22154,22154
• Parties: CITY OF ROLLA, Missouri, Plaintiff-Respondent, v. Bassen ARMALY, et al., Defendants-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 419

985 S.W.2d 419

CITY OF ROLLA, Missouri, Plaintiff-Respondent, v. Bassen ARMALY, et al., Defendants-Appellants.

No. 22154.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 11, 1999.

Colin P. Long, Smith Dunbar Turley, Waynesville, for appellants.

John D. Beger, Beger & Bushie, Rolla, for respondent.

KENNETH W. SHRUM, Presiding Judge.

This appeal is from a declaratory judgment that authorized the City of Rolla ("Rolla") to proceed with involuntary annexation of 1,352 acres ("Southside Area") lying south of its existing limits. Appellants are some of the residents of the Southside Area opposed to Rolla's plan for annexation.

Because the proposed annexation met with objection, Rolla proceeded under Missouri's involuntary annexation statute, § 71.015. RSMo 1994. ¹ Involuntary annexation is accomplished in steps, several of which are relevant to this appeal. First, even before adopting a resolution of intent to annex, a city must "as a condition precedent determine that" the area proposed for annexation "is contiguous to the existing city ... limits and that the length of the contiguous boundary common to the existing city limits ... and the proposed area to be annexed is at least fifteen percent of the length of the perimeter of the area proposed for annexation." § 71.015.1(1). Second, the city must prepare a proposed ordinance setting forth, inter alia, (a) the area to be annexed and affirmatively stating that its boundaries meet the contiguousness requirement of § 71.015.1(1); (b) that the annexation is reasonable and necessary to the proper development of the city; and (c) that the city has developed a Plan of Intent to provide services to the area proposed for annexation. § 71.015.1(2). Third, the city must present the proposed ordinance and Plan of Intent, including evidence supporting it, at a public hearing. § 71.015.1(3)-(4). Fourth, following the hearing, if the governing body adopts the ordinance to annex, the city must obtain judicial approval of the proposed action via a declaratory judgment action in which the city must plead and prove (a) what area is to be annexed and its conformity with the contiguousness requirement of § 71.015.1(1); (b) that the annexation is reasonable and necessary to the proper development of the city; and (c) the ability of the city to furnish the annexed area with normal municipal services within a reasonable time, not to exceed three years after the annexation is to become effective. See § 71.015.1(5). ²

In seven points relied on, Appellants charge that the trial court committed reversible error by approving Rolla's annexation because (1) absent evidence erroneously admitted

                by the trial court, Rolla failed to produce either sufficient evidence of contiguousness or an adequate legal description of the Southside Area;  (2) Rolla's plan for furnishing municipal services to the Southside Area was too speculative;  (3) the trial court lacked subject matter jurisdiction because Rolla adopted new ordinances and Plans of Intent after the declaratory judgment suit was filed;  and (4) Rolla produced insufficient evidence to establish that the reasonableness and necessity of the proposed annexation were "fairly debatable."   We disagree and affirm the judgment
                

STANDARDS OF REVIEW

The standards of review applicable in involuntary annexation cases are well settled:

"When we review the decision to annex, we examine whether there is substantial evidence that the reasonableness and necessity of the annexation are fairly debatable. Both the City and the residents of the area to be annexed are entitled to the benefit of this test of reasonableness. Neither the trial court nor this court may substitute its judgment or discretion for that of a city's legislative body. There is no burden of proof in annexation cases, only a burden of proceeding with the evidence. If there is substantial evidence supporting both sides of the issue, deference must be given to the City's judgment. Our inquiry is thus limited to whether the action of the City was arbitrary and completely unreasonable. There are no fixed rules to follow in applying the general test; each such case must be decided upon its own set of unique facts." (Citations omitted.)

City of Parkville v. Northern Farms, 950 S.W.2d 882, 885[1-4] (Mo.App.1997).

FACTUAL AND PROCEDURAL HISTORY

The Southside Area lies generally south of Rolla's corporate limits, north of Phelps County road 5020, west of State Highway 72, and east of U.S. Highway 63 and a subdivision named Parkview. Four residential subdivisions occupy approximately 200 acres of the Southside Area, while some 796.87 acres thereof are suitable and available for development.

Rolla first considered annexing this area in the early 1990s after several citizens groups from the subdivisions expressed an interest in annexation. In part, the prospect of annexation arose due to water, sewer, and environmental concerns in the four existing subdivisions.

After Rolla determined that it had the ability to provide services to the Southside Area and needed the land for future development, its public works staff prepared a legal description for the area. In preparing the description, Rolla did not "hire a surveyor to go out and survey this entire boundary line." The description was derived from "existing subdivision boundaries, which had been surveyed, existing deeds at the county courthouse, and also recognized land lines, such as public-right-of-way and quarter-quarter sections, that sort of thing."

On May 22, 1995, Rolla presented its first proposed ordinance and Plan of Intent for annexation of the Southside Area at a public hearing. Later that day, Rolla passed the proposed ordinance. On September 15, 1995, Rolla filed this declaratory judgment action pursuant to § 71.015.1(5).

After filing this action, Rolla revised its Plan of Intent and proposed a new ordinance for the Southside Area annexation. After conducting another public hearing, at which Rolla presented its revised plan and proposed ordinance, on November 26, 1996, Rolla passed the new ordinance approving its revised Plan of Intent. Rolla then moved to amend its declaratory judgment petition. Believing the procedures prescribed by § 71.015.1 must be followed sequentially, the trial court initially denied Rolla's motion. Rolla then filed a motion to reconsider based, in large measure, on the western district's holding in City of Lake Winnebago v. Gosewisch, 932 S.W.2d 840 (Mo.App.1996). Relying on Gosewisch, the trial court subsequently granted Rolla leave to amend its petition and specifically found that it would not be deprived of jurisdiction thereby. Thereafter, Appellants filed motions to dismiss for lack of subject matter jurisdiction and for failure to Subsequently, Rolla again revised its Plan of Intent and proposed another ordinance of annexation and presented them at a public hearing held October 6, 1997. It then passed the proposed ordinance approving the second revised Plan of Intent. The new ordinance expressly repealed the November 26, 1996, ordinance of annexation. Appellants again filed a motion to dismiss for want of subject matter jurisdiction and failure to state a claim upon which relief could be granted. Before the trial court ruled on Appellants' motion, Rolla moved to amend its petition by interlineation. The trial court again overruled Appellants' motion.

state a claim upon which relief could be granted. The trial court overruled Appellants' motions.

The parties tried the case on January 5, 1998. On January 20, 1998, the trial court entered its judgment approving Rolla's annexation of the Southside Area. This appeal followed.

We recite additional facts in our discussion where relevant to our analysis of Appellants' claims of error.

DISCUSSION AND DECISION

Point I: Alleged Error Regarding Testimony of Contiguousness

Appellants' first point charges that the trial court committed reversible error when it overruled their objection to testimony by Thomas Hosmer, Rolla's planning director, regarding the contiguousness of the Southside Area to Rolla's existing city limits. Appellants complain that Hosmer should not have been allowed to testify that the perimeter of the Southside Area is 60,491.58 feet long, that the length of the Southside Area common to and contiguous with the existing city limits is 30,714.23 feet, and that the length of the Southside Area boundary contiguous with the existing corporate limits is at least fifteen percent of the length of the perimeter of the Southside Area. Appellants insist that Hosmer's testimony on this subject was based on hearsay, not personal knowledge, and should, therefore, have been excluded.

"The admission of evidence claimed to be hearsay is reversible error only if the complaining party is prejudiced." Howe v. ALD Services, Inc., 941 S.W.2d 645, 654-655 (Mo.App.1997). Appellants, here, claim they were prejudiced because "[a]bsent this erroneously entered hearsay testimony of Mr. Hosmer there existed absolutely no evidence of how much of the annexed land was contiguous to the Rolla city limit." Appellants correctly point out that before a city can involuntarily annex an area, it must "first as a condition precedent determine that the land to be annexed" conforms to the contiguousness requirement of § 71.015.1(1). Appellants insist that if Hosmer's testimony on this subject had been excluded, Rolla would have failed to prove its compliance with and the Southside Area's conformance to the condition precedent of § 71.015.1(1). Thus, Appellants assert that the trial court should not have approved the annexation. We disagree.

"The complaining party cannot be prejudiced ... if the challenged evidence is merely cumulative to other admitted evidence of like tenor." Howe, 941 S.W.2d at 655. Here, Rolla presented other evidence of the Southside Area's contiguousness when, at the beginning of trial, it placed into evidence its final...