City of St. Peters v. Kuester

• Decision Date: 15 March 1966
• Docket Number: No. 32353,32353
• Citation: 402 S.W.2d 70
• Parties: CITY OF ST. PETERS, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. Gregory KUESTER et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 70

402 S.W.2d 70

CITY OF ST. PETERS, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. Gregory KUESTER et al., Defendants-Respondents.

No. 32353.

St. Louis Court of Appeals, Missouri.

March 15, 1966.

Rehearing Denied April 12, 1966.

Niedner, Niedner & Moerschel, St. Charles, for plaintiff-appellant.

Louis S. Czech, Clayton, for defendants-respondents.

BRADY, Commissioner.

Appellant brought an action for a declaratory judgment as provided by § 71.015, RSMo 1959, V.A.M.S. (commonly known as the 'Sawyers Act'), authorizing it to hold an election on the issue as to whether its corporate boundaries should be extended. The trial court denied appellant the relief it sought and dismissed its action with prejudice. We will refer to the appellant as 'the city' and to the respondents by their designation in the trial court or by their individual names.

It is our duty to review the case de novo reaching our own conclusions with respect to the law and the facts, but granting due deference to the finding of the trial court where the credibility of witnesses is involved. City of St. Ann v. Buschard, Mo.App., 356 S.W.2d 567.

Most of the facts are undisputed. The city has an area of 160 acres with a population of 450. The unincorporated area sought to be annexed consists of 220 acres and has a population of 600. The city existed as a village from 1910 until 1959 when it was incorporated as a fourth class city. It has the usual commercial establishments including a bank and a railroad station. About two-thirds of the city's area lies and the greater part of its population lives on the north side of U.S. Interstate Highway 70, a four lane, divided, limited access highway. At the time of trial there were two roads which crossed the highway but these were soon to be closed and replaced with a single overpass. South of the highway the city consists mainly of a Catholic Church and its auxiliary buildings. The topography of the area is such that the city is hemmed in by Dardenne Creek on the west, by the Wabash Railroad on the north, and by a grain elevator area on the east. The logical course of expansion lies to the south.

There was extensive testimony as to the present government in the city. From this it appears that there is no city hall and space is rented for that purpose at the volunteer fire hall. There is no telephone service to the city. Its police department is headed by one of the aldermen who serves as 'police commissioner.' His office was established by the city after this action was filed. There is a part-time police officer who has a regular place of business in the City of St. Charles, some miles away but who is available in the city in the evenings and at night. He has no separate telephone listing. A witness testified that he was tending bar in a tavern in the city when a patron became drunk and disorderly. The mayor of the city, who also was in the bar at the time, attempted to call the city marshal. The marshal had no one to relieve him at his business so he couldn't come and take care of the drunken patron. The city frankly admits that the part-time officer has not always been available when he has been called and that the police service for the city is inadequate. There is no police car. The city has resolved to expand its police department but has not developed any actual cost figures or plans for doing so.

Assessed valuation in the city has increased from $357,000.00 in 1959 to $550,000.00 at present. The tax rate is 45 cents for $100.00 evaluation for general purposes and $1.40 for waterworks bonds which now have an outstanding balance of $63,000.00. The tax rate and bonded indebtedness have steadily increased during the rise in assessed valuation. There was testimony that the tax rate necessary to retire the waterworks bonds could be reduced if annexation were permitted due to a broader base. There was evidence that these tax rates had been set by motion rather than by ordinance during the three years prior to trial. From February, 1962 until June, 1964 only four ordinances were proposed and passed.

The city has no street department, but the city streets are generally paved and lighted and there are some sidewalks. However, the city has constructed no new streets within the four years preceding trial and no sidewalks within the ten years preceding trial. It has no street employees or street equipment and the main street of the city is maintained by the state and county highway departments. Other streets within the city connect with and form a part of county roads and are maintained by St. Charles County.

The city has no municipally owned fire department, but a fire hall with two radio equipped trucks is located within the city and manned by volunteer firemen, two-thirds of whom are city residents. The fire hall is owned by the volunteer fire department and the services of that organization are available to dues paying members within the city and also to those living in the area the city seeks to annex.

The city's water system can produce over 200,000 gallons per day and is adequate to serve more than 1,000 people for both domestic use and fire protection. The system has two deep wells, a 50,000 gallon elevated storage tank, and 14,000 feet of water mains which can readily be connected with the existing private water system in a portion of the area to be annexed. The city had entered into an agreement with the private water company serving a portion of the area to be annexed to augment the water supply of that area with some water from the city. The city's water is from deep wells and untreated. It has a noticeable mineral content and to many persons is unpalatable without the use of water softening equipment. The public school attended by residents of both the city and the unincorporated area is supplied with water from the city. The janitor and maintenance man at the public school testified that the city water has an odor to it and the children complain about it. He also testified that a water softener was necessary to make the water palatable and to avoid such complaints. The cooks at the school bring their own water to use in cooking instead of being forced to use the city's water. This is due to the taste of the water and the fact it discolors utensils. There was also testimony that the city's water ran under inadequate pressure causing difficulties as to toilet flushing.

The city sewage is handled by individual septic tanks. It does not have a sanitary sewer system and the testimony was that this was not financially feasible under its present circumstances. It has employed an engineer who has presented preliminary plans of a system designed to serve both the city and the area to be annexed.

With reference to park facilities and to schools the evidence was that the only public recreational facility in the area is a park located within the city and owned by the Chamber of Commerce of the city which is presently used and maintained by residents of both the city and the area to be annexed. The parochial school is located in the city and the elementary public school serving both the city and the unincorporated area is located in the unincorporated area.

The city has an unpaid 'building commissioner' who is also one of the aldermen who issues building permits and inspects septic tanks. It does not have any building, electrical, fire or zoning code, dog control or library ordinance. Neither does it have a public health ordinance other than the requirement for septic tank inspection.

There was some dispute in the testimony as to the availability of vacant building lots within the present boundaries of the city. The city's testimony was that there were twelve acres of vacant ground within the city as presently constituted and that there were some scattered lots within the town including three located immediately off of the main street. The defendants' evidence was that there were 22.42 acres of vacant land within the city as presently constituted and there were a total of 23 vacant lots. As of the date of trial the city admitted that there had been no applications for building permits on any vacant lots in the city.

With reference to the area which the city seeks to annex the facts are that it is substantially developed and contains extensive subdivisions. The remainder of the land not plotted into subdivisions has been built up by individual home owners with the exception of one large tract of land known as 'the McMenamy tract.' The public school which lies within the area the city seeks to annex is at the southwest corner of the McMenamy tract. The best use of this tract of land is for residential purposes as it is benefited by the existence of city water which runs past it to the school and also by its proximity to the city. This...