Extension of Boundaries of City of Biloxi v. City of Biloxi

• Decision Date: 09 August 1978
• Docket Number: No. 50771,50771
• Citation: 361 So.2d 1372
• Parties: EXTENSION OF the BOUNDARIES OF the CITY OF BILOXI and L. D. Wise et al. v. CITY OF BILOXI.
• Court: Mississippi Supreme Court

Page 1372

361 So.2d 1372

EXTENSION OF the BOUNDARIES OF the CITY OF BILOXI and L. D. Wise et al. v. CITY OF BILOXI.

No. 50771.

Supreme Court of Mississippi.

Aug. 9, 1978.

Rehearing Denied Sept. 13, 1978.

Hengen & Hengen, Louis Hengen, Biloxi, Greaves & Terry, Jerry O. Terry, Gulfport, for appellants.

Page, Mannino & Peresich, Ronald G. Peresich, Vlahos & Caranna, Cono A. Caranna, II, Biloxi, for appellee.

Before ROBERTSON, SUGG and COFER, JJ.

COFER, Justice, for the Court:

The City of Biloxi, Mississippi, adopted an ordinance on November 15, 1976, substantially enlarging its boundaries in the manner provided by statute (Mississippi Code Annotated, Section 21-1-27, et seq., (1972)), and filed petition in the Chancery Court of the Second Judicial District of Harrison County praying ratification, approval and confirmation of its said action. Protests were filed by two groups of objectors, and a lengthy and thorough hearing was had in that court, resulting in entry of decree granting the prayer of the city.

From this decision, the objectors have appealed, assigning these errors in the lower court:

1. The trial court erred in overruling the Motion of res judicata filed in this cause.

2. The court below erred in finding that the Annexation Ordinance 1202 of the City of Biloxi adopted by the City Council, was reasonable, required by public convenience and necessity and that reasonable public and municipal services will be rendered to the annexed area within a reasonable time.

3. The court erred in finding that the area is in fact adjacent to the City of Biloxi. The south boundary line of the area to be annexed was not proven by any creditable evidence whatsoever.

4. The court erred in finding that Biloxi is in need of area for expansion. There was no proof that the City of Biloxi is in need of any area for expansion.

5. The court erred in finding that it is reasonable to anticipate that the entire area to be annexed will be developed in a reasonable time into residential or commercial areas.

6. The court erred in finding that the financial condition of the City of Biloxi is sound and that the city will be financially able to provide municipal services to the area.

7. The court erred in finding that although the county is furnishing police protection to the area and the area is now provided fire protection by a good volunteer fire department, that upon being annexed to the city the residents will benefit from better fire protection and better police protection.

8. The court found that there was adequate garbage pick-up and street maintenance in the said area but erred in stating that in view of the conditions in other areas the health and welfare of the residents would be better promoted if said area is annexed.

9. The court erred in finding that the proposed annexation is reasonable and said Ordinance 1202 and the annexation provided thereby should be and is approved, ratified and confirmed in its entirety.

As recognized in Giles v. City of Biloxi, 237 Miss. 65, 112 So.2d 815, sugg. of err. overruled, 237 Miss. 65, 113 So.2d 544 (1959); Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683 (1965); and City of Biloxi v. Cawley, 332 So.2d 749 (Miss.1976); and commonly known, Biloxi is situated on a peninsula, bounded on three sides by water and on the fourth (the west) side by the City of Gulfport.

It is in this suit argued that Biloxi needs territory for expansion, that it can expand only to the north (in the area here involved), and the territory sought to be annexed lies in the path of its growth.

Reserving for further discussion hereinafter, the remainder of the territory proposed for annexation, and by the chancellor included in his decree of annexation, we find ourselves in disagreement with him as to that part of the area lying north of Interstate highway I-10, bordered on its east by Gay Street and bounded by the meanderings of Tchoutacabouffa River between said Gay Street and where I-10 crosses said river. There are now two subdivisions in this territory, Cedar Lake and Pine Crest. Cedar Lake is accessible to the area south of the highway by a road crossing the highway right-of-way, but persons wishing to reach Pine Crest and the territory surrounding it must leave Biloxi as it would be with the annexation, and go to the eastward some distance to find a way to the north side of the highway then turn westerly again before entering Biloxi again and reaching Pine Crest and the territory around it.

In its isolated situation, with the difficulty of passage back and forth between it and the area south of it, we do not consider it reasonable to include it in the annexation and under authority of Mississippi Code Annotated, Section 21-1-33 (1972), we modify the chancellor's decree by removing that area from the south boundary of I-10 northward and it will herein no longer be considered or taken as a part of the area as to which this opinion has application.

Hereinafter the territory being considered will be referred to as the "area."

The chancellor, after hearing the proof and viewing the area involved made findings: that the area is unincorporated territory adjacent to Biloxi, though north of the Bay of Biloxi, a navigable body of water, has for years been accessible from Biloxi by bridges and causeways across the bay; that a new bay bridge (construction of which is now nearing completion) will greatly improve access to the area along Popps Ferry Road (the main road through the area proposed to be annexed); that the area is in Harrison County which has no zoning regulations controlling the area; that police protection is provided it by the Harrison County Sheriff's office, and fire protection is afforded by a good volunteer fire department (employing one full-time fireman); that as a part of Biloxi, the area residents will benefit from better police and fire protection and will be the recipients of a substantial reduction in insurance rates.

He further found that Biloxi needs area in which to expand; that the area proposed to be annexed is reasonably within the path of its expansion; that the present residential and commercial developments in the area fully establish that Biloxi's expansion will continue (northward) in the direction of Interstate I-10, which passes through the area; and that a large percentage of the employed residents in the area (upward of 51% The testimony shows) are employed in Biloxi, and many of the residents of the area operate businesses in Biloxi.

It was further found by him that the area is in fact adjacent to "and for all practical purposes a part of" Biloxi, and is frequently referred to in the record as "North Biloxi;" that some of the present facilities of Biloxi, including the churches thereof, are used by many of the residents of the area; that there are no schools in the area and 769 of the 1,088 students in the area are now in school in Biloxi, and that part of the area is in the Biloxi Municipal Separate School District, and that the remainder of the student population of the area attends schools provided by the Harrison County School District; that the Biloxi school system has adequate buildings and facilities to take care of the students in the area and will furnish to them necessary transportation as provided by law.

Further, he found that there are vacant rural lands in the area, which he viewed it plausible to anticipate will be developed within a reasonable time into residential or commercial uses, and it is the better course to annex the area before its development with a view to uniform growth, rather than to delay further while the area would populate and...