Holmes v. City of Little Rock, 84-266

• Decision Date: 25 March 1985
• Docket Number: No. 84-266,84-266
• Citation: 686 S.W.2d 425,285 Ark. 296
• Parties: Roy L. HOLMES, Appellant, v. CITY OF LITTLE ROCK, et al., Appellees.
• Court: Arkansas Supreme Court

Page 425

686 S.W.2d 425

285 Ark. 296

Roy L. HOLMES, Appellant, v. CITY OF LITTLE ROCK, et al., Appellees.

No. 84-266.

Supreme Court of Arkansas.

March 25, 1985.

Rehearing Denied April 29, 1985.

Givens & Buzbee, Little Rock, for appellant.

Carolyn B. Witherspoon, Acting City Atty. by Victra Fewell, Asst. City Atty., Little Rock, for appellees.

DUDLEY, Justice.

The Board of Directors of the City of Little Rock adopted an ordinance which proposed the annexation of fifteen separate tracts of land, designated "A" through "O." An election was held, and the vote was in favor of the annexation, both in the City and in the previously unincorporated area. Appellant, who owns land in tract H, and others challenged the annexation in circuit court. All of the challenges, excepting appellant's, were dismissed. Appellant contends that tracts A, B, C, G, K, and O were annexed in violation of Ark.Stat.Ann. § 19-307.1 (Repl.1980). The trial court upheld the annexation. We affirm. Jurisdiction to construe the annexation statute is in this Court. Rule 29(1)(c).

The rules controlling appellate review of annexation cases in Arkansas are well settled. A majority of electors voting in favor of annexation make a prima facie case for annexation, and the burden rests on those objecting to produce sufficient evidence to defeat the prima facie case. City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971); Faucett v. City of Atkins, 248 Ark. 633, 453 S.W.2d 64 (1970); Mann v. City of Hot Springs, 234 Ark. 9, 350 S.W.2d 317 (1961). By the very nature of this type of litigation, there is a wide latitude for divergence of opinion and consequently, a high degree of reliance must be placed upon the findings of the trial judge. Faucett v. City of Atkins, 248 Ark. 633, 634, 453 S.W.2d 64, 66 (1970). This court's task is not to decide where the preponderance of the evidence lies, but solely and simply to ascertain whether the trial court's findings of fact are clearly erroneous. ARCP Rule 52.

Ark.Stat.Ann. § 19-307.1 in its pertinent part provides:

Any municipality may ... adopt an ordinance to annex lands contiguous to said municipality, provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses.

Provided, however, that contiguous lands shall not be annexed when they either: (1) have a fair market value at the time of the adoption of the ordinance of lands used only for agriculture [agricultural] or horticulture [horticultural] purposes and the highest and best use of said lands is for agricultural or horticulture [horticultural] purposes; ....

The statute is disjunctive, and the annexation of the land is proper when the proof sufficiently complies with any one of the conditions. Faucett v. City of Atkins, 248 Ark. 633, 636, 453 S.W.2d 64, 67 (1970); Louallen v. Miller, 229 Ark. 679, 317 S.W.2d 710 (1958).

Since the sufficiency of the evidence is questioned, it is necessary that we review the evidence.

The area in the fifteen tracts comprises 12.6 square miles and has approximately 11,000 residents. For the past six years the City has used a voluntary annexation procedure which has left a very irregular boundary. One of the primary goals of this annexation is to square as many boundaries as possible in order to alleviate the irregular boundary impediment to furnishing urban services. There was testimony to prove that the City could afford to extend city services to each of the areas annexed.

Nine years ago the City employed a consulting firm to recommend ways to prevent rapid sub-standard growth in adjacent unincorporated areas. Subsequently, the City adopted a series of policies to provide for the deliberate and orderly expansion of the city boundaries. The goal of the policies is to prevent poor quality development which would have to be remedied when the tracts were later annexed.

With regard to tract A, the trial court found:

Tract "A" is an area of some seven hundred acres more or less. Located in this tract is a viable pecan orchard, some farm lands, and a substantial amount of lands being used for residential and commercial uses, along with the Little Rock Airport's proposed expansion. This airport expansion would encompass some 20 acres of the northwest portion of the larger pecan orchard. Here again the lands in this tract are situated along the east belt freeway. Across that structure lies the rapidly developing industrial-port area. These lands have available development streets and all typical municipal utilities.

Various witnesses testified that: (1) there are a variety of land uses in the tract with 145 single-family units in existence for approximately 450 residents; (2) access to the tract exists by city streets; (3) city utilities are available; (4) the Municipal Airport Commission will purchase approximately one-fourth of the pecan orchard as a part of a fifty million dollar expansion of the airport; (5) the tract is surrounded on three sides by present city boundaries and on the fourth side by the Arkansas River; (6) the tract is substantially urbanized; and (7) the biggest part of the tract consists of platted residential development. The findings of the trial judge were not clearly erroneous, and the above constitutes evidence that the tract can be annexed as lands representing the actual growth of the City beyond its legal boundary. While a pecan orchard exists on a part of the tract, it is permissible to annex a tract of land if that tract is more valuable for city purposes than for agriculture, even if the one tract is more valuable for farming purposes than for city purposes. Fowler v. Ratterree, 110 Ark. 8, 160 S.W. 893 (1913).

The trial court's finding of fact described B as follows:

Tract "B" of the annexed area has located within its boundary a mining pit which is in the northern portion of that particular tract. This is a quarry site. It is situated abutting the freeway and is adjacent to an area of residences to the east, thence into a commercial developed area and is also bounded by a rapidly developing port/industrial-commercial area to the north of the tract.

There was testimony that: (1) the tract has a population of 369, with 119 single-family units, 21 commercial uses, and one industrial use on 107.9 acres; (2) it lies between two intersections of a major interstate highway and constitutes a peninsula of unincorporated territory; (3) public access to the tract exists by city streets, and it has schools, a fire station, and utilities; (4) the largest part of the tract constitutes platted residential development; (5) a small part of the tract contains a quarry, with the balance of the quarry already being in the City; and (6) the tract is adjacent to the Little Rock Port Authority, and further industrial development is predicted. The tract may be annexed as lands platted and held for sale as municipal lots. A part of a quarry exists upon a segment of the tract, but that quarry is only a small part of an area which is already developed for residential, commercial, and industrial uses. The facts of this case are clearly distinguishable from those in Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977), where the City sought to annex lands which contained 5,000 to 10,000 acres of mining lands.

With regard to tracts C and G, the trial court found:

The acreages in tracts "C" and "G" are in part situated within the floodplain and floodway of Fourche Creek. There are low areas in tracts "C" and "G" which will probably never be developed. The City plans to acquire some lowlands and simply leave these lands as they are now and turn them into parks and green belts. The City does have "proposed plans" for draining some of the lands within these areas. Without question, there are lands within these areas which are not developed, and now being used for municipal purposes. Likewise, some of the undeveloped lands within these areas are presently and will continue to be placed to municipal uses within the immediate future. Access is in place, along with the typical municipal utilities.

Witnesses testified that: (1) 8,000 people reside in tract C in 1,956 single-family units and 395 multi-family units; (2) the tract has 82 commercial uses and 19 industrial uses; (3) rapid development of the tract has caused land-use problems; (4) the area has city water and sewer services as well as municipal utilities; (5) a small part of the tract lies in the floodplain; and one of the city's reasons for annexation of the area is to control development of the floodplain; and (6) the City would establish a "green finger" belt along a major stream in the tract to enhance proper drainage as well as open space and a park.

The testimony about tract G established: (1) there are 2,030 people in 630 single-family units and 31 multi-family units in the 2,615 acre tract; (2) there are 20 commercial uses and 9 industrial uses of the tract; (3) it represents the growth of the City beyond its boundaries; (4) it has sewer and water districts developing without benefit of municipal controls; (5) the City has already purchased 80 acres and plans to acquire 100 to 160 more for the development of parks and for drainage purposes; and (6) the Master Parks Plan includes an impoundment for the control of flood waters. Tract C meets the criteria of furnishing an abode for a densely settled area, and tract G represents the growth of the City beyond its boundaries.

Appellant argues that, since parts of section C and G are in the floodplain and...