Krebs v. City of Rapid City

• Decision Date: 13 March 1985
• Docket Number: No. 14348,14348
• Citation: 364 N.W.2d 128
• Parties: Alois J. KREBS; Jerrold L. Brown; Charles H. Lien; Kenneth Harris; Tracy Building Center; Gerald K. Miller; Joseph A. Krebs; Anthony S. Krebs; Richard A. Todd; Dakota Block Company; Dennis A. Rabe; Horst Masonry and Acoustical; Summit, Inc.; Barber Transportation Company; E.R. McBride; John M. Hillard; Dakota Steel and Supply Company; Paul C. Ness; M.W. Clarkson and C.W. Rand; Pete Lien and Sons, Inc.; and Edwin L. Hubbeling, Plaintiffs and Appellants. v. CITY OF RAPID CITY, Defendant and Appellee, and Donovan Rypkema, Intervenor and Appellee.
• Court: South Dakota Supreme Court

Page 128

364 N.W.2d 128

Alois J. KREBS; Jerrold L. Brown; Charles H. Lien Kenneth Harris; Tracy Building Center; Gerald K. Miller Joseph A. Krebs; Anthony S. Krebs; Richard A. Todd Dakota Block Company; Dennis A. Rabe; Horst Masonry and Acoustical; Summit, Inc.; Barber Transportation Company E.R. McBride; John M. Hillard; Dakota Steel and Supply Company; Paul C. Ness; M.W. Clarkson and C.W. Rand; Pete Lien and Sons, Inc.; and Edwin L. Hubbeling, Plaintiffs and Appellants. v. CITY OF RAPID CITY, Defendant and Appellee, and Donovan Rypkema, Intervenor and Appellee.

No. 14348.

Supreme Court of South Dakota.

Argued March 19, 1984.

Decided March 13, 1985.

George A. Bangs of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiffs and appellants.

Kenneth L. Heisterkamp of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Robert R. Jackson, Rapid City, for defendant and appellee.

Richard E. Huffman, Rapid City, for intervenor and appellee.

McKEEVER, Circuit Judge.

The plaintiffs (appellants) sought to nullify the annexation of the Deadwood Avenue area to appellee, the City of Rapid City (city). The trial court found that the appellee had properly adopted the resolution of annexation for the Deadwood Avenue area and dismissed appellants' complaint. We affirm.

Prior to this case, the city had attempted to annex the identical area. That attempt resulted in appeal to this court. Smith v. City of Rapid City, 307 N.W.2d 598 (S.D.1981). In Smith, this court affirmed the trial court's holding that the city had failed to meet the statutory requirements for annexation and declared the annexation resolution invalid.

In the present case, the city passed a resolution of annexation by which it sought to annex approximately 2,487 acres of land known as the Deadwood Avenue annexation area, which is located generally north and west of the present city limits. Within the area, commercial, industrial and residential sites have been developed. All of the appellants reside in or have property interests in the area sought to be annexed.

There are approximately 120 businesses within the area, most of which draw their clientele from within Rapid City. Those businesses developed, for the most part, as a natural extension of the Rapid City business district.

Three residential developments are also located within the proposed annexation area. Due to the proximity to Rapid City, the residents derive many benefits from the city, including jobs, shopping areas, recreational parks, entertainment opportunities, cultural presentations and governmental services.

The proposed annexation area also contains land for future development and expansion, presently needed by the city. That need results from limited expansion room within the present city boundaries. In fact, the trial court found that the Deadwood Avenue annexation area represents an actual growth of Rapid City beyond its existing boundaries.

The trial court made its findings after four days of trial, which consisted of conflicting testimony from fifteen witnesses, as well as the introduction of numerous exhibits. As an appellate court, we review the case not on the basis of what we would have done as trial judges, but on whether the trial judge entered findings that were clearly erroneous. SDCL 15-6-52(a); Estate of Pierce, 299 N.W.2d 816 (S.D.1980). With the clearly erroneous rule as our proper standard of review, we shall examine the residents' contentions that the trial court erred in dismissing their complaint.

The first issue is whether this annexation attempt created a homogenous and unified entity and complied with the requirement that the annexation be natural and reasonable. The trial court held that it did, and we affirm.

The annexation statutes addressing the extension of boundaries by resolution speak in terms of "contiguous territory." SDCL 9-4-4.1 and 9-4-4.2. In Big Sioux Township v. Streeter, 272 N.W.2d 924 (S.D.1978), this court discussed the requirements that the territory be contiguous to the annexing city and held that contiguity encompasses more than physical touching of boundaries but also encompasses the requirement of the community of interests which necessitates that the annexation be natural and reasonable. The court went on to state that

[a] natural and reasonable annexation may result from the following justifications: a need resulting from the orderly growth and development of the municipal corporation; an outflow of benefits including services and facilities to the outlying territory without a corresponding inflow of monetary contribution for such benefits resulting in an uncompensated burden to the municipal corporation; or an expressed need that the outlying territory has for services and facilities that the municipal corporation is able and willing to provide.

Id. at 926.

In this case, the trial court found that the Deadwood Avenue area is surrounded by the existing city boundaries on three sides: on the west side by the former city limits west of South Dakota Highway 79, on the south by the former city limits along west Chicago Boulevard, and on the east by the former city limits along West Boulevard and that portion of M Hill previously in the city. The presence of approximately 120 businesses in the Deadwood Avenue annexation area in 1982 shows that the area has developed significantly. Many of the businesses and residents came from within the formerly existing city limits. The three residential developments within the Deadwood annexation area include over 130 platted lots.

Testimony further reflected city's need for commercial and industrial sites that would enable Rapid City to prosper. The city has been substantial growth in population in practically all directions from its corporate limits. The Deadwood Avenue annexation area is more valuable due to its proximity to the city's corporate limits and the area represents an actual growth area of the city beyond its heretofore existing limits. The residents and inhabitants of the annexed area have been deriving benefits and advantages due to their proximity to Rapid City. The area and the city as it previously existed clearly share a common interest. Not only does the city provide customers and work force, but it is also a cultural, recreational, social and commercial center. It is a significant area in the economic vitality of the city. It is not only a place of employment and a source of supply, but the logical site for continued economic development, both industrial and commercial.

Furthermore, the trial court found that the availability of property for residential, commercial and industrial expansion was in short supply within the previous city limits and that the annexation area was needed for the future industrial expansion.

The trial court had sufficient testimony on which to base all of these findings. Consequently, the trial court's determination that the annexation is natural and reasonable, and the municipal body thereby created constitutes a homogenous and unified entity, is not clearly erroneous.

After taking all the evidence on the reasonableness and motivation of the annexation, and ruling in favor of the city, the trial court at the end of the case ruled that this issue had been fully litigated in Smith and consequently was res judicata. Appellants maintain this second ruling was also erroneous. In view of our ruling on the first issue, this court finds it unnecessary to treat the res judicata argument. However, this court did recently address this subject in the case of Black Hills Jewelry Mfg. v. Felco Jewel Indus., 336 N.W.2d 153 (S.D.1983).

The next issue appellants raise is that the water services and street lighting offered to the annexation area are insufficient to comply with our state statutory requirements because they are not substantially equivalent to the services provided to the existing city. The trial court held that the services to be provided to the annexation area were sufficient and we affirm.

SDCL 9-4-4.1 mandates that a city conduct a study to identify the various needs of the proposed annexation area. To meet these needs, SDCL 9-4-4.2(2) and (3) require that any resolution of annexation contain a general plan along with a tentative timetable for providing services. This court in Smith, supra, in discussing these statutes relied upon Clarke v. City of Wichita, 218 Kan. 334, 543 P.2d 973 (1975), in which the Supreme Court of Kansas stated that it was a requirement under their statute that the city provide a "bona fide plan covering each major governmental and proprietary service to be furnished the territory to be annexed substantially equivalent in standard and scope to such governmental and proprietary services furnished by the annexing city to persons and property already located [within the city]." Smith, supra, at 602.

Residents dispute the trial court's finding that the water system as designed for the proposed annexation area is substantially equivalent in standard and scope to that furnished to persons and property within the city. As a basis for their contention, they maintain that the water flow to the Windmill, a business establishment on the north end of Deadwood Avenue, would be 1,600 gallons per minute from the reservoir without pumps as compared to 6,000 gallons per minute at a selected site within the city.

City responds to this argument by reference to the testimony of their expert, Allen Foster, who testified that if one were to rely upon reservoir capabilities only, numerous other areas within Rapid City would not have the water pressure that exists at the intersection of Sheridan Lake Road and Mountain View Road. The high water pressure reading at that intersection results from its proximity to two major water mains and the water treatment plant, as well as its low elevation. Foster further testified that even with the pumps running, the 6,000 gallon-per-minute flow is not available to a large part...