Mayor, Councilmen and Citizens of City of Liberty v. Beard
| Decision Date | 30 March 1981 |
| Docket Number | No. WD30742,WD30742 |
| Citation | 613 S.W.2d 642 |
| Parties | MAYOR, COUNCILMEN AND CITIZENS OF the CITY OF LIBERTY, Missouri, a Municipal Corporation, Plaintiffs-Respondents, v. Rodney BEARD et al., Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Shook, Hardy & Bacon, Kansas City, for defendants-appellants; Charles L. Bacon, Jr. and John C. Dods, Kansas City, of counsel.
Jackson & Sherman, P. C., Kansas City, for plaintiffs-respondents; Don M. Jackson, Lindsay K. McFerrin, Kansas City, of counsel.
Since this opinion was handed down, the Supreme Court has, by its order, sustained an application for transfer as to the limited issue of attorney fees and expenses claimed by defendants. The order further directs this court to modify the opinion by severance of the attorney fees and expenses from the issues in the underlying annexation case and to issue our mandate and proceed with publication of the opinion insofar as it affirms the trial court's judgment of annexation.
The clerk of this court is, therefore, directed to issue a mandate affirming the judgment of annexation and forwarding for publication the attached portion of the original opinion. The issue of the attorney fees, having been severed and transferred, is not adjudicated by this court pursuant to the transfer order, but is within the jurisdiction of the Supreme Court for further proceedings.
Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.
The City of Liberty brought this action in declaratory judgment pursuant to § 71.015 RSMo 1977 (The Sawyers Act) to obtain approval of an annexation of 5.4 miles of unincorporated land lying east of the present city limits. The trial court found in favor of the annexation, and the defendant class of landowners appeal.
The landowners raise two issues: First, the sufficiency of the evidence to show the reasonableness and necessity of the annexation and the ability of the City to provide municipal services within a reasonable time, and second, the propriety of the trial court's ruling denying attorney fees to the landowners.
The case was ably tried and hotly contested. The trial proceedings have generated four volumes of transcript and a multitude of exhibits, maps, charts, photographs, and tables. The trial judge made extensive findings of fact and conclusions of law. The complexity and volume of the record almost defy summary judgment. The nature of the first point raised requires that a factual analysis be presented in the light of the landowners' contentions with respect to the sufficiency of the evidence.
The plaintiff, City of Liberty, began to adopt a series of holding ordinances in about 1962 designed "for the purpose of study and review (of about 8 areas) ... and to prevent ... the encroachment on (sic ) other cities for development which may be adverse to the City of Liberty." An ordinance authorizing the annexation of the area in question was enacted by the plaintiff-City on November 28, 1977. The petition for declaratory judgment, procedurally required by the Sawyers Act, § 71.015 RSMo 1977, was filed December 30, 1977. The court found the named defendants were a representative class of property owners in the proposed annexation area, and their answer was subsequently filed on May 1, 1978. The case was tried before the court beginning July 24, 1978. Findings of Fact and Conclusions of Law favoring the annexation were filed on October 18, 1978. Motions by both sides for reconsideration and amendment of the Order were overruled as was defendants' Motion for Allowance of Attorneys' Fees. A timely appeal by the defendant property owners was filed.
Defendants' first attack on the reasonableness and necessity for the annexation in question relates to population density. The City of Liberty, county seat of Clay County, is a special charter city located about 20 miles northeast of Kansas City. It now consists of an area of 19.88 square miles. The City had an estimated population of 17,414 people in 1978. While this figure represents a doubling of the population since 1960, the density is still less than one person per acre. While there is enough open space within the existing City to theoretically hold a population of 100,000 people, less adjustments for commercial and public uses, experts testified that a City never totally saturates itself and a realistic population figure depends upon ownership, topography, and a number of other factors. Therefore, although the City's projected population of 35,000 in the year 2000 could arguably be supported by less than 50% of the land currently available, plaintiff City argues that the single factor of available land is not controlling and other factors must be considered as to the reasonableness of the annexation. The City's witnesses conceded, and the trial court found, that the City did not need the area to accommodate housing within its limits.
To counter that finding, the City notes that in Liberty there are many large land holdings which are not and will not be available for residential use, such as William Jewell College, along the east side, and Hallmark Cards, which owns some 2,000 acres of the north and east areas of the City. The nature of these holdings is such that they may be held for an indefinite period. The Odd Fellows Home, further south along the east side, the Precious Blood Seminary and the Immaculata Retreat in the south and southwest areas, and the City's large sewage disposal areas in the extreme south are similar areas. About 75% of the available land within the existing city limits has been platted.
The area sought to be annexed contains 5.44 square miles and lies to the east of the City. Defendants point out, and the court found, that the population trend and the growth and development pattern within the City indicates movement toward the west and northwest of the central business district, away from the area sought for annexation; and that no spillover has occurred from the City into the proposed area. Plaintiff City counters by noting that there is growth to the east but it is outside of the City limits in the proposed annexation area because of the large, private landholdings (such as Hallmark) in the eastern portion of the City that are not available for development.
Plaintiff City argues that the evidence shows the annexation was proposed because it was believed by the City officials and their professional consultants that the entire area was beginning to urbanize; that once urbanization begins on the doorstep of a city, it not only continues, but accelerates, making it essential for the City to control that urbanization and development. The proposed annexation area is developing, plaintiff argues, due, in part, to the large, unavailable land areas within the City limits. In addition, the area itself is attractive to the existing City and its services. The proposed area of annexation is within the very good Liberty school district, it is accessible to the metropolitan area by highways coming in from the south and southwest, and has all the earmarks of being a part of an urban area.
Since urbanization has begun in the entire area, and since it can be expected to continue and accelerate because the area lends itself to urbanization, the expert witnesses testified that it should be annexed by the City. The evidence was based on the experts' testimony that county government cannot cope with the sophisticated control of urban type development. As more and more development occurs in this area, there will be an increasing need by the people in the area proposed for annexation for city services. Because cities have no authority to control the area outside their limits, annexation is required to supply these services.
When the annexation was considered by the Council, it developed a policy statement of its rationale for annexation. This policy statement contained various reasons for annexation:
* To assure urban development in fringe areas is reasonable;
* To prevent pollution of ground waters flowing into or through the City * To maintain configuration of boundary lines;
* To prevent unsightly and hazardous approaches to the City;
* To provide growth space for urban development with freedom of choice;
* To protect the City's water wells.
The total area is currently primarily devoted to agricultural use and much of it is unplatted and undeveloped. There are still many operational farms in the area, but the evidence shows real estate values in the area are ranging from $1,800 to $3,000 per acre. The equivalent sales within the City were within the same range.
There is no small "city lot" development within the area, nor any recent commercial development, so that the real estate market is still predominantly rural in the sense that sales are by acre, but at relatively high prices. Some of the land is, by deed restriction, limited to agricultural use for a period of time and the land appraiser offered by the City found no actual development within the area.
In the whole of the 5.44 sq. miles that make up the area, there are 139 homes, 17 of which were built prior to 1970, resulting in an estimated population in the whole of the area of between 450 to 500 people. The quality of housing is very good, representing large investments by homeowners with large, beautiful, upper-cost-bracket houses. Almost all houses are on 3-acre lots, and the only subdivisions are relatively small. For example, there are 17 houses in the Dalles, and 5 houses in Lofty Meadows, where growth has been slow.
There are no "shanties" or "dog patches" developing within the area, and there was no evidence of any commercial development, other than along the extreme south, where a warehouse, a feed business, and a few other small businesses have been located for years. But, recent land sales for industrial...
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