Sanitary and Imp. Dist. No. 95 of Douglas County v. City of Omaha

• Decision Date: 22 November 1985
• Docket Number: No. 83-775,83-775
• Citation: 221 Neb. 272,376 N.W.2d 767
• Parties: SANITARY AND IMPROVEMENT DISTRICT NO. 95 OF DOUGLAS COUNTY, Nebraska, a Corporation, et al., Appellants, v. CITY OF OMAHA, Nebraska, a Municipal Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 767

376 N.W.2d 767

221 Neb. 272

SANITARY AND IMPROVEMENT DISTRICT NO. 95 OF DOUGLAS COUNTY, Nebraska, a Corporation, et al., Appellants, v. CITY OF OMAHA, Nebraska, a Municipal Corporation, Appellee.

No. 83-775.

Supreme Court of Nebraska.

Nov. 22, 1985.

Syllabus by the Court

1. Municipal Corporations: Ordinances: Annexation. Neither Neb.Rev.Stat. § 14-373 nor § 19-3101 (Reissue 1983) applies where a city of the metropolitan class seeks to adopt an ordinance annexing land adjacent to the city's boundaries.

2. Statutes. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain their meaning.

3. Municipal Corporations: Annexation. The act of annexation is a matter of statewide concern, and therefore the state statutes, and not the city charter provision, are controlling.

4. Municipal Corporations: Annexation. The determination of the City of Omaha, Nebraska, to annex or not to annex outlying property is a purely municipal concern, but this is not true of the annexation process which necessarily affects property outside the municipality and persons who are not inhabitants of the city. The protection of such persons and property is a matter of state concern, and in fulfillment of its duties in this respect, the state must fix the rules and regulations pertaining to annexation procedures.

5. Municipal Corporations: Annexation. A municipality cannot annex property for revenue purposes only.

6. Municipal Corporations: Ordinances: Proof. The burden is on one who attacks an ordinance, valid on its face and enacted under lawful authority, to prove facts to establish its invalidity.

7. Sanitary and Improvement Districts: Municipal Corporations: Legislature. A sanitary and improvement district, like a municipal corporation, is a creation of the Legislature. The Legislature may prescribe how and in what manner this legal entity may be created, and, by the same token, as is true with municipal corporations, may determine how it can be discontinued.

Lyle E. Strom of Fitzgerald, Brown, Leahy, Strom, Schorr & Barmettler, and Robert J. Huck of Croker, Huck & McReynolds, Omaha, for appellants.

Herbert M. Fitle, Omaha City Atty., and Charles K. Bunger, Omaha, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, SHANAHAN and GRANT, JJ.

KRIVOSHA, Chief Justice.

Sanitary and Improvement District No. 95 of Douglas County, Nebraska, a sanitary and improvement district created pursuant to the laws of the State of Nebraska and other persons who are electors, residents, and owners of real and personal property located within the boundaries of S.I.D. No. 95 (hereinafter collectively referred to as S.I.D. No. 95) appeal from an order entered by the district court for Douglas County, Nebraska, denying S.I.D. No. 95's request for a permanent injunction to enjoin the City of Omaha from enforcing annexation ordinance No. 29545. By this ordinance the City of Omaha annexed Mockingbird Hills West Subdivision, the area served by S.I.D. No. 95.

S.I.D. No. 95 maintains that the annexation was invalid and should have been enjoined because (1) the city failed to follow the provisions of Neb.Rev.Stat. §§ 19-3101 and 14-373 (Reissue 1983), which S.I.D. No. 95 maintains was mandatory; (2) the city annexed Mockingbird Hills West Subdivision solely for the purpose of generating revenues; (3) the city failed to refer the proposed annexation to the planning department for a determination as to whether the annexation conformed with the city's master plan as required by § 7.06 of Omaha's home rule charter of 1956; (4) the city failed to make a good faith study of its ability to provide essential services to the annexed area; and (5) Neb.Rev.Stat. § 14-117 (Reissue 1983) is unconstitutional and void in that it subjects S.I.D. No. 95 to taxation without representation and operates to deny S.I.D. No. 95 and those similarly situated due process of law and equal protection of the law in contravention of the fifth and fourteenth amendments of the Constitution of the United States and §§ 3 and 21 of article I of the Constitution of Nebraska. We believe the district court was correct in denying the injunction, and, accordingly, we affirm.

Mockingbird Hills West Subdivision is located in Douglas County, Nebraska, and is generally bounded by 96th Street on the east, 108th Street on the west, L Street on the north, and Q Street on the south. The area contains 268 acres. Within the area there are 527 single-family homes, 14 duplexes, 46 apartments, 1 school, 1 park, 6.9 miles of improved streets, sanitary and storm sewers, 2 commercial areas, and 2,103 residents. On July 28, 1981, the Omaha City Council adopted ordinance No. 29545, which annexed Mockingbird Hills West Subdivision to the City of Omaha. The mayor signed the ordinance on July 29, 1981.

We turn first to the assignment of error concerning the city's failure to comply with either § 14-373 or § 19-3101. Section 14-373 provides:

Each city of the metropolitan class is authorized and required to prepare a plan for its future physical development and growth. Such plan shall be prepared, and shall be carried out by an appropriate city board or official. The plan may include such lands outside the corporate limits of the city as may bear a relation to the development of the city. A planning board may be given such other powers and duties by statute or charter as may be appropriate.

(Emphasis supplied.)

Section 19-3101 provides as follows:

The county board of any county in which there is a city of the metropolitan or primary class shall appoint an advisory committee comprised of persons residing outside of the city of the metropolitan or primary class, within three miles of the corporate limits thereof and outside of any city or village, and owning property within said three-mile zone. Such committee shall be composed of five members to be appointed for a two-year term and such committee shall advise the planning commission and city council of such metropolitan or primary city on all matters of planning and zoning relating to that area which is outside of the metropolitan or primary city, within three miles of the corporate limits of such city, and outside of any city or village.

While the record in this case would support the contention that the annexation ordinance was not submitted to a planning board pursuant to § 14-373 or to an advisory board pursuant to § 19-3101, the evidence does show that prior to the enactment of the ordinance by the Omaha City Council, public hearings were held before the Omaha Planning Commission. On July 8, 1981, the planning board recommended passage of the annexation by a vote of 7 to 0. More importantly, however, we believe that neither § 14-373 nor § 19-3101 applies where a city of the metropolitan class seeks to adopt an ordinance annexing land adjacent to the city's boundaries. Therefore, the fact that neither of these sections may have been complied with would not be of significance.

The authority for a city of the metropolitan class to annex land is specifically provided by § 14-117. That section provides:

The corporate limits of any city of the metropolitan class shall be fixed and determined by the council of such city by ordinance. The city council of any metropolitan city may at any time extend the corporate limits of such city over any lands, lots, tracts, street or highway, such distance as may be deemed proper in any direction, and may include, annex, merge or consolidate with such metropolitan city, by such extension of its limits, any adjoining city of the first class having less than 10,000 population or any adjoining city of the second class or village....

There is no contention made that § 14-117 was not complied with or that the manner in which the ordinance was adopted did not comply with the laws of the State of Nebraska.

An examination of both §§ 14-373 and 19-3101 discloses that neither section applies with regard to annexations. Section 14-373 requires each city to prepare a plan for its future physical development and growth. The section then further provides that "[t]he plan may include such lands outside the corporate limits of the city as may bear a relation to the development of the city." (Emphasis supplied.) The fact that the requirement imposed upon the city is limited only to land within the boundaries of the metropolitan city is, in our view, significant. While the statute authorizes the city to include land outside the city if it desires to do so in order to effect orderly planning for physical development, the statute does not impose such a requirement. We have regularly held that the word "may" is permissive and not mandatory. See Buhrmann v. Sellentin, 218 Neb. 288, 352 N.W.2d 907 (1984). It would therefore be anomalous if, on the one hand, we were to hold that a city of the metropolitan class was not required to include within its plan lands outside the corporate limits of the city and, at the same time, hold that the failure to prepare a plan which included land outside the city prevented the city from annexing the land. We do not believe that such a meaning can be obtained from a reading of the statute. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain their meaning. See City of Scottsbluff v. Tiemann, 185 Neb. 256, 175 N.W.2d 74 (1970).

Similarly, we believe that § 19-3101 has no application to the instant case. Section 19-3101 provides in part that the function of the committee shall be to advise the planning commission and city council "on all matters of planning and zoning relating to that area which is outside of the metropolitan or primary city, within three miles of the corporate limits of such city...." It appears to us that the purpose of this section is to assist the city in regulating land which is not a part of the city but is within its zoning jurisdiction. See Neb.Rev.Stat. § 14-116 (R...