Town of Houston v. Carden

• Decision Date: 19 March 1998
• Docket Number: No. 97-715,97-715
• Citation: 332 Ark. 340,965 S.W.2d 131
• Parties: TOWN OF HOUSTON, Arkansas; and Carl G. Hillis, Agent for Petitioners, Appellants, v. Anna CARDEN, et al., Appellees.
• Court: Arkansas Supreme Court

Page 131

965 S.W.2d 131

332 Ark. 340

TOWN OF HOUSTON, Arkansas; and Carl G. Hillis, Agent for Petitioners, Appellants, v. Anna CARDEN, et al., Appellees.

No. 97-715.

Supreme Court of Arkansas.

March 19, 1998.

James F. Goodhart, Little Rock, for Petitioners, Appellants.

Ed McCorkle, Arkadelphia, for Appellees.

BROWN, Justice.

On June 23, 1995, appellant Carl G. Hillis and numerous other landowners petitioned the Perry County Court that 900 acres of land lying west of the Town of Houston be annexed into the town pursuant to Ark.Code Ann. § 14-40-601 (1987). The Perry County Court found that the petition was "right and proper" under Ark.Code Ann. § 14-40-603(a) (1987), and ordered the annexation.

Appellees Anna Carden and other landowners, who live within the annexed area (Carden) filed an action in circuit court against the Town of Houston (Town) and Hillis to prevent the annexation. Carden had received a permit to operate a hog farm in the annexed area, and under a Houston ordinance, she could not do so. At the ensuing trial, witnesses testified and evidence was received, following which the trial court entered an order annulling the annexation. The court specifically found that none of the five factors announced in Vestal v. Little Rock, 54 Ark. 321, 15 S.W. 891 (1891) had been satisfied.

At trial, Carden presented evidence on why the annexation should be annulled and called Jerry Lawson, Mayor of Houston. The mayor testified that the Town was one square mile, or 640 acres, in size and that the population was approximately 175 persons. He testified that the Town did not have a water treatment plant or sewer system and that it received its water by pipeline from the nearby town of Perryville. He admitted that while some of the residents who lived on the periphery of the proposed annexation received water from Houston, others used well water, and that Perryville had restricted the Town's ability to add new customers. Mayor Lawson also testified that Houston had a volunteer fire department that included members who lived outside of the Town and that service was provided to out-of-town residents. He stated that the Town lacked a street department and equipment but that the Town had reached an agreement with the county judge for the maintenance of portions of a county road located within the proposed annexation.

Mayor Lawson admitted that Houston lacked a planning commission, other than the Town council, and that it did not provide for garbage pickup. He admitted that the population of the Town had decreased in the last twenty or thirty years and that the Town only had three businesses: a general store an automobile-repair station, and a realty company. He testified that only three to five buildings had been built in the Town the last five years and that no building permits were in existence for the proposed annexation. Although he testified that he heard that persons had land for sale in the proposed annexation, he stated that he knew of no person who was platting land into blocks and lots.

Mayor Lawson described Ordinance No. 95-1, which was passed on December 14, 1995. He testified that that Ordinance was the only ordinance in effect in the Town and that it prevented commercial livestock operations from conducting business within the Town limits. In connection with the ordinance, he admitted that he "heard a lot of talk" about Carden, who lived within the proposed annexation and who had received permission from the Arkansas Department of Pollution Control and Ecology (Department) to operate a hog farm. He maintained that Carden's activities were not the reason for the ordinance, but he admitted that he wrote to the Department and requested that it revoke her permit. The request was denied.

Mayor Lawson also told the circuit court that the Town had been considering annexation for at least four years in order to receive population-based matching-fund money and to improve its fire department by locating a pumper fire truck and fire house within the proposed annexation. He also believed that the proposed annexation would lead to better security, possibly in the form of a marshall; better lighting; better roads; and city water due to the possibility that the Town would expend money to provide these services.

He further explained that Ordinance No. 95-1 was an exercise of the Town's police power to prevent nuisances from occurring within the Town's limits. He agreed that the ordinance was passed, in part, due to noxious odors from a separate hog farm located to the east of town. In apparent contradiction of his testimony on direct examination, he explained that the population of Houston had grown in the last five to ten years with the construction of several new homes. He explained that if the Town had increased revenues, it would be more likely to spend money to provide water service to the annexed land.

Carden next testified that she owned 91 acres of land located within the proposed annexation that she used for raising cattle. She stated that she received her hog-farm permit on December 30, 1995. She related that although a hearing was held on her permit before the Department where appellant Carl Hillis and others testified in opposition, no appeal was sought by them after she was awarded the permit. In her opinion, the purpose of the annexation was to stop the operation of her proposed hog farm.

Carden then described the area to be annexed. She testified that the vast majority of the 900 acres was pasture and timber, with homes located on several parcels of land, and a greenhouse and a "New Beginnings" ministry on others. She testified that she was not aware of the operation of any businesses within the proposed annexation and that she did not know of any land for sale or land being platted for subdivisions. Carden also stated that no roads extended throughout the proposed annexation.

Appellee Toby Davis, who owned approximately 45 acres within the proposed annexation, testified that he raised beef cattle on his property. He stated that he had hoped to operate one or two chicken houses, but that now he could not do so as a result of Ordinance No. 95-1. He added that prior to the annexation, Hillis contacted him about supporting the annexation and told him: "[W]e need to pull together to stop hog farms." It was clear from his conversation that Hillis was referring to Carden. He testified that there were no roads crossing through the proposed annexation and that he was not aware of any property being for sale.

The Town and Hillis then put on their case. Hillis, who owned 80.5 acres within the annexation, explained that landowners owning 27 parcels of land within the 900-acre proposed annexation joined him in his petition for the annexation. Hillis reiterated that the reasons behind the annexation were better fire and police protection, water, and street lights. He believed that he and other landowners would eventually develop portions of their land into a subdivision once the area was annexed and "absolutely" agreed that Carden's plans to operate a hog farm played a role in the annexation because he believed it was the only way to address such a nuisance. He stated that he was well aware of the problems caused by hog farms because the noxious odors from the Brook Hog Farm, which was located east of Houston, were generally experienced throughout the community.

Hillis also testified about the use of the land in the proposed annexation. He stated that no people within the area were engaged in row-crop farming because of the quality of the land, which, he opined, was not suited for that farming activity. Much of the land, he said, was pasture, and timber was raised on only one plot. He did admit on cross-examination that he and other landowners used their pastures to raise cows and that numerous landowners held property that contained standing timber. He testified that most of the land was used for residential purposes and that there was a "New Beginnings" ministry, a church, a greenhouse, and a printing business in the affected area. He also admitted that he and other appellants were members of Citizens United Against the Proliferation of Hog Farms, which was engaged in various lawsuits throughout the state to prevent the establishment of hog farms.

Other proponents of the annexation living in the area testified that the best use of the area was not agricultural and that the hog farm would depreciate the value of their property and cripple their ability to enjoy the outdoors. They further claimed that improved Town services for them was a definite factor in favor of annexation.

The circuit court issued a letter opinion and subsequent order in which he annulled the annexation and found that the area in question did not meet any of the Vestal criteria. See Vestal v. Little Rock, supra. The circuit court specifically found:

• There was no evidence the town needed the annexed land for any proper town purpose like extension of streets, sewer, gas, or water.

• There was no evidence the town needed the area for business purposes.

• There was no evidence of crime in the town or surrounding areas.

• There was no evidence that the annexed land had a higher or better use for municipal purposes.

• Prevention of a hog farm is not a prong for annexation and stopping foul odors is not a reason for proper annexation of property.

The Town and Hillis contend on appeal that the circuit court erred in its decision for two reasons: (1) the court improperly shifted the burden of proof to the proponents of the annexation, and (2) the court's findings were not supported by substantial evidence. We first consider the issue of the burden of proof.

The burden of proof in an action to prevent annexation is placed on the remonstrants to prove that the area should not be annexed. Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989) (Gay II ); Chastain v. Davis, supra; City of Crossett v. Anthony, ...