Ronald Russell v. City of Madison, Mississippi
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1IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-AN-01574-SCT
IN THE MATTER OF THE ENLARGEMENT AND
EXTENSION OF THE CORPORATE LIMITS OF
THE CITY OF MADISON, MISSISSIPPI: RONALD
RUSSELL, KELLY KERSH, CHARLES WARWICK,
TOM JOHNSON, RICHARD DAVIS, HARLAN
SISTRUNK AND FRANK BELL
v.
CITY OF MADISON, MISSISSIPPI
AND
CITY OF MADISON
v.
RONALD RUSSELL, BILL ROBERTSON, KELLY
KERSH, CHARLES WARWICK, TOM JOHNSON,
STAN PATTERSON, RICHARD DAVIS, GEORGE
A R D E L E A N , L IS A M A R K H A M , H A R L A N
SISTRUNK, FRANK BELL AND LARRY SPENCER
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
08/31/2006
HON. JASON H. FLOYD, JR.
MADISON COUNTY CHANCERY COURT
T. JACKSON LYONS
JAMES L. CARROLL
MYLES A. PARKER
MELISSA ANNELLE ROSE
JACOB THOMAS EVANS STUTZMAN
C. JOHN HEDGLIN
CIVIL - MUNICIPAL BOUNDARIES &
ANNEXATION
ON DIRECT APPEAL: AFFIRMED; ON
CROSS-APPEAL: AFFIRMED - 04/03/2008
MANDATE ISSUED:
BEFORE WALLER, P.J., CARLSON AND LAMAR, JJ.
CARLSON, JUSTICE, FOR THE COURT:
¶1.
The City of Madison petitioned the Chancery Court of Madison County to enlarge and
extend its existing boundaries to incorporate an area situated to the north and northwest of
the existing city limits. The special chancellor approved all of the proposed annexation area
except for approximately 2.5 square miles to the north of the current city limits. As a result
of the special chancellor’s decision, the objectors to the annexation have appealed to us and
the City of Madison has cross-appealed.
We find that, under the totality of the
circumstances, the special chancellor’s findings are reasonable and supported by substantial
and credible evidence. Thus, we affirm the judgment of the Madison County Chancery Court
on both direct appeal and cross-appeal.1
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We are not unmindful of the fact that we granted leave for St. Dominic Health
Services, Inc., to filed an amicus curiae brief during the pendency of this appeal, and St.
Dominic’s amicus brief is before us. St. Dominic asserts that it owns 51.2 acres of land
within the 2.5-square- mile area excluded from annexation by the special chancellor; that “it
has a legitimate interest in the outcome” of the City of Madison’s cross-appeal; that after the
annexation trial in this case, it filed a certificate of need application concerning the
construction of a 75-bed hospital within the excluded annexation area; and that it adopts the
City’s argument on cross-appeal, asserting error on the part of the special chancellor in
excluding the 2.5-square-mile area from the annexation area. However, we must consider
this appeal from the record before us based on the oral and documentary evidence presented
at trial and the applicable law.
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FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2.
At a public meeting on April 2, 2002, an ordinance expanding the boundaries of the
City of Madison was unanimously adopted by the city’s Board of Aldermen and signed by
Mayor Mary Hawkins Butler. Based on this action, on April 3, 2002, the city filed in the
Madison County Chancery Court its “Petition for the Approval, Ratification and
Confirmation of the Enlargement and Extension of the Municipal Boundaries of the City of
Madison, Mississippi” (Petition) pursuant to Mississippi Code Annotated Section 21-1-27,
et seq. Through this Petition, the city sought to annex approximately 15.80 square miles of
land comprised of sixteen parcels located primarily to the north and northwest of the current
city limits.
¶3.
On April 24, 2002, Kelly Kersh, Ronald Russell, Bill Robertson, Charles Warwick,
Tom Johnson, Stan Patterson, George Ardelean, Richard Davis, Lisa Markham, Harlan
Sistrunk, and Frank Bell (the “Objectors”) filed their Objection to the city’s Petition.
Additionally, on May 30, 2002, Larry Spencer filed his separate Objection to the city’s
Petition. Thereafter, on June 7, 2002, Billy and Thelma Carpenter caused an objection letter
to be filed in this matter on their behalf.
¶4.
After the chancellors of the Eleventh Chancery Court District (of which Madison
County is a part), recused themselves, this Court’s chief justice, on May 27, 2003, entered
an order appointing former chancellor Jason H. Floyd as a special judge to preside and
conduct proceedings in this matter.
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¶5.
By early January 2005, there had been numerous trial settings and continuances, but
pursuant to previous notice, a trial was scheduled for February 7, 2005, on the city’s
annexation petition. However, on January 14, 2005, the chancery court conducted a hearing
on a motion to dismiss which had been filed by the Objectors. By order dated February 7,
2005, and entered on February 10, 2005, the special chancellor denied the Objectors’ motion
to dismiss; and likewise, the special chancellor allowed the city to amend its petition, since
there was an error in the description of the city’s entire boundary as changed. Based on the
special chancellor’s ruling, the city was required to file an amended annexation petition and
re-publish and re-post the annexation notice as required by statute; therefore, the scheduled
hearing was once again continued and subsequently set for trial on September 26, 2005.
¶6.
On August, 12, 2005, the city filed its amended annexation petition and notice of
hearing, caused process to be issued, and re-posted and re-published notice as required by
statute; however, once again, the hearing had to be continued because the amended petition
contained errors in the description of the proposed annexation area (PAA), as well as the
entire boundary as changed. By order dated September 20, 2005, and entered on September
23, 2005, the special chancellor, inter alia, granted leave to the city once again to amend its
petition to correct these errors in the legal descriptions; likewise, the special chancellor reset
the trial for January 9, 2006. On November 17, 2005, the city filed its second amended
annexation petition, and re-published and re-posted the annexation notice as required by
statute.
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¶7.
Eventually, after a twelve-day trial which spanned a period of time from January 9,
2006, through January 26, 2006, and in which numerous lay witnesses and expert witnesses
testified in support of, and in opposition to, the city’s annexation efforts, the Madison County
Chancery Court took this matter under advisement and in due course entered its detailed
Findings of Fact and Conclusions of Law (FOFCOL) on August 8, 2006. In its FOFCOL,
the chancery court found the annexation to be reasonable except as to three of the sixteen
parcels of land. As to the three parcels of land which were not judicially approved for
annexation, the special chancellor stated:
The Court finds, however, that within the PAA, the following three parcels
have experienced little if any spillover and further there are no roads or streets
extending into these areas. The first area is that portion of Section 31 that lies
east of Bozeman Road and west of Interstate 55 and also Section 32 and
Section 33, all in Township 8 North, Range 2 East, all within the PAA. While
this land may become reasonable for annexation at some future date, the Court
finds that due to lack of development and access roads, this time has not yet
arrived.
The other two areas are portions of Parcel 10 and Parcel 11 located in Sections
10 and 11, Township 7 North and Range 1 East. There are no primary roads
or spillover development in these two areas. The northern most portion of
Parcel 11, lying to the west of Livingston Road, is undeveloped with limited
access. However, Livingston Road, a well-traveled transportation corridor,
transverses its entire eastern boundary, and no objection was made to it being
annexed. In fact, the testimony is that the landowner requests its annexation.
The court finds that annexation of this area as well as that portion of Parcel 10
which is located in Section 14, Township 7 North, Range 1 East are reasonable
and they are allowed. Annexation of the remainder of Parcels 10 and 11 is
unreasonable and is denied. The owner uses this as a farm and vehemently
objects to its annexation. (Internal citations omitted).
On September 5, 2006, the special chancellor entered a Final Judgment consistent with the
FOFCOL. From this Final Judgment, the Objectors filed their notice of appeal on September
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15, 2006, asserting that the chancery court’s decision to approve the majority of the city’s
annexation plan was manifestly wrong and not supported by substantial credible evidence.
On the same day, the city cross-appealed, asserting that the chancery court had erred in
failing to also approve for annexation the three parcels comprising approximately 2.5 square
miles of land lying to the north of the current city boundaries.
DISCUSSION
¶8.
Although the parties couch the issue(s) in different terminology, in the end, a
chancellor’s decision concerning annexation is reviewed by this Court on appeal through the
lens of reasonableness. Stated differently, we have in the past acknowledged “the judiciary’s
limited role in determining whether a municipality’s exercise of its legislatively granted
authority to enlarge its boundaries via annexation is reasonable, given the totality of the
circumstances.” Lamar County v. City of Hattiesburg (In re Extension of the Boundaries
of Hattiesburg), 840 So. 2d 69, 73 (Miss. 2003). See also In re Extension of Boundaries
of City of Winona, 879 So. 2d 966, 971 (Miss. 2004). When a chancellor determines an
annexation to be reasonable, this Court will reverse on appeal only when the “chancellor’s
decision is manifestly wrong and is not supported by substantial and credible evidence.” Id.
(citing City of Hattiesburg, 840 So. 2d at 81). Furthermore,
[w]here there is conflicting, credible evidence, we defer to the findings below.
Findings of fact made in the context of conflicting, credible evidence may not
be disturbed unless this Court can say that from all the evidence that such
findings are manifestly wrong, given the weight of the evidence. We may only
reverse where the Chancery Court has employed erroneous legal standards or
where we are left with a firm and definite conviction that a mistake has been
made.
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Id. (citing Bassett v. Town of Taylorsville, 542 So. 2d 918, 921 (Miss. 1989)). See also In
re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So. 2d 270,
277 (Miss. 1999); McElhaney v. City of Horn Lake, 501 So. 2d 401, 403 (Miss. 1987);
Extension of Boundaries of City of Moss Point v. Sherman, 492 So. 2d 289, 290 (Miss.
1986); Enlargement of Boundaries of Yazoo City v. City of Yazoo City, 452 So. 2d 837, 838
(Miss. 1984); Extension of Boundaries of City of Clinton, 450 So. 2d 85, 89 (Miss. 1984).
¶9.
In reviewing the chancellor’s decision as to whether a proposed annexation is
reasonable, this Court takes into account twelve indicia of reasonableness: (1) the
municipality’s need to expand; (2) whether the area sought to be annexed may be deemed to
be reasonably within a path of growth of the city; (3) the potential health hazards from
sewage and waste disposal in the proposed annexation area; (4) the municipality’s financial
ability to make improvements and furnish the promised municipal services; (5) the need for
zoning and overall planning in the proposed area of annexation; (6) the need for municipal
services in the area proposed to be annexed; (7) the existence vel non of natural barriers
between the city and the proposed annexation area; (8) the past performance and time
element concerning the city’s providing of services to its current residents; (9) the economic
impact or any other type impact of the annexation upon those persons who live or own
property in the area proposed for annexation; (10) the impact of the annexation upon the
voting strength of protected minorities; (11) whether property owners and all inhabitants of
the area proposed for annexation have in the past, and will in the future, unless annexed,
enjoy the economic and social benefits of the municipality because of their reasonable
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proximity to the corporate limits of the municipality, without paying their fair share of taxes;
and (12) any other factors that may or may not affect the issue of the reasonableness of the
proposed annexed area. City of Biloxi, 744 So. 2d at 278; In re Enlargement and Extension
of Municipal Boundaries of City of Madison, 650 So. 2d 490, 494 (Miss. 1995). With that
in mind, “‘the ultimate determination must be whether the annexation is reasonable under the
totality of the circumstances.’” City of D’Iberville v. City of Biloxi, 867 So. 2d 241, 249
(Miss. 2004) (citing In re Corporate Boundaries of the Town of Mantachie, 685 So. 2d 724,
726 (Miss. 1996) (quoting Robinson v. City of Columbus (In re Extension of the
Boundaries of the City of Columbus), 644 So. 2d 1168, 1172 (Miss. 1994)).
¶10.
As to the Objectors’ direct appeal, we now restate the issue for clarity in discussion.
I.
A.
¶11.
WHETHER THE SPECIAL CHANCELLOR ERRED IN
DETERMINING THAT ANNEXATION OF MOST OF THE
PROPOSED AREA WAS REASONABLE UNDER THE
TOTALITY OF THE CIRCUMSTANCES.
THE NEED TO EXPAND
When determining whether a city seeking an extension of its boundaries has a
reasonable need for expansion, this Court has considered many factors which may include,
but do not have to include: (1) spillover development into the proposed area of annexation;
(2) the city’s internal growth; (3) the city’s population growth; (4) the city’s need for
development of land; (5) the need for planning in the proposed annexation area; (6) increased
traffic counts in the proposed area; (7) the need to maintain as well as expand the city’s tax
base; (8) limitations due to the geography and any surrounding cities; (9) land remaining
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vacant within the municipality; (10) environmental influences; (11) the city’s need to
exercise control over the area proposed to be annexed; and (12) increase in new building
permit activity.
City of Winona, 879 So. 2d at 974 (quoting In the Matter of the
Enlargement and Extension of the Boundaries of the City of Macon v. City of Macon, 854
So. 2d 1029, 1034-35 (Miss. 2003)).
¶12.
The Objectors mainly argue that the City of Madison has enough vacant land within
the city limits to expand development without annexing the proposed area of annexation
(PAA). Currently, 67.9% of the City of Madison is totally developed. Only 1,275 acres of
land is vacant, unconstrained, developable land. This Court has “declined to set an absolute
amount of usable vacant land that would prevent annexation.” City of Hattiesburg, 840 So.
2d at 85. As such, “the fact that there may be some other vacant lands already available in
the city does not prohibit annexation nor does it require that an indicia be found to be against
the community proposing annexation.” City of Winona, 879 So. 2d at 973. In fact, in the
city’s 1995 annexation, the city had slightly more than 50% of usable vacant land, and this
Court approved the annexation. City of Madison, 650 So. 2d at 496.
¶13.
Alan David Hoops, Director of Community Development and Interim Director of the
Building Permits Department and Code Enforcement in the City of Madison, was offered at
trial as an expert in the field of community development, planning and zoning. Hoops
testified that residential and commercial growth has spilled over into the PAA. As of the date
of trial, there were seventy commercial, residential, and recreational development plans
within the City of Madison and just outside the city limits in the PAA. Of the seventy
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development plans, forty-three were within the city and twenty-seven were within the PAA.
Developers are forced to build in the PAA because of a lack of vacant, developable land
within the city limits.
Even the Objectors’ planning expert, Joseph A. Lusteck,
acknowledged at trial that a large portion of the PAA consisted of spillover development as
a result of increased demand for commercial land in the area. Further evidence revealed that
the city’s physical ability to expand was limited to the south by the City of Ridgeland and
to the east by the Ross Barnett Reservoir.
¶14.
Additionally, Hoops and other city department heads were actively involved in the
preliminary plat phase and layout phase of both residential and commercial development
projects in the PAA. They had worked extensively with the developers, landscape architects,
engineers, and planners for new developments to ensure consistency, quality design, and
quality development in the PAA.
¶15.
The city’s population has increased significantly over the past several years. As such,
commercial building permits and residential building permits have increased. Since 1996,
214 commercial building permits and 1900 residential building permits have been issued by
the city. Additionally, there have been traffic increases both in the city and in the PAA.
From 1990 until 2004, traffic on Main Street in the City of Madison increased by 191.3%,
and traffic on Highway 463 in the PAA increased by 319.4%. The chancellor found that the
city’s zoning and other related ordinances were more comprehensive than the county’s and
that the city was in a superior position to implement and enforce the ordinances. Lastly, the
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evidence revealed that methods of sewage and trash disposal would be greatly improved with
the city’s expansion and control.
¶16.
Since the special chancellor’s decision took into account many of the above-
enumerated factors, and the decision is supported by the substantial, credible evidence, we
find the special chancellor’s findings for this indicium were reasonable.
B.
¶17.
PATH OF GROWTH
This Court has outlined several factors which may be considered in determining
whether a proposed annexation area is within a municipality’s path of growth: (1) spillover
development in the proposed area of
annexation; (2) the adjacency of the proposed
annexation area to the city; (3) limited area available for further expansion; (4)
interconnection via transportation corridors; (5) increased urban development in the proposed
annexation area; (6) geography; and (7) subdivision development. City of Winona, 879 So.
2d at 977 (other citations omitted). When looking at the path of growth, “a city need only
show that the areas desired to be annexed are in ‘a’ path of growth [and] this does not mean
that the area is ‘the most urgent or even the city’s primary path of growth.’” City of Winona,
879 So. 2d at 977 (citing City of Hattiesburg, 840 So. 2d at 86-87).
¶18.
We held in City of Macon:
The test for evaluating the reasonableness of a chosen path of growth is
“whether an area is in a path of growth, not necessarily a City’s primary path
of growth.” In re City of Horn Lake, 630 So. 2d 10, 19 (Miss. 1993). This
Court has further stated that “our law gives municipalities the discretion, based
on convenience and necessity, to choose between various paths of growth by
annexation.” Ritchie v City of Brookhaven, 217 Miss. 860, 65 So. 2d 436,
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439 (1953). The law is clear that the annexation area must be in “a” path of
growth[,] not “the” path or “only” path of growth.
City of Macon, 854 So. 2d at 1029.
¶19.
This Court stated in Enlargement & Extension of the Municipal Boundaries of City
of Meridian v. City of Meridian, 662 So. 2d 597, 612-13 (Miss. 1995), that the most
important factors when determining reasonableness of the path of growth are “the adjacency
of the proposed annexation area to the city, accessibility of the proposed annexation area by
city streets, and spillover of urban development into the proposed annexation area.” Id. at
612-13.
¶20.
In today’s case, the evidence reveals that the PAA is immediately adjacent to the city
and is accessible by public streets, highways and roads. Mississippi Highway 463 runs
directly from the city’s downtown area past the Reunion development, which is currently
located in the PAA.
Subdivisions including Annandale, Ingleside, Twelve Oaks and
Windsor Hills are on both sides of Highway 463 and are directly connected to it. Madison
Avenue is a main, east-west corridor and extends both through the city and the PAA.
Highland Colony Parkway, which turns into Bozeman Road at Highway 463, is another
primary transportation corridor.
¶21.
In addition, the PAA is experiencing significant spillover of urban development in the
contiguous areas around the periphery of the city. The city also presented evidence which
supported its assertion that the city’s path of growth is primarily to the north and to the west
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of the existing city because the city is surrounded by the Ross Barnett Reservoir to the east,
the city of Ridgeland to the south, and the city of Canton to the north.
¶22.
Based on the testimony presented at trial, we find that the special chancellor’s findings
that this indicium of reasonableness has been met in favor of annexation are supported by the
substantial, credible evidence.
C.
¶23.
POTENTIAL HEALTH HAZARDS
This Court has set out several sub-factors which may be considered when determining
if the indicium of potential health hazards has met. These factors include, but again, are not
limited to: (1) potential health hazards from sewage and waste disposal; (2) a large number
of septic tanks in the PAA; (3) soil conditions which are not conducive to on-site septic
systems; (4) open dumping of garbage; and (5) standing water and sewage. City of Winona,
879 So. 2d at 979 (citing City of Biloxi, 744 So. 2d at 280; In re Corporate Boundaries of
Town of Mantachie, 685 So. 2d 724, 727 (Miss. 1996); City of Jackson v. City of
Ridgeland, 651 So. 2d 548, 558 (Miss. 1995)).
¶24.
A review of the record reveals that many parts of the PAA do not have the benefit of
sanitary sewage. In fact, evidence was presented to show that failing on-site wastewater
treatment facilities are located throughout the PAA, and many residents are using septic
tanks, despite the fact that they are impractical and ineffective due to unsuitable soils in the
area. The tanks often do not function properly; as a result, sewage tends to pool, and
residents illegally dump their raw sewage into ditches. Not only is illegal dumping a
violation of state law, but it also presents significant potential health hazards to the residents
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of the PAA. The City of Madison proposed two potential plans to cure the PAA’s defective
sewage system and presented evidence that it could financially provide for the
implementation of the plan selected in its Services and Facilities Plan.
¶25.
Additionally, trash pickup in the PAA occurs only once a week, which contributes to
uncollected waste in the area, which in turn contributes to the spread of disease. The city
presented evidence that it plans to address this problem by providing garbage collection twice
per week.
¶26.
The special chancellor’s findings that this indicium favored annexation are supported
by the evidence presented at trial, as well as by his observations from a personal tour of both
the area within the current city boundaries and the PAA.
D.
¶27.
FINANCIAL ABILITY
In considering the city’s financial ability to make the improvements and provide the
services as promised, this Court may consider several sub-factors to determine if this
indicium has been met: (1) the present financial condition of the city; (2) the city’s sales tax
revenue history; (3) the city’s recent equipment purchases; (4) the city’s financial plan and
department reports proposed for implementing and fiscally carrying out the annexation; (5)
the fund balances of the city; (6) the city’s bonding capacity; and (7) expected amount of
revenue to be received by the city from taxes in the annexed area. City of Winona, 879 So.
2d at 980-81.
¶28.
The evidence presented at trial revealed that the City of Madison is in good financial
condition and that the city has the ability to keep its commitments, all according to Mike
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Slaughter, the city’s urban-planning expert. At trial, Slaughter calculated the city’s past
yearly revenues and expenditures. The City of Madison has experienced a healthy ending
balance every year since 2000. In 2000, the ending fund balance was $847,900; in 2001,
$612,582; in 2002, $875,780; in 2003, $941,599 and in 2004, $1,461,481.
¶29.
Furthermore, Slaughter projected the city’s financial status for the first five years after
annexation and concluded that the city would continue to be financially sound after the
annexation. The city has numerous financing options available including: general obligation
bonds, Mississippi Development bank bonds, special assessment bonds, short term notes, tax
increment financing bonds, revenue bonds, and lease financing, among others.
¶30.
Currently, the City of Madison has a capacity of $7.4 million for general obligation
bonds. Under the 15% Rule, the city’s bonding capacity after annexation will increase from
$22.06 million in 2007 to $46.65 million by 2011. Under the 20% Rule, the city’s bonding
capacity will increase from $35.04 million in 2007 to $66.66 million by 2011. In 2005, the
City of Madison reduced its millage rate from 29.8 mils to 28.8 mils.
¶31.
The special chancellor concluded that the city is in a strong financial condition and
is well-equipped to implement the Services and Facilities Plan as adopted by the mayor and
board of aldermen. The Objectors conceded in their brief that the City of Madison has the
financial ability to provide municipal services to the PAA. We conclude that the special
chancellor’s finding that annexation is reasonable from a financial standpoint is supported
by the substantial, credible evidence presented during the trial.
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E.
¶32.
THE NEED FOR ZONING AND OVERALL PLANNING
The special chancellor found, after considering the testimony and evidence presented
by both parties, that the zoning and planning ordinances of the City of Madison are superior
to that of the county and it would be beneficial for the city’s ordinances to be enacted in the
PAA. However, the special chancellor did not conclude that the Madison County zoning and
planning ordinances were inadequate; therefore, while it may be beneficial to enact the city’s
ordinances, the special chancellor could not say if the need existed for the municipal-level
codes and regulations in the PAA.
¶33.
In City of Ridgeland, 651 So. 2d at 559, this Court upheld an annexation even though
the county already had a suitable zoning ordinance in place. Thus, the fact that a county may
have zoning ordinances does not mean that an area of the county cannot be annexed. Id.
Also, the City of Madison’s Zoning and Planning Commission already has been involved in
the planning and development of some of the commercial and residential areas in the PAA.
Therefore, we find reasonable the special chancellor’s determination that the city’s zoning
and planning ordinances are superior to those of the county.
F.
¶34.
THE NEED FOR MUNICIPAL SERVICES
In determining if annexation is reasonable under this indicium, this Court may
consider certain factors such as: (1) the city’s plan to provide first-response fire protection;
(2) the adequacy of existing fire protection; (3) the city’s plan to provide police protection;
(4) any requests for water and sewage services; (5) the city’s plan to provide increased solidwaste collection; (6) use of septic tanks in the PAA; and (7) the population density. City of
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Winona, 879 So. 2d at 984 (citing City of Macon, 854 So. 2d at 1041-42) (other citations
omitted).
¶35.
The Objectors’ main argument on direct appeal is directed at this indicium of
reasonableness. Essentially, the Objectors contend that the residents of the PAA stand to
receive little or nothing from this annexation. The Objectors assert that the city is unable to
create a viable plan for a central sewer system, which can be considered as the principal
benefit of an annexation. The Objectors cite In re Extension of the Boundaries of the City
of Columbus, 644 So. 2d 1168, 1171 (Miss. 1994) for the proposition “that municipalities
must demonstrate through plans and otherwise, that residents of annexed area will receive
something of value in return for their tax dollars in order to carry the burden of showing
reasonableness.” Id. at 1171. However, the special chancellor concluded that the City of
Madison provided two viable options for sewer service to the PAA. Furthermore, the
chancellor concluded that, because the PAA is rapidly increasing in population, the county
is not equipped to provide the needed level of municipal fire protection, police protection,
trash collection, and water services, while, on the other hand, the City of Madison is fully
equipped to provide such services.
¶36.
The record reveals that Madison County has a volunteer fire department, and that the
City of Madison acts as a mutual-aid responder to the PAA. On the other hand, the city has
a professional, full-time fire department, and several volunteer firefighters. Thus, according
to the evidence, the city provides first-response fire and rescue protection to the PAA,
although it is not contractually bound to do so. As such, most of the PAA has been assigned
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a fire rating of Class 10 by the Mississippi Rating Bureau, while the city is rated Class 6.
The evidence further reveals that upon annexation, the PAA’s rating would be changed to
Class 6, resulting in lower base insurance premiums for homeowners.
¶37.
Evidence presented at trial revealed that, although the Madison County Sheriff’s
Department provides adequate police protection in the PAA, municipal-level law
enforcement provided by the City of Madison would greatly benefit the annexed area as
further development occurs. The testimony at trial revealed that, as more commercial and
residential developments are built, traffic volume increases, and the County will be unable
to adequately enforce posted speed limits since the Sheriff’s Office is not equipped with
radar speed-detection devices.
¶38.
Further, the record reveals that there are currently 0.07 sworn officers per square mile
in the county, while there are 3.56 sworn officers per square mile in the city. The city has
2.92 sworn officers per 1,000 people, and the county’s average is 0.61 officers per 1,000
people. Upon annexation, the city plans to add sixteen officers to its department, including
an animal-control officer and a fully-equipped animal-control truck, as well as four fullyequipped vehicles, an investigative car, and equipment and uniforms for these additional
officers.
¶39.
The methods of sewage and trash disposal being used in the PAA were shown to be
inadequate. Therefore, the areas of the PAA in which the city does not already provide
municipal-level sewer services are growing rapidly, and these areas would benefit from
central sewage. The city has proposed two sanitary sewer improvement plans, Option 1 and
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Option 2, in its Facilities and Services Plan. The special chancellor found both options to be
viable plans for the provision of sewer service to the PAA.
¶40.
While the Objectors strongly dispute their need for municipal-level services, the city
has shown by substantial, credible evidence that it can provide the PAA with an abundance
of municipal-level services. Based upon the testimony and evidence presented at the hearing,
the special chancellor’s findings that this indicium favors annexation are reasonable.
G.
¶41.
NATURAL BARRIERS
The special chancellor found that “there are no natural barriers that would make it
prohibitive for the City of Madison to provide the full range of municipal services and to
complete its infrastructure investment, including water and sewer services, to the PAA.” In
past annexation cases, we have considered “natural or man-made conditions that may impede
a city’s expansion or render the provision of services impossible or prohibitively expensive,
including flood plains, interstate highway, and county lines.” City of D’Iberville v. City of
Biloxi, 867 So. 2d at 257 (internal citations omitted).
¶42.
In today’s case, the annexation areas are contiguous to the city with unimpeded access
into and out of the areas from the city. While I-55 does run through the existing city, it is not
a barrier between the city and the PAA. The special chancellor’s findings that this indicium
of reasonableness supports annexation are supported by the substantial credible evidence.
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H.
¶43.
THE PAST PERFORMANCE AND TIME ELEMENT INVOLVED IN
THE CITY’S PROVISION OF SERVICES TO ITS PRESENT
RESIDENTS
The record supports the special chancellor’s findings that the city has a good track
record of providing timely services to newly annexed areas. For example, in the city’s most
recent annexation, the city promised to build a new fire station on Highway 463. The fire
station was in fact built and is now servicing not only the city but residents of the PAA. In
addition, the city provided municipal-level sewer service to the vast majority of the area
annexed in 1995. This is not to mention that all commercial establishments and residences
are connected to a municipal-level water system.
Thus, the special chancellor’s
determination that this indicium of reasonableness weighs heavily in favor of annexation is
supported by substantial, credible evidence presented at trial.
I.
¶44.
IMPACT (ECONOMIC OR OTHERWISE) ON THOSE IN THE
PROPOSED ANNEXATION AREA
“‘The mere fact that residents in the PAA will have to pay more taxes is insufficient
to defeat annexation,’” City of Hattiesburg, 840 So. 2d at 93 (quoting In re Enlargement
and Extension of Municipal Boundaries of the City of Biloxi, 744 So. 2d 270, 284 (Miss.
1999)). We stated in City of Jackson:
The Court is required to balance the equities by comparing the City’s needs to
expand and any benefits accruing to residents from the annexation with any
adverse impact, economic or otherwise, which will probably be experienced
by those who live in and own property in the annexation area. The mere fact
that residents and landowners will have to start paying city property taxes is
not sufficient to show unreasonableness.
Matter of Boundaries of City of Jackson, 551 So. 2d 861, 867-68 (Miss. 1989).
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¶45.
The residents and property owners in the PAA will receive valuable services in return
for paying city taxes. The evidence at trial showed that the residents and property owners
in the PAA will receive such municipal services as guaranteed, municipal-level fire
protection, police protection, animal control, garbage collection, mosquito spraying,
domestic/firefighting water, sanitary sewer, and street maintenance and lighting.
Furthermore, the residents and property owners in the PAA will receive the benefit of
properly enforced comprehensive municipal planning and zoning. The special chancellor’s
finding that this indicium of reasonableness weighs in favor of annexation is supported by
substantial, credible evidence.
J.
¶46.
IMPACT OF THE ANNEXATION UPON THE VOTING STRENGTH
OF PROTECTED MINORITY GROUPS
Under this indicium of reasonableness, the special chancellor held:
The City of Madison’s annexation will not have any significant impact on the
voting strength of any minority group. After annexation of the PAA, the City
of Madison’s minority voting population will increase by 2.1%. No minority
or other objector suggested otherwise. The Court finds that this indicium of
reasonableness weighs in favor of annexation.
Of significant import, not one minority objector appeared at trial to contest the annexation
based upon a dilution in minority voting strength. This Court stated in City of Columbus
“that where voting strength is in dispute, we do not afford great weight in cases where the
issue is not raised by one with standing.” City of Columbus, 644 So. 2d at 1180. Thus, we
cannot say the special chancellor was manifestly wrong in finding that this indicium
supported the reasonableness of the annexation.
21
K.
¶47.
ENJOYMENT OF ECONOMIC AND SOCIAL BENEFITS OF THE
MUNICIPALITY WITHOUT PAYING A FAIR SHARE OF TAXES.
The special chancellor held:
As indicated in a prior opinion of this Court, making a determination of what
is considered a fair share of taxes would involve a subjective evaluation of all
the factors involved. Since, however, taxation is a legislative act and this
Court is of the opinion that so long as the residents and property owners in the
PAA pay the taxes imposed upon them by the authorities that the payment of
those taxes would be considered their fair share.
We find In the Matter of the Extension of the Boundaries of the City of Pearl v. City of
Pearl, 908 So. 2d 728, 743 (Miss. 2005) persuasive. In City of Pearl, this Court agreed with
the special chancellor, who stated:
This factor appears somewhat equal on a “quid pro quo” basis, because the
proposed annexation area residents pay their taxes, et cetera, and they pay for
whatever they purchase in Pearl, if they do. Speculatively, however, as growth
and development occur, the tie between the proposed annexation area and
existing Pearl is going to remain, and this factor certainly does not preclude
annexation. While the proposed annexation area has far more residents than
the actual objectors, it seems reasonable that a few, some, or maybe, many, do
benefit already from the proximity. It is clear that those objectors who
testified denied any romance of proximity, but it seems just as clear to the
Court that the several hundred who did not object may very well romance the
proximity.
Id. at 743. The PAA is contiguous with the city. Thus, residents and property owners in the
PAA benefit by having access to city roads, shops, restaurants, churches, and recreational
facilities. Many of the residents of the PAA enjoy lower fire insurance rates because of the
proximity to a municipality with a Class 6 fire rating. Although the county does not pay
taxes for maintaining the full-time fire department in the city, the citizens of the PAA get the
benefit of first-response fire protection. Therefore, from this record, we cannot find that the
22
special chancellor is manifestly wrong in concluding that this indicium favors annexation.
L.
¶48.
ANY OTHER FACTORS
The special chancellor held “that there is no other factor that may suggest
reasonableness or unreasonableness.” Thus, he did not place much weight, if any, on this
twelfth indicium of reasonableness. While the Objectors focus on the mayor’s “autocratic
conduct” towards the residents of the PAA when she stated in a public forum “I’m going to
annex you whether you like it or not,”and they believe this behavior should weigh against
annexation, we cannot find from the record that the mayor’s public statement should be
outcome-determinative on the issue of the reasonableness of the city’s annexation efforts.
¶49.
Since the special chancellor did not place significant weight on this indicium of
reasonableness and at best found the indicium to be neutral, we cannot hold that the special
chancellor is manifestly wrong.
¶50.
In sum, as to the direct appeal of the Objectors, we find from the record before us that
the special chancellor did not err in his determination that the annexation of a major portion
of the PPA was reasonable under the totality of the circumstances.
ON CROSS-APPEAL
II.
¶51.
WHETHER THE SPECIAL CHANCELLOR ERRED IN
REFUSING TO GRANT THE ANNEXATION OF THE THREE
PARCELS COMPRISING 2.5 SQUARE MILES OF LAND TO
THE NORTH OF THE CURRENT CITY OF MADISON.
We now consider this issue as raised by the City of Madison on cross-appeal.
Succinctly stated, the city’s position is that the special chancellor should have approved for
23
annexation the entire PAA, failing which, the special chancellor erred in finding that portions
of the PAA were not reasonable for annexation.
¶52.
The Madison County Chancery Court found, after considering the twelve indicia of
reasonableness, that under the totality of the circumstances the proposed annexation was
reasonable, with two exceptions:
(1)
That part of Section 31, Township 8 North, Range 2 East that lies east
of Bozeman Road and west of I-55; all of Section 32, Township 8
North, Range 2 East and all of Section 33, Township 8 North, Range 2
East, lying in the PAA, all being in Parcel Number 14 of the Proposed
Annexation Area.
(2)
[T]hat portion of Parcel Number 11 including and lying east of
Livingston Road and that portion of Parcel Number 10 lying in Section
11, Township 7 North, Range 1 East. All of the above within the
Proposed Annexation Area.
To support his determination, the special chancellor held the above three parcels of land
“have experienced little if any spillover and further there are no roads or streets extending
into these areas.” In its cross-appeal, the city claims that spillover development and access
roads are but only two sub-factors to consider under the “path-of-growth” indicium of
reasonableness. As such, the city asserts that the special chancellor ignored the other eleven
indicia of reasonableness and focused on one.
¶53.
As previously noted, this Court has held:
The twelve indicia of reasonableness are not to be treated as twelve distinct
tests, rather, the chancellor must weigh the totality of the circumstances, using
these twelve indicia of reasonableness only as a guide. . . . “This Court has
frequently reiterated its position that the factors to be considered are not to be
treated as separate, independent tests but rather indicia of reasonableness, and
24
that the ultimate determination must be whether the annexation is reasonable
under the totality of the circumstances.”
City of Pearl, 908 So. 2d at 733 (internal citations omitted).
¶54.
As to the special chancellor’s findings concerning the portions of the PAA he
excluded from annexation, we find that there is substantial, credible evidence to support his
exclusion of the three parcels of land. From the record, the special chancellor was justified
in finding that, without access roads or spillover development, the majority of the other
indicium of reasonableness are irrelevant. Without access roads, there is no development,
residential or commercial, on the three excluded parcels of land. If no one lives or works on
the three parcels, then there is no need for municipal-level services such as fire protection,
police protection, central sewer, and the like. When considering the record before us, the
special chancellor had substantial credible evidence before him to find that, while the three
parcels of excluded land may be in the city’s path of growth, the time is not ripe for its
annexation. Since we hold the special chancellor’s findings that, with two exceptions, the
proposed annexation is reasonable, we conclude that the issue raised by the city via this
cross-appeal has no merit.
CONCLUSION
¶55.
For the reasons stated, we affirm on both direct appeal and cross-appeal, the Final
Judgment of the Madison County Chancery Court.
¶56.
ON DIRECT APPEAL: AFFIRMED; ON CROSS-APPEAL: AFFIRMED.
SMITH, C.J., WALLER AND DIAZ, P.JJ., GRAVES, RANDOLPH AND
LAMAR, JJ., CONCUR. DICKINSON, J., CONCURS IN PART AND DISSENTS IN
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PART WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.
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