Krebs v. City of Rapid City , 1985 S.D. LEXIS 233 ( 1985 )

McKEEYER, 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 appel-lee had properly adopted the resolution of annexation for the Deadwood Avenue area and dismissed appellants’ complaint. We affirm.

Prior to this ease, 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 seen 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 of the city. He also testified, and appellants’ expert witness concurred in this fact, that the 1,600 gallons-per-minute water flow exceeded firefighting guidelines.

The June, 1982, Deadwood Avenue area annexation study stated that the city’s existing water supply facilities have adequate capacity to accommodate the needs of the Deadwood Avenue annexation area. Foster gave his professional opinion that the city’s supply capabilities would be more than adequate to accommodate the annexation area. Thus, the record has ample evidence to support the trial court’s finding that the water system offered to the annexation area was substantially equivalent in standard and scope to those furnished to persons and property in the previously existing city limits.

As to street lighting, the annexation study and resolution recommended the installation of seventeen new street lights of the mercury vapor type for the area. Residents argue that high pressure sodium lights are of a better quality and that those lights have been furnished to the commercial areas of Rapid City in recent history.

From the testimony of Sharon Johnson, the city engineer, the trial court found that the only time high pressure sodium lights were installed was when federal and/or state funding was involved as a part of the street improvement or major repair project. It was also stated that mercury vapor lighting did exist within the city where projects were not at least in part state and/or federally funded. The trial court concluded that the proposed mercury vapor lighting was substantially equivalent in standard and scope to that furnished to persons and property already in the city.

Appellants also suggest that the seventeen street lights are not sufficient, but the record does not reveal any substantial evidence which would allow this court to overturn the trial court’s finding that the proposed lighting will be adequate. Consequently, the trial court’s findings that the water services and street lighting services proposed complied with statutory requirements are not clearly erroneous.

The third issue we will address is whether city made every reasonable effort to furnish the approximate costs that were reasonably available for extending substantially equivalent municipal services.

SDCL 9-4-4.2(4) requires the city to adopt a resolution of intent to extend its boundaries which contain “[t]he approximate cost of the extended service to the residents of the contiguous territory and municipality[.]” In Smith, supra, this court stated that a city “must make every reasonable effort to give a full and accurate cost approximation.” 307 N.W.2d at 601. This court also stated that the cost approximations must be those that “are reasonably available and must include the approximate costs of services which are substantially equivalent in standard and scope to services furnished to persons and property already located within the municipality at the time of annexation.” Id. The issue here then is whether city complied with those requirements.

City provided the estimated costs of water and sewer services for the area as a whole and then at trial broke that figure down to a per-acre cost, depending on whether or not the water and sewer lines were feasible to certain areas. City did not provide the costs to the individual owners of the area.

Residents contend that the city did not make a bona fide effort, or a reasonable effort to apprise them of the probable costs of water and sewer service as to each individual property lot. They further contend that the approximate costs of such services could have been ascertained with minimal effort.

City contends, on the other hand, that it followed the dictates of Smith because it furnished the costs that were reasonably available to it. It argues that to obtain estimates on the individual property lots would require more effort and expense than is required prior to actual construction under an assessment project.

“[T]he purposes of annexation statutes is to help apprise the residents of the costs of annexation. The statutes are designed to prohibit annexation by municipalities which are unable to render reasonable services.” Smith, supra, 307 N.W.2d at 601. Here, the statutes do not mandate that a city furnish the exact costs for municipal services, only approximations made after reasonable efforts are required. The trial court heard testimony from expert witnesses for both sides concerning the costs that would be incurred if the city annexed the property and from that testimony held that the city used good faith in hiring experts to provide the estimated costs and that the estimations constituted reasonable compliance with the requirements set forth in Smith.

We hold that in order to comply with Smith, a city must make every reasonable effort to give a full and accurate cost approximation. Smith does not require a city to provide the separate costs that will be incurred to each and every property in the proposed annexation area if such figures are not reasonably available. What is reasonably available depends upon a full spectrum of the circumstances in each individual case. Here, the trial court determined the annexed area to be dynamic in terms of changing development, use and valuation. City used reasonable efforts through the use of experts and through the use of data analysis to give a full and accurate cost approximation. A great deal of additional expense would be required to accept appellants’ contention regarding the statutory procedural requirements to be satisfied before actual costs can be determined in relation to this particular annexation area. Even then the city would have to engage in guesswork in predicting the future costs of municipal services in this dynamic area, where valuation is contingent on the use of land that is in the process of development. “A municipality cannot know what fortune or misfortune time will bring.” Clarke, supra, 543 P.2d at 985. We will not require the city to engage in that type of idle speculation. City furnished approximations of costs made after reasonable efforts to ascertain those costs. The trial court held that city had complied with the holdings of Smith and we agree.

The fourth issue is whether the annexation resolution provided the description and boundaries of the territory to be annexed as required by statute. Appellants contend that the description contained in the resolution is insufficient because it does not contain a description by lot, block and legal subdivision. Their argument is premised on the division of the statutory phrase “description and boundaries” into two separate and distinct requirements. Because a metes and bounds description is insufficient for recording deeds in South Dakota, they maintain that a metes and bounds description is also inadequate in annexation resolutions.

SDCL 9-4-4.2(l) requires that the annexation resolution contain a “description and boundaries of the territory to be annexed^]” In this case, the resolution of annexation described the territory by a metes and bounds description and by a description of the territory in terms of the Interstate 90 right-of-way, United States Geographical Survey subdivisions, and various platted lots of record. The trial court concluded that this description satisfied the statutory requirements.

“The description of the territory should be such that upon a fair and reasonable construction its boundaries should be evident without reference to doubtful rules of legal interpretation.” 2 E. McQuillan, The Law of Municipal Corporations § 7.31, at 436 (3rd ed. 1979) quoting, People v. Board of Trustees of Village of Patchogue, 217 N.Y. 466, 112 N.E. 169 (1916), aff'g. 171 App.Div. 347, 156 N.Y.S. 1096 (1916). Here, the boundaries described in the annexation resolution of the territory to be annexed could be ascertained fairly and reasonably without legal interpretation. The persons affected within the territory to be annexed could determine whether the annexation resolution affected their property, and the trial court made an express finding that no evidence was given to show that the affected property owners did not receive the required notification. Therefore, we conclude that the description and boundaries given in the annexation resolution complied with the requirements of SDCL 9-4-4.2(l) because they adequately described the property so as to give notice to affected land owners of the proposed annexation.

The judgment is affirmed.

FOSHEIM, C.J., and WOLLMAN and MORGAN, JJ., concur.