Stueckemann v. City of Basehor

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 105,457
DANIEL L. STUECKEMANN and CATHY S. STUECKEMANN,
Trustees of the Stueckemann Living Trust Dated May 13, 2004,
and Any Amendments Thereto,
and
CEDAR LAKE ASSOCIATION, a Kansas Not-For-Profit Corporation,
Appellants,
v.
THE CITY OF BASEHOR, KANSAS, A KANSAS MUNICIPAL CORPORATION,
Appellee.
SYLLABUS BY THE COURT
1.
Appellate courts review challenges to a city's description of the land it intends to
annex for substantial compliance with the relevant statutes. Substantial compliance
means compliance in respect to the essential matters necessary to assure every reasonable
objective of the statute.
2.
Whether a party has substantially complied with a statute generally involves
statutory interpretation, a question over which appellate courts exercise de novo review.
3.
The fundamental purpose of the annexation provisions requiring a description or
depiction of the land subject to annexation is to inform the affected stakeholders of the
city's decision about what land is to be annexed.
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4.
Under the facts of this case, the City of Basehor's description and depictions of the
land subject to annexation substantially comply with the annexation statutes.
5.
The fundamental purpose of the annexation statutes requiring notice and a public
hearing is to afford landowners notice of the city's annexation plan and the opportunity to
be heard.
6.
Under the facts of this case, the City of Basehor's correction of the erroneous legal
description in the annexation resolutions before publication of the annexation ordinance
substantially complies with the annexation statutes.
7.
Appellate courts review a city's service plan for substantial compliance with the
relevant annexation statutes.
8.
The purpose of the service plan provisions in the annexation statutes is to inform
the affected landowners of the city's decision, what municipal benefits they will receive,
and what cost they will incur. The statutes require this notification so the affected
landowners may attempt to persuade the city that annexation would not be in the best
interests of either party.
9.
A bona fide service plan covering each major governmental and proprietary
service to be furnished the land to be annexed will substantially comply with the
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annexation statutes. A bona fide service plan is one prepared and submitted by the city in
accordance with the statutes in good faith and with honest intentions to implement the
plan as submitted.
10.
Under the facts of this case, the City of Basehor's service plan substantially
complies with the annexation statutes.
11.
The 2005 adoption of the provision in K.S.A. 2014 Supp. 12-538 permitting a
landowner to challenge whether a city's unilateral annexation decision was reasonable did
not codify prior annexation caselaw addressing reasonableness. Instead, it expanded the
grounds on which a landowner may challenge an annexation decision to include a
challenge for substantive reasonableness.
12.
A city's actions are quasi-judicial if state or local law requires: (1) notice to the
community before the action; (2) a public hearing pursuant to the notice; and (3)
application of criteria established by law to the specific facts of the case. Under this
standard, a city's unilateral annexation decision is a quasi-judicial action because the
annexation statutes require (1) notice to the community before the action under K.S.A.
2014 Supp. 12-520(a)(1); (2) a public hearing pursuant to the notice under K.S.A. 2014
Supp. 12-520a(a)(1), (b), (e); and (3) application of 16 established criteria to the specific
annexation for guidance in determining its advisability at the hearing under K.S.A. 2014
Supp. 12-520a(e).
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13.
Reasonableness under K.S.A. 2014 Supp. 12-538 is a correct basis for a landowner
challenging, and consequently the resultant standard for a court reviewing, a city's
unilateral annexation decision. The challenging landowner has the burden of proving
unreasonableness under K.S.A. 2014 Supp. 12-538 by a preponderance of the evidence.
In reviewing an annexation decision for reasonableness, a court may not substitute its
judgment for that of the decision-maker.
14.
A court reviewing a city's unilateral annexation decision may consider the value of
new municipal services in relation to the amount of new taxes imposed. But the
suggestion that an annexation is necessarily unreasonable when the value of new services
does not exceed the new taxes imposed is without merit.
15.
A court reviewing a city's unilateral annexation decision may consider the inherent
benefits residents enjoy by virtue of their proximity to the city.
16.
Under the facts of this case, the City of Basehor's annexation decision was
reasonable.
Review of the judgment of the Court of Appeals in an unpublished opinion filed September 7,
2012. Appeal from Leavenworth District Court; DAVID J. KING, judge. Opinion filed April 24, 2015.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
James R. Orr, of Westwood, argued the cause and was on the briefs for appellants.
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Patrick G. Reavey, of Reavey Law LLC, of Kansas City, Missouri, argued the cause and was on
the brief for appellee.
The opinion of the court was delivered by
NUSS, C.J.: This case arises from the City of Basehor's unilateral annexation of
Cedar Lake Estates (Estates), a platted subdivision adjoining the City. Daniel L.
Stueckemann and Cathy S. Stueckemann, as trustees of the Stueckemann Living Trust,
and the Cedar Lake Association (collectively the Stueckemanns) sued the City to
invalidate the annexation on numerous grounds. The district court and Court of Appeals
rejected all of the Stueckemanns' arguments and upheld the annexation.
On appeal to this court, the Stueckemanns confine their arguments to three distinct
issues. Reordered and recast for clarity, the issues, and our accompanying holdings, are
as follows:
1. Did the district court and Court of Appeals err by concluding the City's plan
adequately describes the land subject to the annexation? No.
2. Did the district court and Court of Appeals err by concluding the City's service
plan for police protection and for street and infrastructure maintenance is
adequate? No.
3. Did the district court and Court of Appeals err by concluding the City's
annexation is reasonable? No.
Accordingly, we affirm the lower courts.
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FACTS AND PROCEDURAL HISTORY
The material facts are undisputed. In December 2008, the City—through its City
Council—adopted Resolution No. 2008-15 and Resolution No. 2008-16, which together
initiated the unilateral annexation of the Estates. The Estates is a platted residential
subdivision of approximately 115 acres that adjoins the City's boundary and is accessible
from the City's streets.
The Estates have been served by the City's wastewater treatment plant since 2004
when the Kansas Department of Health and Environment required the Estates to
discontinue the use of a sewage lagoon. The landowners in the Estates then entered an
agreement with the City for their use of the treatment plant in exchange for paying the
City 125% of its ordinary sewage user rates.
The City published the annexation resolutions and a proper notice that it would
hold a February 9, 2009, public hearing regarding the proposed annexation as required by
K.S.A. 2005 Supp. 12-520a. The published resolutions attached a sketch of the area
subject to annexation (published sketch).
The City's initial description of the land subject to annexation
As required by Kansas' annexation statutes, the City directly notified numerous
parties of its intended annexation. Specifically, the City mailed certain documents to all
owners of record of the land subject to the annexation, including Daniel and Cathy
Stueckemann. The documents included a notice of the February 9 public hearing, which
was captioned "Annexation Proposal Cedar Lakes Subdivision," and information about
the City's plan for the extension of municipal services to the land.
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The documents also included three items more specifically identifying the land to
be annexed: (1) copies of the City's annexation resolutions containing a legal description;
(2) an aerial photograph of the Estates with overlaid lot and boundary lines (GIS map);
and (3) a sketch (mailed sketch). The mailed sketch correctly depicts the area subject to
annexation. But the resolutions and the GIS map both contain errors in property
identification.
Specifically, the legal description in the resolutions erroneously includes Parcel
15.02 for annexation—an unplatted 11.4 acre tract adjacent to the Estates. This error is
not repeated in the GIS map or the mailed and published sketches.
While the GIS map correctly excludes Parcel 15.02 in identifying the property to
be annexed, the map erroneously excludes Parcel 62. This 2.4 acre parcel near the Cedar
Lake dam is an open area within the Estates. No structures may be built there. The
published sketch contains the same erroneous omission of Parcel 62. But the mailed
sketch and the resolutions correctly include it.
The City's plan for extending municipal services
Before the public meeting on February 9, the City provided residents with details
regarding its plan for extending municipal services to the Estates. The two municipal
services that the Stueckemanns primarily complain about on appeal are police protection
and maintenance of streets and infrastructure.
The City notified residents that the Basehor Police Department would patrol the
Estates following the annexation. The City first detailed why it believed the Estates' pre-
annexation law enforcement—provided by the Leavenworth County Sheriff—was
inadequate. The City then explained its own law enforcement coverage, specifically
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detailing how the Estates would be patrolled by Basehor police. And the City noted its
officers already routinely drove through the Estates when patrolling other outlying
subdivisions.
The City also provided residents with information regarding the cost of extending
its police protection to the Estates. The City showed its entire annual budget for police
protection—$741,101. This money comes from the City's general fund, which is funded
by taxes on property within the City. Based on this aggregate, the City calculated its
annual cost for police protection as $123,520 per square mile. Because the Estates
subdivision is 0.18 square miles, the City estimated the cost of extending its police
protection there to be approximately $22,200 per year.
Similarly, the City's plan for the extension of its municipal services also provides
that the City, instead of Leavenworth County, would be responsible for maintaining the
Estates' streets and infrastructure after annexation. In its plan, the City first described the
county's current road budget and general maintenance standards. It concluded that the
county's street maintenance is "inadequate," based primarily on the county's alleged lack
of capacity for maintaining paved and curbed roads like those in the Estates. The City
observed many residents of the Estates expressed displeasure at the county's maintenance
when it sealed a portion of the paved roads several years previously. Finally, the City also
noted the county system was not designed to maintain an enclosed storm drainage system
like that found in the Estates.
The City then explained its current street maintenance and repair program, which
would cover the Estates after annexation. Excluding a large one-time construction
project, the City spent approximately $11,200 annually per mile of roadway. This
represents a reduction from the county's annual expenditure per mile of $12,600. Because
the Estates has 1.5 miles of streets, the City calculated it would spend approximately
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$16,800 per year on the Estates' streets. The City also detailed how its maintenance of
streets and infrastructure is funded, explaining that property taxes collected from the
Estates would help fund these new services. The City further noted it recently undertook
a campaign of curb replacement, patching, milling, and overlaying, from which the
Estates would benefit.
The City's public hearing and adoption of the annexation ordinance
On February 9, the City held the public hearing on the proposed annexation. More
than 50 people attended, including Daniel and Cathy Stueckemann and their attorney.
The City's administrator and engineer both made detailed presentations and answered
questions about the intended annexation. The presentations included a PowerPoint slide
show that comprehensively reiterated the City's plans for the extension of municipal
services, including police protection and maintenance of streets and infrastructure. The
City also specifically addressed each of the 16 factors a city must consider under K.S.A.
2014 Supp. 12-520a(e) in determining the advisability of an annexation.
After the presentations and questions, the City Council received written testimony
and heard oral testimony from numerous residents of the Estates. The majority of them
opposed annexation. The City Council specifically heard testimony in opposition to the
annexation from the Stueckemanns and their attorney. Additionally, Daniel and Cathy
Stueckemann's written comments informed the City Council: "Our goal is to prevent this
annexation from going forward at all." Their attorney notified the City Council of its
discrepancies in the sketches, GIS map, and legal description of the Estates. At the
conclusion of the testimony, and before the public hearing was adjourned, all present
were informed that an annexation ordinance would be taken up at the February 17 regular
meeting. The City's mailed notice had informed its recipients that a decision on
annexation would be made "at a regular city council meeting."
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The next day the City contacted its engineer to address the concerns raised by the
Stueckemanns' attorney about the identification discrepancies. After reviewing the
sketches, GIS map, and resolutions' legal description, the engineer confirmed the
documents were inconsistent. Among other things, he confirmed that the legal description
in the resolutions of annexation erroneously included the 11.4 acre Parcel 15.02 and the
GIS map erroneously excluded the 2.4 acre Parcel 62. The engineer accordingly deleted
Parcel 15.02 to correct the legal description of the Estates, which the City ultimately
included in its final ordinance of annexation.
On February 17, the City Council met in a "work session" to discuss, among other
matters, the proposed annexation. Immediately following the work session, the Council
held its regular meeting, and all present were informed Parcel 15.02 should not be
included in the annexation and the legal description for the land proposed to be annexed
now reflected this change. The City Council again heard from Cathy Stueckemann and
others in opposition. The City Council ultimately adopted Ordinance No. 548—
containing the correct legal description—to officially annex the Estates.
The Stueckemanns' lawsuit challenging the annexation
After the City adopted Ordinance No. 548, the Stueckemanns sued the City in
Leavenworth County District Court pursuant to K.S.A. 2014 Supp. 12-538, seeking to
invalidate the annexation on multiple grounds. The Stueckemanns eventually moved for
summary judgment, arguing they were entitled to judgment as a matter of law on the
undisputed facts of the annexation. The City responded the Stueckemanns had failed to
prove by a preponderance of the evidence that the district court should invalidate the
annexation.
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After oral argument, the district court rejected all of the Stueckemanns'
contentions and upheld the City's annexation without referencing the summary judgment
standard. Relevant to this appeal, the court specifically rejected arguments that the
annexation is invalid because of the erroneous descriptions of the land, inadequacies in
the City's service plan, or because the annexation is unreasonable. The Stueckemanns
then appealed.
A panel of the Court of Appeals affirmed. Stueckemann v. City of Basehor, No.
105,457, 2012 WL 3966521 (Kan. App. 2012) (unpublished opinion). The panel held the
City's land descriptions and plan for the extension of municipal services both
substantially comply with the statutory requirements. 2012 WL 3966521, at *6-9. It also
rejected the Stueckemanns' argument that K.S.A. 2011 Supp. 12-538 requires courts to
review de novo the substantive merits of an annexation when reviewing it for
reasonableness. Instead, the panel held this statute expressly permitting landowners to
challenge the reasonableness of an annexation merely codifies preexisting caselaw which
severely limits judicial review and is therefore quite deferential to the City. 2012 WL
3966521, at *10.
We granted the Stueckemanns' petition for review under K.S.A. 20-3018(b),
obtaining jurisdiction under K.S.A. 60-2101(b).
More facts will be added as necessary to the analysis.
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ANALYSIS
Issue 1: The district court and Court of Appeals did not err by concluding the City
adequately described the land subject to annexation.
The Stueckemanns urge this court to invalidate the City's annexation because of
the inconsistencies and errors in the sketches, GIS map, and legal description in the
resolution proposing annexation. They contend the lower courts erred by concluding the
City's description and depictions of the land substantially comply with the requirements
of the annexation statutes. The City responds that none of the asserted errors or
inconsistencies justify invalidating the annexation.
Standard of review
The provision under which the Stueckemanns challenge the City's annexation is
K.S.A. 2014 Supp. 12-538. Since this statute's creation in 2005, it has provided in
relevant part:
"Any owner of land annexed by a city under the authority of K.S.A. 12-520(a)(1)
through (6) . . . , within 30 days next following the publication of the ordinance annexing
the land, may maintain an action in district court of the county in which the land is
located challenging [1] the authority of the city to annex the land, [2] whether the
annexation was reasonable, [3] whether the service plan was adequate and [4] the
regularity of the proceeding had in connection with the annexation procedures."
The Stueckemanns essentially base their first challenge—an inadequate
description of the land to be annexed—on the statutory grounds of "regularity of the
proceeding had in connection with the annexation procedures." We review challenges to
a city's description of the land it intends to annex for substantial compliance with the
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relevant statutes. City of Lenexa v. City of Olathe, 233 Kan. 159, 163-64, 660 P.2d 1368
(1983) (citing Clarke v. City of Wichita, 218 Kan. 334, 348, 543 P.2d 973 [1975]).
Substantial compliance means "compliance in respect to the essential matters
necessary to assure every reasonable objective of the statute." Sleeth v. Sedan City
Hospital, 298 Kan. 853, 865, 317 P.3d 782 (2014); see also Sabatini v. Jayhawk
Construction Co., 214 Kan. 408, Syl. ¶ 1, 520 P.2d 1230 (1974) (applied to annexation).
Whether the City substantially complied with the statute generally involves statutory
interpretation, over which we exercise de novo review. Sleeth, 298 Kan. at 863
(considering substantial compliance); Dodge City Implement, Inc. v. Board of Barber
County Comm'rs, 288 Kan. 619, 638, 205 P.3d 1265 (2009) (same).
Discussion
K.S.A. 2014 Supp. 12-520a and K.S.A. 12-520b set forth certain requirements
with which a city must comply before completing a unilateral annexation. For identifying
land a city proposes to annex, K.S.A. 2014 Supp. 12-520a establishes two requirements.
Its subsection (a)(2) provides the resolution of annexation shall contain a description of
the land to be annexed:
"(a) The governing body of any city desiring to annex land under the authority of
K.S.A. 12-520, and amendments thereto, shall adopt a resolution stating that the city is
considering the annexation of the land. The resolution shall:
....
(2) describe the boundaries of the land proposed to be annexed[.]" (Emphasis
added.)
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The second requirement—a sketch of the land to be annexed—is contained
in subsection (c) of the statute which provides in relevant part:
"(c) A copy of the resolution providing for the public hearing shall be mailed by
certified mail to each owner of land proposed to be annexed not more than 10 days
following the date of the adoption of the resolution. The resolution shall be published in
the official newspaper of the city not less than one week and not more than two weeks
preceding the date fixed for the public hearing. A sketch clearly delineating the area in
such detail as may be necessary to advise the reader of the particular land proposed to
be annexed shall be published with the resolution. A copy of such sketch also shall be
mailed to the owner of the property with the resolution." (Emphasis added.)
As for a city's plan to extend municipal services to the annexed property, K.S.A.
12-520b requires a report containing a sketch of the land:
"(a) The governing body of any city proposing to annex land under the provisions
of K.S.A. 12-520, and amendments thereto, . . . shall, prior to the adoption of the
[annexation] resolution provided for in K.S.A. 12-520a, and amendments thereto, prepare
a report setting forth such plans. The report shall include:
(1) A sketch clearly delineating the land proposed to be annexed and the area of
the city adjacent thereto to show the following information:
(A) The present and proposed boundaries of the city affected by such proposed
annexation . . . ." (Emphasis added.)
The parties agree the fundamental purpose of these statutory provisions is to
inform the affected stakeholders of the municipality's decision about what land is subject
to annexation. Consistent with the parties' views, we have held that the purpose of other
annexation provisions requiring a description of the land is "to inform the public of the
city boundaries as a result of annexation." City of Lenexa, 233 Kan. at 164. So to
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determine whether the City substantially complied with the relevant provisions, we must
decide whether documents such as the two sketches, GIS map, and the resolutions' legal
description of the Estates were sufficient to inform the Stueckemanns of what land it
proposed to annex. See Sabatini, 214 Kan. 408, Syl. ¶ 1.
To demonstrate the City's failure to substantially comply with the statutes, the
Stueckemanns overall assert that "[n]o one can read [the annexation] plan and determine
what [the City] was trying to annex." Both lower courts rejected this argument,
concluding the City substantially complied with the relevant statutes requiring
identification. Stueckemann, 2012 WL 3966521, at *9.
We reach the same conclusion. Because even with the initial identification errors
and inconsistencies acknowledged by the City, the Stueckemanns seemed to be able to
determine what area the City sought to annex as they actually notified the City Council of
the specific discrepancies at the February 9 public hearing. As explained in more detail
below, it is clear that neither the initial legal description nor the depictions of the Estates
obscured the City's intent about the area subject to annexation.
The legal description in Resolutions 2008-15 and 2008-16
As required by K.S.A. 2005 Supp. 12-520a(a)(2), the City included with its
annexation resolutions a legal description, i.e., a description of "the boundaries of the
land proposed to be annexed." All parties agree the description was accurate except for
incorrectly including Parcel 15.02. The Stueckemanns contend this error precludes
substantial compliance.
The Stueckemanns rely on Board of Riley County Comm'rs v. City of Junction
City, 233 Kan. 947, 667 P.2d 868 (1983). There, Junction City adopted a resolution
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announcing its intention to annex Fort Riley. The resolution described the land as a single
tract that included the entire fort, but it also inadvertently and erroneously included more
than 1,000 acres of land owned by at least three other entities. Junction City then adopted
an annexation ordinance with the same erroneous description. 233 Kan. at 948.
The district court invalidated the attempted annexation based in part on the over-
inclusive legal description. On appeal, we affirmed, rejecting Junction City's contention
"that the error in the boundary description was trivial and that it should be treated as mere
surplusage." 233 Kan. at 952. The Stueckemanns ask us to deliver the same rejection
here.
Our decision in Riley County is unpersuasive, however, for Parcel 15.02. Although
Junction City's description failed to substantially comply with the relevant statutes, the
extent of its error is entirely disproportionate to the City's inadvertent inclusion of Parcel
15.02 in the instant case. The description in Riley County wrongly suggested an
additional area of more than 1,000 acres was subject to annexation. By contrast, the
wrongly-included Parcel 15.02 is only 11.4 acres in addition to the Estates' 115 acres.
Further, the City's resolution error in Riley County was repeated in its ordinance—
the document purporting to complete the annexation. But in the instant case, the City
never purported to complete an annexation of Parcel 15.02; it only suggested the parcel
was subject to annexation in its resolution of proposed annexation before the February 9
public hearing. After this hearing the City formally corrected the legal description. So the
ordinance of actual annexation which passed on February 17, No. 548, includes an
accurate description. Accordingly, Riley County presents a situation readily
distinguishable from the City's inadvertent inclusion of Parcel 15.02 in its resolutions.
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Rather than draw guidance from Riley County, we look to City of Lenexa. There,
we considered whether Olathe's erroneous land description invalidated its attempted
annexation. In a published ordinance, Olathe misidentified the land as located in
Township 14 in Johnson County instead of its intended annexation of land in Township
13. Despite the error, Olathe argued it substantially complied with the statute requiring
public notice about the land subject to annexation. We disagreed, noting the "mistake was
no ordinary typographical error in spite of which the public could have ascertained the
city's true intent." 233 Kan. at 165. We observed that, on the contrary, "[t]he property in
Township 14 was a piece of land which could have been annexed had the proper
procedures been followed," and therefore, "[t]he public had no way of knowing from
reading the ordinance an error had been made." 233 Kan. at 165. (Emphasis added.)
Although we concluded Olathe's erroneous legal description invalidated the
annexation in City of Lenexa, that decision's rationale actually supports our conclusion of
validation in the instant case. Here, the City's mistaken inclusion of Parcel 15.02
essentially represents an "ordinary typographical error" where "the public could have
ascertained the city's true intent." 233 Kan. at 165. This conclusion is especially valid
because the description purported to notify interested parties that the City intended to
annex an area it could not have legally annexed. Because Parcel 15.02 is unplatted, it is
not subject to unilateral annexation. K.S.A. 2014 Supp. 12-520(a)(1). So in contrast to
City of Lenexa, the Stueckemanns could—and did—discover the City's error and
ascertain its true intent. Accordingly, we reject their argument that the over-inclusive
legal description precluded substantial compliance with the statutes that require the City
to describe the land subject to annexation.
We also reject the Stueckemanns' ancillary contention that the City's attempt to
correct the mistaken legal description violates the public hearing provisions in K.S.A.
2014 Supp. 12-520a(a)(1) and (c). In addition to the specific purpose of notification, we
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have held the general "purpose of the annexation statutes is to protect the rights of the
landowners against unilateral action by a city annexing their land." Crumbaker v. Hunt
Midwest Mining, Inc., 275 Kan. 872, 884, 69 P.3d 601 (2003) (citing City of Lenexa, 233
Kan. at 164). And the statutes seek to accomplish this purpose by affording the
landowner notice and the opportunity to be heard, i.e., "to persuade the City that
annexation would not be in the best interest of either party." Clarke, 218 Kan. at 349-50.
Well before the February 9 public hearing, the City notified the Stueckemanns of
its plan to annex their property. The formal notice they received is captioned "Annexation
Proposal Cedar Lake Estates Subdivision" and states "[t]he annexation is being pursued
under a plan approved by the city council to attach to the city those subdivisions on the
perimeter of the city that are connected to the sanitary sewer system or are adjoining the
city." The notice's enclosed resolution, 2008-16, states the City "is considering
annexation of the Cedar Lake Estates Subdivision, which is a platted subdivision
adjoining the city, generally located northeast of 158th Street and Evans Road."
The erroneous inclusion of Parcel 15.02 merely indicated additional land wholly
unrelated to the Stueckemanns' property was also subject to annexation. Inclusion of this
parcel did not affect their opportunity or ability to oppose the annexation because the
evidence reveals both the Stueckemanns and their counsel voiced their opposition at the
February 9 public hearing. Moreover, Daniel and Cathy Stueckemann's written comments
that day made their position unequivocal: "Our goal is to prevent this annexation from
going forward at all." And in advising at the public hearing that its decision would not be
made then but at its next Council meeting on February 17, the City acted consistent with
its December notice sent to the Stueckemanns, i.e., the annexation decision would be
made "at a regular city council meeting" after the February 9 public hearing. We
conclude the City satisfied the relevant statutory purposes. See Crumbaker, 275 Kan. at
884; Clarke, 218 Kan. at 349-50.
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Additionally, once the City corrected the legal description to exclude Parcel 15.02
after its February 9 public hearing, it informed those present at its regular council
meeting on February 17 that this parcel was not subject to annexation and was no longer
included in the legal description. It then permitted additional testimony from Cathy
Stueckemann. The Stueckemanns apparently assert the City instead should have restarted
the entire annexation process. But granting them a renewed opportunity to again voice
their opposition after they were publicly informed of the correction of the legal
description constitutes substantial compliance with the statutory purposes recognized in
Crumbaker and Clarke, e.g., protecting the rights of landowners against unilateral
annexation of their property by affording them notice and an opportunity to be heard in
opposition.
The sketches and GIS map
As required by K.S.A. 2005 Supp. 12-520a(c), the City provided to the affected
landowners sketches "delineating the area" it proposed to annex—the published sketch
and the mailed sketch. It also provided the mailed sketch to the Leavenworth Board of
County Commissioners in support of its plan for extension of municipal services. The
Stueckemanns contend that the City failed to substantially comply with these statutory
requirements due to errors in the statutorily required published sketch as well as in the
GIS map, which is not statutorily required. But it is undisputed that the mailed sketch—
the sketch governed by several statutory provisions—is an accurate depiction and
correctly notified the Stueckemanns of the area subject to annexation. So the City's
mailed sketch fully complies with these provisions.
We acknowledge the City sent the published sketch with its annexation resolutions
and notice of the upcoming public meeting and it voluntarily sent the GIS map to all
affected landowners to try to provide additional information about what land it sought to
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annex. We further acknowledge the published sketch and GIS map both incorrectly
exclude Parcel 62. The Stueckemanns apparently contend the inconsistency between
these documents on the one hand and the accurate mailed sketch on the other constitutes
a failure to substantially comply with the relevant statutes. Both lower courts rejected this
position, with the panel stating "'there's no indication . . . the legislature intended that
kind of strict compliance.'" 2012 WL 3966521, at *7. We agree.
The nature of Parcel 62 makes its erroneous exclusion from the published sketch
and GIS map, at best, of marginal relevance to the City's overall depiction of the land.
Parcel 62 is a sliver of land near the Cedar Lake dam that comprises only 2.4 acres of the
115 acres proposed for annexation. It is an open area in the dam's spillway on which no
structure can be built.
The exclusion of this sliver from two documents did not prevent the Stueckemanns
from receiving notice of the City's intentions about the land it proposed to annex. The
formal notice's caption made clear, as did the attached Resolution 2008-16, that the City
was considering annexing the "Cedar Lake Estates subdivision." Those intentions also
were readily apparent from other notifications the Stueckemanns additionally received—
the mailed sketch and the legal description—in both the resolution proposing annexation
and the later ordinance. See City of Lenexa, 233 Kan. at 164-65 (suggesting a description
of land with a typographical error that still permits the recipient to ascertain the city's
intent substantially complies with the relevant statutes). Ultimately, the Stueckemanns'
opposition throughout the whole process to the entire annexation—including Parcel 62—
demonstrates the City's intentions were clearly and consistently communicated to them.
Accordingly, we affirm the lower courts' conclusions that the City's identification
of the land subject to annexation substantially complies with the annexation statutes.
20
Issue 2: The district court and Court of Appeals did not err by concluding the City's
service plan for police protection and for street and infrastructure maintenance is
adequate.
The Stueckemanns also urge us to invalidate the annexation because of the alleged
inadequacy of the City's plan for the extension of municipal services as required under
K.S.A. 12-520b. They specifically attack the plan's provision for police services and for
street and infrastructure maintenance, asserting it contains insufficient detail about
Leavenworth County's current services and the City's post-annexation plans for them. So
they contend the lower courts erred in concluding the City substantially complied with
this statute. The City responds it substantially complied with the requirements and the
plan is adequate.
Standard of review
As with the Stueckemanns' challenge to the identification of the land proposed to
be annexed, their challenge to the City's service plan is also per K.S.A. 2014 Supp. 12-
538. For the first time in Kansas statutory law, since 2005 that statute has expressly
permitted any landowner aggrieved by a city's unilateral annexation to "maintain an
action . . . challenging . . . whether the service plan was adequate."
Both parties cite caselaw predating the statute and apparently agree our review of
the adequacy of a service plan is unchanged by the 2005 law. We have traditionally
reviewed service plans for substantial compliance with the relevant statutes and adopt the
same approach here, which again involves statutory interpretation and implicates de novo
review. See Sleeth, 298 Kan. at 863 (review for substantial compliance requires de novo
review); Clarke, 218 Kan. at 347 (reviewing service plan for substantial compliance).
21
Discussion
K.S.A. 12-520b details the substantive requirements of a city's service plan for
land subject to its annexation. It provides in relevant part:
"(a) The governing body of any city proposing to annex land under the provisions
of K.S.A. 12-520, and amendments thereto, . . . shall, prior to the adoption of the
[annexation] resolution provided for in K.S.A. 12-520a, and amendments thereto, prepare
a report setting forth such plans. The report shall include:
(1) A sketch clearly delineating the land proposed to be annexed and the
area of the city adjacent thereto to show the following information:
....
(B) the present streets, water mains, sewers and other city utility lines,
and the proposed extension thereof[.]
....
(2) A statement setting forth a plan of sufficient detail to provide a
reasonable person with a full and complete understanding of the
intentions of the city for extending to the area to be annexed each major
municipal service provided to persons and property located within the
city and the area proposed to be annexed at the time of annexation and
the estimated cost of providing such services. The plan shall state the
estimated cost impact of providing such services to the residents of the
city and the residents of the area proposed to be annexed. The plan shall
state the method by which the city plans to finance the extension of such
services to such area. Such plan shall include a timetable of the plans for
extending each major municipal service to the area annexed. The plan
shall state the means by which the services currently provided by a
22
township or special district in the area to be annexed shall be maintained
by the city at a level which is equal to or better than the level of services
provided prior to annexation.'" (Emphasis added.)
As mentioned, substantial compliance means "compliance in respect to the
essential matters necessary to assure every reasonable objective of the statute." Sabatini,
214 Kan. 408, Syl. ¶ 1. We have held the purpose of the service plan provisions is "to
inform the affected landowners of the municipality's decision, what benefits they will
receive[,] and what cost they will incur." Clarke v. City of Wichita, 218 Kan. 334, 349,
543 P.2d 973 (1975). The statutes require this notification so "the affected landowner
may attempt to persuade the City that annexation would not be in the best interest of
either party." 218 Kan. at 349-50; see also City of Leawood v. City of Overland Park, 245
Kan. 283, Syl. ¶ 2, 777 P.2d 830 (1989) ("The objectives of the annexation statutes are to
notify the public and protect the rights of landowners against a city's unilateral action in
annexing their land.").
So to determine whether the City substantially complied with K.S.A. 12-520b, we
must determine whether the plan for police services and street and infrastructure
maintenance sufficiently notifies the public of the City's intentions and includes sufficient
information to permit a meaningful challenge to the plan. See Clarke, 218 Kan. at 349.
In Clarke, we provided a detailed discussion about the degree of precision a
service plan must contain. There, several landowners challenged two annexations,
arguing the City of Wichita failed to substantially comply with the annexation statutes.
218 Kan. at 342. We rejected the landowners' challenge. In addressing the statutory
provisions requiring a service plan, we held "the city must first prepare and submit a bona
fide plan covering each major governmental and proprietary service to be furnished the
territory to be annexed." 218 Kan. at 346.
23
We continued, defining a "bona fide plan" as one "prepared and submitted by the
city in accordance with the statute in good faith and with honest intentions on the part of
the city to implement the plan as submitted." 218 Kan. at 346. We held a bona fide plan
constitutes substantial compliance with the statutes. 218 Kan. at 346-47. Despite our
deferential standard, we cautioned cities that "[i]f the plan submitted is a hoax, which is
designed only to accomplish the annexation of territory," the annexation would not
substantially comply with the relevant statutes. 218 Kan. at 346.
Based on this standard established in Clarke, the Stueckemanns must prove that
the City's service plan was not submitted in a good faith effort to honestly extend and
implement municipal services, i.e., it was a hoax. After considering the Stueckemanns'
arguments, both lower courts concluded the City's service plan substantially complies
with the relevant statutes. Stueckemann, 2012 WL 3966521, at *9. We reach the same
conclusion.
Police services
Overall, the City's plan for the extension of police services substantially complies
with K.S.A. 12-520b(a) because it demonstrates the City made a good faith effort to
inform the affected landowners of the plans it intended to implement for police
protection. And specifically, the plan addressed each of the four factors required by
K.S.A. 12-520b(a)(2). As the Court of Appeals noted, the past service of the Estates by
the City's wastewater treatment system makes it less than likely the City's service plan
was "'a hoax . . . designed only to accomplish the annexation of territory.'" 2012 WL
3966521, at *7 (quoting Clarke, 218 Kan. at 346.)
First, the City's plan provides an estimate regarding the cost and cost impact of
providing its police protection to the Estates. It calculated its entire police budget on a
24
per-square-mile basis and then used that figure to determine an estimated cost for
policing the area of the Estates: approximately $22,200 per year. As for estimated cost
impact, the Court of Appeals concluded this increase in a total budget of $741,101 was
considered by the City as a minimal additional expense. 2012 WL 3966521, at *8. The
Stueckemanns criticize the City's method of calculation because it purportedly fails to
provide details about the actual cost to police the Estates. But K.S.A. 12-520b(a)(2)
expressly requires only "estimated" costs, which the City has provided. So it has fully
complied with this statutory requirement.
Second, the City's plan states the means by which the Estates received law
enforcement services before the annexation, i.e., via the Leavenworth County Sheriff.
The plan concludes the sheriff's service is inadequate based on coverage area and
explains why the City-provided police services are an improvement over the current
level. See K.S.A. 12-520b(a)(2). Specifically, the plan noted the sheriff's current
coverage showed only one deputy patrolling 72 square miles plus another roving deputy.
By contrast, the City's proposal would include the Estates in an existing district of 2.5
square miles served by one police officer.
The Stueckemanns generally argue that the City's conclusions are "self-serving
and unsubstantiated." Although the City does not provide significant detail to substantiate
this portion of its plan, there is no indication this portion is a "hoax" or submitted in bad
faith. Rather, it is a bona fide plan intended to explain the City's intentions regarding
extension of its law enforcement services to the Estates. See Clarke, 218 Kan. at 346-47.
So it constitutes substantial compliance with this statutory requirement.
Third, the plan fully complies with the statutory requirement that the City
demonstrate how it will finance the extension of its police services. See K.S.A. 12-
520b(a)(2). The City explained the extension will be paid from its general fund, which is
25
funded by taxes on property within the City. As the Court of Appeals panel noted, this
information additionally relates to the first factor: an estimate regarding the cost impact
of providing police protection. 2012 WL 3966521, at *8. Finally, while the plan does not
contain a specific timetable for the extension of services, it substantially complies with
that particular requirement of 12-520b(a)(2) because police services will start
immediately upon annexation.
The Stueckemanns also cite K.S.A. 2014 Supp. 12-520a(e) to argue plan
inadequacy, pointing out the plan fails to include the information listed there. But as the
Court of Appeals correctly noted, this statute merely contains a list of 16 items the City
must consider "'[a]s a guide in determining the advisability of such annexation.'"
(Emphasis added.) 2012 WL 3966521, at *7. Unlike K.S.A. 12-520b(a)(2) and its list of
four factors expressly required to be included in the plan, this statute imposes no
requirement on the City's plan.
In short, the City's plan for the extension of police protection easily satisfies that
general statutory requirement of supplying "sufficient detail to provide a reasonable
person with a full and complete understanding of the intentions of the city." (Emphasis
added.) K.S.A. 12-520b(a)(2). Moreover, the City's plan specifically, and substantially,
addresses each of the four factors required by the statute. Accordingly, we affirm the
lower courts' conclusions that the City's plan for the extension of police services
constitutes substantial compliance with the statutes.
Street and infrastructure maintenance
The City's plan for extending its maintenance of streets and infrastructure to the
Estates also substantially complies with K.S.A. 12-520b(a). As explained below, the plan
26
is bona fide and overall it supplies sufficient detail so a reasonable person would have a
full and complete understanding of the City's intentions for extending these services.
In accordance with the directives contained in subsection (a)(2) of the statute, the
City's plan first provides information about road maintenance. It includes detailed
calculations regarding the estimated cost and cost impact of providing street and
infrastructure maintenance for the Estates: approximately $16,800 per year. Second, the
plan also provides the City would finance the extension of these services through
property taxes, including those levied on the Estates. This additionally relates to the first
factor: an estimate regarding the cost impact of providing this maintenance. Third, it
explains the street maintenance the City will provide is better than that currently supplied
by Leavenworth County, particularly because of the county's lesser capacity for
maintaining paved and curbed roads like those in the Estates. It also notes the county
system was not designed to maintain an enclosed storm drainage system, which is part of
the Estates' infrastructure.
Finally, as with extending its police services to the Estates, the City did not supply
an explicit timetable for providing maintenance of streets and infrastructure. This
omission is understandable because those services would commence immediately upon
annexation, as evidenced by the inclusion of the Estates in the City's ongoing street
maintenance and repair program.
The Stueckemanns generally attack the City's plan for the extension of street and
infrastructure maintenance in the same manner they criticized the plan for police
protection. They again allege it provides inadequate detail about the cost to maintain
specific streets and the alleged insufficiency of the county's maintenance. But as
explained, K.S.A. 12-250b(a)(2) only requires the City to make estimated costs, which
the City has provided. Additionally, they again assert the City failed to comply with
27
K.S.A. 2014 Supp. 12-520a(e). But as explained, that statute imposes no requirement on
the City's service plan. It serves only as a guide in determining the advisability of
annexation.
For these reasons, we affirm the lower courts' conclusions that the City's service
plan for police protection and for maintenance of street and infrastructure substantially
complies with the annexation statutes.
Issue 3: The district court and Court of Appeals did not err by concluding the City's
annexation is reasonable.
Finally, the Stueckemanns urge us to invalidate the City's annexation because its
plan is unreasonable and the lower courts erred by concluding otherwise. They further
contend the Court of Appeals erred by severely restricting the contours of
"reasonableness." The City essentially responds that its annexation plan was reasonable
under any commonly-accepted definition of the term.
Standard of review
The reasonableness standard for challenges to annexations is contained in K.S.A.
2014 Supp. 12-538. Since this statute's creation in 2005, it has provided:
"Any owner of land annexed by a city under the authority of K.S.A. 12-520(a)(1)
through (6) . . . , within 30 days next following the publication of the ordinance annexing
the land, may maintain an action in district court of the county in which the land is
located challenging [1] the authority of the city to annex the land, [2] whether the
annexation was reasonable, [3] whether the service plan was adequate and [4] the
regularity of the proceeding had in connection with the annexation procedures. When
determining the reasonableness of an annexation in the case of a city challenging the
28
annexation, the court shall include in its considerations the effect the annexation has on
the future growth of the city challenging the annexation." (Emphasis added.)
Resolving the parties' disagreement involves interpretation of this statute, over
which we exercise de novo review. In re Estate of Strader, 301 Kan. 50, 55, 339 P.3d 769
(2014).
We will first determine what the legislature meant in the statute by "whether the
annexation was reasonable." And then, to the extent necessary, we will consider that
definition as applied to the facts of this case.
Discussion
The Court of Appeals held the statutory references to "reasonable" merely codified
Kansas' caselaw addressing an annexation's reasonableness. And as a result, the question
of reasonableness remains limited to "whether the annexation violated constitutional
protections or statutory authority." Stueckemann, 2012 WL 3966521, at *5. So according
to the panel, "[c]ourts do not pass on the wisdom, necessity, or advisability of legislative
acts delegated to municipalities." 2012 WL 3966521, at *5.
By contrast, the Stueckemanns argue the statute's "reasonableness" provision
creates an entirely new basis for challenging the City's actions and a new standard for
judicial review of them. They contend our review is now de novo. The City agrees with
the Stueckemanns that K.S.A. 2014 Supp. 12-538's "reasonableness" is more expansive
than the panel's definition based upon pre-2005 caselaw. But it denies our review is de
novo.
29
To settle this controversy, a short review of relevant annexation history is in order.
Before 1974, no statute specifically granted authority to challenge unilateral annexations
on any particular grounds. Caselaw provided that the grounds for challenge—and the
court's accompanying standard of review—were quite limited, as the following brief
progression demonstrates. See, e.g., State, ex rel., v. City of Topeka, 175 Kan. 488, 491,
264 P.2d 901 (1953) ("[T]he advisability of enlarging the territorial limits of a city is a
legislative function which cannot be delegated to the court [citation omitted]. The duty of
the court is only to determine whether under the facts the city has statutory authority to
enact the ordinance under attack."); State, ex rel., v. City of Overland Park, 192 Kan. 654,
656, 391 P.2d 128 (1964) ("The wisdom, propriety, necessity or advisability of annexing
territory to cities is not a matter for consideration by the courts. [Citations omitted.] The
basic function and duty of the courts is to determine whether a city has statutory authority
and has acted thereunder in passing an annexation ordinance."); State, ex rel., v. City of
Coffeyville, 211 Kan. 746, 751, 508 P.2d 1007 (1973) (same).
Ultimately, in Sabatini v. Jayhawk Construction Co., 214 Kan. 408, 412-13, 520
P.2d 1230 (1974), the court rejected the argument that it could review the
"reasonableness" of an annexation under the rationale of K.S.A. 12-712 (Corrick), which
expressly permitted a court to review the reasonableness of a city's zoning decision. The
Sabatini court restated that
"[i]t is not a proper judicial function for a court to inquire into the reasonableness,
wisdom, necessity or advisability of annexing and platting land. In this area of legislative
function the judicial duty of the courts is limited to the determination of whether the city
was granted the necessary statutory authority to act and, if so, whether it acted within that
authority." (Emphasis added.) 214 Kan. at 413.
30
In 1974, annexation legislation was passed that included a provision that later
became K.S.A. 12-520(h). For the first time a statute delineated the grounds on which
annexation could be challenged:
"Any owner of land annexed by a city under the authority of this section may
within thirty (30) days next following the publication of the ordinance annexing such
land maintain an action in the district court of the county in which such land is located
challenging the authority of the city to annex such lands and the regularity of the
proceedings had in connection therewith." (Emphasis added.) L. 1974, ch. 56, sec. 4.
In this court's review of annexation challenges brought under K.S.A. 1974 Supp.
12-520, it continued to limit its examination consistent with caselaw predating the
statute's passage. As it stated in Clarke, 218 Kan. at 348-49:
"The rule to which this court adheres was stated in State, ex rel., v. City of
Overland Park, 192 Kan. 654, 391 P.2d 128 [1964], where the court held:
'The wisdom, necessity or advisability of annexing territory to
cities is not a matter for consideration by the courts. The basic function
and duty of the courts is to determine whether a city has statutory
authority and whether it has acted thereunder in passing an annexation
ordinance.' [Citation omitted.]
"In Sabatini v. Jayhawk Construction Co., [214 Kan. at 413] supra, the foregoing
rule was paraphrased as:
"'It is not a proper judicial function for a court to inquire into the
reasonableness, wisdom, necessity or advisability of annexing and
platting land.'"
31
See also City of Lenexa v. City of Olathe, 233 Kan. 159, 163, 660 P.2d 1368 (1983) ("In
reviewing an annexation decision by a municipality the function of the court is to
determine whether the municipality has statutory authority to act and has acted in
accordance with that authority."); Banzer v. City of Wichita, 237 Kan. 798, 800-01, 703
P.2d 812 (1985) ("Both parties agree that it is not a proper judicial function for a court to
inquire into the reasonableness, wisdom, necessity or advisability of annexing and
platting land . . . .") (citing Sabatini, 214 Kan. at 413).
In limiting their review consistent with pre-1974 caselaw, some of those courts
also specifically rejected arguments that the 1974 amendments to K.S.A. 12-520 now
added reasonableness as a ground for challenging annexation and for the scope of judicial
review. In Clarke, a landowner argued that the traditional caselaw test affirmed in
Sabatini had changed with the 1974 amendments and the court should now review the
reasonableness of an annexation. 218 Kan. at 342. In rejecting this argument, the court
held:
"The 1974 legislative amendment allowing any owner of land annexed by the
city to 'challenge the authority of the city to annex such lands and the regularity of the
proceedings had in connection therewith' changes our prior law only to the extent that it
is no longer necessary that an action protesting an annexation be brought in the name of
the state." 218 Kan. at 349.
See also City of Lenexa v. City of Olathe, 228 Kan. 773, 774-77, 620 P.2d 1153 (1980)
(affirming Clarke's holding that the 1974 legislative amendment allowing a landowner to
challenge an annexation did not alter the scope of a court's inquiry).
Given this background, we conclude the 1974 statute—K.S.A. 1974 Supp. 12-
520—essentially codified the existing caselaw for grounds to challenge annexation and
for judicial review.
32
We continue our analysis by examining the 2005 statute, K.S.A. 2005 Supp. 12-
538. With the adoption of 12-538, the legislature repealed that statute's predecessor,
K.S.A. 12-520(h). L. 2005, ch. 186, § 6. As noted, 12-538 added language to what had
been contained in K.S.A. 12-520(h), including the provision of two more grounds for
landowner challenge to annexation and for resultant judicial review. These were "whether
the annexation was reasonable," as well as "whether the service plan was adequate."
K.S.A. 2005 Supp. 12-538. Primarily relying upon Clarke, the Court of Appeals panel
held that a review for "reasonableness" already existed in annexation caselaw. But it was
strictly limited to, and should remain, a review only to determine whether a city either
violated constitutional guarantees or exceeded statutory authority. As a result, the panel
concluded the legislature's 2005 addition of "reasonableness" as a factor in 12-538 merely
codified that narrow corridor in Kansas caselaw. Stueckemann, 2012 WL 3966521, at *5.
We disagree with the panel for several reasons. First, we observe the application
of this narrow definition of reasonableness actually predated Clarke and the 1974
amendments the Clarke court reviewed. For as the panel itself twice noted, the Clarke
court stated in 1975:
"'A careful study of our cases illustrates that the court does recognize the
"reasonableness" of action taken by a city in connection with annexation as a viable issue,
where the action taken by the city is found to violate constitutional guarantees. The same
could be said if the action taken by the city in connection with annexation is found to
exceed statutory authorization.'" (Emphasis added.) Stueckemann, 2012 WL 3966521, at
*5, 10 (quoting 218 Kan. at 349).
In acknowledging the Clarke court's and the panel's equation of limited
reasonableness with "exceeding statutory authorization," we also observe the 1974 statute
expressly allowed annexation challenges on the bases of "authority of the city to annex
such lands" and "regularity of the proceedings had in connection therewith." In other
33
words, those parts of the statute appear to have codified Clarke's view of prior caselaw
narrowly defining "reasonableness" as a basis for an annexation challenge.
Once this narrow definition of the reasonableness standard is established in the
equivalent language of the 1974 amendments, then the 2005 statute's express addition of
"reasonableness" appears to be superfluous to the "authority" component of this standard.
See Gannon v. State, 298 Kan. 1107, 1146, 319 P.3d 1196 (2014) (citing Hawley v.
Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 [2006] ["'There is a
presumption that the legislature does not intend to enact useless or meaningless
legislation.'"]; Wright v. Noell, 16 Kan. 601, 606, 1876 WL 1081 [1876] [Accepting
defendant's argument would incorrectly make part of language "manifestly
surplusage."]).
In short, there apparently is little, if anything, for the 2005 statute to codify about
this narrow concept of reasonableness because that codification already occurred in 1974.
So adding "whether the annexation was reasonable" in 12-538 as a basis for annexation
challenge and judicial review in 2005 must mean something else. See Frick v. City of
Salina, 289 Kan. 1, 23, 208 P.3d 739 (2009) (courts presume the legislature acts with
knowledge of existing statutory and caselaw when it enacts legislation).
Second, any doubt about whether this particular statutory addition is a substantive
change—instead of merely codifying caselaw—is further reduced by other parts of the
2005 statute. Specifically, it adds to the 1974 statutory provisions the following language:
"When determining the reasonableness of an annexation in the case of a city challenging
the annexation, the court shall include in its considerations the effect the annexation has
on the future growth of the city challenging the annexation." (Emphasis added.) K.S.A.
2005 Supp. 12-538.
34
This specific clause seemingly does not relate to a city exceeding its statutory
authority or to violating constitutional guarantees, as reasonableness was narrowly
defined in Clarke and adopted by the panel. So this clause cannot be a codification, or
even a clarification, of preexisting law. Rather, it would appear to be a substantive
legislative addition to the 1974 law, i.e., an expansion of the traditional notion of
annexation reasonableness. If it does not expand the concept of "reasonableness" under
the statute, then the entire clause has no apparent purpose, which we presume was not the
legislature's intent. See Gannon, 298 Kan. at 1146. Even more persuasively, this clause's
mandate, i.e., the court "shall" consider, would then be worthless—hardly the legislature's
intent when creating an obligation. 298 Kan. at 1141 ("shall" typically is construed as
mandatory and judicially enforceable).
Our rejection of the panel's interpretation of 12-538 is reinforced by our general
precedents distinguishing substantive legislative changes from mere codification of prior
caselaw. We have held that the "legislature's revision of existing law creates [a]
presumption that [the] legislature intended to change preamendment law." Graham v.
Herring, 297 Kan. 847, 860, 305 P.3d 585 (2013) (citing Brennan v. Kansas Insurance
Guaranty Ass'n, 293 Kan. 446, 458, 264 P.3d 102 [2011]); Hauserman v. Clay County,
89 Kan. 555, 558, 132 P. 212 (1913).
This presumption of an attempt to change preamendment law becomes even
stronger where the amendment contains a radical change to a statute's phraseology. In
that event, it is generally perceived as a legislative declaration that the original law did
not embrace the amended provision. Brennan, 293 Kan. at 459 (presumption is strongest
when legislature makes radical change to statute's phraseology) (citing Estate of Soupene
v. Lignitz, 265 Kan. 217, 222, 960 P.2d 205 [1998]). Here, K.S.A. 2014 Supp. 12-538
now expressly speaks when annexation statutes always had been silent on reasonableness
35
as a basis for challenge and scope of judicial review. Additionally, as mentioned, it now
mandates a specific factor to be considered by the reviewing court "[w]hen determining
the reasonableness of an annexation" after a city challenge on this newly-announced
basis. We conclude these departures from prior statutes are significant and reflect "a
legislative declaration that the original law did not '"embrace the amended provision."'"
293 Kan. at 459.
As we proceed on our path for a more precise standard of judicial review, we
observe the City contends its decision to annex was an exercise of a quasi-judicial
function, citing Reiter v. City of Beloit, 263 Kan. 74, 85, 947 P.2d 425 (1997). See also
Heckert Construction Co. v. City of Fort Scott, 278 Kan. 223, 224, 91 P.3d 1234 (2004).
The City summarily made this point simply to support its argument that the judicial scope
of review was for a post-Clarke standard of reasonableness—expanded, but not de novo.
But this point does raise some other relevant considerations, including whether our
typical standard of review of quasi-judicial functions enters the calculus.
We begin this particular part of our analysis by determining whether the City's
annexation decision was a quasi-judicial determination. This court generally has held that
a city's actions are quasi-judicial if state or local law requires: (1) notice to the
community before the action; (2) a public hearing pursuant to the notice; and (3)
application of criteria established by law to the specific facts of the case. Heckert, 278
Kan. at 224. Currently, a unilateral annexation by a city under K.S.A. 2014 Supp. 12-
520a requires: (1) notice to the community before the action (K.S.A. 2014 Supp. 12-
520a[a][1]); (2) a public hearing pursuant to the notice (K.S.A. 2014 Supp. 12-
520a[a][1], [b], [e]); and (3) application of 16 established criteria to the specific
annexation for guidance in determining its advisability at the hearing (K.S.A. 2014 Supp.
12-520a[e]).
36
Accordingly, we conclude that under the three factors articulated in Reiter and
Heckert, a decision to unilaterally annex land under K.S.A. 2014 Supp. 12-520 is quasi-
judicial. See Brown v. U.S.D. No. 333, 261 Kan. 134, 149, 928 P.2d 57 (1996) (quasi-
judicial applies "'to the action, discretion, etc., of public administrative officers or bodies,
who are required to investigate facts, or ascertain the existence of facts, hold hearings,
weigh evidence, and draw conclusions from them, as a basis for their official action, and
to exercise discretion of a judicial nature'") (quoting Black's Law Dictionary 1245 [6th
ed. 1990]); see also Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1131-32,
307 P.3d 1255 (2013) (city council acting in quasi-judicial role with statutory obligations
regarding the investigation of facts and the evaluation of those facts).
With the City's annexation decision established as a quasi-judicial function, we
turn for further analytical guidance on our standards of judicial review by examining
143rd Street Investors v. Board of Johnson County Comm'rs, 292 Kan. 690, 259 P.3d 644
(2011). While admittedly a rezoning decision, it offers some parallels. There, the County
offered two alternatives for judicial standards of review for the rezoning decision.
The County first cited K.S.A. 60-2101(d)—a general statute which provides that
on appeal the courts may review final orders or judgments made by a political
subdivision through, among other things, its exercise of quasi-judicial functions. The
court then set out the limited standard for district courts and appellate courts reviewing
such quasi-judicial functions:
"[The court] is limited to determining if the political subdivision's decision fell within the
scope of its authority; was supported by substantial competent evidence; or was
fraudulent, arbitrary, or capricious." 143rd Street Investors, 292 Kan. at 709 (citing, inter
alia, Brown, 261 Kan. at 138.
37
Under these standards, "'"[a] district court may not, on appeal, substitute its
judgment for that of an administrative tribunal."'" Reiter, 263 Kan. at 86. And an
appellate court reviewing a rezoning decision by the City is held to the same standards as
the district court. 292 Kan. at 709. Accordingly, judicial review is deferential to the city
or administrative agency.
For the County's alternative standard of judicial review in 143rd Street Investors,
it suggested "one that is unique to zoning cases and examines the reasonableness and
lawfulness of a zoning action." 292 Kan. at 710. This standard was first stated in Golden
v. City of Overland Park, 224 Kan. 591, 595-96, 584 P.2d 130 (1978), and was
summarized and enumerated in Combined Investment Co. v. Board of Butler County
Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980). See also Zimmerman v. Board of
Wabaunsee County Comm'rs, 289 Kan. 926, 944-45, 218 P.3d 400 (2009).
Like in annexation, reasonableness is a statutorily-recognized basis for challenging
a zoning decision. But unlike in annexation, reasonableness has been a statutorily-
recognized basis for challenging a zoning decision since 1921. See, e.g., K.S.A. 12-712
(Corrick) (challenger "may have the reasonableness of any [zoning] ordinance or
regulation determined by bringing an action, in the district court"). Since 1992, K.S.A.
12-760(a) has specifically provided that any person aggrieved by a zoning decision made
by a city or county "may maintain an action in the district court of the county to
determine the reasonableness of such final decision." See Zimmerman, 289 Kan. at 944.
The 143rd Street Investors court observed that "[i]ncorporation of the concept of
reasonableness distinguishes the standard of review applied in rezoning decisions from
the general standard stated in K.S.A. 60-2101(d)," i.e., one limited to basically reviewing
the exercise of judicial or quasi-judicial functions. 292 Kan. at 714. En route to this
observation, the court noted that regardless of whether the zoning decision was classified
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as a legislative or quasi-judicial function, Kansas courts have used the "'highly deferential
language'" typically applied to judicial review of legislative action. 292 Kan. at 713
(quoting Zimmerman, 289 Kan. at 948).
The court in 143rd Street Investors also observed that "[t]he appropriateness of
testing a decision for reasonableness is reinforced by Kansas statutes that incorporate
reasonableness as the guiding factor in either a court's review of a zoning decision or in
the zoning body's consideration of zoning issues. See, e.g., K.S.A. 12-760." 292 Kan. at
714. Faced with these two competing standards of review—the limited grounds for
reviewing quasi-judicial functions under K.S.A. 60-2101(d) and Brown or the "highly
deferential" limited review for reasonableness under K.S.A. 12-760(a)—the court
ultimately chose the latter, reviewing for reasonableness as articulated in Golden and
Combined Investment. 143rd Street Investors, 292 Kan. at 715.
Like the court in 143rd Street Investors, we are faced with the general judicial
review statute, K.S.A. 60-2101(d), which is typically used for examining judicial and
quasi-judicial functions of a political subdivision. Like that court, we are also faced with
a statute that particularly establishes reasonableness as a basis for challenging specific
decisions of a political subdivision—there, zoning, and here, annexation. Compare
K.S.A. 12-760 (any person aggrieved by a zoning decision made by a city or county
"may maintain an action in the district court of the county to determine the
reasonableness of such final decision"), with K.S.A. 2014 Supp. 12-538 (landowner "may
maintain an action in district court . . . challenging . . . whether the annexation was
reasonable").
Consistent with our analysis in 143rd Street Investors, we hold reasonableness
under K.S.A. 2014 Supp. 12-538 is not only a correct basis for a landowner challenging,
but also the resultant standard for a court reviewing, a city's annexation decision. This
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conclusion is particularly valid when, as here, the Stueckemanns specifically brought
their action in district court on the grounds of challenge articulated in K.S.A. 2014 Supp.
12-538, i.e., "whether the annexation was reasonable." Moreover, that the annexation is
"not reasonable" is one of the specific bases they have consistently asserted to the
appellate courts. They do not challenge the annexation, for example, under Brown's
grounds that the decision was not within the City's scope of authority or not supported by
substantial competent evidence. 261 Kan. at 138.
In addition to the reasoning expressed in 143rd Street Investors, our conclusion is
also supported by another rationale. K.S.A. 2014 Supp. 12-538 specifically establishes
reasonableness as a basis for challenge and judicial review, while the grounds for judicial
review of a quasi-judicial decision under K.S.A. 60-2101(d) and Brown are rules of
general application. In other words, they apply to a myriad of decisions made by political
or taxing subdivisions or their agencies. So our adoption of reasonableness as a basis for
judicial review of a unilateral annexation decision is also consistent with our preference
for specific rules over general ones. See Vontress v. State, 299 Kan. 607, 613, 325 P.3d
1114 (2014) (a specific statute controls over a general one when the relevant provisions
overlap); see also State v. Williams, 299 Kan. 911, 930, 329 P.3d 400 (2014) (rule that
general statute should yield to specific one is rule of interpretation used to determine
which statute legislature intended to be applied in particular case).
In further determining the standards for a reviewing court to apply, we perceive a
common thread running throughout challenges to decisions made by political
subdivisions or administrative agencies—regardless of the grounds—is that the
challenger has the burden to demonstrate the decision should be reversed or declared
void. See Shawnee Mission Med. Center v. Kansas Dept. of Health & Environment, 235
Kan. 983, 988, 685 P.2d 880 (1984) ("burden of proof lies with party challenging"
administrative agency's action; now codified at K.S.A. 2014 Supp. 77-621[a][1]);
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Combined Investment Co., 227 Kan. at 28 (rule in zoning); see also Chandler v. City of
Little Rock, 351 Ark. 172, 176, 89 S.W.3d 913 (2002) (burden of proof in an action to
prevent annexation is placed on party opposing annexation). Another thread, albeit less
common, is that the challenger must meet its burden by a preponderance of the evidence.
Combined Investment Co., 227 Kan. at 28 (rule in zoning). Accordingly, we hold that for
challenges to unilateral annexations, the challenging landowner has the burden of proving
unreasonableness under K.S.A. 2014 Supp. 12-538 by a preponderance of the evidence.
Another common thread running throughout challenges to decisions made by
political subdivisions or administrative agencies is that a reviewing court may not
substitute its judgment for that of the decision-maker. See, e.g., Denning v. Johnson
County Sheriff's Civil Service Bd., 299 Kan. 1070, 1076, 329 P.3d 440 (2014) (sheriff's
civil service board); Reiter, 263 Kan. at 86 (an administrative tribunal); Combined
Investment Co., 227 Kan. at 28 (board of county commissioners). Accordingly, we hold
in annexation challenges, no reviewing court may substitute its judgment for that of the
decision-maker.
With the standard for reviewing "whether the annexation was reasonable" now
firmly established, we return to considering its application to the facts of the instant case.
The panel applied the narrow test for reasonableness articulated in Clarke. So after
concluding no violations of constitutional guarantees were apparent and rejecting
plaintiffs' claims the annexation exceeded statutory authorization, it held the City's action
of annexation was reasonable. Stueckemann, 2012 WL 3966521, at *10. Accordingly, it
did not review the proceedings under the more expansive concept of reasonableness we
articulate today. The district court, however, did perform a more expansive inquiry.
Without referencing Clarke, the district court made a number of observations,
findings, and conclusions that functionally broadened that 40-year-old opinion. The
district court recognized its first order of business was to determine its standard of
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review. It acknowledged it was reviewing an annexation decision made by the duly
elected representatives of a municipality representing the executive branch of
government. It next acknowledged the judicial branch therefore should be deferential to
annexation decisions of the City but should not simply rubber stamp them. Rather, "the
legislature specifically said that I should determine whether [the decision] was
reasonable. But that does not mean that I'm supposed to substitute my individual
judgment as a member of the judicial branch as to the wisdom of this annexation."
The district court explained that in its review of the annexation decision, its
function
"is to determine whether the party with the authority in annexation matters . . . in
exercising their responsibilities did so in accordance with the law within their authority
and did so in a reasonable manner. If I were to disagree about whether I think it's a wise
decision for Cedar Lake Estates to become a part of the City of Basehor, that's not the
right standard. It's not for me to decide. It's to decide whether the executive authority of
the municipality made its decision in a reasonable manner and can support that decision."
(Emphasis added.)
In its review for reasonableness, the district court began by characterizing the
general nature of the Stueckemanns' argument as "whether a city can secure additional
tax revenues through property taxes by annexation without providing anything of value to
the residents." The panel agreed with this characterization, stating the Stueckemanns
primarily contended the annexation was unreasonable because they "'gained nothing but a
whopping tax bill.'" Stueckemann, 2012 WL 3966521, at *10. The Stueckemanns have
never objected at any stage of their litigation to this portrayal of the general nature of
their argument for "unreasonableness."
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In considering this "no value thus unreasonable" argument, the district court asked
"whether a reasonable person would consider that the services being provided give
[residents] value for their additional tax dollar." The court ultimately rejected this
argument, concluding "to say that no value is being provided is not reasonable in my
judgment." In the court's analysis, it then evaluated four different City services provided
to the Estates and calculated the monetary value of each. Those services are the extension
of: (1) police protection; (2) street and infrastructure maintenance; and (3) trash service.
They also include the continuation of existing access by the Estates to the City's
wastewater treatment plant.
For police protection, the district court agreed that the City's calculations based
upon cost per square mile would provide this service for approximately $22,200 per year.
The court also performed its own calculations based upon percentage allocation of mill
levy to police service and concluded the service would be provided for approximately
$23,700 per year.
It additionally performed other calculations using a third method—based upon
population served in the City and in the Estates. Acknowledging the Estates represented
an approximate 9% population increase in the City, it calculated a 9% increase of the
police department budget of $741,000 would produce $66,699 per year for police
protection in the Estates. The court concluded that any one of these three approaches
"would indicate that value is being returned in a significant degree."
For streets and infrastructure maintenance, the court calculated that spreading the
City's general streets budget (less the cost of a designated project) of $492,523 over the
City's 44 miles of maintained roads created a figure of $11,193 spent per mile. Similar to
the City's calculations, it determined that multiplying the street mileage in the Estates of
1.5 miles by that figure per mile produced $16,790 of annual value for street maintenance
43
in the Estates. The court held this number "suggests that there is a significant return to the
residents that can be expected from street maintenance."
For trash service, the court recognized the record evidence showing the City trash
services cost less than the Estates' private services. Specifically, it noted that using the
City services saves approximately $8.65 per month for each property in the Estates,
which results in a total annual savings of $11,002. The court concluded "that is a
substantial savings."
Finally, for wastewater treatment, the district court acknowledged the City has
allowed the Estates to receive service from the municipal treatment plant. The court noted
the landowners after annexation would continue to benefit from the City's plant. But
instead of continuing to pay a surcharge, i.e., 125% of the City's ordinary sewage rates,
after annexation the landowners in the Estates would pay the City's ordinary rates. The
court observed this change produced real economic benefit, stating "as a part of now
becoming a part of the city, the average bill will decrease $8.91 per month." The
annualized savings for all the Estates residents was calculated as $11,333. The court held
"[v]alue is being provided in connection with wastewater treatment as part of becoming a
part of the city."
The district court further determined that according to the record, to extend—and
to continue—these 4 primary municipal services would cost the Estates owners
approximately $108,000 in additional property taxes each year. It compared these
additional taxes to its valuation of the services provided by the City for the Estates
residents: (1) $22,200 to $66,000 for police protection; (2) $16,790 for street
maintenance; (3) $11,002 for trash service; and (4) $11,333 for wastewater treatment. It
concluded this range of additional services provided total financial benefits to the Estates
of between $38,990 and $83,489 per year.
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After utilizing its aggregate approach, the court rejected Stueckemanns' "no value
thus unreasonable" argument, ultimately concluding the City "acted with
reasonableness." We agree.
The Stueckemanns hint at a requirement that any value—whose existence they
continue to deny—must be equal to, or greater than, the new cost imposed for the same,
or greater, level of service provided by annexation. So if not at least equal, the plan is
unreasonable. In addressing this intimation, we first look at the plain language of the
statute. See Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (best and only
safe rule for ascertaining intention of the makers of written law is abide by language they
have used). We observe K.S.A. 2014 Supp. 12-538 does not expressly establish that an
annexation suit can challenge "equivalence" but simply that it can challenge whether the
annexation is "reasonable," which denotes a lower standard. Compare Black's Law
Dictionary 658 (10th ed. 2014) (defining equivalent as "[e]qual in value, force, amount,
effect, or significance"), with Black's Law Dictionary 1456 (10th ed. 2014) (defining
reasonable as "[f]air, proper, or moderate under the circumstances).
And on the particular issue of whether the value of benefits extended to the area of
annexation must be greater than or equal to the new taxes imposed, we draw further
guidance from the Mississippi Supreme Court. Like Kansas, Mississippi is one of the few
states where the judiciary is charged by statute with reviewing whether a city's proposed
annexation is unreasonable. See Miss. Code Ann. § 21-1-33 (2007). As the court stated in
Texas Gas Transmission Corp. v. City of Greenville, 242 So. 2d 686, 690 (Miss. 1970):
"The argument that appellant will not receive benefits commensurate to its
increased tax burden is not well taken. We pointed out in Kennedy v. City of Kosciusko,
203 Miss. 4, 33 So. 2d 285 (1948), on this exact issue, that:
45
'Even so it (taxation) would in any event have to be so
disproportionate to the compensating benefits as to become
unreasonable. (203 Miss. at 9, 33 So. 2d 286).'" (Emphasis added.)
See also In re Enlarging, Extending and Defining, 109 So. 3d 529, 560 (Miss. 2013)
("'The mere fact that residents and landowners will have to start paying city property
taxes is not sufficient to show unreasonableness.'").
We adopt the same reasoning here. The Stueckemanns' intimation that an
annexation is unreasonable if the value of new municipal services is not at least equal to
the amount of new taxes imposed is without merit.
Before concluding, we note the district court also found other value is bestowed
upon the Estates, i.e., its proximity to a city whose benefits the landowners utilize,
including use of the City streets to access the Estates. The court specifically stated,
"They're a part of being a resident of the city and are one of the amenities or services that
are provided of being a resident to the city and so to spread them over the [Estates], I
think, is an appropriate measure." The court continued:
"If certain members of the residents of Cedar Lake Estates as they've indicated
and some of the comments made at the public hearing, the written comments, didn't use
these services, it doesn't mean that they're not there and affect the quality of life and
affect the property values that are associated with living in the area. And those things also
provide value and for that value it is not unreasonable to expect parties to pay for them."
The Stueckemanns argue this determination is unsupportable. They cite City of
Topeka v. Board of Shawnee County Comm'rs, 252 Kan. 432, 447, 845 P.2d 663 (1993).
But that case is readily distinguishable. It involved a county's denial of a city's petition to
annex land adjacent to it. Accordingly, it involved a completely different statute: K.S.A.
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12-521(c). Unlike the unilateral annexation statutes at issue in the instant case, that
statute requires a board of county commissioners to determine whether the proposed
annexation would cause "manifest injury" to the property owners in the area. 252 Kan. at
447. In City of Topeka, the district court affirmed the Board's denial, holding that
"substantial evidence supported the Board's conclusion that property owners would suffer
manifest injury if the annexation were approved." And this court affirmed the district
court, holding it correctly determined that substantial evidence supported the Board's
findings. 252 Kan. at 447.
Instead of relying on our caselaw addressing manifest injury under K.S.A. 12-521,
we again draw guidance from the Mississippi Supreme Court and its review of a state
statute with parallels to K.S.A. 2014 Supp. 12-538. In evaluating annexation
reasonableness, Mississippi courts examine "whether property owners and other
inhabitants of the proposed annexation area have in the past, and for the foreseeable
future unless annexed, will enjoy the economic and social benefits of proximity to the
municipality without paying their fair share of the taxes." In re Enlarging, Extending and
Defining, 109 So. 3d at 540; see also Extension Boundaries of Tupelo v. Tupelo, 94 So.
3d 256, 267 (Miss. 2012); In re Enlargement of Mun. Bound. of Clinton, 955 So. 2d 307,
312 (Miss. 2007). Cf. Big Sioux Tp. v. Streeter, 272 N.W.2d 924, 926 (S.D. 1978) ("A
natural and reasonable annexation may result from the following justifications: . . . 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 . . . ."). (Emphasis added.)
The district court's consideration of intrinsic benefits that the Estates' residents
enjoy because of their proximity to the City is consistent with these courts' consideration
of the economic and social benefits residents derive by living near a municipality. In
Clinton, the court concluded this factor supported finding the annexation was reasonable
47
because residents of the proposed annexation area benefitted from the city's recreational
facilities, medical services, libraries, educational opportunities, and community centers.
955 So. 2d at 327-28. As the district court found, the same is true in the instant case.
Although it is difficult to quantify the economic value of these benefits, the district court
did not err in considering them in its reasonableness calculus. Residents of the Estates
have benefitted—and will continue to benefit—from their property adjoining the City.
Those benefits additionally support the reasonableness of the annexation.
We have reviewed the record, examined the City's annexation decision for
reasonableness under the standard we have articulated today, and come to the same
conclusion as the district court. The annexation decision was reasonable.
The judgment of the Court of Appeals affirming the district court's refusal to
invalidate the annexation is affirmed. The judgment of the district court is affirmed.
MICHAEL J. MALONE, Senior Judge, assigned. 1
1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 105,457 under
the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court
created by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of
Appeals.
48