IN RE: DE-ANNEXATION OF CERTAIN REAL PROPERTY FROM THE CITY OF SEMINOLE

IN RE: DE-ANNEXATION OF CERTAIN REAL PROPERTY FROM THE CITY OF SEMINOLE
2004 OK 60
102 P.3d 120
Case Number: 98038
Decided: 07/06/2004

THE SUPREME COURT OF THE STATE OF OKLAHOMA

IN RE: DE-ANNEXATION OF CERTAIN REAL PROPERTY FROM THE CITY OF SEMINOLE, A MUNICIPAL CORPORATION,
KINSLOW ROUND-UP INC., an Oklahoma Corporation; JACK C. AND BONNIE M. HUMPHREYS TRUST NO. 1; 8:32, INC., a Non-profit Corporation; D. KIRCHER INVESTMENTS, L.L.C.; THE CFS INSURANCE AND SECURITIES MONEY PURCHASE PLAN AND TRUST; GARY and LINDA BLOOMER, HWJT'S; MODERN OIL CO., INC.; BOBBY J. WILLIAMS AND MARY E. WILLIAMS LIVING TRUST; JOE K. and ALYCE ELLIS, HWJT'S; BILLY G. CLARK; HAZEL REYNOLDS; JIM and ROBIN NORRIS (Landlord), JULIA BELLINI and LESLIE HINDS (Tenants); EUGENE and FRANCIS WARRENSBERG; and SUE JARVIS, Petitioners/Plaintiffs/Appellants,
v.
THE CITY OF SEMINOLE, a Municipal Corporation, Respondent/Defendant/Appellee,
and
STATE OF OKLAHOMA, ex rel., OKLAHOMA TAX COMMISSION, Additional Defendant.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. I

¶0 The City of Seminole annexed to its municipal boundary certain unincorporated land in Seminole County. In an action by the protestants for a judicial declaration of the annexation's invalidity, the District Court, Seminole County, George W. Butner, trial judge, gave summary relief to the City on the claim challenging the annexation ordinance and certified the decision for immediate appeal in advance of judgment upon all the claims. The Court of Civil Appeals affirmed. On certiorari previously granted upon the protestants' petition,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND THE TRIAL COURT'S ORDER DECLARING ANNEXATION ORDINANCE 941 VALID IS REVERSED WITH DIRECTIONS TO DECLARE THAT ORDINANCE INEFFICACIOUS

Michael J. Novotny, Hartzog, Conger, Cason & Neville, Oklahoma City, Oklahoma, for Appellants.
Ed Cadenhead, Elsener & Cadenhead, Seminole, Oklahoma, and Reggie N. Whitten, Jason E. Roselius, Philip W. Anderson, Whitten, McGuire, Wood, Terry, Roselius & Dittrich, Oklahoma City, Oklahoma, for Appellee
Harlan Hentges, Mulinix, Ogden, Hall, Andrews & Ludlam, Oklahoma City, Oklahoma, for Amicus Curiae - Oklahoma Agricultural Legal Foundation

OPALA, V.C.J.

¶1 The dispositive issue tendered on certiorari is whether summary relief for the City was erroneously entered. We answer in the affirmative.

I

THE ANATOMY OF LITIGATION

Ordinance 917

¶2 On 6 December 1999 the City of Seminole (City) enacted Ordinance No. 917, whose terms annexed certain territory to its corporate limits. The territory consisted of several tracts of land along Highway 99 which were connected by a 3-foot-wide strip of land that touched the northern boundary of the city, extending perpendicularly several (7 to 10) miles (along the west side of the highway) to the I-40 intersection. The protestants (non-consenting landowners and commercial tenants) challenged the ordinance by petitioning the City for de-annexation of the land. Upon denial of their quest they appealed to the district court, brought an action for a judicial declaration of the ordinance's invalidity, and sought an order to restrain the City from proceeding with the annexation. Both parties moved for summary judgment. Protestants argued inter alia that the December 6 meeting was held in violation of the Open Meeting Act.

Ordinance 941

¶3 After adoption of Ordinance 941, the parties amended their district court pleadings and motions for summary judgment. The protestants incorporated their earlier arguments directed at Ordinance 917, challenged the validity of Ordinance 941 as well as brought a third-party claim against the Oklahoma Tax Commission [OTC] for a judicial declaration of their entitlement to all municipal sales taxes paid under protest as well as to taxes illegally collected by the City or by the OTC on the City's behalf.

¶4 The trial court gave summary relief to the City on the claim addressing solely Ordinance 941,

II

CERTIORARI ARGUMENTS

¶5 Protestants advance three principal theories for declaring Ordinance 941 invalid. Firstly, they claim the statutory municipal annexation scheme entitles owners of property to be annexed to notice and an opportunity either to consent to the proposal or to negotiate a plan for municipal services. Secondly, they argue that the statutory contiguity requirement is not met by the annexation of several discontiguous commercial tracts located at three intersections on a ten-mile stretch of highway, which are tied together by a 3-foot-wide "shoestring strip" of land whose inclusion was doubtless for the sole purpose of meeting the technical contiguity requirement. Thirdly, they argue that neither the trial court nor COCA applied any standard of reasonableness either to the annexation process or to its result.

III

THE STANDARD OF REVIEW FOR APPEALABLE
PRODUCTS OF SUMMARY PROCESS

¶7 Summary process - a special pretrial procedural track pursued with the aid of acceptable probative substitutes

¶9 The material facts in this case are not disputed. The dispositive issue on certiorari presents a pure question of applying the statute-prescribed standards to the undisputed facts.

IV

THE LAW GOVERNING MUNICIPAL ANNEXATIONS

A.

An Alteration of Municipal Boundaries Is Accomplished By The Exercise Of A State Sovereign Power That Has Been Delegated to Municipalities

¶10 There is only one sovereign power in state government.

¶11 The power to alter local governmental boundaries falls solely within the State's plenary authority. The State Legislature has conferred the annexation power upon municipalities to be exercised in conformity to the Oklahoma Municipal Code.

B.

The Governing Statutory Annexation Scheme

¶12 A municipality is authorized to annex territory that is adjacent or contiguous to its corporate limits as the governing body deems desirable for the benefit of the municipality. 11 O.S.2001 § 21-101.21 Property may be considered to be adjacent or contiguous if it is separated from the corporate limits by a railway, highway right-of-way or an intervening strip less than four rods wide. 11 O.S.2001 § 21-102.22 The city is required to obtain the written consent of the owners of at least a majority of the acres to be annexed, except in two instances. 11 O.S.2001 §21-103(A).23 Neither of the two exceptions is applicable here.

C.

Judicial Review of A Municipality's Annexation Decision

¶13 The extension of municipal boundaries by ordinance is a legislative act of the city's governing body.24 The primary judicial function in reviewing municipal annexations is to determine whether the city has exercised its annexation power in a reasonable manner and in compliance with the standards of state law.25

¶14 Extant caselaw has frequently described the municipal annexation process as a "political" decision.26 We reclarify today this oft-repeated adjective in an effort to illuminate its correct meaning in the context of municipal annexations. The term "political,"27 when used in its classical sense, refers to governing.28 Political activity relating to governing is reviewable solely by political means. This is so because the U.S. Constitution assigns responsibility for political activity to the political branches of government - to the legislative or executive department. The answer to a political question is impervious to judicial re-examination.29 In sum, for governmental action to be political there must be (a) an issue of "governing" coupled with (b) a mandatory and final resolution by nonjudicial means.

¶15 For their annexation decision municipalities cannot claim to be impervious to judicial review on the ground that it is a political decision. Municipal annexations have been accorded judicial review from the very inception of statehood.30 Judicial process tests the annexation ordinance's conformity to applicable state law. It is hence a paradox, if not indeed an oxymoron, to call a municipal annexation decision "political" and yet still subject the legal process governing that function to judicial review.

V

THE STATUTORY CONTIGUITY REQUIREMENT

¶16 This controversy presents the dispositive first-impression issue of whether a city's annexation of several noncontiguous tracts of land located along a 7-to-10-mile-long highway corridor, which are connected to the city by a 3-foot-wide strip of land that touches the city limits at its northern boundary and extends perpendicularly alongside the highway, is a reasonable application of the statutory contiguity (or adjacency) standard.

A.

Extant Municipal Annexation Jurisprudence

¶17 In Sharp v. Oklahoma City,31 the court affirmed the annexation of territory connected by a strip of land 177.5 feet wide and some 1,662 feet long on the rationale that the shape of annexed property is a "political decision" with which it would not interfere absent express statutory limitations relating to the shape of the property.32 The court's pronouncement, which narrowly focuses on the shape and size of the annexed territory as a nonjusticiable political decision, did not address the question whether the annexation ordinance was in a reasonable compliance with the statutory prerequisite for adjacency.33 Because in the context of a corridor annexation this issue has not been directly addressed,34 Sharp and its progeny35 cannot be deemed a broad, unlimited jurisprudential approbation of that annexation method.

B.

Statutory Construction

¶18 The fundamental rule for construction of a statute or ordinance is to ascertain and give effect to the legislative intent.36 That intent is to be ascertained from the text of the statute in light of its general purpose and object.37 Statutory construction presents a question of law.38 Only where the intent cannot be ascertained from a statute's text, as might occur when ambiguity or conflict (with other statutes) is shown to exist, may rules of statutory construction be employed.39

C.

The Contiguity Requirement

¶20 The necessity of "contiguity" or "adjacency" as an essential element of the annexation process is mandated by the Legislature. Although undefined in the enactments, these terms are treated as synonymous

D.

The Basic Concept of Municipality

¶21 A meaningful insight into the legislative purpose for the contiguity requirement can be gleaned from an examination of the concept of a city as it relates to its territorial expansion. The basic idea of a municipality is that of a unified body of inhabitants having a community of interest and gathered together in a single mass, with recognized and well-defined external boundaries, not separate and disconnected areas.

E.

The Presumption of Validity

¶23 A reviewing court must indulge in the presumption of validity that attaches to a municipal ordinance.

F.

The Annexation of Disconnected Tracts of Land By A Connecting Strip That
Serves No Municipal Purpose Other Than To Establish Statutory Contiguity
Constitutes An Impermissible Exercise of State-Delegated Annexation Power
By A Municipality

¶25 The deposition testimony of three City councilmen and the assistant city manager indicates the 3-foot-wide strip in question was needed to connect to the municipality the other tracts along the highway corridor. One City official described the strip as "an umbilical cord to tie it together." Two City officials stated they knew of no other use for the strip. When asked whether a water line could be laid under the strip, another City official answered "probably not."

¶26 The individual tracts standing alone would clearly not meet the statutory definition of contiguity (or adjacency). Not only are they located several miles from the city limits, some of the tracts are situated a number of miles from each other. The narrow 3-foot-wide strip provides the only link between the city's boundaries and the individual tracts owned by the protestants.

VI

SUMMARY

¶27 The alteration of municipal boundaries is a state sovereign power which the Legislature has delegated to municipalities. A city's extension of its territorial limits by ordinance constitutes a legislative function of its governing body which stands subject to judicial review to determine whether the city has met the state annexation-law standards in a reasonable manner.

¶28 The words "contiguous" or "adjacent" within the meaning of the annexation statute are flexible terms that may be affected by the facts of a case. A corridor-style annexation by which remote territories are connected to the existing city limits by a narrow 3-foot-wide strip of territory does not satisfy the legislatively crafted contiguity standard. When no beneficial municipal purpose is shown for a connecting strip that is as narrow as 3 feet in width, the burden of proof but not that of persuasion shifts to the municipality to show that the narrow strip will confer a beneficial use beyond its advantage of providing a mere connective territorial link to otherwise remote noncontiguous tracts.

¶29 Because the record fails to show any useful municipal purpose for the connecting strip other than to establish technical or merely illusory contiguity of the city limits with distant and disconnected territories along the highway corridor, Ordinance 941 is subject to invalidation for want of compliance with the statutory contiguity standards.

¶30 On certiorari previously granted upon the protestants' petition, the Court of Civil Appeals' opinion is vacated and the trial court's order declaring annexation Ordinance 941 valid is reversed with directions to declare that ordinance inefficacious.

¶31 OPALA, V.C.J., LAVENDER, KAUGER, BOUDREAU, WINCHESTER, EDMONDSON, JJ., and SIMMS, S.J., concur;

¶32 WATT, C.J., and HODGES, J., dissent;

¶33 HARGRAVE, J., disqualified.

FOOTNOTES

1 Identified herein are only those counsel for the parties whose names appear on briefs or other materials submitted on certiorari.

2 25 O.S.2001 § 304 et seq.

3 The trial court ruled there was neither a genuine issue of material fact about Ordinance 941 nor support in the record for protestants' view that (a) the City acted outside its authority to annex the territory covered by Ordinance 941 and (b) the annexation was unreasonable.

4 A true Oklahoma judgment is one that determines all the issues and claims in the entire action. Reeves v. Agee, 1989 OK 25, ¶28, 769 P.2d 745, 757, 758 n. 50; Eason Oil Co. v. Howard Engineering, 1988 OK 57, ¶4, 755 P.2d 669, 671; Reams v. Tulsa Cable Television, Inc., 1979 OK 171, ¶3, 604 P.2d 373, 374.

5 In a multi-party/multi-claim cases, when at least one complete claim has been decided, but others stand unresolved, the trial court may advance the decided claim(s) for immediate review. 12 O.S.2001 § 994. The pertinent provisions of §994(A) are:

A. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment, decree, or final order as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of a final judgment, decree, or final order. . . .

See

The municipal governing body may enact ordinances, rules and regulations not inconsistent with the Constitution and laws of Oklahoma for any purpose mentioned in Title 11 of the Oklahoma Statutes or for carrying out their municipal functions. . . .
(emphasis added).

The state constitution and general laws upon subjects of statewide concern control over conflicting city charter provisions. Fine Airport Parking, supra note 15, at ¶25, at 13; City of Pryor Creek, supra note 15, at ¶¶15-16, at 346-47. A city charter must give way to matters of statewide interest. Fraternal Order of Police Lodge No. 165 v. City of Choctaw,

The municipal governing body by ordinance may add to the municipality territory adjacent or contiguous to its corporate limits and increase or diminish the corporate limits as the governing body deems desirable for the benefit of the municipality.
(emphasis supplied).

Where any territory to be annexed is separated from the corporate limits of the municipality only by a railway right-of-way, or an intervening strip less than four (4) rods wide, or a highway right-of-way, the territory shall be considered adjacent or contiguous to the municipality.

A. Before the governing body of a city may annex any territory adjacent or contiguous to the city, it must obtain the written consent of the owners of at least a majority of the acres to be annexed to the municipality; except that no such consent is needed where:
1. The territory to be annexed is subdivided into tracts or parcels of less than five (5) acres and contains more than one residence; or
2. Three sides of the territory to be annexed are adjacent or contiguous to the property already within the municipal limits.
(emphasis supplied).

A municipal annexation ordinance becomes effective law upon its final passage (

" ' * * * The legal as well as the popular idea of a town or city in this country, both by name and use, is that of oneness, community, locality, vicinity; a collective body, not several bodies; a collective body of inhabitants-that is, a body of people collected or gathered together in one mass, not separated into distinct masses; and having a community of interest because [they are] residents of the same place, not different places. So, as to territorial extent, the idea of a city is one of unity, not of plurality; of compactness or contiguity, not ....[separation] or segregation. * * *' "

McGee, supra,

"The word 'adjacent,' we think is used in its primary and obvious sense as adjoining or contiguous, for we cannot conceive that the Legislature would annex to a borough a section of land or village wholly severed by the intervening lands of a township, so as to establish two entirely separate villages in one municipality. . . ."
It is also said therein that the essential and distinctive purpose and object of establishing a borough, the location and grading of streets, laying sewers, etc., would be rendered impracticable, and in many cases impossible by reason of the intervening territory. It is, therefore, obvious that the Legislature did not intend to provide for the annexation of territory to a city with intervening territory, except where such intervening territory is a strip less than four rods in width.

46 See in this connection Griffin v. City of Robards, 990 S.W.2d 634, 640 (Ky.1999)(if a municipal value or purpose occurs in the corridor, contiguity may be warranted, but if only a barren corridor exists, there is no contiguity)(citing Ridings, supra note 44, at 511-12, where three tracts of land located 2,200 feet, 3,600 feet, and 10,000 feet from the city were connected to the city only by highways not "shown to be of any municipal value or to serve any municipal purpose"); Amick v. Town of Stallings, 382 S.E.2d 221, 225-26 (N.C.App. 1989).

47 See, e.g., Clark, supra note 44 at 484-85; State ex rel Dept. of Transportation v. City of Milford, 576 A.2d 618, 620-21 (Del.Ch.1989); Potvin, supra note 44, at 417; City of Charleston v. Witmer, 709 NE.2d 998, 1000 (Ill.App.1999); Ridings, supra note 44, at 511-12; Griffin, supra note 46 at 640; Owosso Tp., supra note 44 at 422; State ex rel. Danielson v. Village of Mound 48 N.W.2d 865, 856 (Minn. 1951); Johnston v. City of Hastings, 488 N.W.2d 20, 24 (Neb. 1992); Middletown v. McGee, 530 N.E.2d 902, 905 (Ohio 1988); Watson, supra note 44 at 775; City of Rapid City v. Anderson, 612 N.W.2d 289, 293 (S.D.2000); Town of Mt. Pleasant, supra note 44, at 759. For a contrary view that a "corridor" annexation does not violate the statutory requirement of contiguity, see Glick v. Town of Gilbert, 599 P.2d 848, 851-52 (Ariz.App.1979); State ex rel. Averna v. City of Palm Springs, 331 P.2d 4, 8-9 (Cal.1958); Bryant v. City of Charleston, 368 S.E.2d 899, 901 (S.C.1988); City of Wichita Falls v. State ex rel. Vogtsberger, 533 S.W.2d 927, 930 (Tex.1976). Some state statutes expressly permit strip annexation. See, e.g., Colo.Rev.Stat. §21-12-105(e)(Supp.1989) (strip annexations are authorized if the strip is no longer than three miles).

48 Garrett v. City of Oklahoma City, 1979 OK 60, ¶5, 594 P.2d 764, 766; Botchlett v. City of Bethany, 1966 OK 39, ¶15, 416 P.2d 613, 617.

49 Jones v. City of Oklahoma City, 1952 OK 354, 250 P.2d 17, 20, 207 Okl. 431.
For a discussion of the distinction between the burden of producing evidence and the burden of persuasion, see Harder v. F.C. Clinton, Inc., 1997 OK 137, ¶8, 948 P.2d 298, 303; 2 L. Whinery, Oklahoma Evidence §§ 8.01-8.06 (2d ed. 1994). See also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 272, 114 S. Ct. 2251, 2255-2258, 129 L. Ed. 2d 221 (1994), for a scholarly discussion of the distinction between burden of persuasion and that of evidence production.

50 The shifting of burdens in a municipal annexation contest is somewhat analogous to the bailment law's allocation of burdens. When the fact of bailment and the return of the bailed property in a damaged condition is admitted, the burden of going forward with the evidence (but not the burden of persuasion) then shifts to the defendant-bailee to show that the damage did not result from bailee's failure to use due care. The due care proof constitutes a defense against a claim based on bailment. City of Enid v. Reeser, 1960 OK 191, ¶11, 355 P.2d 407, 409; Parkade Corporation v. Chehock, 1957 OK 151, ¶8, 312 P.2d 932, 934-35; Oklahoma City Hotel Co. v. Levine, 1941 OK 268, ¶10, 116 P.2d 997, 999, 189 Okl. 331; Standard Marine Ins. Co., Limited, of Liverpool v. Traders' Compress Co., 1915 OK 284, ¶0 syl., ¶8, 148 P. 1019, 1020-21, 46 Okl. 356. See also in this connection Volvo White Truck Corp. v. Vineyard, 387 S.E.2d 763, 766-67 (Va. 1990).

51 The protestants of a municipal annexation bear the burden of showing noncompliance with either the statutory annexation standards or the unreasonable features of the annexation process. By showing an unreasonably narrow connecting strip, protestants establish prima facie failure of evidentiary support for the judicial declaration of validity. While the burden of persuasion remains on the protestants, the burden of going forward with the evidence shifts to the city to prove there was in fact due compliance with the law. If the city does not assume its burden of going forward with the evidence, there would arise a failure of proof (on the point of reasonableness), which, in this case, would deprive the summary disposition for the City of the required legal support for a judicial declaration of validity.

DISSENTING OPINION

WATT, C.J., with whom HODGES, J. joins, dissenting:

¶1 I dissent because it seems to me that there is no way to square the majority opinion here with Sharp v. Oklahoma City, 1937 OK 685, 74 P.2d 383; Town of Luther v. State, 1967 OK 59, 425 P.2d 986; City of Claremore v. Town of Verdigris, 2001 OK 91, 50 P.3d 208; and Botsford v. City of Norman, 354 F.2d 491 (10th Cir. 1965), which we cited with approval in both Town of Luther and City of Claremore.

¶2 The foregoing opinions make clear that the use by a municipality of the "strip" method to annex additional territory is a political decision with which this Court will not interfere, regardless of the shape of the annexed property. For example, in City of Norman, the involved strip was sixty-seven feet wide and fourteen miles long. We held in Sharp, and quoted with approval in City of Claremore, "That the extent and shape which the annexed territory shall take is a political and not a judicial decision. . . ." City of Claremore, at ¶ 12. There is simply no way to square these opinions with today's majority opinion, which invalidates Seminole's annexation because the involved strip was only three feet wide.