City of Horn Lake, Mississippi v. City of Southaven, Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-AN-00563-SCT
IN THE MATTER OF THE ENLARGEMENT
AND EXTENSION OF THE MUNICIPAL
BOUNDARIES OF THE CITY OF
SOUTHAVEN, MISSISSIPPI:
CITY OF HORN LAKE
v.
CITY OF SOUTHAVEN, MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
3/27/2002
HON. PERCY L. LYNCHARD, JR.
DESOTO COUNTY CHANCERY COURT
BILLY C. CAMPBELL, JR.
WILLIAM AUSTIN BASKIN
JERRY R. WALLACE
JERRY L. MILLS
RONALD LOUIS TAYLOR
CIVIL - MUNICIPAL BOUNDARIES &
ANNEXATION
AFFIRMED - 11/20/2003
BEFORE SMITH, P.J., WALLER AND CARLSON, JJ.
WALLER, JUSTICE, FOR THE COURT:
¶1.
The City of Horn Lake, Mississippi, appeals from the Chancery Court of DeSoto County's
approval of the annexation of 310.24 acres in DeSoto County (the "Proposed Annexation Area" or "PPA")
by the City of Southaven, Mississippi. The first two issues raised by Horn Lake pertain to an agreement
entered into by the city administrations of Horn Lake and Southaven wherein Southaven agreed not to
object to an annexation of the PAA by Horn Lake and declared the property to be in Horn Lake's natural
path of growth. Horn Lake argues that, based on this agreement, equitable estoppel and judicial estoppel
should bar Southaven's annexation of the PAA. Horn Lake also argues that the chancellor's decision to
allow Southaven's annexation of the PAA was manifestly wrong and was not supported by substantial and
credible evidence. Finding no merit in these issues, we affirm the chancellor's decision to allow Southaven
to annex the PAA.
FACTS
¶2.
In the 1990s, Horn Lake, which lies to the west of I-55, and Southaven, which lies to the east of
I-55, both experienced massive growth due to their proximity to the Memphis, Tennessee, metropolitan
area. Horn Lake and Southaven each annexed large tracts of land to accommodate the residential and
commercial growth. During this growth period, Southaven acquired, inter alia, some land which lay west
of I-55, but east of United States Highway 51.1
¶3.
In 1997, Southaven filed proceedings to annex certain land west of Highway 51. After five days
of trial in early 1998, Southaven and Horn Lake entered into an agreement whereby Southaven agreed not
to annex the land west of Highway 51 and would “not object to any future annexation filed by the City of
Horn Lake to annex any lands . . . West of the West right of way of Interstate 55.” Southaven also
stipulated that “the aforesaid tracts lie in the path of growth of the City of Horn Lake and should be
considered as a part of Horn Lake’s annexation reserve area.”
¶4.
After the agreement was made, Horn Lake annexed land lying to the south and west of Horn Lake,
but did not seek annexation of the PAA in question.
1
Highway 51 parallels and lies to the west of I-55.
2
¶5.
Southaven filed annexation proceedings in 2001 to acquire the 310.24 acres which are the subject
of this appeal. The 310.24 acres lies to the south and west of Southaven and are bisected by Highway 51.
A little over half of the entire tract already lay within Southaven's city limits. The PAA is owned in its
entirety by the College Road Land Company and is described as “completely unimproved land consisting
of uninhabited pasture land with scattered trees and rolling hills.” The owners requested Southaven to
annex the property, because they wanted to develop the property as a single unit under the regulations of
a single jurisdiction.
¶6.
Horn Lake filed a motion to dismiss based on Southaven's stipulation that land west of the I-55
west right-of-way was in Horn Lake's path of growth, and its agreement that it would not object to Horn
Lake's future annexation of land lying west of Highway 51. Southaven responded, stating that it was not
bound by the 1998 agreement because it had been entered into by a previous administration which ended
its term of office on June 30, 2001. Horn Lake countered that the “previous” administration was comprised
of exactly the same people as the “current” administration, and that equity demanded that Southaven abide
by the 1998 agreement.
¶7.
In denying Horn Lake’s motion to dismiss, the chancellor noted he could not find, and Horn Lake
had not cited, any authority which states that if the same city administration is reelected for a successive
term, the principle that one city administration cannot bind a succeeding administration does not apply. The
chancellor went on to find that Southaven's annexation of the PAA was reasonable under the totality of the
circumstances and in the best interest of the owners. From these orders, Horn Lake appeals.
DISCUSSION
STANDARD OF REVIEW
3
¶8.
For questions of law, we employ a de novo standard of review and will only reverse for an
erroneous interpretation or application of the law. T.T.W. v. C.C., 839 So. 2d 501, 503-04 (Miss. 2003).
¶9.
Our standard of review for annexation is very limited. We may only reverse the chancery court's
findings as to the reasonableness of an annexation if the chancellor's decision is manifestly wrong and is not
supported by substantial and credible evidence. Enlargement and Extension of Mun. Boundaries
of City of Madison v. City of Madison, 650 So. 2d 490, 494 (Miss. 1995). We also stated "[w]here
there is conflicting, credible evidence, we defer to the findings below." Bassett v. Town of Taylorsville,
542 So. 2d 918, 921 (Miss.1989). "Findings of fact made in the context of conflicting, credible evidence
may not be disturbed unless this Court can say that from all the evidence that such findings are manifestly
wrong, given the weight of the evidence." Bassett, 542 So. 2d at 921. "We only reverse where the
chancery court has employed erroneous legal standards or where we are left with a firm and definite
conviction that a mistake has been made." Id.
I.
¶10.
WHETHER EQUITABLE ESTOPPEL SHOULD BAR
SOUTHAVEN'S ANNEXATION OF THE PAA.
Equitable estoppel is a doctrine "by which a person may be precluded by his act or conduct, or
silence when it is his duty to speak, from asserting a right he otherwise would have." BLACK' S LAW
DICTIONARY 373 (6th ed. abr.1991). A party asserting equitable estoppel must prove a (1) belief and
reliance on some representation; (2) change of position as a result of the representation; and (3) detriment
or prejudice caused by the change of position. Mound Bayou School Dist. v. Cleveland School
Dist., 817 So. 2d 578, 583 (Miss. 2002); Covington County v. Page, 456 So. 2d 739, 741 (Miss.
1984).
A. Whether Annexation is a Discretionary Act or a Ministerial Act
4
¶11.
Southaven contends that neither equitable nor judicial estoppel apply because, where the act at
issue is a discretionary one instead of a ministerial one, one city administration cannot bind succeeding city
administrations. Biloxi Firefighters Assoc. v. City of Biloxi, 810 So. 2d 589, 593 (Miss. 2002)
(citing American Oil Co. v. Marion Co., 187 Miss. 148, 192 So. 296, 299 (1939); Tullos v. Town
of Magee, 181 Miss. 288, 179 So. 557, 558 (1938); Edwards Hotel & City R. Co. v. City of
Jackson, 96 Miss. 547, 51 So. 802, 805 (1910)).2
¶12.
We have never determined whether the power to annex is discretionary or ministerial, but the
statute conferring the power to annex uses permissive language, not mandatory: "When any municipality
shall desire to enlarge or contract the boundaries thereof by adding thereto adjacent unincorporated
territory . . . .," and, "In the event the municipality desires to enlarge such boundaries . . . ." Miss. Code
Ann. § 21-1-7 (Rev. 2001) (emphasis added). The use of this permissive language leads to the conclusion
that the power to annex is a discretionary act, not a mandatory act. Therefore, Biloxi Firefighters and
the other cases would apply to an agreement whereby a city administration agrees not to annex a certain
parcel of land, and that agreement would not be binding on successive administrations.
¶13.
On February 8, 2000, the landowners wrote a letter to the DeSoto County Planning Commissioner
in which they stated that they "intend[ed] to honor the current non-aggression agreement between
2
See also 56 Am. Jur. 2d Municipal Corporations:
Where the contract involved relates to governmental or legislative
functions of the council, or involves a matter of discretion to be exercised
by the council, unless the statute conferring power to contract clearly
authorizes the council to make a contract extending beyond its own terms,
no power of the council so to do exists, the council presently holding such
powers is vested with no discretion to circumscribe or limit or diminish
their efficiency, but must transmit them unimpaired to their successors. . .
.
5
Southaven and Horn Lake signed in 1998." We find that this letter is without significance because the "nonaggression agreement" was not valid after Southaven's city elections in 2001.
B. Limits on Equitable Estoppel
¶14.
Horn Lake states that equitable estoppel is not limited by the precedent set out above. Yet at least
one state has found that equitable estoppel does not apply where a governmental entity claims sovereign
immunity, see, e.g., Indiana Dep't of Envtl. Mgm't v. Conard, 614 N.E.2d 916, 921 (Ind. 1993),
except where there is "clear evidence that [the government's] agents made representations upon which the
party asserting estoppel relied." West Publ'g Co. v. Indiana Dep't of Revenue, 524 N.E.2d 1329,
1333 (Ind. Tax Ct.1988). However, the party claiming equitable estoppel against a governmental entity
"must show that estoppel is not inconsistent with the public interest, and this interest must be weighed and
balanced against the equities of the circumstances." Muncie Indus. Revolving Loan Fund Bd. v.
Indiana Const. Corp., 583 N.E.2d 769 (Ind. Ct. App. 1991).
¶15.
The public interest for Southaven to annex the PAA is without question. Southaven a growing by
leaps and bounds, and it needs more land in an area where land is at a premium. The cities of Southaven,
Horn Lake and Olive Branch are all jockeying for more land where undeveloped land is increasingly
scarce. Therefore, Horn Lake cannot show that estoppel "is not inconsistent with the public interest."
¶16.
Horn Lake claims that it detrimentally relied upon the agreement because, believing that the PAA
would eventually be annexed, it intentionally chose not to seek to annex the PAA when it had the
opportunity to do so. We find this contention to be without merit because Horn Lake, which seeks equity,
did not take affirmative steps to protect its rights under the Agreement. Horn Lake had a window of
opportunity to annex the PAA and it did not act. Weighing the equities, we find that Horn Lake was
"harmed" not by Southaven, but by its own negligence. This claim is without merit.
6
II.
¶17.
WHETHER JUDICIAL ESTOPPEL SHOULD BAR
SOUTHAVEN'S ANNEXATION OF THE PAA.
Judicial estoppel is a doctrine of law applied by a trial court to a situation where a party asserts one
position in a prior action or pleading but then seeks to take a contrary position to the detriment of the party
opposite. Mississippi Power & Light Co. v. Cook, 832 So. 2d 474, 482 (Miss. 2002); Mauck v.
Columbus Hotel Co., 741 So. 2d 259, 264 (Miss. 1999); Skipworth v. Rabun, 704 So. 2d 1008,
1015 (Miss. 1996). As we have stated:
[T]he doctrine "is based on expedition of litigation between the same
parties by requiring orderliness and regularity in pleadings." "[J]udicial
estoppel will be applied in civil cases where there is multiple litigation
between the same parties and one party knowingly 'assert(s) a position
inconsistent with the position in the prior' litigation." However, . . . where
the first position asserted was taken as a result of mistake, judicial
estoppel should not be invoked.
Mauck, 741 So. 2d at 264-65 (citations omitted).
¶18.
Horn Lake argues that Southaven is judicially estopped from annexing the PAA because of the
Agreement. Horn Lake alleges that the Agreement was entered in Cause No. 95-10-1199 in the Chancery
Court of DeSoto County, but a review of the record does not support this claim. No copy of the
Agreement included in the record has the style of a case or a civil action number. The copies of the
Agreement included in the record show only the signatures of representatives from Southaven and Horn
Lake and do not show the signature of a judicial officer. Southaven does not address this issue.
¶19.
For the sake of argument, consent decrees cannot ordinarily be modified without agreement by all
sides. Weeast v. Borough of Wind Gap, 621 A.2d 1074 (Pa. 1993). Nevertheless, municipalities that
unilaterally request to be let out of an old consent decree may be given special consideration on the ground
that an earlier city administration cannot bind succeeding administrations. Evans v. City of Chicago, 10
7
F.3d 474 (7th Cir. 1993). Rule 60(b)(5) of the Mississippi Rules of Civil Procedure allows for relief from
a judgment or order where "it is no longer equitable that the judgment should have prospective application."
Evans includes a worthwhile discussion of consent decrees and governmental entities and will be
reproduced here at length:
Although the decree purports to last for all time -- and the district court's
decision refusing to vacate the decree . . . reflects a belief that the
commitments ought to run perpetually -- democracy does not permit
public officials to bind the polity forever. What one City Council enacts,
another may repeal; what one mayor decrees during his four-year term,
another may revoke. Today's lawmakers have just as much power to set
public policy as did their predecessors. "Chicago" speaks through its
elected representatives, and the people are free to upset even the most
enlightened policies of earlier times. The current mayor wants to be free
of his predecessor's commitment, concluding that more flexibility over
budgets will promote the public welfare. People of good will could be on
either side of this disagreement; each mayor may have correctly perceived
the needs of the moment.
Governments are in this respect unlike corporations or other
contracting parties. A corporate board of directors may enter into
commitments that continue after new directors take office; a legislature
may not. True, governments may form contracts (for example, to build a
new road or repay a loan) and must keep these commitments by virtue of
the contract clause of the Constitution, Art. I, § 19, cl. 1. But temporary
officeholders may not contract away the basic powers of government to
enact laws -- or in this case to adopt budgets -- in the same way natural
persons may make enduring promises about their own future behavior. .
..
10 F.3d at 478.
¶20.
Because Horn Lake has failed to show that the Agreement was ever entered as a consent decree
in a cause of action, judicial estoppel does not apply. Furthermore, had the Agreement been entered in
a cause of action, Southaven could have filed a motion for relief from judgment pursuant to M.R.C.P.
8
60(b)(6), which, under the above precedent, would probably have been granted. This claim is without
merit.
III.
¶21.
WHETHER THE CHANCELLOR ERRED IN
DETERMINING THAT THE PROPOSED
ANNEXATION WAS REASONABLE UNDER THE
TOTALITY OF THE CIRCUMSTANCES.
We have set out a list of factors to guide the chancellor in his determination of the reasonableness
of a city's annexation request. "These factors, however, are only indicia of reasonableness, not separate
and distinct tests in and of themselves." Bassett v. Town of Taylorsville,542 So. 2d 918, 921 (Miss.
1989). The chancellor must consider all of these factors and determine whether under the totality of the
circumstances the annexation is reasonable. Id. at 921-22; In the Matter of the Extension of the
Boundaries of the City of Vicksburg, 560 So. 2d 713, 716 (Miss. 1990); In re Enlargement of
Corporate Boundaries of the City of Booneville v. City of Booneville, 551 So. 2d 890, 892
(Miss. 1989); In the Matter of the Extension of the Boundaries of the City of Jackson, 551 So.
2d 861, 864 (Miss. 1989).
¶22.
A determination of "reasonableness" has taken on a rather dubious connotation in Mississippi
jurisprudence:
As the law now stands, "The judicial function is limited to the question
whether the annexation is reasonable." Jackson, 551 So. 2d at 863.
Reasonableness is determined by analyzing twelve factors announced by
this Court in prior cases to see what they "indicate." Id. This approach
has been criticized as arbitrary for failing to provide adequate guidelines
for reaching the ultimate determination. See In the Matter of the
Enlargement of the Corporate Limits and Boundaries of the
City of Gulfport, 627 So. 2d 292 (Miss. 1993), (Smith, J., dissenting,
"I am convinced that the test has been expanded so far that now it is
absolutely meaningless."); Matter of Boundaries of City of
Vicksburg, 560 So. 2d 713 (Miss. 1990) (Sullivan, J. dissenting, "
9
'Reasonable' is now determined by the length of the chancellor's nose, or
foot, if you prefer."); Matter of the Boundaries of City of Jackson,
551 So. 2d 861, 878 (Miss. 1989) (Blass, J. dissenting, "[T]he
proliferation of 'indicia of reasonableness,' . . . can only lead one to the
conclusion that 'indicia of reasonableness' are either now devoid of
substance or so malleable as to be meaningless."). Although we retain our
"indicia" for the purposes of today's decision, we emphasize that fairness
to all parties has always been the proper focus of our reasonableness
inquiry. Thus, we hold that municipalities must demonstrate through plans
and otherwise, that residents of annexed areas will receive something of
value in return for their tax dollars in order to carry the burden of showing
reasonableness.
In the Matter of the Extension of the Boundaries of the City of Columbus, 644 So. 2d 1168,
1171 (Miss. 1994). The test of reasonableness, then, has evolved into the twelve indicia, as well as an
emphasis on whether people in the annexed areas are to receive something in exchange for their tax dollars.
¶23.
The twelve indicia, as found in Columbus, 644 So. 2d 1168, 1173, as well as Jackson, 551 So.
2d 861, 864, are as follows: (1) the need to expand; (2) the path of growth; (3) potential health hazards
from sewage and waste disposal in the annexed areas, (4) the municipality's financial ability to make the
improvements and furnish municipal services promised; (5) the need for zoning and overall planning in the
area; (6) the need for municipal services in the area sought to be annexed; (7) whether there are natural
barriers between the city and the proposed annexation area; (8) past performance and time element
involved in the city's provision of services to its present residents; (9) economic or other impact of the
annexation upon those who live in or own property in the proposed annexation area; (10) impact of the
annexation upon the voting strength of protected minority groups; (11) whether the property owners and
other inhabitants of the areas south to be annexed have in the past, and the foreseeable future unless
annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy
10
economic and social benefits of the municipality without paying their fair share of taxes; and (12) any other
factors that may suggest reasonableness.
A. The Need for Expansion
¶24.
The chancellor found that Southaven was a rapidly developing area with a “population explosion.”
Developments containing 4,614 residentials lots had been created since 1990. Between 1997 and 2001,
Southaven issued 3,782 building permits for residences. Southaven had experienced “unprecedented
commercial growth,” including retail establishments, warehousing and light industrial projects. Southaven
consisted of 34 square miles and the only vacant land left in the municipality had approved plans for
development. State rebated sales tax revenues reflected strong growth, increasing 68% between 1995 and
2001.
¶25.
Horn Lake does not question Southaven’s rapid growth, but states that all municipalities within
DeSoto County have had rapid growth. It further argues that Southaven has large vacant areas within the
city limits, something which we have determined to be relevant. See, e.g., Extension of the
Boundaries of City of Ridgeland v. City of Ridgeland, 651 So. 2d 548 (Miss. 1995); In re
Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So. 2d 270 (Miss.
1999); In the Matter of the Extension of Boundaries of City of Columbus, 644 So. 2d 1168,
1173 (Miss. 1994). Horn Lake points to the testimony of Southaven's planning director which revealed
that, in the twelve subdivisions approved since 1997, there were 4,774 vacant lots. Horn Lake also argues
that, when one compares the average of single family residence building permits over the last five years,
458, to the 4,774 vacant lots, Southaven has 10.4 years worth of vacant residential lots available for
development. Furthermore, in 2001, Southaven issued its lowest number (28) of commercial building
permits since 1997.
11
¶26.
Southaven contends that the numbers relied upon by Horn Lake were merely estimates and not
"hard numbers." Indeed, every response that Southaven's planning director made to questions about the
current percentage of development in Southaven's subdivisions included the word "probably."3
¶27.
Horn Lake also argues that there is no "spillover" growth or development in the PAA, such as there
was in Ridgeland, and that Southaven had not presented any plans for improving the PAA or to
implement municipal services therein. Southaven responds that the uncontradicted evidence showed that
the owners of the PAA expected to develop the land in the near future.
¶28.
We find that the chancellor's finding that this factor weighed in favor of Southaven was not
manifestly wrong and that the finding was supported by substantial and credible evidence.
B. Path of Growth
¶29.
Southaven, as originally incorporated, lay to the north and east of Horn Lake, between Horn Lake
and the Tennessee state line. In three subsequent annexations, Southaven acquired tracts of land east and
south of its city limits. In fourth and fifth annexations, Southaven acquired land west of its city limits up to
U.S. Highway 51.
¶30.
The chancellor found that, although a portion of the PAA lay within Horn Lake’s path of growth,
it also lay within Southaven’s path of growth. He placed emphasis on the fact that, even though Horn Lake
initiated annexation proceedings to double its size, the land to be annexed did not include the PAA:
"Although the proposed area of annexation in this cause lies in extreme close proximity to the City of Horn
3
When asked what percentage each subdivision was "built out," Southaven's planning director
responded "probably a third"; "It's probably a little better than half"; It's probably better than a third built
out"; "Oh, probably half. Right at a half"; "Probably half"; "Probably around a third"; and "It's probably
close to three-fourths built out."
12
Lake’s current boundaries, they did not seek to include it in that annexation, choosing instead to
concentrate their efforts of annexation more to the west than to the south.”
¶31.
Horn Lake argues that Southaven's Comprehensive Plan showed U.S. Highway 51 as the
boundary of its annexation planning area, and that, therefore, the PAA was not in Southaven's
comprehensive plan.
¶32.
Southaven responds that whether or not a tract of land is included in a plan for annexation is
irrelevant to the issue of path of growth. Indeed, we have enumerated certain factors to be considered
when determining whether a proposed annexation lies in the path of growth: (1) evidence that the PAA is
immediately adjacent to the city, Biloxi, 744 So. 2d at 280; (2) evidence that the PAA is accessible by
in use public streets, highways and roads, id.; (3) evidence that the PAA is experiencing spillover of urban
development from the city, id.; Ridgeland , 651 So. 2d at 556; (4) the limited area available for
expansion, Biloxi, 744 So. 2d at 279; (5) the geography, id.; (6) development in the PAA, id.; and (7)
proposed subdivision development, Madison, 650 So. 2d at 497.
¶33.
Whether or not Southaven included the PAA in its comprehensive plan is irrelevant to the issue of
whether the PAA was in Southaven's path of growth. We find that the chancellor's finding that this factor
weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial
and credible evidence.
C. Potential Health Hazards
¶34.
As the PAA is undeveloped with no residents and no structures, the chancellor found that there
were no health hazards from sewage or waste disposal which would affect the question of annexation.
¶35.
Horn Lake argues that this finding weighs against Southaven. We fail to follow the logic of this
argument. In other annexation cases, we have weighed this factor in favor of the annexing municipality
13
because the city's sewage and waste disposal are superior to those in the PAA. See, e.g., Hattiesburg,
840 So. 2d at 87. Because the PAA has no health hazards in the form of inadequately treated sewage or
waste, we find that the chancellor's finding that this factor weighed in favor of annexation was not manifestly
wrong and that the finding was supported by substantial and credible evidence. However, taking into
consideration Horn Lake's argument that there are no health hazards or waste disposal problems in the
PAA, this factor is at the least neutral.
D. Financial Ability
¶36.
The chancellor found that Southaven’s willingness and financial ability to provide municipal services
was “without serious debate." Southaven's bond rating by Standard & Poor's was A+. Sales taxes
collections had increased. Assessed property taxes increased 58% from 1998 to 2002. Audits showed
that Southaven was a well-run and fiscally responsible municipality. The mayor testified that the budget was
based on conservative projections which resulted in a budgetary surplus. The chancellor found that,
“Southaven’s record for providing services to its citizens in all respects [is] exemplary [and] above and
beyond that which is required by law.
¶37.
Horn Lake contends that Southaven has absolutely no plans to provide any municipal services to
the PAA. The Southaven police testified that, since there were no residents in the PAA, only cows, little
police supervision was needed. The proposed Southaven fire station, which was near to but not within the
PAA, would be more than adequate to respond to any brush fires on the PAA. Moreover, Horn Lake
supplies water and emergency medical coverage to the PAA. Because Miss. Code Ann. § 21-1-33
requires a chancellor to find that "reasonable public and municipal services will be rendered in the annexed
territory within a reasonable time" before approving annexation, and because Southaven failed to present
any plan for the implementation of municipal services, the chancellor's decision was in error.
14
¶38.
Because the PAA contains only 310 acres and Southaven's proposed police and fire protection
are more than adequate for the PAA, and because Southaven has an excellent financial record, we find that
the chancellor's finding that this factor weighed in favor of Southaven was not manifestly wrong and that
the finding was supported by substantial and credible evidence.
E. Need for Zoning
¶39.
The chancellor found that Southaven’s building and fire codes, zoning regulations, subdivision
regulations and enforcement officers were more than adequate to service not only the existing city but also
the proposed area of annexation. Since the PAA was totally unimproved and faced prospective
development, it would benefit from Southaven’s regulations. Furthermore, the PAA is only a part of the
tract of land owned by College Road Land Company. The rest of the tract already lies within Southaven's
city limits. It would be prudent, and the owners wish, to subject the entire tract to only one set of
regulations.
¶40.
Horn Lake argues that its zoning provisions are similar to Southaven's. Therefore, there can be no
reasonable finding that there is a need for zoning and planning in the PAA. ¶41.
We find that the
chancellor's finding that this factor weighed in favor of Southaven was not manifestly wrong and that the
finding was supported by substantial and credible evidence. However, taking into consideration Horn
Lake's argument that the regulations are similar, this factor is, at the least, neutral.
F. Need for Municipal Services
¶42.
After the owners of the PAA indicated that they planned to make a large residential or commercial
development, the chancellor found that the PAA would indeed need the municipal services which
Southaven offered such as fire and police protection, water and sewage services, brush and garbage
removal and code enforcement. Southaven’s services exceeded those offered by DeSoto County.
15
Included in Southaven’s annexation proposal was the plan to build a fire station less than half a mile from
the PAA. Southaven's fire rating was 5 whereas the PAA's fire rating was 10. The PAA's fire rating would
be lowered if the annexation were approved. The chancellor also noted that Southaven would be able to
use radar to control speeding on Highway 51, something that, under state law, neither Horn Lake nor
DeSoto County could do.
¶43.
Horn Lake calls future development of the PAA "highly speculative" because the owners testified
that there were no immediate or definite plans for development. In fact, the owners requested development
over a twenty-year period. Therefore, the PAA does not require any municipal services now or in the
foreseeable future.
¶44.
If the chancellor's decision was "highly speculative," Horn Lake's argument is "highly speculative"
also. Much testimony supported the chancellor's finding that development of the PAA would begin in the
reasonable future. Also, the PAA had been partitioned between three groups of family members, and each
of the three groups quitclaimed their interest to the newly-formed College Road Land Company to unify
the three tracts so that development could take place. Finally, the owners had had the PAA rezoned from
agricultural to "planned business" and hired an engineer to draw up a master plan for development which
had been approved by the DeSoto County Planning Commission.
¶45.
We find that the chancellor's finding that this factor weighed in favor of Southaven was not
manifestly wrong and that the finding was supported by substantial and credible evidence.
G. Natural Barriers
¶46.
The chancellor noted that the PAA immediately adjoined Southaven, that the PAA was a portion
of a tract of land, a part of which already was within Southaven’s city limits, that the east portion of the land
shared a common owner with the west portion of the land.
16
The PAA was intersected by U.S. Highway 51, which was not a barrier to annexation.
¶47.
Horn Lake concedes that Highway 51 is not a barrier, but submits that there should be some kind
of an effective and permanent barrier to divide cities. Highway 51 was one of the recognized barriers
between Horn Lake and Southaven.
¶48.
Horn Lake's argument is without merit because the relevant inquiry is whether the PAA is divided
by a natural or effective barrier, not, as Horn Lake suggests, whether, after annexation, natural or effective
barriers exists between two municipalities. See, e.g., Prestridge v. City of Petal, 841 So. 2d 1048,
1053 (Miss. 2003); In re Extension of the Boundaries of the City of Batesville, 760 So. 2d 697,
705 (Miss. 2000).
¶49.
Regardless, we have found that I-55 North was not a barrier to Southaven's expansion. Matter
of City of Horn Lake, 630 So. 2d 10, 13 (Miss. 1993). Therefore, Highway 51 should not be
considered to be a barrier to Southaven's expansion.
¶50.
We find that the chancellor's finding that this factor weighed in favor of Southaven was not
manifestly wrong and that the finding was supported by substantial and credible evidence.
H. Past Performance
¶51.
The chancellor found that, based on his earlier discussion, Southaven’s past performance in
providing services was “not only acceptable, but beyond comparison.” The mayor testified that after the
last major annexation in 1997, the city immediately began looking for appropriate locations for a temporary
fire house, which was later turned into a permanent one. A police substation and a public works park
facility were built.
¶52.
Horn Lake counters that "Southaven's annexation expert refused to testify that Southaven exceeded
all other cities in the State in the fulfillment of promises, and therefore, there was simply no proof to support
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a finding that Southaven's past performance has been "beyond comparison." Horn Lake also points out
that there have been "numerous and repeated 'reportable conditions' within Southaven's audits, some of
which were violations of State law." However, Horn Lake finally admits that "the testimony of Southaven's
satisfactory fulfillment of its prior annexation promises was unrefuted, and accordingly, this indicia weighs
in favor of annexation by Southaven."
¶53.
Because this issue is uncontroverted, we find that the chancellor's finding that this factor weighed
in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and
credible evidence.
I. Impact Upon Residents or Owners
¶54.
The chancellor found that no one lived in the PAA, and the only owner had requested annexation
by Southaven. A landowner's right to use his land "as he sees fit" is "cherished" by the Court. Hall v.
Wood, 443 So. 2d 834, 838 (Miss. 1983). See also Andrews v. Lake Serene Property Owners
Assoc., 434 So. 2d 1328, 1331, 1333 (Miss.1983). The landowner's use and enjoyment of his property
are limited only by the legitimacy of the purpose for which it is used. Home, Inc. v. Anderson, 235 So.
2d 680, 683 (Miss. 1970).
"For these rights to be meaningful, each property owner's use and enjoyment of his property must be
shielded from unreasonable interference by others--these 'others' ranging from the faceless sovereign to
one's next door neighbor." Hall, 443 So. 2d at 838.
¶55.
These principles apply to the case at bar. The landowners wished to be annexed by Southaven
because the greater part of the tract of land had already been annexed by Southaven, and they did not want
the tract to be divided by two governmental entities. These wishes should be followed unless an objector
can show that the landowners' wishes are not legitimate. Annexation is certainly a legitimate purpose.
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¶56.
We find that the chancellor's finding that this factor weighed in favor of Southaven was not
manifestly wrong and that the finding was supported by substantial and credible evidence.
J. Impact on Minority Voting Strength
¶57.
The chancellor found that, since no one lived in the PAA, this factor has no relevance. We find that
the chancellor's finding that this factor is neutral was not manifestly wrong and that the finding was
supported by substantial and credible evidence.
K. Whether the Owners Would Benefit from Proximity to Southaven
¶58.
The chancellor found that after the PAA is developed for residential or commerical purposes, and
considering, Southaven’s rapid growth, the owners would enjoy a substantial increase in the value of the
property.
¶59.
Horn Lake points out that the PAA was a cow pasture. "Other than some occasional glances from
Southaven's police officers, there was zero proof that either the cattle or the landowners are enjoying
benefits from Southaven without paying their fair share of taxes."
¶60.
It is true that the PAA has not benefitted from Southaven's provision of services because it is
pasture land. Therefore, this factor should be in favor of Horn Lake.
L. Other Factors
¶61.
The chancellor found that, considering Southaven’s long-standing relationship with the Horn Lake
Water Association, which had the certificate rights to the water and sewer of the PAA, Southaven’s
position was enhanced. A development which adjoined the PAA’s northeast corner, would enhance the
PAA’s development.
¶62.
Horn Lake argues that if the annexation were allowed, it would be yet another step toward the city
being landlocked. However, in view of the fact that Horn Lake has annexed a substantial amount of land
19
in the recent past, the Court should find that Horn Lake will not be in danger of being landlocked by
Southaven's annexation of the PAA.
¶63.
We find that the chancellor's finding that this factor weighed in favor of Southaven was not
manifestly wrong and that the finding was supported by substantial and credible evidence.
CONCLUSION
¶64.
We find that Horn Lake's claims of equitable estoppel and judicial estoppel are without merit
because of the prevailing law that succeeding city administrations cannot be bound by the actions of
preceding city administrations. We further find that the chancellor's dismissal of Horn Lake's objections
and his findings that Southaven's proposed annexation was reasonable under all the circumstances were
not manifestly wrong and that his findings were supported by substantial and credible evidence. Therefore,
the trial court's judgment is affirmed.
¶65.
AFFIRMED.
SMITH, P.J., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J.,
CONCURS IN RESULT ONLY. COBB, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. PITTMAN, C.J., AND DIAZ, J., NOT PARTICIPATING.
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