COUNTY OF SARPY, A BODY CORPORATE AND POLITIC, APPELLEE, V. CITY OF GRETNA, A NEBRASKA MUNICIPAL CORPORATION, APPELLANT.
No. S-20-330
Supreme Court of Nebraska
May 28, 2021
309 Neb. 320
Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives the party the benefit of all reasonable inferences deducible from the evidence. - Annexation: Ordinances: Equity. An action to determine the validity of an annexation ordinance and enjoin its enforcement sounds in equity.
- Equity: Appeal and Error. On appeal from an equity action, an appellate court decides factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the trial court‘s determination.
- Annexation: Agriculture. The issue of whether annexed territory is agricultural land that is rural in character is a question of law.
- Summary Judgment: Expert Witnesses: Testimony. A conflict of expert testimony regarding an issue of fact establishes a genuine issue of material fact which precludes summary judgment.
- Expert Witnesses. Two experts coming to different legal conclusions on the same issue does not create a material issue of fact.
- Municipal Corporations: Annexation: Agriculture.
Neb. Rev. Stat. § 17-407(2) (Cum. Supp. 2020) does not prohibit annexation of all agricultural lands, but only those agricultural lands which are rural in character. Lands may be currently utilized in an agricultural fashion and still not be rural in character. - Annexation: Words and Phrases. The word “rural” is defined as of or pertaining to the country as distinguished from a city or town, and the word “urban” is defined as of or belonging to a city or town.
Ordinances: Proof. The burden is on the one who attacks an ordinance, valid on its face and enacted under lawful authority, to prove facts to establish its invalidity. - Municipal Corporations: Annexation. To determine whether lands are urban or suburban, or rural, the test is whether a city has arbitrarily and irrationally used the power granted therein to include lands entirely disconnected, agricultural in character, and bearing no rational relation to the legitimate purposes of annexation.
- Annexation: Agriculture. The use of land for agricultural purposes does not necessarily mean it is rural in character. It is the nature of its location as well as its use which determine whether it is rural or urban in character.
- Municipal Corporations: Annexation. The annexation of land by a city is a legislative matter. However, courts have the power to inquire into and determine whether the conditions exist which authorize the annexation thereof.
- Annexation. It is not for the courts to determine what portions of land may be properly annexed, because the fixing of boundary lines under this authority is a legislative act.
Appeal from the District Court for Sarpy County: STEFANIE A. MARTINEZ, Judge. Reversed.
Jeff C. Miller, Duncan A. Young, and Keith I. Kosaki, of Young & White Law Offices, for appellant.
Kayla N. Hathcote and Gage R. Cobb, Deputy Sarpy County Attorneys, and Stephen Hueber, Senior Certified Law Student, for appellee.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
FUNKE, J.
This is an action filed by the County of Sarpy, Nebraska, to determine the validity of two annexation ordinances and a zoning extension ordinance adopted by the City of Gretna, Nebraska. The district court granted Sarpy County‘s motion for summary judgment, denied Gretna‘s motion for summary
BACKGROUND
Gretna is a city of the second class under
Ordinance No. 2003 annexed contiguous territory to the east and south of Gretna‘s existing corporate limits. This territory included undeveloped parcels; tax lots; Sanitary and Improvement District (SID) No. 258 of Sarpy County; four developed residential subdivisions consisting of Covington, Forest Run, Lyman Highlands, and Green Acres Estates; and three single-lot subdivisions of Pumpkin Hollow, Mintken‘s Addition, and Lot 2 Fenton Addition Replat 2. Ordinance No. 2003 also included Vala‘s Pumpkin Patch (Vala‘s) and adjacent parcels south of Interstate 80 (I-80).
Ordinance No. 2004 annexed territory located further east, including some undeveloped parcels; tax lots; and SID Nos. 48, 176, 202, 250, 251, and 282 of Sarpy County. Ordinance No. 2004 also annexed residential subdivisions and commercial and industrial developments located further еast, consisting of Country Estates; Harder Subdivision Replat 1; M&M Acres; The Hill; Wicks Southpointe; Lake Ridge Estates; Murray Sapp; Murray Sapp Replat 1; 370 Storage; SWN Investments
Prior to Gretna‘s adoption of the ordinances, on September 12, 2017, the board of commissioners for Sarpy County adopted Sarpy County‘s cоmprehensive plan “for the build-out of Sarpy County.” The plan stated that Sarpy County is the fastest growing county in the State of Nebraska with the third largest population, behind only Douglas County and Lancaster County, and that by 2040, Sarpy County‘s population was projected to increase by 75 percent.
On September 28, 2017, Gretna issued an annexation study and plan for furnishing municipal services. The study noted substantial economic development and growth within the city and surrounding areas. According to the study, the territory annexed under Gretna‘s plan “is either in close proximity to the current corporate limits or in the middle of the City of Gretna‘s future growth area.” Both ordinance No. 2003 and ordinance No. 2004 contained an I-80 gateway and community entrance to the city. Ordinance No. 2003 contained a planned I-80 interchange between South 186th and South 192d Streets. Ordinance No. 2004 contained the Highway 370 corridor, which was the eastern entrance for the city and connected to I-80. Gretna designated both community entrances as special character areas in its 2017 comprehensive plan update. Under Gretna‘s plan, the I-80 interchange in ordinance No. 2003 will initiate the development of the South 192d Street corridor to the north and lead to development east and west on the Highway 370 corridor. Gretna found that annexing these areas will promote growth, increase the city‘s population and tax base, and preserve the city‘s future growth areas.
Gretna filed an answer which denied the allegations and asserted that the ordinances and annexations were lawful, valid, and in compliance with
Each party submitted an annotated statement of undisputed facts. The record established that ordinance No. 2003 contained contested parcels 1 through 11 and 19 through 22, which represented aрproximately 655 of the 1,075 acres annexed under ordinance No. 2003. Vala‘s, consisting of six parcels and approximately 400 acres, was included within the challenged parcels in ordinance No. 2003. Parcels 12 through 18 are located within ordinance No. 2004 and represented approximately 373 of the 1,878 acres annexed under ordinance No. 2004.
For purposes of summary judgment disposition, the parties agreed that all of the contested parcels contain undeveloped land used for agricultural purposes and that all of the contested parcels were accessed by unimproved roads and lacked connections to municipal water and sewer services. Gretna has planned for future street, interchange, and highway improvements for the contested areas and has planned to provide water, sewer, and utilities services to the contested areas. However, the timeframe for these plans will depend on future development.
All of the contested parcels were located in the Gretna school district, which had grown in student population by approximately 8 percent annually over the previous 11 years. A seventh elementary schoоl was projected to open in the fall of 2021 on the northeast corner of South 192d Street and Schram Road, which abutted contested parcel 2 in exhibit 16-A, shown above. Gretna submitted an affidavit from a certified planner,
Gretna submitted an affidavit from Trenton J. Rengo, a licensed appraiser, who stated that the highest and best use of the contested parcels was for either residential acreаges or future subdivision development. According to Rengo, the fair market value of the contested parcels, when used for future development or residential acreages, was between $20,000 and $40,000 per acre, as compared to an agricultural use value of approximately $10,500 per acre.
All of the contested parcels were designated with “greenbelt” special valuation status for property tax purposes under
On April 16, 2020, the district court issued its order granting Sarpy County‘s motion for summary judgment and denying Gretna‘s motion for summary judgment. The court accepted Sarpy County‘s arguments that the contested parcels qualified as agricultural land that is rural in character, because the parcels were undeveloped and were being used for agricultural purposes, the parcels would not be connected to municipal services until development occurred, and the parcels received greenbelt tax assessment status. The court found that none of the contested parсels were currently being developed and that while Gretna had substantially grown in recent years, the growth had not trended in the general direction of the areas which Gretna sought to annex. Lastly, because Gretna sought to annex several SID‘s, the court found that approval of annexation would stifle development of the area. Accordingly, the court invalidated ordinances Nos. 2003, 2004, and 2005.
Gretna appeals. We granted bypass at the parties’ request.
Gretna assigns that the district court erred in (1) finding that the contested parcels qualified as agricultural land that is rural in character, (2) granting Sarpy County‘s motion for summary judgment and invalidating the annexation ordinances and zoning extension ordinance, and (3) failing to grant Gretna‘s motion for summary judgment and uphold the validity of the ordinances.
STANDARD OF REVIEW
[1] In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives the party the benefit of all reasonable inferences deducible from the evidence.1
[2-4] An action to determine the validity of an annexation ordinance and enjoin its enforcement sounds in equity.2 On appeal from an equity action, an appellate court decides factual questions de novo on the record and, as to questions оf both fact and law, is obligated to reach a conclusion independent of the trial court‘s determination.3 The issue of whether annexed territory is agricultural land that is rural in character is a question of law.4
ANALYSIS
[5,6] In the form of competing motions for summary judgment, the issue presented to the district court was whether Sarpy County showed, under
[7,8] Section 17-407(2) provides that cities of the second class may annex contiguous or adjacent lands which are urban оr suburban in character and prohibits the annexation of “agricultural lands which are rural in character.” We have previously recognized that this language does not prohibit annexation of all agricultural lands, but only those agricultural lands which are rural in character.8 “[L]ands may be currently utilized in an agricultural fashion and still not be rural in character.”9 The
[9,10] The burden is on the one who attacks an ordinance, valid on its face and enacted under lawful authority, to provе facts to establish its invalidity.11 To determine whether lands are urban or suburban, or rural, the test is “‘whether a city has arbitrarily and irrationally used the power granted therein to include lands entirely disconnected, agricultural in character, and bearing no rational relation to the legitimate purposes of annexation.‘”12
Gretna argues that Sarpy County failed to prove that the ordinances are invalid. Gretna argues that while there is no dispute that the contested parcels were undeveloped and were being used for agricultural purposes, the location of the area and its proximity to growth areas show that the annexed territory is urban or suburban in character. Upon de novo review, we conclude that Gretna‘s arguments are well founded. The annexed territory does bear a rational relation to legitimate purposes of annexation, and the district court erred in finding that the annexed territory contained agricultural land that is rural in character.
[11] In its determination, the district court characterized the contested areas primarily based on current uses. In its appellee brief, Sarpy County‘s principal defense of the court‘s decision is that the parcels are currеntly undeveloped and are being used for agricultural purposes. However, this argument is flawed, because this court has previously stated that “‘[t]he use of land for agricultural purposes does not necessarily mean it is rural in character. It is the nature of its location as well
The district court primarily relied upon our 1952 decision in Wagner v. City of Omaha.14 In Wagner, property owners challenged an ordinance which annexed unincorporated land east of Omaha, Nebraska, near the Missouri River. The area experienced standing water during wet seasons, but ordinarily wаs dry and could be farmed. The area contained limited retail and industry. The district court declared the ordinance invalid and enjoined the city from enforcing it. We affirmed, because “somewhere between 90 and 103 acres of the area sought to be annexed is unplatted agricultural lands which are rural in character and over which the city did not have authority to extend its boundary.”15
The district court here found that Gretna annexed agricultural land that is rural in character, because, as in Wagner, the contested parcels within ordinance No. 2003 were not platted into lots, were not planned for any subdivisions, were not connected to sewer and water services until development occurs, and were being used for agricultural or horticultural purposes. This analysis is correct to a point. However, under this court‘s precedent, further inquiry is required when examining the overall character of annexed territory.
As Gretna set forth in its brief, in determining whether agricultural land is rural in character, in addition to considering the annexed area‘s current use, this court has considered other factors such as an area‘s proximity to growth areas,16 including the “undisputed location, character, and degree of
Sarpy County does not contest that Gretna is rapidly developing, but argues that the trend of development has been to the north and west, and not to the east and south, where the contested parcels are located. Sarpy County therefore argues this case is unlike Sullivan. This argument is insufficient to overcome the area‘s urban character.
Under the relevant authority, there is no requirement for Gretna to show that the annexed area goes through the heart of a rapidly developing area. In the 70 years since our deсision in Wagner,21 we have repeatedly recognized that land need not already be zoned and developed into a nonagricultural use before it can be annexed.22 We have noted that any such construction of the annexation statutes would seriously impair intelligent planning and coordination of the changeover
Here, the district court failed to give sufficient consideration to contemplated future development оf the annexed area. Under the city‘s 2017 comprehensive plan update, the proposed I-80 interchange at 192d Street and the existing Highway 370 corridor are designated as community entrance and special character areas and are expected to develop the contested areas into the city‘s future growth areas. The city, the county, the state, and other governmental agencies all have plans to develop the area, because it is the fastest growing area in Nebraska. These are characteristics “belonging to a city” and not “pertaining to thе country” and are accordingly urban or suburban in nature.
In our most recent decision on this issue, SID No. 196 of Douglas County v. City of Valley,25 we rejected the challenger‘s argument that the city had annexed agricultural land that is rural in character where there had been no residential development on the property at the time of summary judgment. We considered the evidence of contemplated future development26 and concluded that the challenger‘s argument failed to establish that the city had exercised its annexation authority arbitrarily and irrationally. We further concluded that the land in question, at the time of annexation, did bear a “‘rational relation to the legitimate purposes of annexation.‘”27 Likewise here, even though the plans for development will take time, we are not persuaded that the city has acted arbitrarily or irrationally.
Additionally, Sarpy County failed to show that Vala‘s is rural in character. The record shows that Vala‘s commenced operations in the early 1990‘s as a seasonal commercial and rеcreational facility operating from September to November each year. Since its beginnings, Vala‘s has expanded its operations to involve over 100 buildings, structures, and attractions, as well as 4,964 parking spots. Pursuant to special use permits issued by the county, Vala‘s now runs multiple commercial
Adjacent to the south of Vala‘s are parcels 19 through 22, located south of I-80. Under
Parcel 19 is located within the Papillion Creek Watershed and the Platte River Watershed. Parcels 20 through 22 are located within the Papillion Creek Watershed. According to Rengo, the subject properties are not located in a flood hazard area. All public utilities are able to be extended to the properties within the Papillion Creek Watеrshed, and all utilities, except for sewer, are able to be extended to the portion of parcel 19 located in the Platte River Watershed. Rengo stated
Having considered the present uses of the annexed territory, as well as its contemplated future uses and existing plans for development, we find that the annexed area is urban in character and that the ordinances are a lawful exercise of the city‘s annexation powers.
For completeness, we address novel arguments raised by Sarpy County and relied upon by the district court. Sarpy County argues that the greenbelt tax assessment status of the contested parcels render them rural in character. Under
[12,13] Lastly, the district court accepted Sarpy County‘s argument that annexation would eliminate SID‘s in the area, and would therefore limit resources available for development. This argument is not relevant to the question of whether the city acted within its annexation authority. The annexation of
Based upon all of the foregoing, Sarpy County has failed to prove that the ordinances adopted by Gretna are invalid. Gretna‘s appeal has merit.
CONCLUSION
The annexation ordinances and zoning extension ordinances adopted by Gretna were valid under the relevant statutory authority. The judgment of the district court should be and is hereby reversed.
REVERSED.
CASSEL, J., dissenting.
Because the “reach” of Gretna‘s ordinances exceeds the “grasp” authorized by state annexation law,1 I would affirm the district court‘s judgment. Where any part of a municipal annexation is of agricultural lands which are rural in character, the entire ordinance must be invalidated, because the drawing of boundary lines is a legislative act and a court has no authority to revise the boundary line of a city, as extended by the ordinance.2
The majority opinion fails to apply the principle here to agricultural land. Particularly, tracts 19 through 22 are separated
Further, I am troubled by the majority opinion‘s reliance on a fleeting reference to increased property value in Holden v. City of Tecumseh.3 The Holden court‘s decision was driven by the peculiar growth of Tecumseh in an “L” shape around the annexed tract. The reference there to value must be viewed in that context. Here, Gretna has been growing away from, not near or around, the contested parcels—especially tracts 19 through 22. Despite the majority‘s attempt to disclaim its opinion‘s effect, it allows Gretna to justify its overreach by citing increased property valuations—which exist around any city‘s limits—to annex rural agricultural land. This approach paves the way for a city to expand in any direction it wants, regardless of its directional development, by citing increased property valuations.
I respectfully dissent.