*1 decided that reviewing agency The independent transcribed. informa- contained sufficient record, without the transcriptions, asks that appellant to be determined. tion for issue of a in the record for the inclusion case be remanded transcription. contention. appellant’s real merit in
There is no maintained, does not either appear but the appellant were tapes tried to obtain have their transcriрtion have requested by appeal. fact No presented themselves. tapes question would that a suggestion transcription has been not even There to the issue This presented. application material provide anything see no reason to years. for three We has been in already progress further a useless remand. delay Affirmed. LEE, CITY OF PINE BLUFF
Hal O. et al. v. 710 S.W.2d 85-312 Court of Arkansas Supreme delivered June Opinion *2 Duckett, Henry, appellant. David P. & by: Henry Tolson, Jr., for appеllee. Robert case is an annexation Justice. This Hickman, Darrell to extend its Bluff sought Bluff. Pine of Pine involving the City city beyond conform to the actual boundaries to municipal pur- needed for land encompass limits and to ordinance, eight included of an way poses. proposal, existing around contiguous spaced tracts separate 6,000 9,147 over acres and includes encompasses limits. The area *3 and a map at an election annexation was approved people. new Several landowners reflecting the limits. city filed duly was protesting annexed tracts filed suit some of the from in one found that each tract land court trial according to for was land annexation proper or another respect 1980). That statute provides: Ark. Stat. Ann. 19-307.1 (Repl. vote two-thirds by Any municipality may governing body its making up number of members total to contiguous to annex lаnds said an ordinance adopt (1) platted the lands are either provided municipality, lots; or (2) use whether platted for sale or as municipal held as not, are to be sold suburban property; if the lands held for a settled densely when the lands furnish the abode (3) of the munici- or the actual community, represent (4) its when lands are beyond legal boundary; pality such as for the municipal needed for any proper purposes or when are regulation; (5) they extension of needed police reason of their for prospective valuable by adaptability uses. however, Provided, not that lands shall be contiguous value (1) annexed when either: have a fair market at they the ordinance of lands used only the time of the adoption highest for or horticulture agriculture purposes for or horticulture agriculture and best use of said lands is community lands which a new (2) or arе upon purposes; guaranteed constructed with funds in whole or be further, Provided, . that if government. the federal . . by used exclusively lands are annexed which are any continue to be used agricultural such lands purposes, may for such so as the owner desires and shall be long purposes agricultural lands. assessed
Land that satisfies one of the criteron any statutory may Rock, Little City annexed. Holmes 425 (1985). S.W.2d Some lands exclusively used
some lands loсated flood were included. witnesses plains Expert landowners, who testified for the out appellants, pointed tracts land or tracts that were not parts annexed in properly their the witnesses south opinion. Primarily focused limits. were offered that Opinions this area was too sparsely services, did need populated, not was a flood plain, agricultural land subject not to annexation. Witnesses supporting annexation tеstified at city’s length about characteristics land, and the need for suitability, attachment city. A land use comprehensive plan prepared Planning Commission was introduced. was Testimony given concerning officials’ consideration the annexation to its prior In a approval. detailed judgment, judge trial found that the landowners failed prove the lands subject were annexa- *4 tion. question A regarding legal the of the land description tо be annexed was in resolved favor of the city.
This appeal raises three (1) contentions: all lands comply 19-307.1; with the criteria of Ark. Ann. (2) agricultural Stat. § were lands included in of improperly violation Ark. Stat. Ann.
§19-307.1; and the (3) legal of the annexed lands description failed to with Ark. Stat. Ann. We find comply 19-307.2. no merit to appellants’ arguments.
It is the perhaps significant that appellants rely Rock, 256, v. City on Saunders Little 262 Ark. 556 of S.W.2d 874 This (1977). case reviewed the annexation proposed of 55 of square miles Little Rock. rejected We the City proposed ground annexation the narrow that the inclusion of lands mining voided entire Our in Saun proposal. decision Rock, ders was limited in Holmes v. Little sharply City supra, of Russellville, and City overruled v. 288 expressly Chappell of 208 261, we (In incorrectly 704 166 (1986). Chappell,
Ark.
S.W.2d
195,
Rock,
515 S.W.2d
Little
257 Ark.
City
cited Saunders v.
of
overruled;
read
it should have
(1974)
[Saunders /]
Rock,
256,
The rules appellate of electors majority cases in are well settled. A Arkansas case for voting prima in favor of makes annexation facie annexаtion, to those objecting and burden rests on case. prima sufficient evidence defeat the produce facie litiga- of (Cites omitted). very type nature of By tion, wide divergence there is a latitude opinion must be high reliance consequently, degree placed This findings (Cite omitted). trial upon judge court’s task is not to where the preponderance decide lies, to ascertain whether evidence but solely simply fact erroneous. findings clearly trial court’s are ARCP Rule 52. these
Our decisions since reflect a consistent application Russellville, Gay v. City standards. supra; Chappell 55, (1985). Ark. S.W.2d 723 With the Springdale, mind, court’s standard set forth in Holmes in we review the trial recitation, each verbatim findings regarding They tract. deserve wrong; for it is those prove clearly burden them appellants’ of fact are an findings included as addendum this opinion. attack the annexation of tracts appellants mainly include They which flood lands. are tracts plains 2B, 2C, south, 2A, 6. These tracts are southwest and southeast limits of Pine All include some Bluff. others; residential some more than some include small property, 2 Vi or 30 the main farms of to 20 acres. Tract straddles which *5 of traffic arteries and the intersection city southwest the B, 750 Highway and 65 includes several trailer and a parks growth acre farm. That land is the toward directly path city in mall. аdjacent and is to new Some airport a industrial witnesses conceded the mall will make all appellants’ adjoining more property valuable for including part development farm. Even the along owner of the farm conceded the farm and next to the one highway mall would enhanced in value. No proposed a line where that increased value would or end begin the farm. Thirty-eighth Street cuts this farm. The fact through that the land is agricultural owner does not want it does developed determine fate to annexation. Planque Eureka City S.W.2d Springs, (1967). The owner will not have to abandon its use and its for assessment taxation shall be as land. Ark. Stat. Ann. 19-307.1 1980). (Repl. Holmes,
In when we annexation of land that approved orchard, included a we pecan said:
. . tract, . .While a a pecan orchard exists on part of if permissible annex a tract that land tract is more valuable for city than even the purposes agriculture, if one tract is more farming valuable for than for city purposes. in
Simply because land is a flood does plain not exclude it from consideration for annexation. Holmes v. Little Rock, In this case the flood supra. plain generally separates existing from city limits residential growing beyond flood If plain. could not a flood encompass it would plain, mean its legal could not boundary be extended a low beyond lying area, creek swampland, although the growth the urban area side; continued on the other or it would mean the limits would somehow have to goor around the jump flood The trial plain. court found the proposal respect with the compliance statute. The court listened to the observed wit- testimony, nesses, exhibits, saw the and determined the flood did not plain prevent annexation.
Altogether, the city’s to be an proposed proves annexation honest effort by Pine Bluff to extend its boundaries to encompass the actual and land needed purposes as defined by law. That does not mean we will recognize annexation proposals that are essentially grabs land beyond actual growth of the city with no serious goal responsible
210 supra. City Springdale, v. Gay planning. use of burden to meet their have failed We that the appellants find wrong. There was clearly the trial demonstrating judge that of findings. all his support evidence ample of the legal description the argument regarding 19-307.2 provides law. Ark. Stat. Ann. is a question an contain accurate (1) shall annexation ordinance “[t]he than annexed.” Rather the be lands desired description encompass with a legal description tract each specify separately land, metes and describеd all the land the ing the proposed not description in the following “the area included bounds as Pine description encompassed in the Bluff.” The currently City One to be annexed. eight limits and the tracts existing city the the description for the that appellants witness testified expert one statutory requirements; be drawn to satisfy could not that while it was not the best description, for the said expert ordinance, could, referred to in the plat he with the aid of map Russellville, new In Parrish limits. 1000, a (1973), legal description, we held that 490 S.W.2d line, with statutory did not merely comply which described was distinguishable. map That case is Here requirements. ordinance, at one of the exhibits undoubtedly referred to in trial, with clerk after the and was filed the circuit duly “. found that . . the method although election. The trial court most it does used herein desirable description may to be sought describe the sufficiently property prоperly wrong. annexed.” That conclusion is not clearly Affirmed. J.,
Purtle, dissents.
ADDENDUM live areas following own land or in one plaintiffs 1, annexed, viz, 8. from Area 6 or Areas and extend Pine of Pine Bluff to the southwest part northeast Northwest, Bluff. west and southwest the direction represents residential, some considerable commercial and city growth There is that these areas major growth. industrial no question as are and held for sale or use sought largely be annexed рlatted not, lots; held to be sold whether or are platted and/or abode, furnish the in much They suburban property. communities, area, the actual settled densely represent boundaries. The flood *7 municipality beyond area which divides the is needed for plain proper fire such as and regulation, police proper development and flood is for highest control. The lands’ and best use protection something other than оr horticulture. agriculture #3, #4,
No one who in owned land or lived areas has #5 the Areas and opposed are almost solely §3 #5 residential and lands held to as be sold suburban clearly property and do the the represent growth actual of its municipality beyond legal boundaries. Both are growth fast areas for residential development. Area is §3 located in close proximity Rosswood Club and new Country residential many develop- mеnts. Area on the south end Ohio Street is small relatively with several new and is an dwellings city beyond extension of the the city limits.
Area land on either side of encompasses Highway 15 #4 South with the west boundary thereof the being present city limits less, east boundary running, more or with parallel 15 Highway South. On the end of north this area we find a rather wide flood and plain from there south several commercial and businesses many homes. There are some residential develop- ments on and off Highway South this area. Highway 15 South constitutes the reasonable only route for access to the extreme southern of Pine Bluff which part is west immediately Area vehicles Emergency must outside go the limits to #4. serve the southernmost part Pine Bluff. This southernmost area (between Pine Bluff area and area sought annexed) to be #3 #4 is well subdivisions of developed family dwellings. This area #4 definitely represents the actual growth the its сity beyond legal and boundaries is needed for proper municipal purposes extension of and fire police and protection, flood control proper land management in this area. planning #6,
Area a of which is is on located both sides of platted, Highway 65 South a and small east of the strip Martha Mitchell Expressway. Street from Thirty-eighth limits present city intersects Highway near the middle of this area. These arteries, transрortation major which are ones in the City of Pine Approximately people of area Bluff near the center merge #6. homes, four few residential type quite live in this area. There are busi- several commercial parks rather mobile home large area. south just is located nesses. The municipal airport commercial residences and development There has been rapid #6, area, an of area vicinity and in business in the immediate at this time constructed costing mall millions industrial Highway 65B between adjoining immediately this area forth across move back and limits 65. The Highway present out of vehicles move Emergency in this area. Highway 65 northeast Pine Bluff southeast going when from city limits for an furnishes the abode Bluff or vice versa. This area Pine #6 and the whole community, settled densely area that is partially city beyond actual represents east and north of of land strip boundaries. Also *8 such for proper purposes 65 are lands needed Highway regulation and fire and police as for the extension of needed drainage. sewage use and protection, proper planning, #7, between Lake which is is land platted, Area which is (Slackwater Harbor) Shops and Cotton Belt Langhoffer area includes the Pine Bluff already in the limits. This city There are eleven or Park on the Slackwater Hаrbor. Industrial and near more within the others park industrial businesses is a settled at community southern end of the area. There densely in distinctly, This whole area the southernmost end of area. and all furnishes abode for a settled part, densely community its city legal of the represents growth beyond the actual boundaries. is (which Pine Bluff presently
Area includes Lake #8 along and lands both by limits) surrounded three sides the city limits. extending city sides of 79 North north Highway Street are one and the same within Highway University forth across limits weave back and city present city limits. Street) this area and there are Highway (University 79 North in- residences and numerous commercial establishments many cluded in to be annexed. This area sought represents, doubt, without the actual beyond Oliver, lands along University, boundaries and also the such as are needed for Spruce proper municipal purposes Streets and fire these and police protection the extension of needed adjoining areas. This would alleviate the necessity emergency vehicles outside going gain limits access certain areas fairly which are densely populated. has with complied §19-307.1, Ark. Stat. Ann.
all the lands to be annexed were sought described and adequately at meet least one of the criteria for annexation. required Justice, Arkansas, John I. Purtle, dissenting. In cities are creatures of the General Assembly rights exercise those only and privileges conferred upon them law. by Likewise their responsibilities are generally legislature defined statute. The has granted cities right to annex contiguous under territory certain circumstances. The majority opinion correctly identifies the appropriate statutory as Ark. Stat. authority Ann. 19-307 et § This seq. statute specifies the five for conditions annexation. Any one of the five grounds qualifies the area for possible However, Ark. Stat. Ann. 19-307.1 states:
[Contiguous lands shall not be annexed when they either: (1) have a fair market value at the time of the adoption the ordinance of lands used only agriculture [agricul- or horticulture tural] [horticultural] highest and best use of said lands or horticulture (2) ... . purposes; [horticultural] The other statute pertinent this dissent is Ark. Stat. Ann. §19- (1) 307.2 which requires the to enact an ordinance municipality *9 an containing accurate to description lands be proposed annexed. It is that much my opinion of the nine thousand acres to be annexed were agricultural and that there was no accurate description annexed area contained in the ordinance of annexation.
One of the
to
exceptions
contiguous lands which
bemay
annexed is lands
which have fair market value of lands used only
or
agricultural
horticultural
and
purposes,
highest
their
and
best use is for such
See Ark. Stat. Ann.
purposes.
19-307.1.
Annexation of excluded lands is void. Saunders v. City Little
Rock,
256, 556
262 Ark.
(1977).
S.W.2d 874
I realize this Court
to
trampled
Saunders
some extent in
v. City
Holmes
Little
Rock,
296,
However,
285 Ark.
(1985).
Russellville, 261, (1986), 704 S.W.2d 288 Ark. one of the stated, does not meet proposed “If a Holmes in toto.” In area is voided then the entire requirements, case that in this stated, testimony “Thеre was an abundance we residential best suited for was the land annexed all agricultural purposes. rather than for commercial purposes could not agricultural purposes used for lands Before 55, 696 Also, v. City Springdale, in Gay annexed.” Holmes, held, may as that farmlands we (1985), S.W.2d 723 than other if best use is for a highest purpose be annexed their agricultural. dwelling contains one in the case present
The area annexed farm testified he had sod of land. Mr. Ben Pierce unit 5 acres per was in the land located 100 acres. This farm containing more than agricultural than for was no other potential where there floodway a 160 acre that there was Mr. Dean Parker testified purposes. addition, W. Phillips residence. In Robert farm to his adjacent of land since and his had owned 750 acres family testified that he land. This farm was also it been used as farm 1814 and had always highest was that the in the flood His testimony located plains. it had and that agricultural best use of the land was for This was not testimony no fair market value for other use. any and inference of by generalization employees disputed except Holmes, Gay The since changed Chappell, law has not City. farmlands, have we held that Saunders. In none these cases use, such, use and best highest which as and such is are used it. permit to Nor does law subject involuntary are the trial support finding by There is no basis in the record to highest that the and best use of these farm lands was for court in the areas of annexation in the some other vote purpose. against case was 9 to 1 ratio proposal. present is about existing the annexed area population granting power 1. In is unlimited opinion majority my are long they to annex and all lands so any municipalities contiguous contiguous contiguous municiрality I even if the and best use highest purposes. was not the intent of the when enacted legislature submit such the annexation statutes. *10 was contested in the the annexed lands description I believe the of the lands for proposed
trial court. description is commenced Basically annexation not accurate. description the areas at a on the and encircled all existing boundary point annexation, area fоr proposed including already incorporated returned to the City, beginning. purportedly point were None the tracts for annexation described proposed extent one could the individual In Parrish v. identify tract. Russellville, 253 Ark. court (1973), S.W.2d 126 held description that a was inaccurate when commenced at a point existing and terminated at another boundary on the point in Parrish was city boundary. description as it is in the case exactly аs it relates to each of the ten present areas for No proposed single area is encircled As to each tract the proposed boundary. description incomplete and inaccurate. We had similar situation in NLR v. City of Garner, 1025, 511 S.W.2d 656 wherein (1974), we held description to inaccurate. In Garner the started description at a on the point existing and ended at city boundary the Arkansas Parrish, River. Clearly, as area was identified geographical but we nevertheless held such to be inaccurate. The description annexing ordinance did not at time any describe the geographic boundary any area to be annexed. I have searched the record and find no evidence that a map proposed annexation was filed until after the election. It would not have been possible average citizen have determined the areas included in the at proposal by looking the ordinance. The metes and bounds description was defective in A “land my opinion. grab” of this magnitude should not be allowed without full with compliance the law. A city cannot annex another certainly common sense and the law tells me it cannot annex itself. The finding that the description properly sufficiently described the lands to be annexed did not rise to the legal requirement that the area be “accurately” described.
I would reverse and dismiss.