The editor is blessedly innocent of much recent experience in this area. Is this how things are done everywhere?

Daily Development for Wednesday, February 19

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ZONING AND LAND USE; ANNEXATION: Wild and wooly annexation battles fulminate in Oklahoma - apparently licensed by court and Constitution.

City of Claremore v. Town of Verdigris, 50 P.3d 208 (Okla. 2001).

Owners of unincorporated land unanimously petitioned Town of Verdigris to annex land into its corporate limits. Verdigris had been incorporated only a few years before. Both it and another city, Claremore, were located generally about a mile distant from the landowner's property, but each of them had annexed separate narrow strips of land radiating outward from their city limits to the area of the property. Claremore's twenty foot wide strip of land was phyiscally contiguous to the landowner's property. Verdigris' fifty foot wide strip paralleled Claremore's, but lay on the other side. Between the two strips was a thirty foot strip of unincorporated property. (The court also says that Verdigris' strip "abutted" the subject property. It never tells us the difference between being "abutting" and being "contiguous.")

Claremore claimed that its city limits "enclosed" the landowners' property by virtue of its twenty foot wide strip. It made a series of arguments in its effort to prevent the Verdigris annexation:

First, Claremore argued that annexation was invalid because (i) Verdigris' foot wide strip did not make Verdigris "contiguous" to the annexed property as required by statute. The court responded that Oklahoma courts in the past had permitted the use of these "annexation strips." Although Verdigris' strip was not exactly contiguous to the target land, Oklahoma statutes required contiguity within sixty six feet.

The intervening, unincorporated thirty foot wide strip, coupled with Claremore's twenty foot strip, fell within the tolerance.

Certainly more interesting from a precedential standpoint, although not from a Euclidean perspective, were Claremore's second and third claims:

As its second claim, Claremore raised the language of an Oklahoma statute suggesting that a court could deny validity to an attempted annexation if it found that the subject property was surrounded by the corporate boundaries of another city and that city has demonstrated a "substantial governmental interest." The court found that this statute violated the separation of powers doctrine under the Oklahoma Constitution. It noted that annexation is strictly a political issue, and the existence of the appropriate basis for annexation lies in political, not judicial determinations. Consequently, the Oklahoma Legislature could not vest in a court the function of making a determination of whether a "substantial governmental interest" on the part of Claremore had anything to do with the validity of the annexation. (Note that the court did not seem to have a problem with the Legislature laying out other grounds defining when an annexation could arise, such as the statutory definition of "contiguity.")

The third claim was equally provocative: Claremore alleged that Verdigris had been able to establish it's "annexation strip" that close to the subject property only because Claremore had relocated its own annexation strip as part of an agreement to permit the incorporation of Verdigris. We aren't given enough about the arcannae of Oklahoma annexation wars to understand exactly how all this worked, but Claremore clearly thought that it deserved a hearing on the equities of the situation. (It hadn't had one below because the trial court had found that Verdigris was not "contiguous" and had denied annexation on that basis alone.) The Oklahoma Supreme Court held that it was not necessary to remand for a hearing on the equitable issues concerning estoppel because, as a matter of law, Verdigris could not be "estopped" in this way:

The court held that Oklahoma law was clear that municipalities could not agree by contract or be barred by estoppel from "protecting public rights," even when public officials have acted erroneously or failed to act.

Comment 1: In many developing areas, annexation wars can get quite vicious, as cities vie to draw valuable taxable property and utility service customers into their clutches, not to mention the extension of their land use control powers. The editor has never seen this "octopus" system of reaching out to establish contiguity before, but is does seem that the logical consequence of such a policy is a series of radiating annexation strips criss-crossing unincorporated development areas. What a system!!!

Comment 2: The court's conclusion on the estoppel point is interesting. In its summary, the court also stated that the city council could not bind future councils by contract to control their discretion on annexation.

Whether annexation decisions really involve the "protection of public rights" within the meaning of the prior case law seems questionable to the editor, especially when one would assume that some sort of mediated compromise makes a lot more sense than the wild proliferation of annexation strips in every direction. Compromise requires agreement, and agreements would need to be binding.