{ "id": 1876640, "name": "Edward GAY, et al. v. The CITY OF SPRINGDALE, Arkansas, and the SPRINGDALE CITY COUNCIL", "name_abbreviation": "Gay v. City of Springdale", "decision_date": "1985-09-30", "docket_number": "85-95", "first_page": "55", "last_page": "58-D", "citations": [ { "type": "official", "cite": "287 Ark. 55" }, { "type": "parallel", "cite": "698 S.W.2d 300" }, { "type": "parallel", "cite": "696 S.W.2d 723" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "280 Ark. 420", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744823 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0420-01" ] }, { "cite": "260 Ark. 890", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616684 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/260/0890-01" ] }, { "cite": "250 Ark. 660", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636866 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/250/0660-01" ] }, { "cite": "285 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877721 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0296-01" ] }, { "cite": "257 Ark. 195", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718658 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/257/0195-01" ] }, { "cite": "248 Ark. 633", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597748 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "636" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ark/248/0633-01" ] } ], "analysis": { "cardinality": 513, "char_count": 10618, "ocr_confidence": 0.896, "pagerank": { "raw": 1.7276343251580924e-07, "percentile": 0.70489901148677 }, "sha256": "e6d049a28b9a947e121594ad2daf876f3223566d72cad433ed9776ac80641cb2", "simhash": "1:22e690ddd51e7c3e", "word_count": 1782 }, "last_updated": "2023-07-14T20:17:15.669869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, J., not participating.", "Purtle, J., not participating." ], "parties": [ "Edward GAY, et al. v. The CITY OF SPRINGDALE, Arkansas, and the SPRINGDALE CITY COUNCIL" ], "opinions": [ { "text": "Robert H. Dudley, Justice.\nThe City Council of Springdale adopted an ordinance which proposed the annexation of five separate tracts of land totaling 7,000 acres. The land was predominantly used for agricultural purposes. An election was held, and the vote was in favor of the annexation. The remonstrants challenged the annexation in circuit court. The trial court upheld the annexation. We reverse.\nThe first paragraph of our annexation statute provides that a city may annex lands when one of five criteria is met.\nAny municipality may . . . adopt an ordinance to annex lands contiguous to said municipality, provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses.\nArk. Stat. Ann. \u00a7 19-307.1 (Repl. 1980).\nThe five criteria listed in the first paragraph of the statute are disjunctive, and annexation may be proper when any one of the five conditions is met. Faucett v. City of Atkins, 248 Ark. 633, 636, 453 S.W.2d 64, 67 (1970).\nHowever, the statute also contains a second paragraph. Before a 1975 amendment, the second paragraph, in part, provided \u201clands shall not be annexed when they are. . . used only for purposes of agriculture or horticulture. . . .\u201d We interpreted the second paragraph to mean that land used primarily for agriculture could not be annexed to a city, even if one of the five conditions of the first paragraph was met. Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W.2d 633 (1974). Shortly after our decision, the General Assembly modified the second paragraph to provide \u201clands shall not be annexed when they. . . have a fair market value . . . only for agricultural or horticultural purposes and the highest and best use of said lands is for agricultural or horticultural purposes. . . .\u201d Thus, the prohibition against annexing lands being used for agricultural or horticultural purposes is no longer absolute. Under the current statute such lands may be annexed to a municipality if the highest and best use of those lands is for something other than agriculture or horticulture and one of the five criteria of the first paragraph of the statute is met. Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985).\nIn the case before us, the lands sought to be annexed are primarily used for agricultural purposes, but the highest and best use is for something other than agriculture. Accordingly, the tracts are subject to annexation if any one of the criteria of the first paragraph is met.\nThe procedural rules are well settled to determine whether any one of the criteria is met: A majority of electors voting in favor of annexation makes a prima facie case for annexation, and the burden rests on those objecting to produce sufficient evidence to defeat the prima facie case. City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971). If only one of the five tracts is found to be improperly included in the annexation, the entire annexation must fail. Herrod v. City of North Little Rock, 260 Ark. 890, 545 S.W.2d 620 (1977).\nHere, a majority voted in favor of annexation, thus the remonstrants had the burden of producing evidence sufficient to defeat the prima facie case. They met that burden.\nFirst, the proof was clear that most of the land was neither platted nor held for sale as municipal lots. Second, the proof was overwhelming that the bulk of the land is held for investment purposes, agricultural purposes, or to be sold as two-to-five acre \u201cfarmettes.\u201d Therefore, it was not held to be sold as suburban property. Third, there are only 700 homes and 2,500 people in the entire 7,000 acres. Obviously, the tracts represent neither a densely settled area nor the actual growth of the city beyond its boundary. In fact, the appellees\u2019 testimony was entirely in terms of the future growth of the city beyond its boundary. Fourth and fifth, a number of witnesses testified by stipulation that \u201c[t]he lands are not needed for municipal purposes and are not adaptable for municipal purposes.\u201d These actual stipulations are not contradicted by opposing testimony. In view of the evidence, the proof is clear that the lands did not meet any one of the criteria set forth in the first paragraph of the annexation statute. Therefore, the lands are not eligible for annexation.\nNovember 12, 1985\nBecause of the decision we reach, it is not necessary that we discuss the other points of appeal.\nReversed and dismissed.\nPurtle, J., not participating.\nSupplemental Opinion on Denial of Rehearing\nRobert H. Dudley, Justice.\nOn petition for rehearing the petitioners, City of Springdale, et al., resolutely contend that this Court erred in basing its opinion upon the city\u2019s failure to meet one of the five annexation requirements of Ark. Stat. Ann. \u00a7 19-307.1 (Repl. 1980) because, petitioners contend, the issue was not raised in the trial court.\nClearly, an issue not raised at the trial court level may not be raised for the first time on appeal. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). In the oral argument before this Court, the petitioners claimed that the annexation requirements of the statute were not raised at the trial level. At that time we questioned the claim. We then discussed the matter in our decisional conference and again at our opinion conference. We concluded that while the statute was not expressly mentioned in the complaint, the matter was plainly and. fairly raised at the trial level.\nThe reasons for our decision were as follows: First, the evidence, as set out in the opinion, showed that there was a failure to meet any one of the five statutory requirements. Second, the trial attorneys, who are also the attorneys on appeal, plainly argued the matter to the trial court. We quote a part of petitioners\u2019 argument to the trial court which includes quotations\nfrom 19-307.1:\nMr. Herdlinger: [Petitioners\u2019 attorney]\nNow, let\u2019s go back to the first argument that, \u2014 that Mr. Evans gave. He says there\u2019s no purposes, but he just read you parts of sentences. When we go to the purposes clause, number three says: \u201cWhen the lands furnish the abode of a densely settled community.\u201d And, he stopped right there, but, the sentence goes on: \u201cOr, represent the actual growth of the municipality beyond it\u2019s boundary.\u201d And, that\u2019s exactly what it does. Look at the boundaries. These are just areas that represent the growth patterns outside of those boundaries. The city has grown to the stage that it\u2019s time to expand, expand those areas, in. And, that\u2019s what\u2019s represented by the red marks (indicating) out there. It also says, number four, it says, either, or, it could be any of these things, that\u2019s the argument for number three; but, the argument, also, is true for argument four: \u201cWhen the lands are needed for any proper municipal purposes, such as the extension of police regulation.\u201d There are other municipal purposes, obviously. The continuation of roads ....\nThird, the trial court was cognizant of the issue. We quote a part of the argument which was made by respondents\u2019 attorney and the court\u2019s response:\nMr. Evans: [Respondents\u2019 attorney]\nYour Honor, I think I\u2019d like to go back to those two sections, 19-307.1 and 19-307.2. 19-307.1 and 19-307.2 both were passed in 1975. To use 19-307.2 the city would have to have the requirements under 19-307.1 Those are the five things they must have. It says: \u201cAny municipality may, by two-thirds of the total members making up its governing body, adopt an ordinance to annex lands contiguous to said municipality, provided the lands are . . .\u201d; and, then, it lists the five things: Platted and held for sale for use as municipal plots. Whether it was platted or not, if held to be sold as suburban property. When the lands furnish an abode for a densely settled community, or represent the growth of the municipality beyond its legal boundaries. When it\u2019s necessary for police regulation; and five, when they are valuable by reason of their adaptability for prospective municipal uses. There is all the stipulated testimony in the record, couched with those five, none of which are met. There is testimony from the mayor which shows none of these five have been met. There was testimony from Mr. Berry which showed none of these five had been met. There was testimony from Mr. Reed that also showed that about five of them, \u2014 of the five, \u2014 have not been met. Reading what he said and applying it. Now, if that is so, if the city didn\u2019t have the platted lands held or sold as municipal plots, the densely populated area, the need for the police protection; if they didn\u2019t have all of those things, they could not go under 19-307.2. They are companion statutes, which means you have got to go back to the area, and let their vote count. 19-307.1 and 19-307.2 are steps. They are stairsteps in the process that has to be gone through. If these five things exist, you can use \u2014\nThe Court:\n\u2014 Either. It says, either.\nMr. Evans:\nYes, sir.\nThe Court:\nEither one of them will work.\nMr. Evans:\nYes, sir, I am saying none of the five were even met. Police regulation? They don\u2019t need it. Everything we went through with that \u2014\nThe Court:\n\u2014 Well, what about three and four?\nMr. Evans:\nA densely settled community? There\u2019s seven hundred people on seven thousand acres. Seven hundred homes in seven thousand acres. That\u2019s not densely settled or populated ....\nFourth, the petitioners did not claim surprise and responded to all arguments concerning the statute.\nAfter considering the matter, we concluded that the petitioners\u2019 failure to meet any one of the five statutory annexation requirements was plainly and fairly raised in the trial court, and that we should decide the case on the basis stated in the opinion.\nRehearing denied.\nPurtle, J., not participating.", "type": "majority", "author": "Robert H. Dudley, Justice. Robert H. Dudley, Justice." } ], "attorneys": [ "Evans & Evans, by: James E. Evans, Jr., for appellant.", "Herdlinger, Jacoway & Stanley, P.A., by: David S. Herdlinger, for appellee." ], "corrections": "", "head_matter": "Edward GAY, et al. v. The CITY OF SPRINGDALE, Arkansas, and the SPRINGDALE CITY COUNCIL\n85-95\n696 S.W.2d 723 698 S.W.2d 300\nSupreme Court of Arkansas\nOpinion delivered September 30, 1985\n[Supplemental Opinion on Denial of Rehearing November 12, 1985.]\nEvans & Evans, by: James E. Evans, Jr., for appellant.\nHerdlinger, Jacoway & Stanley, P.A., by: David S. Herdlinger, for appellee.\nPurtle, J., not participating." }, "file_name": "0055-01", "first_page_order": 81, "last_page_order": 88 }