DANIEL L. STUECKEMANN and CATHY S. STUECKEMANN, Trustees of the Stueckemann Living Trust Dated May 13, 2004, and Any Amendments Thereto, and CEDAR LAKE ASSOCIATION, a Kansas Not-For-Profit Corporation, Appellants,
THE CITY OF BASEHOR, KANSAS, A KANSAS MUNICIPAL CORPORATION, Appellee
[Copyrighted Material Omitted]
Review of the judgment of the Court of Appeals in an unpublished opinion filed September 7, 2012. Appeal from Leavenworth District Court; DAVID J. KING, judge.
BY THE COURT
1. Appellate courts review challenges to a city's description of the land it intends to annex for substantial compliance with the relevant statutes. Substantial compliance means compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.
2. Whether a party has substantially complied with a statute generally involves statutory interpretation, a question over which appellate courts exercise de novo review.
3. The fundamental purpose of the annexation provisions requiring a description or depiction of the land subject to annexation is to inform the affected stakeholders of the city's decision about what land is to be annexed.
4. Under the facts of this case, the City of Basehor's description and depictions of the land subject to annexation substantially comply with the annexation statutes.
5. The fundamental purpose of the annexation statutes requiring notice and a public hearing is to afford landowners notice of the city's annexation plan and the opportunity to be heard.
6. Under the facts of this case, the City of Basehor's correction of the erroneous legal description in the annexation resolutions before publication of the annexation ordinance substantially complies with the annexation statutes.
7. Appellate courts review a city's service plan for substantial compliance with the relevant annexation statutes.
8. The purpose of the service plan provisions in the annexation statutes is to inform the affected landowners of the city's decision, what municipal benefits they will receive, and what cost they will incur. The statutes require this notification so the affected landowners may attempt to persuade the city that annexation would not be in the best interests of either party.
9. A bona fide service plan covering each major governmental and proprietary service to be furnished the land to be annexed will substantially comply with the 3 annexation statutes. A bona fide service plan is one prepared and submitted by the city in accordance with the statutes in good faith and with honest intentions to implement the plan as submitted.
10. Under the facts of this case, the City of Basehor's service plan substantially complies with the annexation statutes.
11. The 2005 adoption of the provision in K.S.A. 2014 Supp. 12-538 permitting a landowner to challenge whether a city's unilateral annexation decision was reasonable did not codify prior annexation caselaw addressing reasonableness. Instead, it expanded the grounds on which a landowner may challenge an annexation decision to include a challenge for substantive reasonableness.
12. A city's actions are quasi-judicial if state or local law requires: (1) notice to the community before the action; (2) a public hearing pursuant to the notice; and (3) application of criteria established by law to the specific facts of the case. Under this standard, a city's unilateral annexation decision is a quasi-judicial action because the annexation statutes require (1) notice to the community before the action under K.S.A. 2014 Supp. 12-520(a)(1); (2) a public hearing pursuant to the notice under K.S.A. 2014 Supp. 12-520a(a)(1), (b), (e); and (3) application of 16 established criteria to the specific annexation for guidance in determining its advisability at the hearing under K.S.A. 2014 Supp. 12-520a(e).4
13. Reasonableness under K.S.A. 2014 Supp. 12-538 is a correct basis for a landowner challenging, and consequently the resultant standard for a court reviewing, a city's unilateral annexation decision. The challenging landowner has the burden of proving unreasonableness under K.S.A. 2014 Supp. 12-538 by a preponderance of the evidence. In reviewing an annexation decision for reasonableness, a court may not substitute its judgment for that of the decision-maker.
14. A court reviewing a city's unilateral annexation decision may consider the value of new municipal services in relation to the amount of new taxes imposed. But the suggestion that an annexation is necessarily unreasonable when the value of new services does not exceed the new taxes imposed is without merit.
15. A court reviewing a city's unilateral annexation decision may consider the inherent benefits residents enjoy by virtue of their proximity to the city.
16. Under the facts of this case, the City of Basehor's annexation decision was reasonable.
James R. Orr, of Westwood, argued the cause and was on the briefs for appellants.
Patrick G. Reavey, of Reavey Law LLC, of Kansas City, Missouri, argued the cause and was on the brief for appellee.
NUSS, C.J.: MICHAEL J. MALONE, Senior Judge, assigned.
[301 Kan. 720] Nuss, C.J.:
This case arises from the City of Basehor's unilateral annexation of Cedar Lake Estates (Estates), a platted subdivision adjoining the City. Daniel L. Stueckemann and Cathy S. Stueckemann, as trustees of the Stueckemann Living Trust, and the Cedar Lake Association (collectively the Stueckemanns) sued the City to invalidate the annexation on numerous grounds. The district court and Court of Appeals rejected all of the Stueckemanns' arguments and upheld the annexation.
On appeal to this court, the Stueckemanns confine their arguments to three distinct issues. Reordered and recast for clarity, the issues, and our accompanying holdings, are as follows:
[301 Kan. 721] 1. Did the district court and Court of Appeals err by concluding the City's plan adequately describes the land subject to the annexation? No.
2. Did the district court and Court of Appeals err by concluding the City's service plan for police protection and for street and infrastructure maintenance is adequate? No.
3. Did the district court and Court of Appeals err by concluding the City's annexation is reasonable? No.
Accordingly, we affirm the lower courts.
Facts and Procedural History
The material facts are undisputed. In December 2008, the City--through its City Council--adopted Resolution No. 2008-15 and Resolution No. 2008-16, which together initiated the unilateral annexation of the Estates. The Estates is a platted residential subdivision of approximately 115 acres that adjoins the City's boundary and is accessible from the City's streets.
The Estates have been served by the City's wastewater treatment plant since 2004 when the Kansas Department of Health and Environment required the Estates to discontinue the use of a sewage lagoon. The landowners in the Estates then entered an agreement with the City for their use of the treatment plant in exchange for paying the City 125% of its ordinary sewage user rates.
The City published the annexation resolutions and a proper notice that it would hold a February 9, 2009, public hearing regarding the proposed annexation as required by K.S.A. 2005 Supp. 12-520a. The published resolutions attached a sketch of the area subject to annexation (published sketch).
The City's initial description of the land subject to annexation
As required by Kansas' annexation statutes, the City directly notified numerous parties of its intended annexation. Specifically, the City mailed certain documents to all owners of record of the land subject to the annexation, including Daniel and Cathy Stueckemann. The documents included a notice of the February 9 public hearing, which was captioned " Annexation Proposal Cedar Lakes [301 Kan. 722] Subdivision," and information about the City's plan for the extension of municipal services to the land.
The documents also included three items more specifically identifying the land to be annexed: (1) copies of the City's annexation resolutions containing a legal description; (2) an aerial photograph of the Estates with overlaid lot and boundary lines (GIS map); and (3) a sketch (mailed sketch). The mailed sketch correctly depicts the area subject to annexation. But the resolutions and the GIS map both contain errors in property identification.
Specifically, the legal description in the resolutions erroneously includes Parcel 15.02 for annexation--an unplatted 11.4 acre tract adjacent to the Estates. This error is not repeated in the GIS map or the mailed and published sketches.
While the GIS map correctly excludes Parcel 15.02 in identifying the property to be annexed, the map erroneously excludes Parcel 62. This 2.4 acre parcel near the Cedar Lake dam is an open area within the Estates. No structures may be built there. The published sketch contains the same erroneous omission of Parcel 62. But the mailed sketch and the resolutions correctly include it.
The City's plan for extending municipal services
Before the public meeting on February 9, the City provided residents with details regarding its plan for extending municipal services to the Estates. The two municipal services that the Stueckemanns primarily complain about on appeal are police protection and maintenance of streets and infrastructure.
The City notified residents that the Basehor Police Department would patrol the Estates following the annexation. The City first detailed why it believed the Estates' pre-annexation law enforcement--provided by the Leavenworth County Sheriff--was inadequate. The City then explained its own law enforcement coverage, specifically 8 detailing how the Estates would be patrolled by Basehor police. And the City noted its officers already routinely drove through the Estates when patrolling other outlying subdivisions.
The City also provided residents with information regarding the cost of extending its police protection to the Estates. The City showed its entire annual budget for police protection--$741,101. [301 Kan. 723] This money comes from the City's general fund, which is funded by taxes on property within the City. Based on this aggregate, the City calculated its annual cost for police protection as $123,520 per square mile. Because the Estates subdivision
is 0.18 square miles, the City estimated the cost of extending its police protection there to be approximately $22,200 per year.
Similarly, the City's plan for the extension of its municipal services also provides that the City, instead of Leavenworth County, would be responsible for maintaining the Estates' streets and infrastructure after annexation. In its plan, the City first described the county's current road budget and general maintenance standards. It concluded that the county's street maintenance is " inadequate," based primarily on the county's alleged lack of capacity for maintaining paved and curbed roads like those in the Estates. The City observed many residents of the Estates expressed displeasure at the county's maintenance when it sealed a portion of the paved roads several years previously. Finally, the City also noted the county system was not designed to maintain an enclosed storm drainage system like that found in the Estates.
The City then explained its current street maintenance and repair program, which would cover the Estates after annexation. Excluding a large one-time construction project, the City spent approximately $11,200 annually per mile of roadway. This represents a reduction from the county's annual expenditure per mile of $12,600. Because the Estates has 1.5 miles of streets, the City calculated it would spend approximately $16,800 per year on the Estates' streets. The City also detailed how its maintenance of streets and infrastructure is funded, explaining that property taxes collected from the Estates would help fund these new services. The City further noted it recently undertook a campaign of curb replacement, patching, milling, and overlaying, from which the Estates would benefit.
The City's public hearing and adoption of the annexation ordinance
On February 9, the City held the public hearing on the proposed annexation. More than 50 people attended, including Daniel and Cathy Stueckemann and their attorney. The City's administrator [301 Kan. 724] and engineer both made detailed presentations and answered questions about the intended annexation. The presentations included a PowerPoint slide show that comprehensively reiterated the City's plans for the extension of municipal services, including police protection and maintenance of streets and infrastructure. The City also specifically addressed each of the 16 factors a city must consider under K.S.A. 2014 Supp. 12-520a(e) in determining the advisability of an annexation.
After the presentations and questions, the City Council received written testimony and heard oral testimony from numerous residents of the Estates. The majority of them opposed annexation. The City Council specifically heard testimony in opposition to the annexation from the Stueckemanns and their attorney. Additionally, Daniel and Cathy Stueckemann's written comments informed the City Council: " Our goal is to prevent this annexation from going forward at all." Their attorney notified the City Council of its discrepancies in the sketches, GIS map, and legal description of the Estates. At the conclusion of the testimony, and before the public hearing was adjourned, all present were informed that an annexation ordinance would be taken up at the February 17 regular meeting. The City's mailed notice had informed its recipients that a decision on annexation would be made " at a regular city council meeting."
The next day the City contacted its engineer to address the concerns raised by the Stueckemanns' attorney about the identification discrepancies. After reviewing the sketches, GIS map, and resolutions' legal description, the engineer confirmed the documents were inconsistent. Among other things, he confirmed that the legal description in the resolutions of annexation erroneously included the 11.4 acre Parcel 15.02 and the GIS map erroneously excluded the 2.4 acre Parcel 62. The engineer accordingly deleted Parcel 15.02 to correct the legal description of the Estates, which the City ultimately included in its final ordinance of annexation.
On February 17, the City Council met in a " work session" to discuss, among other matters, the proposed annexation. Immediately following the work session, the Council held its regular meeting, and all present were
informed Parcel 15.02 should not be [301 Kan. 725] included in the annexation and the legal description for the land proposed to be annexed now reflected this change. The City Council again heard from Cathy Stueckemann and others in opposition. The City Council ultimately adopted Ordinance No. 548--containing the correct legal description--to officially annex the Estates.
The Stueckemanns' lawsuit challenging the annexation
After the City adopted Ordinance No. 548, the Stueckemanns sued the City in Leavenworth County District Court pursuant to K.S.A. 2014 Supp. 12-538, seeking to invalidate the annexation on multiple grounds. The Stueckemanns eventually moved for summary judgment, arguing they were entitled to judgment as a matter of law on the undisputed facts of the annexation. The City responded the Stueckemanns had failed to prove by a preponderance of the evidence that the district court should invalidate the annexation.
After oral argument, the district court rejected all of the Stueckemanns' contentions and upheld the City's annexation without referencing the summary judgment standard. Relevant to this appeal, the court specifically rejected arguments that the annexation is invalid because of the erroneous descriptions of the land, inadequacies in the City's service plan, or because the annexation is unreasonable. The Stueckemanns then appealed.
A panel of the Court of Appeals affirmed. Stueckemann v. City of Basehor, 284 P.3d 375, 2012 WL 3966521 (Kan. App. 2012) (unpublished opinion). The panel held the City's land descriptions and plan for the extension of municipal services both substantially comply with the statutory requirements. 284 P.3d 375, 2012 WL 3966521, at *6-9. It also rejected the Stueckemanns' argument that K.S.A. 2011 Supp. 12-538 requires courts to review de novo the substantive merits of an annexation when reviewing it for reasonableness. Instead, the panel held this statute expressly permitting landowners to challenge the reasonableness of an annexation merely codifies preexisting caselaw which severely limits judicial review and is therefore quite deferential to the City. 284 P.3d 375, 2012 WL 3966521, at *10.
[301 Kan. 726] We granted the Stueckemanns' petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
More facts will be added as necessary to the analysis.
Issue 1: The district court and Court of Appeals did not err by concluding the City adequately described the land subject to annexation.
The Stueckemanns urge this court to invalidate the City's annexation because of the inconsistencies and errors in the sketches, GIS map, and legal description in the resolution proposing annexation. They contend the lower courts erred by concluding the City's description and depictions of the land substantially comply with the requirements of the annexation statutes. The City responds that none of the asserted errors or inconsistencies justify invalidating the annexation.
Standard of review
The provision under which the Stueckemanns challenge the City's annexation is K.S.A. 2014 Supp. 12-538. Since this statute's creation in 2005, it has provided in relevant part:
" Any owner of land annexed by a city under the authority of K.S.A. 12-520(a)(1) through (6) . . . , within 30 days next following the publication of the ordinance annexing the land, may maintain an action in district court of the county in which the land is located challenging  the authority of the city to annex the land,  whether the annexation was reasonable,  whether the service plan was adequate and  the regularity of the proceeding had in connection with the annexation procedures."
The Stueckemanns essentially base their first challenge--an inadequate description of the land to be annexed--on the statutory grounds of " regularity of the proceeding had in connection with the annexation procedures." We review challenges to a city's
description of the land it intends to annex for substantial compliance with the relevant statutes. City of Lenexa v. City of Olathe, 233 Kan. 159, 163-64, 660 P.2d 1368 (1983) (citing Clarke v. City ...