Annexation: Today's Gamble for Tomorrow's Gain-part Ii
| Publication year | 1988 |
| Pages | 809 |
| Citation | Vol. 17 No. 5 Pg. 809 |
1988, May, Pg. 809. Annexation: Today's Gamble for Tomorrow's Gain-Part II
Part I of this article addressed the preliminary requirements for annexation through the filing of the annexation petition.(fn1) These requirements are set forth in the Municipal Annexation Act of 1965 ("Act")(fn2) as recently amended by Senate Bill ("S.B.") 45.(fn3) Once a petition for annexation is filed with a municipality, the petitioning landowner and annexing municipality ("City") are confronted with additional statutory and local requirements. The purpose of this Part II is to outline the necessary steps to be taken to avoid pitfalls and complete a valid annexation.
One of the most significant changes to the Act brought about by the adoption of S.B. 45 affects the area of comprehensive planning. S.B. 45 requires the City to prepare an annexation plan for a three-mile area adjacent to its boundaries. Additionally, the City must prepare an annexation impact report. Both of these new requirements are directed toward creating a comprehensive and coordinated framework for municipal annexations. They also provide for stricter notice requirements to surrounding landowners and communities.
In a format similar to that customarily used for a City's comprehensive plan, the three-mile area annexation plan requires the City to describe:
the location, character and extent of streets, subways, bridges, waterways, waterfronts, parkways, playgrounds, squares, parks, aviation fields, other public ways, grounds, open spaces, public utilities, and terminals for water, light, sanitation, transportation, and power to be provided by the municipality, as well as the proposed land uses for the area.(fn4)
Thus, while largely an index of existing infrastructure and open space, the plan must also forecast the potential land uses for the area. The City's comprehensive plan or, in its absence, a specific development proposal from the petitioning landowner, serves as the basis from which the future uses are projected.
Although the Act requires that an annexation plan be in place prior to completing any annexation within a three-mile area,(fn5) it fails to state what method of adoption, if any, is required to effectuate the plan. Arguably, such a plan could be drafted without any of the citizen participation commonly associated with the comprehensive planning process and still meet the requirements of the Act. Also, the plan, theoretically, could meet the requirements of the Act without ever having been adopted or endorsed by the governing body of the City.
Considerable debate has occurred regarding the timing and extent of the three-mile annexation plan. The Act states that the plan must be in place "prior to completion of any annexation within the three mile area." This leaves some ambiguity as to the time limit. Does "prior to completion" refer to prior to the governing body's last act or does it refer to prior to the date the annexation challenge period expires? In the authors' experience, cities differ in their interpretation of the timing question.
Finally, the language of the Act is ambiguous regarding the extent of the three-mile plan.(fn6) The Act does not specify whether the three-mile plan
S.B. 45 has added a provision to the Act that an annexation impact report must be prepared by the City.(fn7) The information provided in the annexation impact report is site specific. One of the main purposes of the report is to provide information regarding the proposed annexation and the immediately surrounding area. At a minimum, the annexation impact report must include: maps of the City and adjacent territory showing the present and proposed boundaries of the City, the existing streets, water mains, sewer interceptors, other utilities and ditches and the proposed extension of such facilities.
The annexation impact report also must provide a narrative which addresses the City's plans for extending to or otherwise providing for City services performed by or on behalf of the City at the time of annexation, the method under which the City plans to finance the extension of the services into the area, existing districts within the area and the effect of annexation upon local public school districts. Included in this school district statement is the number of students generated and the capital construction required to educate such students. The report also must include a copy of any draft or final pre-an-nexation agreement, if available.(fn8)
Once completed, the report must be filed with the board of county commissioners governing the area proposed for annexation. The report must be prepared at least twenty-five days before the public hearing and filed with the board of county commissioners five days thereafter.(fn9)
Another major purpose of the annexation impact report is to provide notice to potentially affected parties. One of the criticisms of the Act prior to S.B. 45 was that some annexations, specifically those implemented pursuant to a 100 percent petition,(fn10) could be undertaken and completed without giving notice to surrounding property owners and quasi-municipal corporations such as special districts. The annexation impact report forces the annexing municipality to identify potentially affected entities and allows the county commissioners an opportunity to review the proposed annexation. Such review by the county commissioners does not constitute a veto power over the substantive provisions of the annexation impact report. However, failure to address the relevant statutory requirements in the report may give rise to a legal challenge.
The Act allows two exceptions to the general rule requiring the preparation of the annexation impact report.(fn11) The first exception is for annexation of ten acres or fewer.(fn12) The second exception is for instances in which the City and the board of county commissioners governing the area proposed for annexation agree that the report may be waived. The elements of the report are designed to record accurately the current status of the land proposed for annexation---a snapshot of the existing conditions---and to describe the planned land uses, infrastructure and financing.
In outlying areas where annexations traditionally occur, the components of the impact report can be easily met. If there are no current service providers to the existing population, the City planners can determine the existing conditions and plan for the future of the area. However, in areas where the land to be annexed has already begun to be developed in the county, the completion of the annexation impact report can become an administrative and technical nightmare.(fn13)
The petitioning landowner should monitor the public hearing process required by the Act, as amended by S.B. 45, to insure technical compliance with the Act and with relevant municipal requirements. Before the enactment of S.B. 45, landowners could submit 100 percent petitions and proceed through the introduction and finalization of the annexation ordinance without ever subjecting the annexation to the scrutiny of a public hearing. Although the Act did provide for public hearings, it limited applicability to annexations...
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