dissenting. This is the second trial and appeal of essentially the same case. The first time we decided that the proposed annexation of 55 square miles by the City of Little Rock was illegal because it included some agricultural property contrary to Arkansas law. Arthur B. Saunders, et al v. City of Little Rock, 257 Ark. 195, 515 S.W. 2d 633 (1974).
The Arkansas Legislature amended the law that caused the first annexation to be illegal. Act 298, 1971 Ark. Acts, as amended by Act 309 and Act 904, 1975 Ark. Acts. The City of Little Rock again proposed the same area to be annexed, the issue was submitted to the same voters and, again, it was approved. There was another trial on essentially the same issues and facts. The trial court upheld the annexation and from that decision comes this appeal.
Many of the legal arguments made in the first case were repeated in this case. The same argument was made about the Fourche Creek flood plains located in the annexed area. In fact, a major part of the evidence in both cases was whether the flood plains of the Fourche could be annexed. Previously, we did not rule on that argument or any other of the many other arguments made, but instead held the annexation illegal for only one reason — that some of the lands were used for agricultural purposes. Arthur B. Saunders, et al v. City of Little Rock, supra.
The record in this appeal, about 400 pages, is concerned mostly with the feasibility of Little Rock annexing the Fourche Creek flood plains. Again, we do not rule on this issue. At least eighteen objections to the annexation were raised at trial and only one of them mentioned that some of the land was used for mining purposes. The majority have decided that this annexation was illegal because some of the lands are “mining lands.”
The majority says that there was not substantial evidence to support the inclusion of “five to ten thousand acres of mining lands.” (There was no testimony offered about the size of the mining tracts or areas.) The reasoning is that it was not shown these lands could be used by the city or are needed for proper municipal purposes.
The law gives a municipality a right to annex contiguous lands if they are: (1) platted and held for sale or use as municipal lots; or, (2) platted or not, are to be sold as suburban property; or, (3) are the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary; or, (4) are needed for any proper municipal purposes such as the extension of needed police regulations; or, (5) are valuable by reason of their adaptability for prospective municipal uses. Ark. Stat. Ann. § 19-307.1 (Supp. 1975).
The only evidence in the record about the so-called mining lands is favorable to the City of Little Rock. In addition to the testimony of C. V. Barnes, quoted in the majority opinion, about the development of residential and mining properties in the same area, there was other testimony. Mr. Jim Finch, the city planner, testified:
. . . The mining areas, as it has been stated here again several times, present an economic resource for the community and state as a whole. But there have been to our knowledge, encroachments into prime mining areas and there have been mining encroachments up to residential areas. The plans again, that the city has might only be reflected in that we have several times worked on the development of land use regulations for mining areas that would protect the mining interest and would protect residential interest and mining areas. We do not have those adopted simply because it is not really an issue not being in the city. The city has expressed an obvious interest in some of that area through the use of those old mining pits for the landfill sites to help reclaim the land.
He went on further to state:
. . . The residents in this area propose, the residents propose obviously to make certain use of their property now either in the mining area, flood plain or whatever and, in order to protect and encourage orderly growth in those areas, to see that transportation networks and utility networks, things of that nature are extended in an orderly fashion, compatible kinds of uses develop that you don’t have single family areas developing right in the middle of the areas where they are doing heavy mining and blasting and other kinds of industrial activities and to see that residential development does not encroach into prime mining areas would seem to be an interest of the city of Little Rock in as much as the mining interest does represent a substantial economic interest for the city.
Mr. Dwight Linkous testified:
. . . The bauxite pits as we know there were presently used as a land fill site and we are negotiating for another one. The property is being restored to a much more highly cost per acre and return to the owner than it would have been if it were not used for these purposes. I can see potential in the usage of all of the areas even the worse flood plain areas of Fourche Creek.
Mr. J. William Perry, the executive vice president of the Little Rock Chamber of Commerce, testified that in his opinion the city needed the additional 55 square miles to attract industry to the area. This testimony was in addition to the testimony of the Chief of Police and the Chief of the Fire Department of the City of Little Rock that it was necessary to annex all of this contiguous area to provide for the efficient and proper administration of their departments.
These statements, uncontradicted by any other evidence, are offered in conjunction with other evidence that the entire 55 square miles should be included because the city is growing in that direction and the land is best suited for urban development.
The argument is presented on appeal that the trial court improperly found that the mining lands could have a valid municipal use or could be used for a city purpose. To uphold this argument despite the evidence in the record is to hold that mining lands per se cannot be annexed. The same could be true of any business such as a service station or grocery store. These businesses would not necessarily have to qualify as platted, suburban or densely settled lands. It could depend on where they are located. Any business, mining or otherwise, adjacent to a growing city could be annexed legally under either provision (4) or (5) of the Arkansas law.
The majority, in effect, is holding that the city must bypass certain lands and create numerous pockets around which the city will grow. Although the majority alludes simply to “five or ten thousand acres of mining land,” there is no instruction given to the parties whether this includes any and all mining land listed on certain exhibits; whether that would include land that is held subject to an oil and gas lease; whether the mining land is in one block or fifty; or whether it is five or ten thousand acres.
Not only does the majority fail to identify the lands to be excluded, it also fails to answer other issues raised. The majority indicates that the annexation of the Fourche flood plains, if it comes before us again for the third time, would be illegal; however, it does not say so. I must take issue with the majority’s failure to rule on all the issues before the court in the previous suit and in this suit. The parties have been put to a great deal of expense and trouble in this case and are entitled to specific directions from the court.
The majority opinion ignores the fact that the City of Little Rock is a growing city and that, if anything, the annexation proposal is conservative. The evidence in the case is overwhelming that the city will offer full services to all the annexed area and that the property is needed within the corporate city limits for an orderly growth of the area.
The majority opinion fails to recognize that zoning is a valid municipal purpose that is desirable in most instances and protects all property owners against haphazard development of land.
The record contains a good example of how an area should not develop. The Rodney Parham Road area near the City of Little Rock was not annexed in time, and according to the testimony, has become a “nightmare” to city officials who have to cure the traffic, development and congestion ills that still exist in that area.
It may be that the majority has an aversion to annexation and zoning. These powers can be abused but there is no evidence in this record that Little Rock has abused or intends to abuse its powers. There is no evidence in the record, although the majority infers otherwise, that the City of Little Rock is annexing lands simply to gain revenue. The evidence, viewed as a whole, shows that the city has a plan for the orderly growth of its corporate limits consistent with the actual growth and the annexation will benefit all of the property owners in the area annexed.
There is not a shred of credible evidence in the record as to why the contiguous mining interests should not be annexed. Not a single owner of a mining interest testified during this trial. The majority mentions a study which recommended against including the flood plains and mining lands. However, that study was not a part of the record and normally the majority does not base its decisions on hearsay evidence not before it.
In summary, I can find no legal justification for the decision of the majority. I would affirm the case.