Frances Gousset v. City of Macon, Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2001-AN-01508-SCT

IN THE MATTER OF THE ENLARGEMENT AND
EXTENSION OF THE BOUNDARIES OF THE CITY
OF MACON, MISSISSIPPI: FRANCES GOUSSET,
KATHERINE MOORE, JERRY HARRIS, ORIETTA
STEWART BY AND THROUGH RICHARD DOOLEY,
RICHARD DOOLEY, INDIVIDUALLY, JAMES D.
BRITT, GREGORY COLE, DARLENE COLE, JIM
BRITT, EMILY BRITT, GENE PENICK, JR., PENICK
FOREST PRODUCTS, WILLIAM M. DANTZLER
AND WIFE, MARJORIE DANTZLER, CLAY
HOLLIS, WILLIE COLE, MARY E. BROWN, GAYLE
FORD, MINNIE WILLIAMS AND ARTHUR
VARNER, JR.

v.

CITY OF MACON MISSISSIPPI

DATE OF JUDGMENT: 7/31/2001
TRIAL JUDGE: HON. DOROTHY WINSTON COLOM
COURT FROM WHICH APPEALED: NOXUBEE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: GARY GOODWIN
ATTORNEYS FOR APPELLEE: JERRY L. MILLS
CHARLES G. PERKINS
NATURE OF THE CASE: CIVIL - MUNICIPAL BOUNDARIES &
ANNEXATION
DISPOSITION: AFFIRMED - 09/25/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

McRAE, PRESIDING JUSTICE, FOR THE COURT:
¶1. On July 19, 2001, the Chancellor of the Noxubee County Chancery Court entered her opinion and

judgment granting the City of Macon’s request for extension and enlargement of the city boundaries. The

Objectors to the annexation claim the Chancellor's ruling was not supported by substantial, credible

evidence and was manifestly wrong. Finding that the Chancellor's ruling was supported by substantial,

credible evidence as evaluated by the annexation indicia for reasonableness, we affirm the trial court's

judgment.

FACTS AND PROCEDURAL HISTORY

¶2. The City of Macon, which was incorporated in 1836, consists of 1.5 square miles. This is the

City’s first annexation.

¶3. In 1997, the City with the aid of an urban and regional planner conducted studies related to

annexation. After the completion of these studies and public hearings on the issue of annexation, the City

properly adopted an ordinance of annexation under Miss. Code Ann. § 21-1-27 (Rev. 2001). Pursuant

to Miss. Code Ann. § 21-1-29, the City timely and properly filed a complaint for annexation seeking the

extension and enlargement of the City to cover an additional 2.7 square miles. Proper notice of the

complaint filing under Miss. Code Ann. § 21-1-31 was given by means of publication and posting. The

City later reduced the area sought to be annexed to 2 square miles. This 2 square mile area is occupied

by 31 businesses and 231 residences with 690 people.

¶4. The matter was tried in the Chancery Court of Noxubee County over a period of four days.

Pursuant to Miss. Code Ann. § 21-1-33, the City had the burden of proving that the proposed annexation

was reasonable. The City’s witnesses consisted of Robert Brown (“Brown”), the City of Macon Police

Chief; Charlie Fraley, the City of Macon Fire Chief; William Whitehead (“Whitehead”), the City of Macon

Building Inspector; John Peters, the City of Macon Zoning Officer; Allen Hunter (“Hunter”), the City of

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Macon Mayor; Larry Carr, a Superintendent of Public Protection for the Mississippi State Insurance Rating

Bureau; Eugene Herring (“Herring”), an Environmental Health Program Specialist for the Mississippi

Department of Health; and Michael Slaughter (“Slaughter”), expert planner for Bridge and Slaughter, an

urban and regional planning firm.

¶5. During the trial, the Objectors proposed an alternate annexation area. The Objectors offered no

expert testimony to support the alternate annexation area. The only difference between the alternate

annexation area proposed by the Objectors and the annexation area proposed by the City was that the area

in which the Objectors owned businesses and residences was “cut out” of the City’s proposed area. The

Objectors' witnesses consisted of 11 residents of the area proposed to be annexed. These witnesses

included James Britt, William Dantzler, Richard Dooley (“Dooley”), Jerry Britt, Dan Ford, Frances

Gousset, Willie Cole, Hazel Misso, Minnie Williams, Burt Sasser, and Shannon Hall. The main objection

of all witness/residents was any increase in taxes due to the annexation of their property by the City of

Macon.

¶6. On July 19, 2001, the Chancellor issued her opinion in favor of the City’s annexation proposal.

On July 31, 2001, the Chancellor issued her final order in favor of the City thereby approving of the

enlargement and extension of the boundaries of the City of Macon, Mississippi. The Objectors filed, and

the Chancellor denied a Motion to Reopen Proof. The Objectors filed a timely notice of appeal.

STANDARD OF REVIEW

¶7. “Where the finding of reasonableness is challenged on appeal, this Court conducts no plenary

review. It may reverse where – and only where – the chancery court’s finding of ultimate fact that the

annexationwas (un)reasonable is manifestly wrong or without the support of substantial, credible evidence.”

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In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d 270,

277 (Miss. 1999) (citing McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss. 1987);

Extension of Boundaries of City of Moss Point v. Sherman, 492 So.2d 289, 290 (Miss. 1986);

Enlargement of Boundaries of Yazoo City v. City of Yazoo City, 452 So.2d 837, 838 (Miss.

1984); In re Extension of Boundaries of City of Clinton, 450 So.2d 85, 89 (Miss. 1984)).

¶8. “Where there is conflicting credible evidence, we defer to the findings below.” In re Extension

of the Boundaries of the City of Batesville, Panola County, 760 So.2d 697, 699 (Miss. 2000)

(quoting Bassett v. Town of Taylorsville, 542 So.2d 918, 921 (Miss. 1989)).

DISCUSSION

I. WHETHER THE CHANCELLOR’S FINDING OF ULTIMATE
FACT WAS MANIFESTLY WRONG OR WITHOUT THE
SUPPORT OF SUBSTANTIAL, CREDIBLE EVIDENCE AS
EVALUATED BY THE ANNEXATION INDICIA.

¶9. The Chancellor, after hearing all evidence presented, must under Miss. Code Ann. § 21-1-33

(Rev. 2001), determine if the proposed annexation is reasonable. Under Miss. Code Ann. § 21-1-33, the

trial judge has the discretion to allow for partial approval of the proposed annexation thereby excluding any

portion of the land sought to be annexed.

¶10. This Court has recognized and developed a list of indicia of reasonableness to be used when

evaluating a petition for annexation. These indicia include: (1) The City's need for expansion; (2) Whether

the proposed annexation area (PPA) is within the path of growth of the City; (3) Potential health hazards

from sewage and waste disposal in the annexed area; (4) The City's financial ability to make the

improvements and provide promised municipal services; (5) Need for zoning and planning in the area; (6)

Need for municipal services in the proposed annexed area; (7) Whether there are natural barriers between

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the City and the proposed annexation area; (8) The past performance and time element involved in the

City’s provision of services to its present residents; (9) The economic or other impact of the annexation

upon those who live in or own property in the area proposed to be annexed; (10) The impact of the

annexation upon the voting strength of protected minority groups; (11) The economic or other benefits

received by those in the proposed annexation area without playing their fair share of taxes; and (12) Any

other reasonableness factors. These factors are only indicia of reasonableness, not separate and distinct

tests in and of themselves. The Chancellor must consider all of these factors and determine whether under

the totality of the circumstances the annexation is reasonable. This Court's standard of review is very

limited. The Court can only reverse the chancery court's findings as to the reasonableness of an annexation

if the chancellor's decision is manifestly wrong and is not supported by substantial and credible evidence.

See Matter of Enlargement of Corp. Limits of City of Hattiesburg, 588 So.2d 814, 819 (Miss.

1991); In re Boundaries of City of Vicksburg, 560 So.2d 713, 716 (Miss. 1990); In re

Enlargement of Corporate Boundaries of the City of Booneville, 551 So.2d 890, 892 (Miss.

1989) City of Horn Lake, 501 So.2d at 403-04; In re Extension of the Boundaries of City of

Jackson, 551 So.2d 861, 864 (Miss. 1989); City of Greenville v. Farmers, Inc., 513 So.2d 932,

941 (Miss. 1987); Bassett, 542 So.2d at 921; Western Line Consol. Sch. Dist. v. City of

Greenville, 465 So.2d 1057, 1059 (Miss. 1985); Yazoo City, 452 So.2d at 842-43; Texas Gas

Transmission Corp. v. City of Greenville, 242 So.2d 686, 689 (Miss. 1971); Dodd v. City of

Jackson, 238 Miss. 372, 118 So.2d 319, 330 (1960); Forbes v. City of Meridian, 86 Miss. 243,

38 So. 676, 678 (1905).

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¶11. Using this list of indicia, the Chancellor considered all the evidence presented during the four-day

trial and concluded that the City of Macon’s petition for extension and enlargement should be granted.

There was substantial, credible evidence to support the Chancellor’s findings.

A. NEED FOR EXPANSION

¶12. This Court has enumerated many factors to consider when determining whether a City seeking an

extension and enlargement has a reasonable need for expansion. These factors may or may not include:

(1) spillover development into the proposed annexation area; (2) the City's internal growth; (3) the City's

population growth; (4) the City’s need for development land; (5) the need for planning in the annexation

area; (6) increased traffic counts; (7) the need to maintain and expand the City’s tax base; (8) limitations

due to geography and surrounding cities; (9) remaining vacant land within the municipality; (10)

environmental influences; (11) the city’s need to exercise control over the proposed annexation area; and

(12) increased new building permit activity. In re Enlargement and Extension of Mun.

Boundaries of City of Biloxi, 744 So.2d at 279; Matter of Enlargement and Extension of the

Mun. Boundaries of the City of Jackson, 691 So.2d 978, 980 (Miss. 1997); Extension of

Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 552 (Miss. 1995);

Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168, 1173 (Miss. 1994).

However, the Chancellor used these factors in determining whether the City had a need for expansion. Her

decision was based on credible, substantial evidence and detailed in her opinion.

¶13. The Objectors do not dispute that the City of Macon has a need for expansion, but argue that this

need for expansion does not include the need to annex the “cut out” area (the area which the Objectors

argue should be excluded from the proposed annexation area).

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¶14. Spillover development has occurred in the PAA, and is evidenced by the growth along U.S.

Highway 45 which runs through the area and into the City. In the past 10 years, 31 new businesses have

opened in the PAA and more businesses and industries are currently building in the area. The Objectors

argue that none of the spillover development has occurred in the “cut out” area; and therefore, that area

should be excluded from the annexation.

¶15. The Chancellor found that the City of Macon is growing internally. The existing City of Macon

encompasses only 1.5 square miles. The City is 72.3% built out. In the case of In re Extension and

Enlargement of the Mun. Boundaries of the City of Biloxi, this Court found a definite need for

expansion upon a showing that Biloxi was 85% built out. 744 So.2d at 279. Additionally, there are only

236 vacant acres in the municipality, and 169 of those acres are unsuitable for building since they are

located in a floodplain. Hunter, the Mayor of the City of Macon, testified that a grocery store chain is

currently inquiring into buying land in the City but has been unable to find a suitable building site. This lack

of building room has caused a spillover of development into the proposed annexation area.

¶16. The Chancellor found that statistics from the 1990 Census establish that over the last 10 years, the

population of the City has decreased by 17 persons. This slight decrease was found to be of little

significance since the municipality has continued to grow and develop as the business hub of Noxubee

County. Expert testimony also showed that households nationwide are getting smaller. Additionally, the

City’s appellate brief states that current data now indicates that the population of Macon has increased by

222 persons which is a 10% growth. The Objectors argue that the 17 person decrease in population

growth is a significant statistic to be considered by the Chancellor.

¶17. The Objectors' argument that the land in the “cut out” area has little residential and commercial

growth is without merit. The 17 person decrease in City population does not demonstrate that the City

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lacks a need for residential development. This vacant and unconstrained land is necessary to accommodate

the future growth of the City of Macon.

¶18. The Chancellor found that there are no planning or zoning ordinances in place in the PAA. The City

of Macon has planning and zoning ordinances in effect which include comprehensive building codes. The

area along Highway 45 has developed without any planning causing a patchwork quilt of businesses and

residences. The lack of zoning in the PAA has resulted in mobile homes situated next to businesses.

Additionally, the evidence at trial showed plans for a hotel to be built next to a house and a poll mill located

next to a church. This demonstrates the City’s need to control the building and development in the PAA.

The enforcement of zoning and building codes is necessary for public safety and fire prevention.

¶19. The Objectors argue that the “cut out” area is not located near the growing Highway 45 area and,

therefore, not in need of the same City control. Additionally, the objectors argue that no specific evidence

was presented as to a need for zoning in the “cut out” area. They argue that all residents and landowners

in the “cut out” area are happy with the development trends and find no need for zoning which would

restrict the use of their land. Likewise, they argue that the Chancellor made no specific findings as to a

zoning need in the “cut out” area. ¶20. The Chancellor found that the increased growth and development

along Highway 45 has created increased traffic. This increased traffic flow creates a need for police

protection and patrol. Additionally, the City produced evidence that nightclubs in the County had resulted

in numerous disturbances that required police response. The Objectors argue that evidence presented by

the Police Chief as to the increase in traffic in the proposed annexation area is without credibility.

¶21. The Chancellor further found that the new developments and businesses in the proposed annexation

area have created substantial sales tax, estimated to be between $70,000 and $80,000 in the next year,

which currently is collected and kept by the State. If the area were annexed by the City, a portion of

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those taxes would be given back to the City. The increased sales tax in the annexation area is caused by

the City’s build-out. The Objectors offered no evidence as to the increased sales tax revenue in the

proposed annexation area and only testified as to their contribution to the City of Macon through their

purchases at local businesses.

¶22. The Chancellor made no findings as to the geography and surrounding limitations to growth.

Evidence shows that areas of vacant land in the City lie in a floodplain. Also, evidence at trial showed that

other areas near the city are unsuitable for development since they lie in a floodplain.

¶23. The Chancellor made no findings as to environmental influences. No evidence at trial was

presented by either parties as to this issue.

B. PATH OF GROWTH

¶24. The test for evaluating the reasonableness of a chosen path of growth is “whether an area is in a

path of growth, not necessarily a City’s primary path of growth.”In re City of Horn Lake, 630 So.2d

10, 19 (Miss. 1993). This Court has further stated that “our law gives municipalities the discretion, based

on convenience and necessity, to choose between various paths of growth by annexation.” Ritchie v.

City of Brookhaven, 217 Miss. 860, 65 So.2d 436, 439 ( 1953). The law is clear that the annexation

area must be in “a” path of growth not “the” path or “only” path of growth. The Objectors' argument that

there are other paths of growth suitable for annexation is without merit.

¶25. This Court has established factors for consideration when evaluating reasonableness as it relates

to the path of growth which may or may not include: (1) spillover development in annexation area; (2)

annexation area immediately adjacent to City; (3) limited are available for expansion; (4) interconnection

by transportation corridors; (5) increased urban development in annexation area; (6) geography; and (7)

subdivision development. In re Extension and Enlargement of the Mun. Boundaries of the City

9
of Biloxi, 744 So.2d at 280; Enlargement and Extension of Mun. Boundaries of City of

Madison v. City of Madison, 650 So.2d 490, 497 (Miss. 1995); Extension of Boundaries of City

of Ridgeland, 651 So.2d at 556. This Court in Enlargement and Extension of Mun. Boundaries

of City of Meridian v. City of Meridian, 662 So.2d 597, 612-13 (Miss. 1995), held that the most

important factors when determining the reasonableness of path of growth are the adjacency of the proposed

annexation area to the City, accessibility of the proposed annexation area by City streets, and spillover of

urban development into the proposed annexation area.

¶26. The Chancellor used these factors in evaluating the City’s petition for annexation. She relied on

credible, substantial evidence in ruling that the City’s annexation proposal was reasonable. T h e

Chancellor found that spillover has caused substantial commercial and residential development in the PAA.

Since 1990, the PAA has seen a 15% increase in population. There are 3 churches, a convenience store,

2 industries, a power association, an elderly care center, an apartment complex, a hotel, and a restaurant

in the PAA. At the time of trial, additional businesses were being built in the PAA which included a hotel,

a catfish plant, and a Kentucky Fried Chicken restaurant. Photographs in evidence demonstrated that

absent signs one would not know when he had left the city and entered the PAA due to the increased

business development.

¶27. Objectors argue that the “cut out” area has not had spillover development. They argue that the “cut

out” area should be excluded from the annexation since it is not more in the path of growth than other areas

excluded. These arguments are without merit. The vacant and undeveloped land in the “cut out” area is

needed for future development. The Chancellor found and the evidence shows that the PAA is immediately

adjacent to the City of Macon. Evidence presented at trial demonstrates that the PAA is contiguous and

adjacent to the existing City.

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¶28. The Chancellor found that the City is limited to only 169 areas of unconstrained land available for

development. The parcels of land available for development are scattered and small. This limits the City’s

ability to grow and develop.

¶29. The Chancellor made no findings on the transportation connections between the City of Macon and

the PAA. However, evidence at trial was undisputed that the City and the PAA share the same roads and

highways.

¶30. The Chancellor made no findings on the geography of the City and the PAA. Evidence presented

at trial showed that portions of the City of Macon are located in a floodplain. Likewise, evidence showed

that the land the Objectors propose for annexation is located in a floodplain.

¶31. The Chancellor made no specific findings as to subdivision developments. She did, however, note

the 124 new building permits for residential units within the City over the last 10 years. Evidence at trial

also indicated that areas in the PAA were being used for subdivision development.

¶32. The Objectors argue that there has been no subdivision development in the “cut out” area. They

further argue that they have had no offers to subdivide and develop their land for residential or commercial

use. This is without merit since their vacant and undeveloped land is necessary for future growth.

C. POTENTIAL HEALTH HAZARDS

¶33. This Court has established a number of factors to be considered when evaluating the

reasonableness as related to potential health hazards which may or may not include: (1) potential health

hazards from sewage and waste disposal; (2) a large number of septic tanks in the area; (3) soil conditions

which are not conducive to on-site septic systems; (4) open dumping of garbage; and (5) standing water

and sewage. In re Extension and Enlargement of the Mun. Boundaries of the City of Biloxi,

744 So.2d at 280; In re Extension of Corporate Boundaries of the Town of Mantachie, 685

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So.2d 724, 727 (Miss. 1996); Extension of the Boundaries of City of Ridgeland, 651 So.2d at

558; City of Horn Lake, 630 So.2d at 18; In re Matter of the Extension of the Boundaries

of the City of Jackson, 551 So.2d at 866; City of Greenville, 513 So.2d at 935.

¶34. The Chancellor used these factors in evaluating the potential health hazards of the PAA. She relied

on credible, substantial evidence in her evaluation.

¶35. The Chancellor relied on photographs, maps, and expert testimony which evidence open sewage

lines and inadequate discharge of raw sewage. Herring, an Environmental Health Program Specialist for

the Mississippi Department of Health, offered testimony as to the grave health hazards posed by raw

sewage located near private wells for drinking water in the PAA. Diseases found to be caused by raw

sewage leakage include salmonella, rotavirus, hepatitis A, and typhoid fever. A number of failing septic

systems were found to be in the PAA. In the PAA, 64.5% of the dwelling units and 56.4% of commercial

buildings already use the City’s sewer system. No health hazards were discovered in those areas using the

City’s system. Dooley, an Objector, acknowledged in his testimony that he has a raw sewage problem

on his land. Additionally, the City provides 100% of its residents with sewer services.

¶36. The Chancellor found that the soil conditions in the proposed annexation area were not conducive

for septic tank systems. Information from the United States Soil Conservation Service indicates that the

PAA is not suitable for septic tank usage. The Objectors offered no evidence to rebut this testimony.

¶37. The Chancellor found that trash piles and junkyards littered the PAA. The City and County use

the same disposal service. However, the Chancellor further found that the City has zoning ordinances that

would prevent dumping.

¶38. Zoning and building ordinances would also assure the safety of annexation area residents.

Whitehead, the City’s Building Inspector, testified that inspection of electrical, structural, plumbing, and gas

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in proposed building projects provides citizens protection from potential hazards caused by faulty

workmanship or improper building techniques. These inspections would help to reduce the health hazards

caused by unsupervised building in the PAA.

¶39. The Objectors argue that the City is unable to identify any ordinance that it could enforce which

would lead to any clean up of the areas found to be health hazards. The only City ordinance related to the

reported health hazards is one that would require sewage hook ups. These sewer hook ups could remedy

some of the problems. The City's sewer plan calls for full sewer installation and service in the PAA over

a period of 5 years. Many PAA residents are already hooked up to City sewer. The Objectors argue

the 5 year installation plan is inadequate. The Objectors rely on City of Columbus, where the Objectors

there stated, “it makes no sense to cite potential health hazards as a reason for annexation when no solution

to the potential problem is offered.” 644 So. 2d at 1175-76. The Objectors further argue that the City

has several unsightly trash heaps of its own.

D. FINANCIAL ABILITY

¶40. This Court has developed several factors to evaluate reasonableness as related to financial ability

which may or may not include: (1) present financial condition of the municipality; (2) sales tax revenue

history; (3) recent equipment purchases; (4) the financial plan and department reports proposed for

implementing and fiscally carrying out the annexation; (5) fund balances; (6) the City’s bonding capacity;

and (7) expected amount of revenue to be received from taxes in the annexed area. Town of Mantachie,

685 So.2d at 728; City of Meridian, 662 So.2d at 611; Extension of Boundaries of City of

Ridgeland, 651 So.2d at 558; City of Columbus, 644 So.2d at 1171; City of Greenville v.

Farmers, Inc., 513 So.2d at 935; In re Extension of Boundaries of City of Ridgeland, 388

So.2d 152, 156 (Miss. 1980); In re Extension and Enlargement of the Mun. Boundaries of the

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City of Biloxi, 361 So.2d at 1374; Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683, 685

(1965); In re City of Gulfport, 253 Miss. 738, 179 So.2d 3, 6 (1965).

¶41. The Chancellor used these factors in evaluating reasonableness as related to the financial ability of

the City of Macon in the annexation of the proposed area. There was substantial and credible evidence

to show that the City had the financial ability to successfully annex the proposed area.

¶42. The Chancellor found and the evidence showed that the City is financially capable of successfully

funding and completing the annexation of the proposed area. City audits and exhibits presented at trial

indicate the City is in excellent financial condition. The City has ample cash reserves and little bonded debt.

The Objectors argue that the financial ability of the City is of little importance since the City already

provides many services to the PAA. The Objectors offer no evidence to rebut the City’s financial ability

to complete a successful annexation.

¶43. The Chancellor made no findings as to the sales tax revenue history of the City of Macon.

However, evidence presented at trial demonstrated that the City has $23,000 to $25,000 a month in sales

tax revenue.

¶44. The Chancellor made no findings as to recent equipment purchases of the City of Macon.

However, evidence presented at trial showed that the City had recently purchased additional equipment

for its fire department and had ordered a new patrol car for the police department.

¶45. The Chancellor found that the City has a financial plan for fiscally carrying out the annexation. The

City conducted extensive preannexation studies and hired urban development planners to analyze the need

and direction of a proposed annexation. Expert testimony from Slaughter indicated that the City could

financially afford to fund the necessary engineering tasks needed in the PAA. The City outlined its

proposed services and improvements for the annexation area and illustrated its financial capability of

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achieving those improvements over the next five years. The City outlines its future improvement and

services plan through exhibits which detail the estimated costs and revenues produced from such additions.

The City has already committed funds to be used in the planning, zoning, and development of the PAA.

The City has a sound financial plan which includes the addition of more personnel and equipment to meet

the needs of the PAA area. If the annexation is completed the City plans to hire a full-time building

inspector, an additional police patrolman, and a full time zoning officer. The City further plans to install

street lighting, provide mosquito control, install fire hydrants, and repave and repair streets. All the

evidence illustrates that the City has the financial ability to make the improvements needed and provide the

municipal services to the PAA within a reasonable time.

¶46. The Objectors argue that the City’s financial plan is inadequate since the plan calls for

improvements and the addition of services over the next five years. Testimony at trial indicated that given

the City’s financial stability these improvements and services may be instituted much sooner. This Court

has approved similar plans with time periods extending as long as five years. In the case of In re

Extension and Enlargement of the Mun. Boundaries of the City of Biloxi, this Court stated that

“[p]lans that call for extension of services into annexation areas when economically feasible are not ‘per

se unreasonable.’ ” 744 So.2d at 282. See also Town of Mantachie, 685 So.2d at 729 (citing City

of Columbus, 644 So.2d at 1182). In the case of In re Extension and Enlargement of the Mun.

Boundaries of the City of Biloxi, this Court approved an improvement and services plan which

outlined the installation of sewer and water lines in the annexation area over the next five years. 744 So.2d

at 282. Additionally, here much of the area in the PAA already has City water and sewer lines. Even the

“cut out” area that Objectors argue should be excluded from annexation is served by City water. And

those “cut out” area residents would see a reduction in their water bill if the annexation is completed due

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to the elimination of a water surcharge fee placed on non-residents who use municipal water services.

¶47. The Chancellor found that currently the City has cash reserves. Testimony also indicated that the

City of Macon is eligible for receiving grant funds. The Chancellor found and the evidence indicates that

the City has little bonded debt.

¶48. The Chancellor made no findings as to the expected tax revenue from the annexation area.

However, evidence presented at trial showed that currently the annexation area has between $70,000 and

$80,000 in annual sales tax revenue.

E. NEED FOR ZONING AND PLANNING

¶49. The Chancellor found that the City has zoning and building ordinances in place whereas Noxubee

County has no zoning and no plan for development. This Court has approved annexations even where the

City does not plan to provide zoning and planning and where the County has in force its own zoning and

planning ordinances. Town of Mantachie, 685 So.2d at 728; Extension of Boundaries of City of

Ridgeland, 651 So.2d at 559. The County has countless examples of incompatible land use and allows

building without inspections. The City plans to provide a full-time building inspector upon the completion

of the annexation. The Objectors argue that the “cut out” area does not need zoning or planning ordinances.

They argue that the rest of the PAA may be in need of zoning but their area does not need such laws since

there is limited growth. Zoning and planning are needed in the proposed annexation area in order to ensure

public safety and welfare.

¶50. The Objectors attack the City's enforcement of its zoning ordinances. The Objectors' evidence of

the City's incompatible land use predates the enactment of current building and zoning ordinances and are

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essentially nonconforming uses. The City acknowledged its awareness of these problems and has recently

employed personnel to handle the issue.

F. NEED FOR MUNICIPAL SERVICES

¶51. This Court has established factors to consider when evaluating reasonableness as it relates to need

for municipal services which may or may not include: (1) requests for water and sewage services; (2) plan

of the City to provide first response fire protection; (3) adequacy of existing fire protection; (4) plan of the

City to provide police protection; (5) plan of City to provide increased solid waste collection; (6) use of

septic tanks in the proposed annexation area; and (7) population density. Enlargement and Extension

of the Mun. Boundaries of City of Madison, 650 So.2d 490, 502 (Miss. 1995); Extension of

Boundaries of City of Ridgeland, 651 So.2d at 559; City of Horn Lake, 630 So.2d 10, 21 (Miss.

1993). ¶52. This Court has also addressed how these factors are applied when addressing sparsely

populated areas and densely populated areas. This Court found that in sparsely populated areas, there is

less of a need for immediate municipal services. In re Matter of the Extension of the Boundaries

of the City of Jackson, 551 So.2d at 867. Evidence presented at trial shows the PAA is a densely

populated area.

¶53. The Chancellor found that an increase in residential units and commercial/industrial businesses in the

PAA creates a demand for water and sewer services. The City currently provides sewer service to a

portion of the PAA and has plans to install water and sewer lines to the remaining area. Statistics show that

90% of annexation area residents and 74% of annexation area businesses already receive City water.

Additionally, 64.5% of annexation area residents and 56.4% of annexation area businesses receive City

sewer services. Hunter, Mayor of the City of Macon, also testified that the City has received requests from

residents and businesses in the annexation area for the City’s sewer and water services.

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¶54. The Chancellor found that the PAA has a need for city fire protection. The City currently provides

fire protection to the PAA. The City has on duty fire department personnel with 19 firefighters, while the

County has a totally volunteer fire department. Testimony at trial also established that the fire department

was currently organizing and acquiring funding for an emergency medical response program. The Chancellor

found that a full time fire department with paid personnel are likely to provide the most comprehensive

service.

¶55. Testimony at trial indicated that the Mississippi Rating Bureau has assigned a Class 10 fire rating to

the entire annexation area while the City has a Class 7 fire rating which entitles its residents to a discount on

their fire insurance rating. Objectors argue that they already receive the discount for a Class 7 fire rating;

and therefore, the annexation would not affect their premiums. However, the insurance company voluntarily

assigned these residents with a Class 7 rating and under the terms of the policy are able to decline to insure

them at the Class 7 discount in the future. Objectors also point to the fact that currently the City receives

financial benefits for providing the County with fire protection services. Additionally, the Objectors argue

that they do not need the City’s fire protection since the County has a fire department. This Court has

reversed a Chancellor’s finding that there was no need for municipal level fire protection in an area served

by a Class 10 volunteer fire department. City of Horn Lake, 630 So.2d at 21.

¶56. The Chancellor found that the PAA has a need for City police protection. The City currently

provides some protection to the residents through back up assistance to the County Sheriff’s department.

The City currently has 10 patrolmen with plans to add one more if the annexation is approved.

Additionally, the City has a new patrol car on order. Brown, the Chief of Police, testified that the annexation

area is in need of increased patrolling to control speeders. The Sheriff’s department only has 5 deputies in

charge of patrolling the whole County. Objectors argue that they are satisfied with the Sheriff’s patrol.

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¶57. The Chancellor made no findings as to the need for or a City plan for increased solid waste

collection. Currently the City and County use the same provider for solid waste collection and disposal.

¶58. The Chancellor made no specific findings as to the use of septic tanks in the annexation area, but

as indicated earlier evidence showed that septic tanks systems in the area are failing and creating health

hazards for residents. The City plans to remedy this problem through the installation of sewer lines and

through the enforcement of zoning ordinances.

¶59. The Chancellor noted the increase in population in the PAA. Statistics show that the population has

increased in the area from 231 persons per square mile in 1990 to 255 persons per square mile in 2000.

Evidence also shows that the number of dwelling units over the last 10 years has grown.

G. NATURAL BARRIERS

¶60. The test for evaluating reasonableness as it relates to natural barriers is as follows, “ it is not a

constraint upon development that establishes unreasonableness under the natural barriers concept but rather

a condition that makes provision of municipal services impossible or prohibitively expensive.” City of

Columbus, 644 So.2d at 1175 (citing City of Biloxi v. Cawley, 332 So.2d 749, 751 (Miss. 1976)).

¶61. The Chancellor found that there are no natural barriers between the City and the proposed

annexation area. Objectors argue that other areas are better candidates for annexation. But this argument

ignores the fact that these areas are constrained by the existence of a floodplain. The mere existence of

constraints, such as a floodplain, does not necessarily make the suggested path of growth unreasonable, but

under the circumstances here the PAA is the most reasonable path of growth.

H. PAST PERFORMANCE

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¶62. The Chancellor made no findings on the City’s past performance since this is the City’s first

annexation.

¶63. Looking to the City’s current performance for its residents reveals that the City provides adequate

and comprehensive services. The City provides 100% of its residents with water and sewer. The City

provides fire and police protection for its residents and many in the PAA. The City of Macon provides

trash and garbage collection, street lighting, parks and recreation facilities, streets, drainage, and animal

control. Additionally, the City provides comprehensive zoning and planning ordinances to provide safety

to its residents.

¶64. The Objectors claim the City is neglectful in providing zoning enforcement to its residents; and

therefore, this indicates a standard of poor performance. They offer examples of dilapidated dwellings and

unsanitary property of residents. The Objectors argue that the City is not providing its own residents with

the services it purports to be capable of providing the residents of the PAA.

I. FAIRNESS/EQUITY EVALUATION

¶65. This Court in City of Columbus stated, “Although we retain our 'indicia' for the purpose of today’s

decision, we emphasize that fairness to all parties has always been the proper focus of our reasonableness

inquiry. Thus, we hold that municipalities must demonstrate through plans and otherwise, that residents of

annexed areas will receive something of value in return for their tax dollars in order to carry the burden of

showing reasonableness.” 644 So.2d at 1172. Additionally, this Court in the case of In re Matter of the

Extension of the Boundaries of the City of Jackson, stated, “the Court is required to balance the

equities by comparing the City’s need to expand and any benefits accruing to residents from the annexation

with any adverse impact, economic or otherwise, which will probably be experienced by those who live in

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and own property in the annexation area. The mere fact that residents and landowners will have to start

paying city property taxes is not sufficient to show unreasonableness.” 551 So.2d at 867-68.

¶66. The Chancellor used these standards in evaluating the fairness/equity of the proposed annexation.

She used substantial, credible evidence in making this evaluation.

¶67. The Chancellor found that the Objectors' main complaint of higher taxes cannot defeat the proposed

annexation. As stated above, this Court has found that increased taxes alone is not enough to find an

annexation unreasonable. Id. The payment of City taxes would be offset by the savings on fire insurance

the landowners in the PAA would receive. Objectors argue this is irrelevant since many residents in the PAA

already receive the Class 7 fire insurance rating discount. This ignores the fact that any such rating benefit

is currently voluntary by the insurance company since these residents do not live in a Class 7 rated zone.

The residents would also receive a decrease in their water and sewer rates. Also, the proposed tax impact

on area residents appears to be minimal. The additional net taxes on uncultivated and cultivated land would

be between $6.16 and $57.42 annually depending on acreage.

¶68. Additionally, the residents and landowners in the proposed annexation area would receive improved

police protection, fire protection, public works, streets and drainage maintenance, paving of streets, street

lighting, zoning, building codes, planning and enforcement, water, and sewer services. These benefits are

well worth the additional taxes residents would be forced to pay. When the equities are balanced, the

evidence shows the proposed annexation to be reasonable.

J. VOTING STRENGTH OF PROTECTED MINORITY GROUPS

¶69. The Chancellor found and statistics indicate that the annexation would not negatively impact the

voting strength of any protected minority groups. Currently the City’s population is 42% white and 58%

nonwhite. The annexation area’s population is 39.2% white and 60.8% nonwhite. These statistics indicate

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that the annexation will not substantially decrease the protected minority voting strength. The Objectors do

not contest this issue.

K. BENEFITS TO PROPERTY OWNERS IN PROPOSED ANNEXATION
AREA WITHOUT PAYING THEIR FAIR SHARE OF TAXES

¶70. The Chancellor found that the City of Macon is the financial hub of Noxubee County and that many

businesses situated in the annexation area are benefitting from their association with the City. It was further

found that many businesses in the annexation area even included the City’s name in their business name.

Residents and landowners in the PAA benefit from the use of City water, City sewer, City fire protection,

City police protection, 2 city parks, and association with the City of Macon. The Objectors argue that

there has been no substantial business or industrial growth in the “cut out” areas that would indicate the

benefits of City association are being used by those residents. Relying on City of Columbus, the Objectors

argue that county residents shop in the City of Macon and have to pay sales taxes like other City residents;

and therefore, no benefit is being taken without contribution. 644 So.2d at 1182. The City relies on

Bassett in arguing that the proximity of these residents and business owners affords them benefits. 542

So.2d at 922.

L. OTHER FACTORS THAT MIGHT SUGGEST REASONABLENESS

¶71. The Chancellor made no findings as to other factors influencing her decision to grant the City’s

petition for annexation.

CONCLUSION

¶72. The Chancellor relied on substantial, credible evidence and did not commit manifest error in

approving the City of Macon’s petition for annexation. She correctly applied the factors of reasonableness

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and delivered a comprehensive and detailed opinion as to the facts and case law supporting a finding of

reasonableness. Therefore, the learned Chancellor’s judgment is affirmed.

¶73. AFFIRMED.

SMITH, P.J., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.
WALLER, J., CONCURS IN RESULT ONLY. PITTMAN, C.J., AND DIAZ, J., NOT
PARTICIPATING.

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