IN THE SUPREME COURT OF IOWA
______________________________________________________________


NO. 99-0932
_______________________________________________________________

JOHN FRANCIS ANDERSON, ET AL.,

Petitioners/Appellees,

vs.

THE CITY DEVELOPMENT BOARD
OF THE STATE OF IOWA,

Respondent/Appellent

and

THE CITY OF DES MOINES, IOWA,

Intervenor/Respondent/Appellant.
__________________________________________________________________

APPEAL FROM THE IOWA DISTRICT COURT
FOR POLK COUNTY
HONORABLE DONNA L. PAULSEN

PROOF BRIEF OF
INTERVENOR/RESPONDENT/APPELLANT
THE CITY OF DES MOINES

Mark Godwin
Deputy City Attorney
City Hall
400 E First Street
Des Moines, IA 50309
Tel: (515) 283-4564
Fax: (515) 2371748
ATTORNEY FOR CITY OF DES MOINES




STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

  • THE TRIAL COURT USED AN INCORRECT STANDARD OF REVIEW.
    Abel v. Iowa Dep't of Personnell, 472 NW2d 281 (Iowa 1991)
    City of Waukee v. City Development Board, at 514 NW2d 85
    Morrison v. Century Eng'g 434 NW2d 874 (Iowa 1989)
    Iowa Code § 368.22

    1. THE TRIAL COURT INCORRECTLY APPLIED THE LA WHEN IT
    DETERMINED THAT AN UNINCORPORATED TERRITORY CAN
    ATTEMPT TO INVOLUNTARILY ANNEX ITSELF TO AN EXISTING
    CITY.

    City of Des Moines v. City Development Board, 335 NW2d 449 (Iowa App 1983)
    City of Des Moines v. City Development Board, 473 NW2d 197 (Iowa 1991)
    State ex.rel. Johnson v. Allen, 569 NW2d 143 (Iowa 1997)
    IAC 263-2.3
    Iowa code §§ 362.2(8)
    Iowa code § 368.11
    Iowa Code Chapter 380
    Iowa Code Chapter 384
    Iowa Code § 718.2
    Iowa Constitution, Article III, § 38A

    1. EVEN IF A TERRITORY COULD INITIATE A PETITION FOR INVOLUNTARY ANNEXATION, THE TRIAL COURT MISAPPLIED THE LAW WHEN IT RULED THAT A §368.4 MORATORIUM AGREEMENT CANNOT PRECLUDE SUCH AN INVOLUNTARY PETITION.
    City of Des Moines v. City Development Board, 335 NW2d 449 (Iowa App 1983)
    Op. Atty Gen. , Oct. 23, 1978 (Turner)
    Iowa Code § 368.24

    1. IF THE ANNEXATION MORATORIUM AGREEMENT BETWEEN DES MOINES AND CARLISLE IS A CONTRACT, THERE IS NOTHIN IN THE BODY OF THE COMMON LAW WHICH WOULD PREVENT THE CDB FROM DISMISSING THE ANDERSON PETITION BECAUSE OF THE EXISTENCE OF THE CONTRACT, AND THE TRIAL COURT ERRED WHEN IT HELD OTHERWISE.

    Bowen v. Aetna Indemnity co., 131 NW 1086 (Iowa 1911)
    Financial Marketing Services, inc. v. Hawkeye Bank and Trust, 588 N.W.2d 450 (Iowa 1999)
    Hardin v. Eska Co. , 127 NW2d 595 (Iowa 1964)
    Iowa Realty of Pella v. Boomsma's, Inc., 533 NW2d 549 (Iowa 1995)
    Iowa Code §§ 28E(4) & (12)
    Iowa Code § 368.4

    1. THE ANNEXATION MORATORIUM AGREEMENT BETWEEN DES MOINES AND CARLISLE DOES NOT VIOLATE EITHER ANDERSON'S DUE PROCESS RIGHTS OR HIS EQUAL PROTECTION RIGHTS AS SECURED BY THE U.S. CONSTITUTION.
    City of Cedar Rapids v. Cox, 108 NW2d 253 (Iowa 1961)
    City of Monticello v. Adams, 200 NW2d 522 (Iowa 1972)
    Hunter v. City of Pittsburgh, 207 U.S. 161, 28 s. Ct. 40, 52 L.Ed. 2d 151 (1907)
    McQullin, Municipal Corporation, Vol. 2, § 703, p. 355
    People v. Palm Springs, 331 P.2d 4 (Cal 1958)
    Wertz v. City of Ottumwa, 208 NW 511 (Iowa 1926)
    Iowa Code Chapter 368

    1. THE ANNEXATION MORATORIUM AGREEMENT BETWEEN DES MOINES AND CARLISLE WAS ADOPTED IN SUBSTANTIAL COMPLIANCE WITH APPLICABLE STATUTES AND IS NOT VOID "AB INITIO".
    I.R.A.P. 14(j)



    STATEMENT OF THE CASE
  • nature of the case and course of proceedings
    This is an administrative appeal. The District Court overturned a decision of the City Development Board. The Board's decision dismissed the involuntary annexation petition of Mr. John Anderson and the other residents of the territory of "West Carlisle" (hereinafter " Annexation Petition" and "Anderson" respectively)

    Anderson filed a petition for involuntary annexation with the City Development Board (hereafter "CDB") on June 15, 1998. On July 16, 1998 the CDB dismissed the Petition because it violated the terms of a moratorium agreement in force between the City of Des Moines and the City of Carlisle. On July 24, 1998 the CDB promulgated its findings of fact, conclusions of law and determination. On August 3, 1998 Anderson requested the CDB to reconsider. On September 14, 1998 the CDB upon reconsideration reached the same result.

    On August 21, 1998 Anderson filed a pro se petition for judicial review in the Iowa District Court. On September 18, 1998, having obtained counsel, Anderson filed an amended and substituted petition for judicial review. On September 22, 1998 the City of Des Moines (hereafter "City") filed a petition for intervention which was not resisted. On October 1, 1998 the CDB filed its answer. On October 13, 1998 the City filed its answer.

    On January 14, 1999 hearing was held before the Iowa District Court, Honorable Donna L. Paulsen presiding. On May 14, 1999 the district court entered its ruling reversing the decision of the CDB to dismiss the Anderson petition for involuntary annexation. The CDB filed its notice of appeal on June 8, 1999. The City filed its notice of appeal on June 9, 1999. The case was docketed on June 24, 1999.


    1. FACTS RELEVENT TO THE ISSUES PRESENTED FOR REVIEW

    Mr. Anderson lives in an unincorporated area of Polk County which the City of Des Moines is attempting to annex involuntarily . (Annexation Petition, p. 3-5). Mr. Anderson does not want to be a part of the City (Annexation Petition, p. 3-5). In an effort to thwart the city's annexation efforts, Anderson approached the City of Carlisle and asked Carlisle to annex him. (Annexation Petition, p. 3). Carlisle refused because ofthe existence of an Annexation Moratorium Agreement between itself and Des Moines. (Annexation Petition p. 3) Anderson then attempted to do involuntarily what could not be legally done on a voluntary basis - he filed an application for involuntary annexation with the CDB (Annexation Petition).

    The CDB dismissed the petition, as it was required to do under Iowa Code §368.4, because the petition violated the broad, encompassing language of the Des Moines /Carlisle Annexation Moratorium Agreement. (CDB Findings, Conclusions and Determination, 7/24/98) .

    No witnesses were called at the trial court appeal. The case was submitted upon the record, briefs and arguments of counsel. The trial court ruling was based upon a theory of contract law - that Anderson was not a party to the Des Moines/Carlisle agreement and therefore could not be bound by the agreement (Ruling p. 10 - 15).

    The annexation Moratorium Agreement between Des Moines and Carlisle was adopted in July, 1990. It was approved by the City Councils of both cities. It expires in July 2000. (Annexation Moratorium Agreement).

    SUMMARY
  • STANDARD OF REVIEW
    The standard of review in this appeal of a City Development Board judicial review proceeding is limited to "questions relating to jurisdiction, regularity of proceedings and whether the decision appealed from is arbitrary, unreasonable, or without substantial supporting evidence. City of Waukee v. City Development Board, at 514 NW2d 85 (Iowa 1994) (quoting from Iowa Code § 368.22) ( 1991)



    1. ARGUMENT

    To begin with, the trial court erred when it applied the incorrect standard of review. The trial court utilized a standard of review drawn from Iowa Code § 17A.19(8) rather than the proper standard of review noted above. Iowa Code § 368.22 explicitly states that Iowa Code § 17A.19(8) does not apply to review of CDB actions.

    Next, the trial court erred when it determined that an unincorporated territory can initiate an involuntary annexation petition to or on behalf of a city. The net effect of this holding is to figuratively allow the baby to control the adoption.

    The trial court again erred when it held that while Iowa Code § 368.4 allows cities to enter into annexation moratorium agreements to preclude voluntary annexation, the same code section does not allow cities to preclude involuntary annexations initiated by territories not party to the agreement.

    The trial court erred once more when it decided this annexation case upon contract principles. An Annexation Moratorium Agreement such as existed between Des Moines and Carlisle is a legislative tool used to manage municipal growth. It is not a contract. And as a legislatively approved tool to be used to manage municipal growth, such an agreement can prevent persons who are not citizens of either city which is party to the agreement from forcing their wills upon either of those cities. Put another way, the trial court's erroneous application of contract law to this annexation case allowed Anderson to attempt to do under cover of darkness that which he was clearly forbidden from doing by the light of day. However, even if the Annexation Moratorium Agreement is a contract, there is nothing in law which prevents two parties from establishing certain relationships with others not parties to the contract.

    Anderson's contention that the CDB decision to dismiss his petiton because the existence of the Moratorium Agreement violated his constitution rights of due process and equal protection (although not addressed by the trial court) is meritless as well. This court and the U.S. Supreme Court have consistently held that municipal boundary issues are within the exclusive province of the legislature and individuals are afforded no constitutional protections as to them.

    Finally, Anderson claimed the Moratorium Agreement was void ab initio.

    The trial court did not address this issue either. The agreement is not void because it was adopted in substantial compliance with Chapter 368.

      PRESERVATION OF ISSUES
    All of the issues raised in this appeal were raised first in the pledings and/or the trial briefs of the parties and/or the ruling of the trial court.

    BRIEF POINT I
    THE TRIAL COURT USED AN INCORRECT STANDARD OF REVIEW

    The trial court said, in the "STANDARD OF REVIEW" section of its ruling that :
    On judicial revie of an agency action, the district court functions in
    an appellate capacity to apply the standards of Iowa Code section
    17A.19(8) (1997). Iowa Planners Network v. Iowa State Commerce
    Comm'n, 373 NW2d 106, 108 (Iowa 1985)

    (ruling p. 2). The trial court went on to cite §17A.19(8) on two more occasions and also cited numerous cases applying the 17A.19 (8) standard (Ruling p. 2).
    The trial court used an incorrect standard of review. Iowa Code § 368.22 reads in pertinent part:
    The judicial review provisions of this section and chapter 17A shall
    be the exclusive means by which a person or party who is aggrieved or
    adversely affected by agency action may seek judicial review of that


    agency action. The court's review on appeal of a decision is limited to
    questions relating to jurisdiction, regularity of proceedings, and whether
    the decision appealed from is arbitrary , unreasonable, or without
    substantial supporting evidence. The court may reverse and remand a
    decision of the board or a committee, with appropriate directions. The
    following portions of section 17A.19 are not applicable to this chapter:

    1. the part of subsection 2 which relates to where proceedings for judicial review shall be instituted.
    2. Subsection 5.
    3. Subsection 8
    4. Subsection 9.
    5. Subsection 10
    6. Subsection 11
    Iowa Code § 368.22 (1997) and H.F. 667, Section 40, 1998 Regular Session. (Emphasis Added).

    This court strictly construes "statutes delineating a court's appellate jurisdiction with regard to administrative appeals.
    City of Waukee v. City Development Board, at 514 NW2d 85 ; Morrison v. Century Eng'g 434 NW2d 874 (Iowa 1989) ;Abel v. Iowa Dep't of Personnell, 472 NW2d 281 (Iowa 1991)
    Because the trial court applied an incorrect standard of review, all of its ruling is called into question and must be reversed. An application of the correct standard of review, as shown in the remaining brief points, must result in an affirmance of the decision of CDB, which decision dismissed Mr. Anderson's involuntary annexation petition because it was contrary to the Annexation Moratorium Agreement between Des Moines and Carlisle which was on file with the CDB.


    The West Carlisle viewpoint!
    DSM argues here that because 17A.19 (8) is exluded by 368.22, NO appeal can be made if the CDB :
    a. violates the constitution or statutes of Iowa
    b. exceeds agency authority
    c. violates its own rules
    d. procedes unlawfully
    e. makes any error of law
    f. acts in opposition to evidence
    g. is unreasonable, arbitrary or capricious or exercises unwarranted discretion.

    All of which are provisions of 17A "This chapter is intended to provide a minimum procedural code for the operation of all state agencies..." (17A.1(2)) thus the CDB is exempt from even the minimum procedural statutes of State agencies.

    BRIEF POINT II
    THE TRIAL COURT INCORRECTLY APPLIED THE LAW
    WHEN IT DETERMINED THAT AN UNINCOPORATED
    TERRITORY CAN ATTEMPT TO INVOLUNTARILY ANNEX
    ITSELF TO AN EXISTING CITY..

    The gist of this entire case is that Mr. Anderson and the other residents of the unincorporated territory they call "West Carlisle" have attempted to attach themselves to Carlisle much like some parasites attach to their hosts - without the hosts' permission or consent. Because annexation is wholly and completely a creature of statute, City of Des Moines v. City Development Board, 473 NW2d 197, 199 (Iowa 1991), and because the statute which controls annexation does not allow such parasitic relationships to occur, See : Iowa Code Chapter 368 (1997), the trial court erred when it ruled that an unincorporated territory can try to attach itself to an existing city by way of involuntary annexation even if an existing annexation moratorium agreement would preclude a voluntary liaison between the two.

    While the language of one small part of chapter 368 may not be crafted with all possible art, the entire chapter, when read in pari materia, shows that only cities can initiate involuntary annexation proceedings. Reading all portions of a statute together is the preferred method of discerning legislative intent. City of Des Moines v. City Development Board, 335 NW2d 449, 454 (Iowa App. 1983).

    That small section of Chapter 368 which is poorly drafted was quoted by the trial court in its ruling (Ruling p. 9) and is found at § 368.11. It reads in pertinent part:

    A petition for incorporation, discontinuance or boundary adjustment
    may be filed with the board by a city council, a county board of
    supervisors, a regional planning authority or five percent of the
    qualified electors of a city or territory involved in the
    proposal
    .

    At first glance a reading of the above might give the impression that a few "electors" in a "territory" could somehow force an involuntary annexation upon a city otherwise prohibited from annexing the territory voluntarily. Certainly the trial court seems to have come away with that impression. After referring to the language in §368.11 above (Ruling p. 9) the trial court then went to §368.4, which deals with Annexation Moratorium Agreements, and engaged in a exercise of statutory construction notable for its examination of the meaning of "ing" when attached to the word "annex." (Ruling, p. 11-13).

    The City submits that this perusal of the present participle was unnecessary and legally incorrect. Instead of looking at § 368.4, the trial court should have finished looking at §368.11. Other portions of that statute serve to make it abundantly clear that only a city can initiate a petition for involuntary annexation of a territory, and not vice versa.

    Section 368.11(7) requires a petition for involuntary annexation to contain, "Plans for disposal of assets and assumption of liabilities. " Those types of financial decisions can only be made by a city council, not by the electors of a territory on behalf of the city to which they wish to be annexed in voluntarily. (*SUB 1) See: Iowa Code §§ 362.2(8) and Iowa Code Chapters 380, 384 (1997).

    *SUB 1 : The implausibility of the entire scenario presented by the case is highlighted by the fact that there is nothing involuntary about the Anderson annexation petition at all. It is involuntary in name only. It is a voluntary petition in involuntary clothing. Its denomination a "involuntary " is self-serving, misleading and done for the sole purpose of avoiding the effect of the Moratorium Agreement. The only reason Anderson calls the petition involuntary is because he can't get what he wants when he calls it voluntary. Page 5 of the petition states:
    This petition is, in spirit, a voluntary action and is "involuntary"
    only by name and definition of the section of the Code of Iowa we
    are forced to function under
    .
    Page 3 of the petition contains similar admissions. (Annexation Petition, p. 3, 5). Mr. Anderson and his fellow petitioners should be applauded for their candor. But mere appreciation of their candor should not be allowed to mask the fact that what they are doing is an intentional mischaracterization of the nature of their petition.
    *END SUB 1

    Section 368.11(13) requires a petition for involuntary annexation to include, "In the discretion of a city council, a provision for a transition for the imposition of city taxes against property within an annexation area." Of course, the Carlisle City Council couldn't exercise its discretion in this instance because it did not author the petition. And Mr. Anderson and his fellow elector's cannot speak for the Carlisle Council because of the statutory provisions already cited.

    Section 368.11(13) also contains a mandatory provision that there be a meeting preceding the filing of the petition for involuntary annexation. That meeting, open to the public, MUST BE CHAIRED BY, " The mayor of the city proposing to annex the territory , or that person's designee….

    Section 368.11(13) also requires the city clerk from the city proposing the annexation to record the proceedings at the public meeting. Once again, since "West Carlisle" is not a city, it can't have a city clerk and its petition can't comply with the statute. See also: State ex.rel. Johnson v. Allen, 569 NW2d 143, 146 (Iowa 1997). {City participation in annexation proceedings is mandatory because provision of city services is mandatory}.

    This significant statutory language leads to three conclusions, any one of which renders the ruling of the trial court legally incorrect. First, only a city can propose to annex a territory involuntarily. Second, Anderson, who chaired the meeting, is not the mayor of the city proposing to annex the territory. He humbly styles himself as the "Mayor Pro Tem of West Carlisle" *(SUB 2) (Petition for Injunction, Partial Transcript of 7/16/98 CDB meeting), or the "mayor designee" (Annexation Petition, p. 36). A territory simply can't initiate a petition for involuntary annexation because it has no mayor who can preside over the meeting. Third, if Anderson was really designee of the Mayor of Carlisle, then Carlisle is the driving force behind Anderson's petition and Carlisle is attempting to avoid the Moratorium Agreement and the trial courts' analysis of the entire situation was legally flawed (and conversely the cdb's analysis was correct) because the Annexation Moratorium Agreement prevents Carlisle from annexing "West Carlisle." (See also 6/8/98 letter from Carlisle City Administrator Neil Ruddy, Annexation Petition, p. 37-38).

    *(SUB 2)
    Iowa Code § 718.2 makes it an aggravated misdemeanor for "Any person who falsely claims to be or assumes to act as an elected or appointed officer … of any {state} subdivision … having no authority to do so.
    (END SUB 2)

    The administrative regulations governing the CDB and its operations also must be examined. Like Chapter 368, the administrative code requires certain information in a petition for involuntary annexation that could not be provided by a territory but could only be provided by the city involved in the annexation. For example, IAC 263-2.3(9) (a) requires:

    A description of municipal services, including but not limited to, water
    supply, sewage disposal and police and fire protection, and the costs of
    said services, that the city can extend to the territory… shall be
    included. (Emphasis added)
    IAC 263-2.3(10) (a) requires:
    Annexation and consolidation. The petition shall include a statement of
    the capability of existing city facilities to accommodate an increased
    load resulting from annexation… (emphasis added)
    IAC 263-2.3(12) requires:
    Effect of proposal on adjacent areas. The petition shall include the
    amount of revenue lost or gained by any city, township or county
    impacted by the proposal (Emphasis added)
    IAC 263-2.3(14) requires:
    Shared roads. The petition shall include a proposed formal agreement
    between affected municipal corporations and counties for the
    maintenance and improvement and traffic control of any road that is
    divided as a result of an incorporation or boundary adjustment.

    Together, Chapter 368 of the Code and IAC 263 make one thing manifest: A territory cannot initiate an involuntary annexation action that, in effect, forces a city to take the territory into the city's borders. Such an idea is repugnant to the home rule authority given to Iowa municipalities. See:

    Iowa Constitution, Article III, § 38A. Such an idea is repugnant to Chapter 368, which already provides a mechanism for residents of a territory to become part of a city - voluntary annexation. See: Iowa Code § 368.7. Such an idea is repugnant to the decisions of this court because:

    The entire statutory scheme of chapter 368 demonstrates an intent to
    have the city development board oversee and approve orderly city
    development City of Des Moines at 335 NW2d 453-54

    To allow a territory to force a city to annex the territory when the city couldn't afford to annex the territory, wasn't ready to annex the territory or just plain didn't want to annex the territory would hardly be orderly. In fact, it would be the opposite of orderly. It would be chaotic. Any construction of § 368.11 which would allow a territory to initiate a petition for involuntary annexation is an arbitrary and unreasonable application of the law. A territory cannot provide the city actions required by § 368.11. The plain and simple legislative intent of Chapter 368 is that when a territory wishes to become a part of a city, voluntary annexation proceedings are employed . When a city otherwise wishes to annex a territory, it does so involuntarily.

    The CDB treated the Anderson petition for what it really is - a petition for voluntary annexation - and dismissed it pursuant to § 368.4 because of the existence of the moratorium agreement. The trial court erred when it reversed the CDB.



    The West Carlisle viewpoint!

    DSM argues here that because West Carlisle is a territory they cannot "annex" a city. 368.11 clearly places us as staturory equals with the other entities with statutory privileges. All of the information concerning sewage capacity and costs for provision of services are covered by the freedom of information act. As for the discretionary transition of taxes; a territory can simply assume that taxation will be immediate and complete.

    As for the mayor and clerk, we plead substantial compliance with the statute, having duly elected a mayor pro tem(temporary mayor) and a clerk pro tem.

    The shared roads are covered by an existing agreement that the first to annex assumes the entire road and there are no roads "split" by the petiton which is bound by the beltway, current Des Moines roads or farm ground.

    DSM seems awfully concerned about the fairness of a territory annexing a city when they don't have the same concerns when they are the driving force. They are content to have no plans or schedules for provision of services when they are petitioning. It is one thing to be forced to await improvements upon the whims of development: it is a whole different matter to make that choice yourself.

    Des Moines seems to be searching in vain for the Legislative intent of 368. Perhaps they could read the section labled: 368.6 Intent which reads: It is the intent of the general assembly to provide an annexation approval procedure which gives due consideration to the wishes of the residents of territory to be annexed, and to the interests of the residents of all territories affected by an annexation. The general assembly presumes that a voluntary annexation of territory more closely reflects the wishes of the residents of territory to be annexed, and, therefore, intends that the annexation approval procedure include a presumption of validity for voluntary annexation approval.

    I interpret this as placing the residents of the territory a step above statutory equality in 368.11 or at least in the front of the line.

    BRIEF POINT III
    EVEN IF A TERRITORY COULD INITIATE A PETITION FOR
    INVOLUNTARY ANNEXATION, THE TRIAL COURT MISAPPLIED
    THE LAW WHEN IT RULED THAT A § 368.4 MORATORIUM
    AGREEMENT CANNOT PRECLUDE SUCH AN INVOLUNTARY
    PETITION.


    In Brief Point II we pointed out the initial mistake made by the trial court. That mistake was holding that a territory could initiate a petition for involuntary annexation. The cause of the mistake was a failure of the trial court to conduct a thorough analysis of § 368.11. Now, in Brief Point III, we point out how the trial court erred even if its erroneous framing of the issue is accepted as correct. (Ruling, p. 1.)

    In a nutshell, the ruling of the trial court is that a § 368.4 moratorium agreement does not preclude Anderson's involuntary petition because:

      1. § 368.4 refers to "annexing" moratoriums (Ruling p. 12) ; while
      2. What the Anderson involuntary petition seeks is an "annexation." (Ruling, pps 12-13)
    Put another way, the trial court is saying that while §368.4 allows two cities to prevent each other from annexing certain territory, § 368.4 does not allow them to prevent a "non-party territory" from acting "affirmatively to join or unite their territory to a city, albeit without the city's help." (Ruling, p. 13).

    There are two significant fallacies in the reasoning of the trial court.

    First, the trial court says an involuntary annexation can be carried on "without the city's help." (Ruling, p. 9, 13). As pointed out in Brief Point II, Iowa Code Chapter 368 and IAC chapter 263 are replete with instances where municipal participation in involuntary annexation proceedings is mandatory. Once again, the error by the trial court comes from the failure to fully examine Iowa Code § 368.11.

    Even more alarming is the net result of the law as determined by the trial court. If the city truly plays no part in an involuntary annexation effort by a territory, then the effort would be, at least from the City's viewpoint, a "fait accompli.." It would be a done deal. Not only does the city play no part, says the trial court, but the city can't do anything to refuse an involuntary attempt by a territory to graft itself on to the City. The ruling of the trial court means that the destiny of the city rests entirely in the hands of the territory.

    That a city is unable to refuse an attempt at involuntary annexation by a territory is a proposition not supported by a single decision of this court. Indeed, it is a proposition made all the more unlikely when one considers that a city can refuse an attempt at voluntary annexation by a territory. Op. Atty. Gen. , Oct 23, 1978 (Turner).

    The fact of the matter is this: A city has the power to refuse a voluntary annexation effort on its own or by way of an annexation moratorium agreement pursuant to § 368.4. Having that power, it necessarily has the power to likewise refuse an INVOLUNTARY annexation effort on its own or by way of moratorium agreement.

    Second, all of the statutory construction engaged in by the trial court is for naught because in the end the definitional distinction between annexation and annexing is one without legal difference. If Anderson's petition were to run its full course and be successful, then, in the end, the City of Carlisle would end up ANNEXING the territory of West Carlisle. See: Iowa Code § 368.24. And if Carlisle is ANNEXING the territory , then such ANNEXATION is in violation of the moratorium agreement.

    The interpretation of the statute touted by the trial court runs afoul of a well established maxim of statutory construction: The court will not construe a statute so as to bring about "strained, impractical or absurd results." City of Des Moines at 335 NW2d 453. If the trial court's version of the law is adopted, then moratorium agreements are rendered useless because any moratorium could be avoided by any city simply by having the city approach electors of a territory and say, Hey,(wink, wink, nudge, nudge) why don't you do an involuntary annexation petition?" To prevent such a happening this court:

    … should look to the object to be accomplished and the evils and
    mischiefs sought to be remedied in reaching a reasonable or liberal
    construction which will best effect its purpose rather than one which will
    defeat it.

    Id.
    The object to be accomplished by Chapter 368 generally and § 368.4 specifically, of course, is the orderly growth of cities. City of Des Moines at 335 NW2d 453-54. Conversely the evils and mischiefs sought to be remedied are the disorderly growth of cities. Id. An interpretation of the law which allows cities to be able to agree to prevent both voluntary and involuntary annexations (or annexings) will best effect its purpose.




    The West Carlisle viewpoint!
    DSM argues here that if a city cannot reject an involuntary annexation then there would be chaos. (I seriously doubt if anybody living in the country would want to be inside a city until cities start paying out money instead of taxing.) They seem, again, to forget to read Chapter 368 which requires a vote of both the city and the territory COMBINED to complete the process. There is no way that a territory would have more electors than a city and a city has the advantage of, in DSMs case, hundreds of millions of dollars of bonding capacity to run a campaign.

    West Carlisle is using the statute to force Carlisle to the table (in the comittee phase). Yes, at some point Carlise will have to participate in the process against their will (I guess that 's why it's involuntary)

    If DSM and the CDB would actually read the current and past laws and the Legislatures files on how they evolved (1972 HF 574 p. 201) along with the clear intent of 368.6 they would find that it is their interpretation that is strained and absurd and in opposition to the intent of the Legislature.

    BRIEF POINT IV


    IF THE ANNEXATION MORATORIUM AGREEMENT BETWEEN
    DES MOINES AND CARLISLE IS A CONTRACT, THERE IS
    NOTHING IN THE BODY OF THE COMMON LAW WHICH
    WOULD PREVENT THE CDB FROM DISMISSING THE
    ANDERSON PETITION BECAUSE OF THE EXISTENCE OF THE
    CONTRACT, AND THE TRIAL COURT ERRED WHEN IT HELD
    OTHERWISE.


    The fundamental flaw in this portion of the trial courts' ruling is that while it rests upon principles of contract law it contains no reference to or examination of the language of the contract at issue. Then, without any understanding of the contract language at issue, the trial court simply recites hornbook cliché that the terms of a contract can only be enforced against parties to the contract. (Ruling, p. 8) *(SUB 3)

    *SUB 3
    While the question probably does not need to be decided here, it is doubtful that a moratorium agreement is a contract in the common sense of the word. Rather, it is a special, legislatively allowed agreement for cooperative action between two governmental entities. The legislature differentiates between such agreements and plain contracts. Compare and contrast: Iowa code § 28E.4 (Agreements with other agencies), § 28E.12 (Contracts with other agencies), and § 368.4 (Annexing moratorium agreements by council resolution).
    END SUB 3

    This analysis ignores the fact that while a contract can only bind the parties to it, it can also have a direct and significant effect upon parties to a contract have agreed to alter or forego relationships with others not parties to the contract. Financial Marketing Services, Inc. v Hawkeye Bank and Trust, 588 NW2d 450, 455 (Iowa 1999) [Covenant not to compete alters right of party to contract to interact in specific way with certain others not a party to the contract]; Harding v. Eska Co. , 127 NW2d 595, 599 (Iowa 1964) [Grant of exclusive territory to franchisee may prevent franchisor from selling franchises to third parties]; Bowen v. Aetna Indemnity co. , 131 NW 1066, 1088 (Iowa 1911) [Exclusive employment contract may prevent party from employing others not a party to the contract].

    As to the language of the moratorium agreement between Des Moines and Carlisle, it is broad and inclusive. It reads in pertinent part:

  • This agreement is applicable to all annexation proceedings, to the fullest extent allowed by Chapter 368 of the Iowa Code with respect to the above described areas. Each city participating in this Agreement agrees that it shall not annex in violation hereof and further agrees that it will take action to the fullest extent allowed by law to prevent and discourage voluntary annexation pursuant to Section 368.7 of the Code of Iowa, and the cities will not give consent to petitions or applications for an annexation under said sections of the Iowa Code which would violate the terms of this agreement.
    (Moratorium Agreement, par 4).

    Des Moines and Carlisle have agreed to refrain both from initiating certain annexation (or annexing) actions and from consenting to annexation (or annexing) actions initiated by others. This they are explicitly permitted to do by Iowa Code § 368.4. The common law of contracts does not prevent the cities from arranging their legal relationships in this manner, and the trial court erred when it held otherwise.


    The West Carlisle viewpoint!
    The foremost error of DSM and the State is in using the DSM/Carlisle agreement to interpret the statute 368.4 instead of ensuring that that agreement conforms with 368.4. When coupled with the restrictions of 362.2 upon the definition of a city used in 368 there is no way that the agreement can be construed to affect the property rights of people outside the city limits:

    4. "City" means a municipal corporation, but not including a county, township, school district, or any special-purpose district or authority. When used in relation to land area, "city" includes only the area within the city limits.

    The langauge of the agreement steps beyond statutory empowerment and seeks to deprive West Carlisle of statutory privilege under Iowa law. While 368.4 does permit cities to "agree to refrain from annexing specifically described territory" it does NOT permit them interfere with the rights and privilege of Iowa citizens beyond their jurisdiction

    BRIEF POINT V

    THE ANNEXATION MORATORIUM AGREEMENT BETWEEN DES
    MOINES AND CARLISLE DOES NOT VIOLATE EITHER
    ANDERSON'S DUE PROCESS RIGHTS OR HIS EQUAL
    PROTECTION REIGHTS AS SECURED BY THE U.S.
    CONSTITUTION.

    In his amended petition, Anderson claimed the Moratorium Agreement between Des Moines and Carlisle violated his due process rights and his equal protection rights. (Petition, paragraph 15-c). The trial court never reached the questions (Ruling p. 14-15). The City briefs them here so that a complete resolution of this case can be had on this appeal.

    Anderson's constitutional claim must fall on deaf judicial ears because, "the United States Supreme Court has stated that municipal; boundaries may be altered without the consent of the inhabitants of the territory affected and 'nothing' in the Federal Constitution is to the Contrary." City of Monticello v. Adams, 200 NW2d 522, 524 (Iowa 1972); citing, Hunter v. City of Pittsburgh, 207 U.S. 161, 179, 28 S.Ct. 40, 47, 52 L.Ed. 2d 151, 159 (1907); See also City of Cedar Rapids v. Cox, 108 NW2d 253, 262 (Iowa 1961) and Wertz v. City of Ottumwa, 208 NW 511 (Iowa 1926).

    Of course if a city can change its boundaries without the consent of others, it can decide not to change its boundaries as well, because no one has a vested right to be either included or excluded from a local governmetal unit. People v. Palm Springs, 331 P.2d 4, 9 (Cal 1958). And the fixing of municipal boundaries rarely if ever constitutes an invasion of federal constitutional rights. ID., citing Hunter v. City of Pittsburgh, supra


    As the U.S. Supreme Court said:

    Municipal corporations are political subdivisions of the state, created as
    convenient agencies for exercising such of the governmental powers of
    the state as may be entrusted to them. For the purpose of executing these
    powers properly and efficiently they usually are given the power to
    acquire, hold, and manage personal and real property. The number,
    nature, and duration of the powers conferred upon these corporations
    and the territory over which they shall be exercised rests in the absolute
    discretion of the state. Neither their charters, nor any law conferring
    governmental powers, or vesting in them property to be used for
    governmental purposes, or authorizing them to hold or manage such
    property, or exempting them from taxation upon it, constitutes a contract
    with the state within the meaning of the Federal Constitution. The state,
    therefore, at its pleasure, may modify or withdraw all such powers, may
    take without compensation such property, hold it itself, or vest it in other
    agencies, expand or contract the territorial area, unite the whole or a
    part of it with another municipality, repeal the charter and destroy the
    corporation. All this may be done, conditionally or unconditionally, with
    or without the consent of the citizens, or even against their protest. In all
    these aspects the state is supreme, and its legislative body, conforming
    its action to the state Constitution may do as it will, unrestrained by
    any provisions of the Constitution of the United States. Although the
    inhabitants and property owners may, by such changes, suffer
    inconvenience, and their property may be lessened in value by the
    burden of increased taxation, or for any othe4r reason, they have no
    right, by contract or otherwise, in the unaltered or continued existence of
    the corporation or its powers, and there is nothing in the Federal
    Constitution which protects them from these injurious consequences. The
    power is in the state and those who legislate for the state are alone
    responsible for any unjust or oppressive exercise of it.
    Hunter v. City of Pittsburgh, 207 U.S. 161, 179, 28 S.Ct. 40, 47, 52 L.Ed. 2d 151, 159 (1907)
    (emphasis added). See also: McQuillin, Municipal Corporations, Vol. 2, § 703, p. 355 [The fixing of municipal boundaries is a legislative function involving political questions which does not infringe upon constitutional rights].

    Mr. Anderson's argument is with the Legislature, not with the CDB or this Court. As the law now stands, the Legislature has spoken through Chapter 368 and has said that cities may enter into moratorium agreements, may fix their own boundaries and may exclude people from those boundaries without the consent or suffrage of the people outside their borders. See: Chapter 368.



    The West Carlisle viewpoint!

    Nowhere within any of the documents of this case will you find West Carlisle seeking protection under the U.S. Constitution. However, Hunter v. Pittsburgh definately requires that government conform its action to the state Constitution


    BRIEF POINT VI
    THE ANNEXATION MORATORIUM AGREEMENT BETWEEN DES
    MOINES AND CARLISLE WAS ADOPTED IN SUBSTANTIAL
    COMPLIANCE WITH APPLICABLE STATUTES AND IS NOT VOID
    "AB INITIO".

    1. ANDERSON DID NOT PRESERVE THIS ERROR FOR REVIEW BY THE TRIAL COURT.
    2. EVEN IF THE ISSUE WAS PRESERVED, IT MUST FAIL BECAUSE THE MORATORIUM AGREEMENT WAS ADOPTED IN SUBSTANTIAL COMPLIANCE WITH CHAPTER 368 AND ANY ADOPTION REGULARITIES CAUSED NO PREJUDICE TO ANDERSON.

    Regarding Brief Point VI and both subtopics contained within it, the City of Des Moines adopts those portions of the brief of the CDB which address those issues, pursuant to I.R.A.P. 14(j).


    CONCLUSION

    For all of the reasons briefed above, the City of Des Moines requests the court to reverse the decision of the trial court and affirm the decision of the City Development Board dismissing the Anderson Annexation Petition, and for such other relief as is proper.