IN THE DISTRICT COURT FOR POLK COUNTY

JOHN FRANCIS ANDERSON,
And Other Residents Of the Territory For
Involuntary Annexation To the City Of
Carlisle Filed Pursuant To Iowa Code Chapter 368
Petitioners,

Case No. AA3155 RULING
vs.

THE CITY DEVELOPMENT BOARD OF
THE STATE OF IOWA
Respondent,

and the CITY OF DES MOINES, IOWA,
Intervenor/Respondent.



The above captioned case came before the Court by for hearing on January 14, 1999.
Petitioners, John Francis Anderson et.al, were represented by attorney, Frank M. Smith.
Respondent, The City Development Board of the State of Iowa, was represented by Assistant Attorney General, Christie J. Scase. Intervenor / Respondent, the City of Des Moines, was represented by attorney Mark Goodwin.

RULING
  • ISSUE

    WHETHER AN ANNEXATION MORATORIUM AGREEMENT FORMED UNDER IOWA CODE SECTION 368.4 PRECLUDES A TERRITORY WHICH IS NOT A PARTY TO THE AGREEMENT FORM BRINGING AN INVOLUNTARY PETITION FOR ANNEXATION.

      I. STANDARD OF REVIEW

    On judicial review of an agency action, the district court functions in an appellate capacity to apply the standards of the Iowa Code section 17A.19(8)(1997). Iowa Planners Network v. Iowa State Commerce Comm'n, 373 N.W.2d 106, 108 (Iowa 1985). Thus, the court may reverse, modify, or grant other appropriate relief only if agency action is affected by error of law, is unsupported by substantial evidence in the record, or is characterized by abuse of discretion. Iowa Code §17A.19(8); see Burns v. Board of Nursing, 495 N.W.2d 698,699 (Iowa 1993); see also Glawacki v. Iowa Bd. Of Medical Examiners, 516 N.W.2d 881, 884(Iowa 1994).


    The Court has no original authority to declared the rights of the parties. Office of Consumer Advocate v. Iowa State Commerce Comm'n, 432 N.W.2d 148, 156( Iowa 1988). Judicial review of agency action is confined to corrections of errors of law. Iowa Code § 17A. 19 (1993); Waterhouse Water Conditioning, inc. v Waterhouse, 561 N.W.2d 55, 57(Iowa 1997); Pointer v. Dep't Motor Vehicle Div., 546 N.W.2d 340, 341(Iowa 1986).


    The court may reverse an agency action if it is characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. Iowa code §17A.19(8)(g). The agency is free to exercise its expertise within a reasonable range of informed discretion. Office of Consumer Advocate v. Iowa State Commerce Comm'n 419 N.W.2d 373, 374 (Iowa 1988). Discretion is abused when it is exercised on clearly untenable ground or to a clearly unreasonable extent. Ashmead v. Harris, 336 N.W.2d 197, 199 (Iowa 1983).


      II. STATEMENT OF THE CASE
    This is an administrative appeal of the decision of the Dity Development Board (CDB), an agency of the State of Iowa, dismissing a petition by the residents of a territory called West Carlisle seeding an involuntary annexation of Carlisle.

    The Petitioners are residents of the territory hereinafter generally referred to as West Carlisle. On June 15, 1998, Petitioners filed a Petition for Involuntary Annexation of Carlisle, Polk County, Iowa (Petition) with the CDB. (CDB Record Item 3). The cause was docketed as City Development Board No. A98-02.
    On July 16, 1998, the CDB held a hearing to determine whether or not Petitioners' Petition should be accepted or dismissed by the CDB. The CDB concluded that the Petitioners' Petition should be dismissed for the reason "that the petition violated the terms of the moratorium agreement that is in force between the cities of Des Moines and Carlisle. … The provisions of Iowa Code § 368.4 require the Board to dismiss such a petition." (CDB Record Item 9).

    On July 24, 1998, the CDB filed its Findings of Fact, conclusions of Law and Determination dismissing Petitioners' Petition. (CDB Record Item 9). On August 3, 1998, Petitioners filed an Application requesting that the CDB reconsider its decision to dismiss Petitioners' Petition and conducted a hearing with respect to the same. At the conclusion of the hearing, the CDB reaffirmed its earlier decision and upheld the dismissal of the Petitioners' Petition. (CDB Record Item 14). On September 14, 1998 the CDB filed its Findings of Fact, Conclusions of Law and Determination on Application for Reconsideration. (CDB Record Item 15).

    On August 21, 1998, the Petitioners filed pro se a Petition for Judicial Review and a Petition for Injunction seeding judicial review of the CDB's action dismissing the Petition and also seeking Injunctive relief, Petitioners timely served the CDB and Other interested parties by certified mailing on August 31, 1998.

    Petitioners, through their counsel, filed an Amended and Substituted Petition for Judicial Review on September 18, 1998. On September 22, 1998, Des Moines filed a Petition for Intervention which was not resisted. The CDB filed its Answer herein October 1, 1998 and the City of Des Moines filed its Answer herein October 13, 1998.


      III. STATEMENT OF FACTS
    West Carlisle is an unincorporated area in Polk County located between Des Moines and Carlisle in Allen Township. West Carlisle is located within an area that is subject of an Annexation Moratorium Agreement (Moratorium) between Des Moines and Carlisle. (CDB Record Item 5).

    The Moratorium between Des Moines and Carlisle was entered into pursuant to proceedings initiated in June of 1990. On June22, 1990 On June 22, 1990, Des Moines published notice that it was holding a public hearing on the Moratorium in the Des Moines Register. (CDB Record Item 5).Also on June 22, 1990, Des Moines posted a notice of the hearing on the Moratorium on its legal bulletin board. (CDB Record Item 5). Des Moines held a public hearing July 2, 1990 on the proposed Moratorium. (CDB Record Item 5). At the conclusion of the public hearing, Des Moines passed a resolution which provided:

    That approval is hereby given to the agreement with the City of Carlisle
    by which Des Moines agrees during a ten year period not to undertake
    annexation of the territory lying South and East of the following line and
    Carlisle agrees not to annex territory lying North and East of said line…
    (CDB Record Item 5)(emphasis added).

    On June 20, 1990, Carlisle published notice that it was holding a public hearing on the proposed Moratorium with Des Moines in the Carlisle Citizen. The notice stated that the public hearing would be held July 9, 1990 to take comments to determine whether or not Carlisle should enter into an agreement with Des Moines to not undertake annexation of a territory lying North and East of a particularly described line. (CDB Record Item 5) as supplemented)(emphasis added). Carlisle held a public hearing on the proposed Moratorium with Des Moines (CDB Record Item 5).

    Neither Des Moines nor Carlisle served the CDB with notice of the hearings being conducted on the proposed Moratorium(CDB Record Item 5 as Supplemented).

    Des Moines executed the Moratorium July 2, 1990. (CDB Record Item 5). Carlisle executed the Moratorium July 23, 1990. (CDB Record Item 5). The Moratorium as executed by Des Moines and Carlisle provides in part, as follows:

    The City of Des Moines agrees to refrain from annexing territory that lies
    to the East and South of the demarcation line for a period of ten (10) years
    from the date of this Agreement.

    The City of Carlisle agrees to refrain from annexing territory that lies to the
    North and West of the line of demarcation for a period of ten years from the
    date of this Agreement.

    (CDB Record Item 5)(emphasis added). The Moratorium refers to a line which neither Des Moines nor Carlisle will cross over for purposes of annexation proceedings during the ten year period of the agreement as the "demarcation line." (CDB Record Item 5). The Moratorium has attached to it maps wherein the parties have drawn in the demarcation line. (CDB Record Item5). The Northerly part of the demarcation line is the centerline of the "proposed future relocated Highway 65 as constructed is ¾ mile West of the center line of relocated Highway 65 as proposed at the time of the Moratorium in 1990. (CDB Record Item 5 and as supplemented).

    The area affected by the Des Moines and Carlisle Moratorium proscribes Carlisle from annexing any are North and West of the demarcation line. West Carlisle, the territory in question, lies to the north and west of the demarcation line. The Moratorium differs from both the area described in the public hearing notice published by Carlisle, and the area described in the resolution passed by the City of Des Moines authorizing it to enter into the Moratorium. The notice of the hearing published by Carlisle and the Des Moines resolution approving the Moratorium both proscribed Carlisle from annexing any area North and East of the demarcation line. (underlining provided.) (CDB Record Item 5). The area North and East of the demarcation line does not include West Carlisle.

    The Citizens of West Carlisle presented a petition for voluntary annexation to the Carlisle City Council on May 11, 1998. The petition was rejected by the Carlisle City Council because of the existing Moratorium. (CDB Record Item 4). The Citizens of West Carlisle then commenced proceedings for an involuntary annexation of Carlisle. They published notice June 2, 1998 in the Des Moines Register and June 4, 1998 in the Carlisle Citizen of a public meeting to be held June 14, 1998, the public meeting concerning the involuntary petition whereby West Carlisle would be involuntarily annexed to Carlisle. (CDB Record Items 1, 2, 3). On June 14, 1998, the public meeting concerning the involuntary petition whereby Carlisle would be annexed to West Carlisle was held. The involuntary petition was reviewed and the filing of the same with the CDB was unanimously authorized by those residents who were present at the meeting, comprising approximately 50% of the qualified electorate. (CDB Record Item 3).
    On June 15, 1998 the petitioners filed their involuntary annexation petition with the CDB. Among other things, the Petition states:

    1. residents of this area have attempted to proceed with a voluntary annexation to the City of Carlisle, but have not been able to because of the Moratorium Agreement between Carlisle and the city of Des Moines which would prevent the city of Carlisle from accepting the Petition. That Agreement was reached without consent or suffrage of the property owners in West Carlisle and presumed to extend legal jurisdiction over those property owners, suppressing their right/privilege of petitioning under 638.7 of the Code of Iowa, voluntarily, without said jurisdiction being extended by statute or suffrage. We have appealed to each level of government abailable, from the Polk coungy Supervisors to the Office of the Governor for relief and each level has claimed inability to further our pursuit of a voluntary annexation in a timely manner. We Citizens of West Carlisle must therefore resort toa an involuntary annexation pursuant to chapter 368.11 of the Code of Iowa in order to preserve our community… for the following reasons:
    2. Our community spirit resides in Carlisle. We nurture our children alongside the children within the city limits, attending the same schools, churches, sporting organizations and clubs. We also enjoy the blessings of a common society with the citizens residing within the city boundaries.
    3. Our children will continue to attend Carlisle/Hartford schools and our input to the city council of Carlisle is a vital part of ensuring the well being of those children both on and off school grounds. Presently, our input is informal, but accepted and we do not wish to chance being ignored on matters affecting the welfare of our children and relatives.
    4. We Object that Des Moines has stated the intention of not providing sanitary sewer to the area North of 57th Avenue. We also ask the Board to recognize that Des Moines has stated that the area South of 57th Avenue would be "most economically served with sanitary sewer by negotiating an agreement with the city of Carlisle." (Des Moines Petition for Involuntary Annexation, May 1998, page 45) These services would be at a greater cost than if provided directly by Carlisle.


    The Petition was docketed as CDB No. A98-02. (CDB Record Item 3.)

    The CDB dismissed Petitioners Petition based on their finding that the Petition violated the terms of the Moratorium between Des Moines and Carlisle (CDB Record Item 9).


      IV. CONCLUSIONS OF LAW

    Chapter 368 of the Iowa Code, entitled "City Development," governs city annexation procedures. Iowa Code scetion 368.6 states the Iowa Legislature's intent with regard to annexations: " 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."
    Iowa Code Section 368.4 enables cities to enter an "Annexing moratorium" whereby two or more cities agree to refrain from annexing a described territory:


    1. A city, following notice and hearing, may by resolution agree with another city or cities to refrain from annexing specifically described territory for a period not to exceed ten years and, following notice and hearing, may by resolution extend the agreement for subsequent periods not to exceed ten years each… If such an agreement is in force, the board shall dismiss a petition or plan which violates the terms of the agreement.

    2. Iowa Code section 368.1, entitled "Definitions," states that "[a]s used in this chapter, unless context otherwise requires:…'Annexation' means the addition of territory to a city." Iowa Code §368.1(2).


    In order to be bound by a contract, "the contracting parties must manifest a mutual assent to the terms of a contract, and this assent is usually given through the offer and acceptance." Kristerin Development Co. v Granson Inv. 394 N,W. 2d 325, 331 (Iowa 1986) ( citing Hayne b. Cook, 109 N.W.2d 188, 192(Iowa 1961)). If a party has not assented to be bound by a contract, the terms of the contract cannot be enforced against that party. Kristerin, 394 N.W.2d at 331.

    A voluntary annexation of a territory occurs when the owners of land within the territory apply in writing to the counsel of the city with whom annexation is sought, and the city counsel of that city approves the application by resolution. Iowa Code §368.7(2),(3).

    The Iowa Code also provides a mechanism for causing an involuntary annexation under Iowa Code section 368.11 on boundary adjustments. Iowa Code §368.1(4); City of Des Moines v City Development Bd. Of State of Iowa, 473 N.W.2d 197(Iowa 1991). An involuntary annexation can be sought by "five percent of the qualified electors of a… territory involved in the proposal," who submit their petition directly to the CDB. Iowa Code §368.11. No prior approval, disapproval, or action of any kind is required of the city with whom annexation is sought in order for the electors of a territory to submit the petition of the CDB, for the CDB to initiate annexation proceedings, or for the CDB to approve the involuntary annexation proposal. Iowa Code §368.11.

    The CDB must either dismiss an involuntary annexation petition or initiate proceedings within 90 days of receiving the petition. Iowa Code §368.11. The CDB "may dismiss a petition only if it finds that the petition does not meet the requirements of [chapter 368]" or substantially the same petition has been disapproved by the committee formed to review the petition, or the voters within the previous two years. Iowa Code §368.12. Dismissal of a petition for violating a legally binding annexing moratorium under Iowa Code section 368.4 must also occur within 90 days. Iowa Code §368.11. "If an involuntary petition is not dismissed, the board shall direct the appointment of local representatives to serve with board members as a committee to consider the proposal" Iowa Code §368.14 (emphasis added).

    The committee is required to approve any proposal which it finds to be in the public interest according to, but not limited to, the guidelines set forth in the Iowa Code section 368.16. Iowa Code §368.16("… the committee shall approve any proposal which it finds to be in the public interest….")(emphasis added). The committee may not, however, approve any petition if any of the conditions set fortin in Iowa Code section 368.17 exist. Iowa Code §368.17("The committee may not approve….")(emphasis added). The committee may amend a petition prior to approval. Iowa Code §368.18. a petition which is approved must be voted upon in a special election by the registered voters of the territory and city to be annexed. Iowa Code §368.19. ("If a petition or plan is approved, the board shall set a date… for a special election on the proposal…")(emphasis added). The annexation is approved if a simple majority of the persons voting approve it. Id.

      V. DISCUSSION
    Petitioners have raised two basic challenges on appeal. First, Petitioners claim the Moratorium is void in abnito. Second, Petitioners contend that even if the Moratorium is not void, Petitioners involuntary petition for annexation cannot be dismissed by the CDB under Iowa Code section 368.4 because Petitioners were not a party to the Moratorium between Des Moines and Carlisle and are not bound by the agreement, and because dimissal of the involuntary petition under section 368.4 would violate Petitioners' constitutional rights. The court considers Petitioners' arguments in reverse order, and because the court concludes that the CDB cannot dismiss Petitioners' involuntary annexation petition under Iowa Code section 368.4. the claim that the moratorium agreement is void in abnito is not considered.

    This court recognizes and gives weight to the expertise of the City Development Board in interpreting the statutes dealing with the specialized laws regarding annexation. This case was well briefed and argued by all parties involved. Ultimately, resolution of the issues involved turns on a very close question of statutory construction. The Iowa Supreme Court has never addressed the issues raised in this case, and very little guidance is available to this court other than the plain language of the statutory sections involved. After very careful review of the law and the facts, this court concludes that the CDB's interpretation of the statute was an error of law.

    Iowa Code section 368.4 states that the CDB "shall dismiss any petition or plan which violates the terms of the [Moratorium] agreement"(emphasis added). This language is significant in that West Carlisle cannot violate the Moratorium agreement as they are not a party to the agreement. The parties to the Moratorium are Des Moines and Carlisle. A Moratorium agreement, like any other contract, can only bind the parties to the contract, and only parties to a contract can violate its terms. Kristerin, 394 N.W.2d at 331; Hayne, 109 N.W. 2d at 192. Therefore, under the Moratorium, both Des Moines and Carlisle are contractually bound to refrain from annexing the described territory, and only Des Moines and Carlisle can violate the Moratorium by annexing the described territory.

    Furthermore, Iowa Code section 368.4 does not allow two cities to restrain non-parties to an annexing moratorium from acting to join or doing something to unite themselves with a party to the agreement, so long as neither party to the annexing moratorium initiates the process of unification. Iowa Code section 368.1(2) states that "unless context otherwise requires,… "Annexation" means the addition of territory to a city." Websters dictionary defines "annex" as "to join in a closely united but subordinate capacity … to include (an area) within the limits of a governmental unit." Webster's Third New International Dictionary 87 (3d ed 1981) (parenthetical in original). Webser's definition of the verb root "annex" clearly comports with the definition of "annexation" in Iowa Code section 368.1(2).

    Notably, however, Iowa Code section 368.4 is not entitled "Annexation moratorium" but entitled "Annexing moratorium" (emphasis added). Webster's Dictionary states that the suffix "-ing" when added to a verb such as annex, "is used to form the present participle of the verb." Webster's Third New International Dictionary at 1161. A present participle is " a participle that typically expresses present action in relation to the time expressed by the finite verb in its clause and that in English is formed with the suffix-ing and is used in the formation of the progressive tenses." Webster's Ninth New Collegiate Dictionary 931 9
    th ed 1986). A progressive tense of a verb is "of, relating to, or constituting a verb form that expresses action or state in progress at the time of speaking or at the time spoken of." Id. At 940. The term "annexing," then is the present participle of the verb annex, expressing a present affirmative action on the part of the party who is annexing to join or include an area within the limits of a governmental unit. Simply stated, "annexing" means to annex.

    The title of Iowa Code section 368.4 itself implies that moratoriums created pursuant to that provision do not prohibit all "annexation" of territory therein described, but prohibit all "annexing" of that territory by the parties to a moratorium agreement. The terms of Iowa Code section 368.4 allows two or more cities to agree with one another "to refrain from annexing specifically described territory for a period not to exceed 10 years…" (emphasis added). Section 368.4 allows cities to agree to refrain from acting to join or doing something to unite themselves with the territory described in the agreement. The cities, however, can only prevent each other from acting affirmatively to annex the described territory. Two cities cannot contractually agree to eliminate the statutory right of a non-party territory to act affirmatively to join or unite their territory to a city, albeit without the city's help.

    In this case, West Carlisle has brought an involuntary annexation petition. At the point when the CDB dismissed Petitioners Petition under Iowa Code section 368.4, there had been no violation of the Moratorium: neither Des Moines nor Carlilsle had acted to join, done something to unite, or engaged in the process of attachment of the territory described in their Moratorium. The involuntary annexation proceeding requires no act by the Carlisle City Counsel to approve or disapprove the Petition on behalf of the city of Carlisle. The Petition was submitted directly tothe CDB. At no time during the 90 day period during which the CDB must dismiss a petition for violation of an annexing moratorium is it necessary for Carlisle to participate. If carlisle has not participated by the end of that 90 day period, the CDB must initiate proceedings and form a committee, at which point the CDB no longer has the power to dismiss the petition if the requirements of Iowa Code sections 368.16 and 368.17 are fulfilled. Iowa Code §§368.4, 368.11, 368.12. The involuntary annexation proceeding initiated by Petitioners requires only affirmative acts by West Carlisle, who is not a party to the moratorium agreement, to cause West Carlisle and Carlisle to be joined. West Carlisle is not a party who has contracted to refrain from acting to join the territories described in the moratorium agreement.

    The above analysis is furthered by the legislative intent of chapter 368. The legislature clearly stated that their intent was to create " an annexation approval procedure which gives due consideration to the wishes of the residents of [sic] territory to be annexed, and to the interests of all territories affected by an annexation." Iowa Code §368.6. Reading section 368.4 to allow two cities to unilaterally take away the statutorily given right of a territory to bring an involuntary annexation petition, without any vote or approval of the territory, gives no consideration to the wishes of the residents of the territory. However, in the event that the CDB approves the Petition, the residents of Carlisle and West Carlisle will vote to either approve or disapprove the annexation, giving consideration to the wishes of the residents of all territories affected by the annexation.

    Furthermore, if Des Moines and Carlisle were permitted to take away the statutory right of West Carlisle's electorate to bring an involuntary annexation petition without West Carlisle's residents having a vote or voice and opportunity to be heard, such an agreement may violate the constitutional rights of West Carlisle's residents. Respondents are correct in asserting that the Iowa Supreme Court and the United States Supreme court have held that municipal boundaries may be altered without the consent of inhabitants in the territory without violating their constitutional rights. Hunter v. City of Pittsurgh, 207 U.S. 161, 179, 28 S. Ct 40, 47, 52 L.Ed.2d 151, 159(1907); City of Monticello v. Adams, 200 N.W.2d 522, 524 (Iowa 1972). These cases, however, were decided when there had been no statutory enactment which had specifically given the inhabitants of a territory the right to petition to alter municipal boundaries and the right to vote on petitions which meet the criteria of Iowa Code sections 368.16 and 368.17. Iowa Code §§368.11, 368.16, 368.17, 368.19. This court mentions this only as further support for the above analysys and makes no decision as to the constitutionality of annexing moratorium agreements at this time.

    This ruling does not in any way decide the merits of the Petitioners' involuntary annexation petition. This ruling determines only that Iowa Code section 368.4 does not permit the CDB to dismiss Petitioners' involuntary annexation petition, as the Petition does not violate the Moratorium between Des Moines and Carlisle. Therefore, unless the CDB determines that the Petition should be dismissed under Iowa Code section 368.12 for other reasons, the CDB must initiate proceedings and form the proper committee to determine whether the petition should be approved in accordance with the provisions of chapter 368.

      VI. ORDER
    IT IS THE ORDER OF THE COURT that the administrative ruling of the City Development Board of the State of Iowa, dismissing Petitioners' Petition for involuntary annexation of Carlisle, Polk County, Iowa, is REVERSED. The Petitioners' Petition for Involuntary Annexation of Carlisle, Polk County, Iowa is REMANDED to the City Development Board for consideration under Iowa Code chapter 368 in accordance with this ruling. Costs are taxed to the City Development Board of the State of Iowa

    IT IS SO ORDERED this 14
    th day of May, 1999.

    Signed: Donna L. Paulsen, District Judge
    Fifth Judicial District of Iowa


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