Presentation before the Senate economic development committee March 2, 1999 @ 1300 room 22
John Anderson 4491 SE 40 Street, Des Moines, Iowa 50320 266-5348
Senators, thank you for allowing me to address you this afternoon.
Each of you represent Iowa, you are not Des Moines or Cedar Rapids Senators, you are Iowa Senators representing each and every citizen of the state singularly. The laws you enact upon the framework of the Constitution affect all Iowans. In that instrument, as in the amendments to the US Constitution, the first and thus most eminent delineation is that of the rights of individuals contained within the Bill of Rights. All other specifications, either contained or derived, are subsequent and inferior including the operation of government entities. To ensure that this was understood, the drafters of the Iowa Constitution clarified it in Article I section 2 stating: "All political power is inherent in the people.."
The cities lobbyists in the rotunda would like you to believe that they represent individual citizens but they don't. They represent a particular city or group of cities, and cities are a form of government exclusive of those living beyond their boundaries. When the General Assembly starts legislating for the wants of municipalities, you enter a quagmire of decisions: does a city have more privilege in Iowa than a town and are the rights of a town superior to those of a community and do the rights and privileges of all of them carry more weight than the rights of the individual? The Constitution answers this clearly; NO. It is only when you build statutes upon the rights of the individual, as the Constitution directs in Article I, that questions of superiority and arbitrary classification are avoided.
There is a large and diverse group of Iowans who have no government protecting them and securing their rights and privileges concerning annexation. This group doesn't have a multi-million dollar bonding capacity to purchase the mercenary services of a lobbyist, or to grind on for years in legal battles. Their bonding capacity extends only to the limit of a Credit Card or to where it takes food off of the family table. This group is wholly without representation outside of the Iowa legislature via the Code of Iowa. You know and represent this group as rural Iowans, a group that may need to be added to the endangered species list if this legislature does nothing to stop the current lunatic annexation frenzy. Our state motto may well become : Iowa, soon to be called Des Moines.
I represent 84 voters in an area designated "the territory of West Carlisle" having been elected mayor pro tem. We have been attempting to involuntarily annex the city of Carlisle, after attempting a voluntary annexation, because our area and that city is already a community. Carlisle does not wish to violate the terms of a moratorium agreement with Des Moines, an agreement reached without our representation or suffrage. Des Moines is attempting to involuntarily annex us with no care for our desires, directly conflicting with the intent of the annexation chapter. We have no representation in either city. Our county supervisors truthfully contend that they have no voice in what the cities do. Governor Branstad did not want to get involved. The City Development Board, upon the contorsionistic advice of the Attorney Generals office would not even read our petition. The AGs performance has been qualified as an attorney representing a client, the CDB ; but who is really the client? Representing the Department of Justice, the Attorney General should read and apply the statutes as they are written, not in the favor of a private citizen or a city. Having exhausted the possibility of any elected or appointed official between us as rural residents and the courts for any voice concerning our homes, the only representation available to us is The Code of Iowa through the courts, and that is a very expensive realm to enter and survive within.
Among the inalienable rights of Article I section 1 are "pursuing and obtaining safety and happiness ". Moratorium aside, we feel much safer with the Carlisle volunteer fire department and Polk County Sheriff than we would with the diluted services Des Moines offers. We would also be much happier maintaining our community ties with Carlisle where councilmen represent 600 people rather than being forced into the vacuous and unresponsive Des Moines government where a councilman can alienate 15 thousand constituents and still carry a majority.
You are further proscribed from favoring the wishes of cities by Article I section 6 which directs that : the general, assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens." When legislated laws derived from this supreme instrument deprive one single person of those guarantees then they are void in accordance with Constitutional Article XII section 1. By not allowing a weighted vote in annexations you effectively grant cities the privilege to expand at will while denying that same privilege to 5% of the electors of a territory. It is only by legislating for all Iowans, urban and rural, singular and then plural, that you can avoid abrogating the individual rights guaranteed within the Constitution
The courts in Clive v. Colby decreed that " no municipality should have the right to tie up adjacent territory unless it is prepared to proceed diligently to annex territory and extend needed municipal services." That is exactly what all of the unneeded annexations currently being undertaken will do, tie up land without providing services. That strategy by cities carries a heavy price tag for municipal citizens who must foot the bill for excessive undeveloped land within the city limits. One cost is islands within the city limits without basic municipal services like sewer, there are many septic tanks in use even along SE 14th Street. If it costs $500 per year above what can be assessed to run services past a vacant lot, then Des Moines, with 5000 vacant lots by the Chamber of Commerce count, must make up a $2.5 million dollar deficit. I could not find, because Des Moines claims not to keep, the tax loss to support the 12 square miles of "vacant developable land" within the current city limits, roughly the size of Urbandale, but it must be enormous. Yet that city council is attempting to use involuntary annexation to add another 14 square miles of basically vacant land to the tax roles, not with the intent of providing services but with the stated goal of "controlling" development. By pushing for new annexations, developers simply build upon prime Ag land with no need to even consider degenerating brownfield areas like the corridors along Maury, Scott and Dean Streets within a mile of this building. Cities like Pella, Perry, Urbandale, and Des Moines have found a new way to be fiscally irresponsible, expanding the bonding capacity by involuntarily annexing huge chunks of property to include in property assessments, though they still lack the capacity to pay the bills. Now ask yourselves again just who the cities lobbyists in the rotunda represent, it absolutely isn't the municipal citizen. The involuntary annexation statute is broken and needs to be fixed.
Article III section 30 of the Constitution allows Counties to consolidate only with the the majority in each county approving. 368.19 allows cities that are consolidating equal voice in the issue by again requiring approval of the majority in both municipalities to carry the issue. Clearly the constitution and even prior legislatures saw the need to instill a measure of equality when statutorily equal entities with numerical disparities vote upon issues of mutual concern.
Currently Chapter 368 contains an intent statute that clearly focuses on the rights of the residents of a territory. The involuntary annexation law, 368.11 recognizes 4 entities as being statutorily equal: City Councils, County Boards of Supervisors, a Regional Planning authority, and Five Percent of the Qualified Electors of a city or Territory involved in the proposal. The irreconcilable point of 368.11 is that the territory is the statutory equal of a city yet the vote is not weighted to give the area being involuntarily annexed any voice at all: 1 vote for us, 2300 votes for Des Moines. 5% of the electors initiating an involuntary annexation for good reason are deprived of the privilege of equal voice due to the wording within 368.19.
How do we fix it? There are a number of options:
Senator Lundbys' proposal approaches the problem from one side by requiring cities to plan, and offers regulation to control sprawl outside of city limits. The simple logistics of her bill is problematic: 99 counties and 1000 municipalities would produce 10,000 agreements requiring approval of the CDB. It creates jobs within the state, for lawyers. It does nothing, however, to ensure that the rights of the individual citizen, rural or otherwise, are protected and thus falls short of what your oaths require. I applaud the allowance for severance after a four year wait but would not be pleased if I required those services at 2 years and 11 months. The citizens around Easter Lake annexed in 1989 are still living in jeopardy without reasonably situated fire protection. One other item needs to be clarified: the Polk County Supervisors offer little or no representation to rural Polk county residents due to their mainly urban constituency. You must allow rural citizens a very strong voice in these plans, it is their homes and property you are directing cities to parse amongst themselves and there are some very simple yet relevant reasons for choosing one city over another just as there are when you are selling and moving your home.
Senate file 36 strives for a bifurcated vote in only involuntary annexations, restoring the power of rural residents to obtain what is guaranteed in the bill of rights. This bill does not affect any type of annexation other than involuntary. This is the simplest remedy available as a bill today. This also is proactive in protecting rural citizens from unnecessary legal fees.
Another option is the repeal of 368.11 because it is an unnecessary tool for municipal governments. Parsing annexations to fit the 80/20 category is a common practice and Cities would still have both voluntary and 80/20 annexations available to them. One of the most dynamic cities in Iowa, Ankeny, has not filed an involuntary petition in a generation.
Perhaps cities need to be limited on the percentage of vacant yet developable land contained within their boundaries by barring annexations above a certain threshold. This would protect urban residents from the city fleeing to the Suburbs themselves as Des Moines has done, at actual cost to older neighborhoods. The terms city limits and involuntary annexation remind me of the poor farmers at Valley Forge who thought their fences were protected by the Revolutionary Army rule that only the top two fence rails could be used for firewood; they forgot that when rails one and two were taken, three and four become the top two rails. Making cities look inward for development opportunities would force councils to maintain infrastructure and reward the citizens with a solid tax base instead of one resembling swiss cheese. It would also slow down the irreversible consumption of prime agricultural land.
The one thing you cannot do is nothing. West Carlisle will prevail in court and all of the annexation moratoriums in the state will be nullified due to improper construction. When that happens and if this general assembly has not acted, the flurry of cutthroat annexations by cities whose restraints have evaporated, will make the Oklahoma land rush look like a picnic for couch potatoes.
I have been searching for a proper analogy to the plight of rural homeowners all over the state whose property is within reach of city councils through involuntary annexation. About 2:20 this morning I was awakened by a vision of a person or child lying in the roadway near my home, unconscious and helpless. The vision was so strong I was compelled to stare out the window at the road to ensure it wasn't true. The derived analogy is that most rural citizens are unaware of the threat from a city council they don't concern themselves with, the helplessness only becomes apparent when they try to obtain safety and happiness for their families through the Code of Iowa as cities try to roll over them with involuntary annexation. No person can drive by a person lying in the throughfare, it is a moral and even genetic compulsion to stop and give aid, yet some people like Doctors, law enforcement and emergency personnel have taken oaths that require them to stop and give aid exclusive of any other duty. Senators, you fall into the second category, your oaths and the constitution require you to ensure that the rights of both urban and rural Iowans are protected. That conclusion is drawn from Article I sec. 2 which reads in part: Government is instituted for the protection, security and benefit of the people
thus it is your sworn duty to protect rural citizens from city government and city residents from their own myopic government. Rural residents may remain unconscious of city government but only you can keep them defenseless by ignoring the rights you have been entrusted to protect.