Opinion
No. 82-135.
Filed April 8, 1983.
1. Municipal Corporations: Annexation. Annexation of territory by a metropolitan city pursuant to Neb. Rev. stat. 14-117 (Reissue 1977) is a legislative matter. However, courts have the power to determine whether the conditions exist which authorize the annexation thereof. 2. Annexation: Words and Phrases. The use of land for agricultural purposes does not necessarily mean it is rural in character. It is the nature of its location as well as its use which determines whether it is rural or urban in character.
Appeal from the District Court for Douglas County: D. NICK CAPORALE, Judge. Affirmed.
John w. Delehant of Kutak Rock Huie, for appellant.
Herbert M. Fitle, City Attorney, Charles K. Bunger, and Denise Hill, for appellees.
KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, and HASTINGS, JJ., and COLWELL, D.J., Retired.
Ordinance No. 29536, enacted by the defendant City of Omaha, Nebraska, on July 28, 1981, annexed a 477-acre tract of land adjacent to its north boundary. Plaintiff's petition for an injunction was dismissed; it appeals, assigning as error that a part of the land annexed is rural in character and was annexed in violation of Neb. Rev. Stat. § 14-117 (Reissue 1977), which provides in part: "This grant of power shall not be construed as conferring power upon the council to extend the limits of a metropolitan city over any agriculture lands which are rural in character." (Emphasis supplied.)
"Annexation of territory by a metropolitan city pursuant to section 14-117 . . . is a legislative matter. However, courts have the power to inquire into and determine whether the conditions exist which authorize the annexation thereof." (Syllabus of the court.) Wagner v. City of Omaha, 156 Neb. 163, 55 N.W.2d 490 (1952). "`Rural' means of or pertaining to the country as distinguished from a city or town, whereas `urban' means of or belonging to a city or town. In many of the cities and villages throughout the state there are tracts which are only partially developed as residential areas wherein substantial parts of the land are used for agricultural purposes but which tracts are, in fact, urban in character. It was clearly not the intention of the Legislature, if such an area develops outside the boundaries of a metropolitan city, to prevent such city from annexing it." Id. at 168, 55 N.W.2d at 494.
The annexed area is generally bounded on the south by an old railroad right-of-way, on the west by 72d Street, on the north by State Street, and on the east by 60th Street. There are three excepted tracts: (1) A commercial area in the southeast corner, (2) S.I.D. 190 in the northeast corner, and (3) An area on the mid-north boundary containing three luxury-class residences.
Included in the annexed area are these tracts: Two hundred and forty acres leased and occupied by plaintiff as a private social club, providing golf, swimming, tennis, trapshooting, and other recreation; an owned 24.5-acre north-south rectangular tract in the northwest corner, which it leases exclusively for grain farming; and an owned 34.5-acre irregular tract on the east side, also leased exclusively for grain farming. On the south side of the golf course there is a 10-acre wooded area, described as a tree farm, and also a 15-acre tract, owned by Harvey Hayes, leased for grain farming. Both of these tracts abut the main road leading to the country club; they are also near five small platted areas. In the southwest corner there are two residential areas, served by S.I.D. 99 and S.I.D. 121; a small residential area in the southeast corner; and several residences adjacent to the golf course.
The surrounding land has various uses. South of the old railroad right-of-way is the new Immanuel Hospital and medical complex, and next to Immanuel, on the east, is a developed residential area. On the west and north sides, the land is undeveloped, generally used for farming and pasture. On the east, the land is both developed and undeveloped. On all sides, except the south, there are several small tracts used for the raising of hogs, horses, and birds; the evidence is not clear whether these were business or hobby situations. At the northwest corner there are areas zoned for parking and commercial, but they are not developed.
The annexed area has available electric, water, gas, and sewer services. All of the roads around and in the area are hard surfaced. Seventy-second Street, on the west, is a four-lane street connecting with the Interstate highway a short distance north of State Street.
Two witnesses testified: Harvey Hayes, president of the Omaha Country Club, Inc., and Blythe Kubovec, Omaha city planner.
Plaintiff's evidence shows that the annexed and surrounding areas were not growing either commercially or as residence areas in comparison with other parts of Omaha. For example, at the time of trial in November 1981 there were 135 houses in the area, which was an increase of only 8 houses in 3 years. The availability of land for development is not shown in the record. Plaintiff argues that this lack of growth and the presence of only a few platted areas show that rural and agricultural use is dominant.
"The use of land for agricultural purposes does not necessarily mean it is rural in character. It is the nature of its location as well as its use which determines whether it is rural or urban in character." (Emphasis supplied.) Sullivan v. City of Omaha, 183 Neb. 511, 514, 162 N.W.2d 227, 229-30 (1968); Voss v. City of Grand Island, 186 Neb. 232, 182 N.W.2d 427 (1970).
Not to be overlooked in weighing the evidence and making independent findings is the dominant location and use of plaintiff's private club that is clearly urban in character.
Plaintiff's concern relates to the two tracts it owns. The 24.5-acre tract abuts the golf course; it has access to both 72d Street and State Street. The 34.5-acre tract is near and accessible to the golf course; it has access to 60th Street. Plaintiff's evidence was that it was its plan to use this latter tract to add nine holes to its golf course. The location of these two tracts imposes an urban character upon them. The present use of the 10- and 15-acre tracts to the south of the golf course does not overcome their urban character.
"`The burden is on the one who attacks an ordinance, valid on its face and enacted under lawful authority, to prove facts to establish its invalidity.'" Bierschenk v. City of Omaha, 178 Neb. 715, 718, 135 N.W.2d 12, 14 (1965).
Having considered the location and uses of all of the included tracts of land, we find that the annexed area was urban in character and that the ordinance was a lawful exercise of the city's powers.
AFFIRMED.