SID No. 196 of Douglas Cty. v. City of Valley ( 2015 )

CASES DETERMINED
IN THE
SUPREME COURT OF NEBRASKA
Sanitary and Improvement District No. 196 of
Douglas County, Nebraska, appellant, v.
City of Valley, Nebraska, appellee.
___ N.W.2d ___
Filed February 6, 2015. No. S-13-880.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives the party the benefit of all reasonable
inferences deducible from the evidence.
2. Annexation: Ordinances: Equity. An action to determine the validity of an
annexation ordinance and enjoin its enforcement sounds in equity.
3. Equity: Appeal and Error. On appeal from an equity action, an appellate
court decides factual questions de novo on the record and, as to questions of
both fact and law, is obligated to reach a conclusion independent of the trial
court’s determination.
4. Municipal Corporations: Annexation. Neb. Rev. Stat. § 17-405.01 (Reissue
2012) provides that cities of the second class may annex contiguous or adjacent
lands which are urban or suburban in character and not agricultural lands which
are rural in character.
5. Municipal Corporations: Annexation: Constitutional Law: Legislature:
Statutes. The power delegated to municipal corporations to annex territory must
be exercised in strict accord with the statute conferring such power, because a
municipal corporation has no power to extend or change its boundaries other than
as provided by constitutional enactment or as it is empowered by the Legislature
by statute to do.
6. Summary Judgment: Proof. A party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that if the evidence presented for summary
judgment remains uncontroverted, the moving party is entitled to judgment as a
matter of law.
7. ____: ____. After the moving party has shown facts entitling it to a judgment as
a matter of law, the opposing party has the burden to present evidence showing
an issue of material fact which prevents judgment as a matter of law for the mov-
ing party.
(1)
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8. Summary Judgment: Evidence. A summary judgment involves a judicial eval­
uation of evidence to determine whether an issue of material fact exists and,
therefore, is a factual determination resulting in a disposition of the factual merits
of a controversy.
9. Summary Judgment: Expert Witnesses: Testimony. A conflict of expert testi-
mony regarding an issue of fact establishes a genuine issue of material fact which
precludes summary judgment.
10. Municipal Corporations: Annexation: Agriculture. Neb. Rev. Stat. § 17-405.01
(Reissue 2012) expressly limits a city of the second class from exercising its
annexation power over any agricultural lands which are rural in character.
11. Municipal Corporations: Annexation. To determine whether lands are urban or
suburban, the test is whether a city has arbitrarily and irrationally used the power
granted therein to include lands entirely disconnected, agricultural in character,
and bearing no rational relation to the legitimate purposes of annexation.
12. Agriculture: Words and Phrases. Agriculture is defined as the art or science
of cultivating the ground, including harvesting of crops and rearing and manage-
ment of livestock.
13. Municipal Corporations: Annexation. The contiguous or adjacent requirement
in statutes governing the annexation powers of cities determines how substantial
the link between the city and the annexed area must be.
14. Municipal Corporations: Annexation: Words and Phrases. The terms “con-
tiguous” and “adjacent” are used synonymously and interchangeably, and if the
territory sought to be annexed is not contiguous to the municipality, the proceed-
ings are without legal effect.
15. Annexation: Boundaries: Words and Phrases. Contiguity means that the two
connecting boundaries should be substantially adjacent.
16. Municipal Corporations: Annexation. Substantial adjacency between a munici-
pality and annexed territory exists when a substantial part of the municipality’s
boundary is adjacent to a segment of the boundary of the city or village.
17. ____: ____. A municipality may annex several tracts as long as one tract is
substantially adjacent to the municipality and the other tracts are substantially
adjacent to each other.
18. ____: ____. The annexation of land to cities and towns is a legislative function,
and it is for their governing bodies to determine the facts which authorize the
exercise of the power granted.
19. Annexation: Taxation. It is improper for an annexation to be solely motivated by
an increase in tax revenue.
20. Ordinances: Proof. The burden is on one who attacks an ordinance, valid on its
face and enacted under lawful authority, to prove facts to establish its invalidity.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
James E. Lang and Kathleen M. Foster, of Laughlin, Peterson
& Lang, for appellant.
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SID NO. 196 OF DOUGLAS CTY. v. CITY OF VALLEY 3
Cite as 290 Neb. 1
Terry J. Grennan, of Cassem, Tierney, Adams, Gotch &
Douglas, and Jeffrey B. Farnham and Andrea M. Griffin, of
Farnham & Simpson, P.C., L.L.O., for appellee.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Heavican, C.J.
NATURE OF CASE
Sanitary and Improvement District No. 196 (SID 196) filed
a complaint in Douglas County District Court seeking to
declare ordinance No. 611 of the City of Valley, Nebraska,
invalid and enjoin its enforcement. Ordinance No. 611 autho-
rized the annexation of land near Valley’s corporate border,
some of which includes SID 196. The district court granted
Valley’s motion for summary judgment and declared the ordi-
nance valid. SID 196 appeals. We affirm the district court’s
order granting Valley’s motion for summary judgment.
BACKGROUND
Valley is a city of the second class, located between Omaha
and Fremont, Nebraska. On November 9, 2010, the Valley
City Council passed three different ordinances to annex three
different areas near Valley. Ordinance No. 611, the subject
of this litigation, authorized, pursuant to Neb. Rev. Stat.
§ 17-405.01 (Reissue 2012), the annexation of land near
Valley. This annexed land is labeled annexation “Area A” on
the map we have attached as appendix A to our opinion, which
map is a portion of an exhibit. Annexation area A consists of
six different parcels: A1 through A6. SID 196 is located in
area A1. The legal description in ordinance No. 611 describes
annexation area A as a whole, and does not individually
describe the parcels which make up area A.
Area A1—Ginger Cove.
Area A1 consists of SID 196 and is commonly known as
the Ginger Cove subdivision. The area is an almost com-
pletely developed residential area with 155 residential homes
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surrounding a sandpit lake. At the time of the proposed annex-
ation, it did not share any common borders with Valley, but
did share common borders with areas A2 and A3.
Area A2—Ginger Woods.
Area A2 consists of sanitary and improvement district No.
254 and is commonly known as the Ginger Woods subdivision.
This area is also an almost completely developed residential
area with 65 homes surrounding a sandpit lake. In 2010, it did
not share any common borders with Valley, but did share com-
mon borders with areas A1 and A3.
Area A3—Plant Site 11.
Area A3 consists of a sandpit lake and surrounding area
owned by Lyman-Richey Corporation (Lyman-Richey). Lyman-
Richey refers to the area as “Plant Site 11.” This area was used
as a gravel and sand mine for approximately 50 years, until
operations were substantially completed in 2007. It shares a
common border with Valley, along with areas A1, A2, A4,
and A5. In his deposition, Patrick Gorup, vice president of
Lyman-Richey and its parent company, stated that plant site
11 was mined out under current market conditions and that
Lyman-Richey had plans to potentially develop the area into
a residential property or sell the property. At the time of the
summary judgment, there was no residential development on
plant site 11.
Area A4—Plant Site 7.
Area A4 is also owned by Lyman-Richey and consists of
a currently operating gravel and sand mine. This area is east
of area A3 and shares a common border with Valley, along
with areas A3 and A5. Lyman-Richey expects that mining
operations on this site will continue for at least another 7 to
10 years, depending on market conditions. Gorup stated that
Lyman-Richey is conducting mining operations on the site in a
manner that will better accommodate residential development
after mining is completed. Land within the area not used in
mining operations is leased to a farmer.
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SID NO. 196 OF DOUGLAS CTY. v. CITY OF VALLEY 5
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Area A5—McCann’s Lake.
Area A5 consists of a private lake with two residences on it.
This area borders areas A3 and A4. In 2010, it did not share a
border with Valley.
Area A6.
This area, which is not labeled on the attached map, pri-
marily consists of seven different individual acreages and
makes up the rest of annexation area A.
Ordinance No. 611.
In 2006, Valley, SID 196, and Lyman-Richey entered into an
interlocal agreement regarding wastewater and sewer services.
Under the agreement, SID 196 and Lyman-Richey agreed to
pay Valley for the cost to construct a lift station and a force
main for the purpose of routing wastewater from SID 196
and the Lyman-Richey properties to the regional pumping sta-
tion in Valley. According to Gorup, Lyman-Richey and SID
196 split the cost of the system. Lyman-Richey reserved the
capacity for 233 residential lots to use the wastewater system
on plant site 11, with the option to expand capacity for an
additional fee. Gorup stated that they did this because Lyman-
Richey was contemplating developing plant site 11 into a resi-
dential community.
In its annexation plan, Valley explains that it borrowed
$4.5 million from the Nebraska Department of Environmental
Quality to construct two regional pumping stations and a force
main to transport wastewater in Valley to the treatment facility
in Fremont. To finance repayment of the loan, Valley charges
its residents a fee for use of the sewer system. Valley charges
residents in Ginger Cove and Ginger Woods a monthly fee
to use the system, which is substantially the same as what is
charged to residents of Valley. The fee charged to the users
of the sewer system is less than the cost to repay the loan.
The balance of the debt is repaid using revenue from Valley’s
sales tax.
Before the ordinance passed, police services were provided
to annexation area A by the Douglas County Sheriff, with the
Valley Police Department as a secondary responder. After the
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annexation, police services would primarily be handled by the
Valley Police Department. Fire and paramedic services were
provided by the Valley Suburban Fire and Rescue Department
and would continue to be provided by that department after the
annexation. Snow removal services were provided by Douglas
County and upon annexation would be provided by Valley.
Valley was already providing all building inspection and build-
ing code enforcement within the area.
After the ordinance passed, SID 196 filed a complaint in
Douglas County District Court seeking to have the ordinance
be declared invalid and seeking to enjoin Valley from enforc-
ing the ordinance. No other residents or entities within the
proposed annexation area challenged the ordinances. As stated
earlier, at the same time, Valley also annexed two other areas
near the city. Those annexations have not been challenged and
are not at issue in this litigation.
On January 9, 2013, Valley filed a motion for summary
judgment. Both parties presented evidence from expert wit-
nesses. Essentially, the experts chiefly differed in their ultimate
conclusions regarding the classification of the land and which
facts they used to arrive at those conclusions. There does not
appear to be any dispute, however, over the use or physical
nature of any of the particular parcels within annexation area A
or the immediate surrounding area.
Valley’s expert came to the conclusion that all of the land
within annexation area A is urban or suburban. He stated that
he looked at the entire character of the area and surrounding
properties in arriving at his conclusion. SID 196’s expert stated
that “the Lyman-Richey property is not annexable because it is
undeveloped and rural in character, and thus, SID 196 is not
annexable because it would not be contiguous with the existing
corporate limits of the city.” In a deposition, he stated that he
would classify SID 196 as “rural residential.”
On September 9, 2013, the district court granted Valley’s
motion for summary judgment and declared the ordinance
valid. Issuing its opinion from the bench, the district court
found that area A was contiguous with or adjacent to Valley
because it shares a common border with Valley. Further, the
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SID NO. 196 OF DOUGLAS CTY. v. CITY OF VALLEY 7
Cite as 290 Neb. 1
court determined that the area should be classified as urban
or suburban because of the presence of the Ginger Cove and
Ginger Woods subdivisions and the fact that the area’s value
as a residential area would exceed its value as an agricultural
area. SID 196 filed an appeal on October 9.
ASSIGNMENTS OF ERROR
SID 196 assigns, consolidated and restated, that the trial
court erred in (1) failing to find that there was a genuine issue
of material fact, (2) finding that the property named in ordi-
nance No. 611 was urban or suburban in character, (3) finding
that the property named in ordinance No. 611 met the con-
tiguous or adjacent requirement, and (4) failing to find that the
annexation was solely motivated by increasing tax revenues.
STANDARD OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment is granted and gives the party
the benefit of all reasonable inferences deducible from the
evidence.1
[2,3] An action to determine the validity of an annexation
ordinance and enjoin its enforcement sounds in equity.2 On
appeal from an equity action, we decide factual questions de
novo on the record and, as to questions of both fact and law,
are obligated to reach a conclusion independent of the trial
court’s determination.3
ANALYSIS
[4,5] Section 17-405.01 provides that cities of the second
class may annex contiguous or adjacent lands which are urban
or suburban in character and not agricultural lands which are
rural in character.4
1
Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 (2012).
2
County of Sarpy v. City of Gretna, 273 Neb. 92, 727 N.W.2d 690 (2007).
3
Id.
4
See Holden v. City of Tecumseh, 188 Neb. 117, 195 N.W.2d 225 (1972).
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The power delegated to municipal corporations to annex
territory must be exercised in strict accord with the statute
conferring such power, because a municipal corporation
has no power to extend or change its boundaries other
than as provided by constitutional enactment or as it is
empowered by the Legislature by statute to do.5
SID 196 challenges the validity of ordinance No. 611 on
several grounds. SID 196 alleges that (1) some land within
annexation area A is not urban or suburban in character; (2)
area A1, the parcel SID 196 is located on, fails to meet the
contiguous or adjacent requirement; and (3) annexation area A
was annexed for an improper purpose. First, we must address
whether there existed a material issue of fact to make sum-
mary judgment improper.
Summary Judgment.
[6-8] SID 196 assigns that the trial court erred in granting
Valley’s motion for summary judgment because the conflict-
ing expert testimony created a genuine material issue of
fact. A party moving for summary judgment has the burden
to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that if the
evidence presented for summary judgment remains uncontro-
verted, the moving party is entitled to judgment as a matter
of law.6 After the moving party has shown facts entitling it
to a judgment as a matter of law, the opposing party has the
burden to present evidence showing an issue of material fact
which prevents judgment as a matter of law for the moving
party.7 A summary judgment involves a judicial evaluation of
evidence to determine whether an issue of material fact exists
5
SID No. 57 v. City of Elkhorn, 248 Neb. 486, 491, 536 N.W.2d 56, 62
(1995), disapproved on other grounds, Adam v. City of Hastings, 267 Neb.
641, 676 N.W.2d 710 (2004).
6
See C.E. v. Prairie Fields Family Medicine, 287 Neb. 667, 844 N.W.2d 56
(2014).
7
SID No. 57 v. City of Elkhorn, supra note 5.
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SID NO. 196 OF DOUGLAS CTY. v. CITY OF VALLEY 9
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and, therefore, is a factual determination resulting in a dispo-
sition of the factual merits of a controversy.8
[9] According to SID 196, the conflicting testimony
between the parties’ experts created a factual issue regarding
the character of the Lyman-Richey property. SID 196 also
argues that statements made in a report authored by Valley’s
expert in 2007, concerning the characterization of annexa-
tion area A, conflict with statements later made by that same
expert at a deposition. A conflict of expert testimony regard-
ing an issue of fact establishes a genuine issue of material
fact which precludes summary judgment.9 The key element of
the rule is whether the experts conflict on a question of fact
or a question of law. Two experts coming to different legal
conclusions on the same issue does not create a material issue
of fact.10
There is no disagreement between the parties and their
experts over the physical nature of the land or what is con-
tained on each parcel within annexation area A. There is no
dispute that there are ongoing mining operations at plant site
7, no dispute over the state of plant site 11 at the time of the
ordinance, and no dispute over the number of residences on the
other properties within the area. The experts in this case simply
emphasized different facts in coming to their conclusions about
how the land should be classified under the statute.
The issue of whether the character of the land to be annexed
meets the legal standard proscribed in the statute is a ques-
tion of law. Although the characterization of the land depends
on the particular facts of each case, “the question of whether
the facts fulfill a particular legal standard” presents a question
of law.11 The fact that the experts came to two different legal
conclusions, based upon the same set of facts, does not create
8
Riley v. State, 244 Neb. 250, 506 N.W.2d 45 (1993).
9
Young v. Govier & Milone, 286 Neb. 224, 835 N.W.2d 684 (2013).
10
See id.
11
5 C.J.S. Appeal and Error § 818 at 77 (2007) (citing State v. Trudeau, 139
Wis. 2d 91, 408 N.W.2d 337 (1987)).
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a material issue of fact and does not defeat Valley’s motion
for summary judgment. SID 196’s assignment of error that the
conflicting expert testimony created a material issue of fact is
without merit.
Characterization of Annexation Area A.
[10] SID 196 assigns that the trial court erred in finding
that the two properties owned by Lyman-Richey and located
within annexation area A were urban or suburban in character.
Section 17-405.01 expressly limits a city of the second class
from exercising its annexation power “over any agricultural
lands which are rural in character.” Rural is defined as “of
or pertaining to the country as distinguished from a city or
town,” and urban is defined as “of or belonging to a city
or town.”12
Gorup’s deposition testimony indicated that Lyman-Richey
contemplated future residential development on both sites
before the ordinance was passed. SID 196 argues that the
parcels should not be classified as urban or suburban, because
the primary use of the property at the time of annexation was
Lyman-Richey’s mining operations, which it contends is an
agricultural use of the property. SID 196 also argues that both
of the Lyman-Richey parcels are zoned as transitional agricul-
ture and that at the time of summary judgment, there had been
no residential development on either Lyman-Richey property.
SID 196 believes that the possible future use of the property
cannot be used as a justification for classifying the property as
urban or suburban.
[11] Land need not already be zoned and developed into a
nonagricultural use, however, before it can be annexed. We
have stated that such a construction of the statute “would
seriously impair intelligent planning and coordination of the
change-over in the use of land for urban purposes.”13 The
test is “whether a city has arbitrarily and irrationally used the
power granted therein to include lands entirely disconnected,
12
Wagner v. City of Omaha, 156 Neb. 163, 168, 55 N.W.2d 490, 494 (1952).
13
Voss v. City of Grand Island, 186 Neb. 232, 237, 182 N.W.2d 427, 430
(1970).
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SID NO. 196 OF DOUGLAS CTY. v. CITY OF VALLEY 11
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agricultural in character, and bearing no rational relation to the
legitimate purposes of annexation.”14
The land in question, at the time of annexation, did bear a
“rational relation to the legitimate purposes of annexation.”
Lyman-Richey’s actions prior to the passage of ordinance
No. 611 indicated that the two mining sites would eventually
be used for residential development. In 2007, Lyman-Richey
made a request for proposals to several developers in the
region to explore development opportunities on plant site
11. Additionally, Lyman-Richey financed part of the regional
pumping station in order to reserve capacity for over 200
residential lots on plant site 11. Gorup also indicated that
Lyman-Richey was mining plant site 7 in a manner that would
make conditions on the property more favorable for future
residential development after mining operations at the site
are completed.
[12] We also do not find that the parcels used for mining
gravel and sand qualify as agricultural land under § 17-405.01.
We have previously defined agriculture as “‘the art or sci-
ence of cultivating the ground, including harvesting of crops
and rearing and management of livestock.’”15 Neb. Rev. Stat.
§ 77-1363 (Cum. Supp. 2014), which defines agricultural land
for tax purposes, states that agricultural land includes, but is
not limited to, “irrigated cropland, dryland cropland, grassland,
wasteland, nurseries, feedlots, and orchards.” A regulation
interpreting that statute defines land used for an agricultural
purpose as land that is “used for the commercial production of
any plant or animal product in a raw or unprocessed state that
is derived from the science and art of agriculture, aquaculture,
or horticulture.”16
Under Nebraska law, mining operations have traditionally
never fallen under the definition of an agricultural use of
land. There is also no indication that the mining operations on
either of the Lyman-Richey properties were used to further an
14
Id. at 237-38, 182 N.W.2d at 430.
15
Wagner v. City of Omaha, supra note 12, 156 Neb. at 168, 55 N.W.2d at
494 (quoting 3 C.J.S. Agriculture § 1 (1936)).
16
350 Neb. Admin. Code, ch. 11, 002.08 (2014).
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agricultural purpose, such as the creation of a pond to irrigate
crops.17 The mining operations were and are solely for the pur-
pose of selling the gravel and sand that Lyman-Richey mined.
The mining operations in no way involve the “production of
any plant or animal product.”18 And while the record indicates
that Lyman-Richey’s practice was to rent out to farmers por-
tions of the yet-to-be-mined land within the two plant sites, any
farming that may take place on the land is merely incidental to
the overall mining operations.19
There is no merit to SID 196’s assignment of error that the
Lyman-Richey properties should be classified agricultural land
that is rural in character.
Contiguous or Adjacent Requirement.
SID 196 assigns that the trial court erred in finding that
SID 196 was contiguous with or adjacent to Valley. SID 196
has a common connection with plant site 7, plant site 11, and
McCann’s Lake. At the time the ordinance passed in 2010,
plant site 7, plant site 11, and McCann’s Lake shared a com-
mon border with Valley.
[13-16] “The ‘contiguous or adjacent’ requirement in stat-
utes governing the annexation powers of cities determines how
substantial the link between the city and the annexed area must
be.”20 “The terms are used synonymously and interchangeably,
and if the territory sought to be annexed is not contiguous to
the municipality, the proceedings are without legal effect.”21
“Contiguity means that the two connecting boundaries should
be substantially adjacent.”22 “Substantial adjacency between a
municipality and annexed territory exists when a substantial
17
See Co. of Kendall v. Nat’l Bk. Trust No. 1107, 170 Ill. App. 3d 212, 524
N.E.2d 262, 120 Ill. Dec. 497 (1988).
18
350 Neb. Admin. Code, supra note 16.
19
See Sullivan v. City of Omaha, 183 Neb. 511, 162 N.W.2d 227 (1968).
20
County of Sarpy v. City of Gretna, supra note 2, 273 Neb. at 96, 727
N.W.2d at 694.
21
Id.
22
Id.
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part of the municipality’s boundary is adjacent to a segment of
the boundary of the city or village.”23
[17] At the time the suit was filed, SID 196, by itself, did
not share a common border with Valley. Generally, a munici-
pality may annex several tracts as long as one tract is sub-
stantially adjacent to the municipality and the other tracts are
substantially adjacent to each other.24 SID 196 argues that the
annexation of plant site 7, plant site 11, and McCann’s Lake
are in effect a “‘strip annexation’” designed to satisfy the
contiguous or adjacent requirement under the statute for SID
196.25 We have consistently held that cities are not permitted
to annex a strip or corridor of land in order to reach a larger
area of land that is not itself contiguous with or adjacent to
the annexing city.26 SID 196 argues that the strip annexation
cases are analogous to the case at bar, because SID 196 and
Valley do not share a “community of interest.” According to
SID 196, citing its expert, “‘community of interest’ implies
that one area is dependent on the other for its existence or that
there is commonality in the needs and desires of the citizens
of each.”27
The “strip annexation” cases primarily focus on the extent
to which the city shared a border with the land to be annexed.
In Johnson v. City of Hastings,28 the city wished to annex a
community college campus that was three-quarters of a mile
outside the city limits. To meet the contiguous or adjacent
requirement, the city also annexed a 120-foot strip of high-
way and right-of-way leading to the campus. We held that
“[t]he requirement of contiguity has not been achieved in this
case, since the boundary of the area sought to be annexed is
23
Id.
24
County of Sarpy v. City of Papillion, 277 Neb. 829, 765 N.W.2d 456
(2009); City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d 792
(2007).
25
Brief for appellant at 34.
26
See, e.g., cases cited supra note 24.
27
Brief for appellant at 36.
28
Johnson v. City of Hastings, 241 Neb. 291, 488 N.W.2d 20 (1992).
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not substantially adjacent to the boundary of the city.”29 Our
“strip annexation” cases all hinge on the lack of substantial
adjacency to the existing city border. In County of Sarpy v.
City of Gretna,30 we explained how “[t]he invalidity of a strip
annexation is not based upon the existence of a larger tract at
the distal end of the strip, but, rather, upon the lack of sub-
stantial adjacency where the proximal end meets the corporate
limits of the city.” Similarly, in County of Sarpy v. City of
Papillion,31 it was not the shape of the tract to be annexed
that was controlling, but “lack of substantial adjacency” to an
existing corporate boundary which precluded annexation. The
nature of the land within the “strip” has never factored into
the analysis.
SID 196 is seeking to extend the rule in those cases, where
a municipality is seeking to annex a narrow corridor of land in
order to connect a larger community farther away from the city,
to a case such as this where Valley is seeking to annex a larger
portion of undeveloped land that borders a large part of the
existing corporate boundary of Valley. There is no authority, in
either the statutes or our case law interpreting those statutes, to
support the notion that annexations must meet a “community
of interest” requirement. When addressing the validity of an
annexation, we have never sought to compare the land to be
annexed with the annexing city or examined whether one com-
munity depended on the other.
[18] Whether the annexation is ill advised is a question
for the legislative body that authorizes the annexation. “The
annexation of land to cities and towns is a legislative function,
and it is for their governing bodies to determine the facts which
authorize the exercise of the power granted.”32 The scope of
inquiry for the courts is limited to “whether the conditions
29
Id. at 297, 488 N.W.2d at 24.
30
County of Sarpy v. City of Gretna, supra note 2, 273 Neb. at 98, 727
N.W.2d at 695.
31
County of Sarpy v. City of Papillion, supra note 24, 277 Neb. at 839, 765
N.W.2d at 465.
32
SID No. 57 v. City of Elkhorn, supra note 5, 248 Neb. at 491, 536 N.W.2d
at 62.
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exist which authorize the annexation thereof.”33 Annexation
area A, as a whole, met the contiguous or adjacent requirement
in § 17-405.01. The significant shared border between annexa-
tion area A and the existing corporate boundary of Valley
constituted substantial adjacency. Therefore, at the time the
ordinance was passed, SID 196 was contiguous with or adja-
cent to Valley because it was within annexation area A. SID
196’s assignment of error that SID 196 is not contiguous with
or adjacent to Valley is without merit.
Purpose of Annexation.
[19,20] SID 196 assigns that the district court erred in not
finding that the annexation was for an improper purpose. It
is improper for an annexation to be solely motivated by an
increase in tax revenue.34 “The burden is on one who attacks an
ordinance, valid on its face and enacted under lawful authority,
to prove facts to establish its invalidity.”35 The burden is not on
Valley to prove that it did not annex the land for tax revenues,
but instead rests with SID 196 to prove that Valley was moti-
vated by an impermissible purpose.
In Swedlund v. City of Hastings,36 the city’s planning con­
sultant stated that the city took revenue issues into consider-
ation because “it would be fiscally irresponsible of the City”
not to consider whether it could fund the additional serv­
ices required. We determined that the landowners failed to
meet their burden to show that the annexation was “enacted
primarily or solely for the purpose of raising revenue for
the City.”37
SID 196’s argument rests on allegations that Valley was
motivated to annex SID 196 because of SID 196’s extremely
low debt. SID 196 points out that Valley chose not to annex
33
Sullivan v. City of Omaha, supra note 19, 183 Neb. at 514, 162 N.W.2d at
229.
34
See Witham v. City of Lincoln, 125 Neb. 366, 250 N.W. 247 (1933).
35
Swedlund v. City of Hastings, 243 Neb. 607, 614, 501 N.W.2d 302, 307
(1993).
36
Id.
37
Id. at 615, 501 N.W.2d at 308.
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16 290 NEBRASKA REPORTS
another sanitary and improvement district because of its much
higher level of debt. SID 196 has alleged only that Valley
took into account the relative financial health of the sanitary
and improvement districts it considered annexing, not that
it ever considered increasing its tax base. As in Swedlund, it
would be “fiscally irresponsible” for Valley to not at least take
into consideration the debt load of the areas it was annexing.
Furthermore, the debt level of a sanitary and improvement
district has no relation to the increase in tax revenue the city
stands to gain from an annexation. The fact Valley compared
the debt of several different districts does not create an infer-
ence that Valley’s sole motivation was an increase in its
tax revenue.
The record on appeal indicates that Valley was motivated to
annex SID 196, at least in part, to equalize the burden on both
the residents of Valley and SID 196 in financing the recent
improvements to the sewer system that serves the region.
Currently, the residents of Valley are effectively partially sub-
sidizing SID 196’s use of the sewer system through Valley’s
sales tax. Valley does not have to allow its citizens to pay a
bigger share of the cost of the sewer system improvements
when the system is used by residents of both Valley and SID
196. Even though there is a connection to tax revenue, SID 196
has not met its burden in proving that Valley was motivated to
annex the area solely for the purpose of increasing tax revenue.
SID 196’s assignment of error is without merit.
CONCLUSION
Accordingly, we find that ordinance No. 611 is valid and
that the trial court properly granted summary judgment. We
affirm.
Affirmed.
Wright, J., not participating.
(See page 17 for appendix A.)
Nebraska Advance Sheets
SID NO. 196 OF DOUGLAS CTY. v. CITY OF VALLEY 17
Cite as 290 Neb. 1
APPENDIX A