Jackson response to annexation lawsuit calls state statute unconstitutional

Jackson responded Friday to a November lawsuit challenging the city's annexation of a strip of land along U.S. 61 and Interstate 55, calling the state statute prohibiting such annexations unconstitutional, the process followed by the plaintiffs improper and the case itself frivolous.

The original suit, filed by Fruitland and Jackson residents, asked for a judgment stating that a 2009 Jackson city ordinance that annexed the highway land was illegal according to the state law that defines what kinds of areas are eligible for annexation.

Tom Ludwig, Jackson city attorney, said in his response that Section 71.012 of the Missouri Revised Statutes is "unconstitutional in that said statute treats municipalities in Perry County and Randolph County differently than municipalities in Cape Girardeau County without a justifiable and valid purpose." Section 71.012 defines annexation procedures for cities and towns with exceptions for those two counties.

Stuart Haynes, policy and membership associate for the Missouri Municipal League, said the legislature received objections complaining that the original omnibus bill that contained the annexation code was not clear enough. He said the legislature decided to go ahead and pass the bill, with language excluding the objectors.

"There's always been a cloud over it," said Haynes of the annexation statute.

To meet the legal guideline for annexation, land must be "contiguous and compact" to the city limits. Contiguous means connected to the existing city limits. Compact refers to how closely the land mass fits along the existing city boundaries. The law prohibits annexation of areas connected to the city only by "a strip of real property less than one-quarter mile in width." Annexations of narrow strips created solely to connect to larger land masses are referred to as "flag annexations" and have been overturned in court.

Ludwig said Monday the Missouri Department of Transportation approached Jackson in 2009 about getting sewers for its vehicle shed at the corner of U.S. 61 and Route W. Since Jackson only provides services to residents, the solution created by city officials was to annex the land up to the shed and along I-55, to provide services to the shed and prepare for the "orderly growth of Jackson for the next 20 years."

Steven Koslovsky of Maryland Heights, Mo., is a lawyer who has won several cases against municipalities who passed flag annexations. He said it was questionable whether the strip was eligible for annexation, regardless of why the city took it in, due to how far it extends from the bulk of the city.

"It may be contiguous, but it's probably not compact," Koslovsky said.

Koslovsky also thought challenging the constitutionality of the statute was something of a reach.

"That is a very creative argument," Koslovsky said.

Ludwig rejected the plaintiffs' case on another front, by declaring they followed incorrect procedure in asking for a judgment. Ludwig cited a 2010 Missouri Supreme Court decision that says that individuals may not ask for such a judgment against a city to resolve a boundary dispute. Instead, a "quo warranto" action must be taken, meaning the plaintiff's actions must be brought against the city through a prosecuting attorney or the attorney general.

Cape Girardeau County Prosecuting Attorney Morley Swingle was not available Monday to say whether his office would consider bringing a quo warranto action against Jackson.

Ludwig also asked that the plaintiffs reimburse the city for all costs and attorney fees, stating that the suit was filed to "vex and harass" the city, was "done without basis in the law and was, therefore, frivolous."

The plaintiffs are seeking to keep two existing quarries and proposed heavy industrial developments that are next to residential land from joining Jackson by overturning the annexation of the land that connects the city to those areas. In another opposition tactic, a petition was filed against the voluntary annexation of the quarry and industrial lands that will put the issue on the ballot for Jackson voters to decide Feb. 7.

A hearing of the case is scheduled for April 9 by Judge William Syler in the Common Pleas Courthouse in Cape Girardeau.

salderman@semissourian.com

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