                         IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2002-AN-02139-SCT

IN THE MATTER OF THE EXTENSION OF THE
BOUNDARIES OF THE CITY OF PEARL,
MISSISSIPPI: CAROL POOLE, ROBERT PITTS, ET
AL.

v.

CITY OF PEARL, MISSISSIPPI

DATE OF JUDGMENT:                               11/27/2002
TRIAL JUDGE:                                    HON. JAMES LAMAR ROBERTS, JR.
COURT FROM WHICH APPEALED:                      RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                        JAMES H. HERRING
ATTORNEYS FOR APPELLEE:                         JERRY L. MILLS
                                                JAMES A. BOBO
NATURE OF THE CASE:                             CIVIL - MUNICIPAL BOUNDARIES &
                                                ANNEXATION
DISPOSITION:                                    AFFIRMED - 08/11/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        EN BANC.

        DICKINSON, JUSTICE, FOR THE COURT:

¶1.     Today, we review yet another vigorously contested annexation effort by one of our

municipalities. Perhaps no area of the law generates more emotional participation by members

of the public. The idea of having one’s home, property and family forced into a city, subjecting

the land to city taxes and the family to city ordinances, is quite distasteful to many, particularly

those who feel they have no say in the matter under our current law.
¶2.     In this case, both Rankin County chancellors recused. The Honorable James L. Roberts,

Jr., was appointed as a special chancellor to hear the case. Finding the requirements of law had

been met, Special Chancellor Roberts approved the annexation.     The Objectors have appealed.

                                          INTRODUCTION

¶3.     In the case before us, counsel for the City of Pearl reminds us that the chancery court,

following this Court’s precedent, found the annexation to be reasonable.      Counsel for some

of the Objectors urges this Court to “change the course” of annexation by adding the

requirement of an affirmative vote by a majority of the citizens living in the proposed

annexation area.    This, according to the Objectors, would more closely level the playing field

where cities spend large sums of taxpayer dollars to hire lawyers and experts to establish the

“reasonableness” of a proposed annexation, while objectors are frequently relegated to bake

sales and car washes to raise funds to battle annexation.

¶4.     Annexation is an exercise of legislative not judicial power.1   This Court stated almost

eighty years ago:

        Municipal corporations are now, as they have always been in this state, purely
        creatures of legislative will; governed, and the extent of their powers limited,
        by express grants; invested, for purposes of public convenience, with certain
        expressed delegations of governmental power; their granted powers subject at
        all times to be enlarged or diminished; . . . their powers, their rights, their
        corporate existence, dependent entirely upon legislative discretion, . . . Unless
        expressly limited by constitutional provision, the legislative department has
        absolute power over municipalities.

Gully v. Williams Bros., Inc., 182 Miss. 119, 180 So. 400, 405-06 (Miss. 1938).




        1
       Matter of the Boundaries of City of Jackson, 551 So.2d 861, 863 (Miss. 1989)
(“Annexation is a legislative affair.”)

                                                    2
¶5.     There is no uniform method of annexation recognized in the various states.              In some

states, direct legislative action is required to enlarge or reduce a municipality’s boundary lines.

In other states, the legislature statutorily mandates certain conditions for annexation, leaving

the final decision to the local governing boards.           In many of these circumstances, the process

of annexation is begun by a “petition of voters, taxable inhabitants, residents, or the like, and

to be submitted to a vote of designated electors.” 2 McQuillin Mun. Corp. § 7.14 (3rd ed.).

Still another method of annexation allows for a petition to the courts to instigate annexation.

Ultimately, granting to municipalities the substantive right to annex unincorporated areas is a

power reserved exclusively to the state legislatures.

        Annexation in Mississippi

¶6.     Since 1892, the Mississippi Legislature has provided that our courts must determine

the reasonableness of a municipality’s desire to expand or reduce its boundaries. 1892 Miss.

Laws ch. 66, § 3.       Annexation statutes in Mississippi have been fairly consistent since 1892.

Our current statute, adopted on April 18, 1950, provides that a chancellor, rather than a jury,

must determine that “reasonable public and municipal services will be rendered in the annexed

territory within a reasonable time,” and that the proposed annexation is “reasonable and is

required by the public convenience and necessity.” Miss. Code Ann. § 21-1-33.

¶7.     The chancery courts (hearing annexation cases) and this Court (reviewing the appeals

of many of those cases) encounter the recurring thunderous objection of many living in a

proposed annexation area who believe they should be allowed to vote before being taken into

a city. A frequent argument presented is that persons who purchased property out in the county

to escape “city living” should not have their decision rendered null and void without a vote.


                                                        3
¶8.     Every year since 1997, approximately twelve bills or resolutions have been proposed

in the Legislature on the subject of annexation.       In the 2005 regular session of the Mississippi

Legislature, eleven separate bills, including a proposed constitutional amendment, were

introduced to radically change annexation procedures.        See House Bills 187, 216, 292, 483,

643, 761, 783, 796, 1169; House Concurrent Resolution 32; and Senate Bill 2889. Most of

the bills sought to abolish the current method of annexation (having a chancellor approve an

annexation’s reasonableness) and replace it with an election to determine the reasonableness

of an annexation.      Several bills required an approval vote in the territory the municipality

sought to annex.     Some of the bills required a simple majority vote of the qualified electors

residing in the proposed annexation area. One bill required a majority vote in both the city and

the proposed annexation area, while still another bill required approval of 60% of the qualified

electors residing in the proposed annexation area.                One member of the House of

Representatives proposed a constitutional amendment which would have required a majority

vote in a special election.   All eleven bills died in committee, leaving intact and unchanged the

statute enacted in 1950.

¶9.     Thus, accepting as we must the Legislature’s exclusive authority to make and change the

law; and accepting as we must our limitation to interpret and apply the laws passed by the

Legislature, we now proceed to decide this case, not unmindful of the substantial public dissent

to our current law; but ever mindful that such dissent is more properly communicated to

members of the Legislature than to the chancellors and Justices on this Court.

                           BACKGROUND FACTS AND PROCEEDINGS




                                                   4
¶10.    On July 19, 2000, the City of Pearl filed its petition in the Rankin County Chancery

Court, seeking to annex approximately 2.2 square miles.               The proposed annexation area

(“PAA”) is bounded on the west by Jackson Municipal Airport, on the east by the City of

Brandon, on the north by City of Flowood, and on the south by the City of Pearl. Because the

PAA included property within the jurisdiction of the Jackson Municipal Airport Authority

(“Airport Authority”), an objection was filed by both the Airport Authority and the City of

Jackson.     This objection culminated in a joint motion for summary judgment, seeking

exclusion from the annexation approximately 40 acres. The chancellor granted the motion and

the Airport Authority and the City of Jackson ceased their efforts as Objectors.        Objections

to the annexation were also filed by two groups of private citizens, one known as the Poole

Objectors and the other as the Pitts Objectors.

¶11.    During the course of the twenty-five day trial which began on August 13, 2001, the

special chancellor, counsel, and representatives of the parties toured the proposed annexation

area and parts of the City of Pearl. At the conclusion of the trial, Special Chancellor Roberts

found that, under the totality of the circumstances, the annexation was reasonable.




                                     STANDARD OF REVIEW

¶12.    When a chancellor finds an annexation to be reasonable, this Court will reverse only

when the “chancellor’s decision is manifestly wrong and is not supported by substantial and




                                                    5
credible evidence.” In re Extension of Boundaries of City of Winona, 879 So.2d 966, 971

(Miss. 2004). Further,

       [w]here there is conflicting, credible evidence, we defer to the findings below.
       Findings of fact made in the context of conflicting, credible evidence may not
       be disturbed unless this Court can say that from all the evidence that such
       findings are manifestly wrong, given the weight of the evidence. We may only
       reverse where the Chancery Court has employed erroneous legal standards or
       where we are left with a firm and definite conviction that a mistake has been
       made. "The judicial function is limited to the question of whether the annexation
       is reasonable."

Id. See also In re Enlargement and Extension of Municipal Boundaries of City of Biloxi,

744 So.2d 270, 277 (Miss. 1999); McElhaney v. City of Horn Lake, 501 So.2d 401, 403

(Miss. 1987); Extension of Boundaries of City of Moss Point v. Sherman, 492 So.2d 289,

290 (Miss. 1986); Enlargement of Boundaries of Yazoo City v. City of Yazoo City, 452

So.2d 837, 838 (Miss. 1984); Extension of Boundaries of City of Clinton, 450 So.2d 85, 89

(Miss. 1984).

                                         ANALYSIS

¶13.   Although the constitutional portion of the statute which controls annexation litigation

requires only that the chancellor find the proposed annexation to be reasonable, this Court’s

historical affection for tests, lists, and factors has led to the extra-statutory development of

twelve “indicia” of reasonableness, which are: (1) need for expansion, (2) path of growth, (3)

potential health hazards from sewage and waste disposal in the annexed areas, (4) financial

ability to make improvements and furnish services promised, (5) need for zoning and overall

planning, (6) need for municipal services, (7) presence of natural barriers between municipality

and proposed annexation area, (8) past performance, (9) impact on residents and property


                                               6
owners, (10) impact on the voting strength of protected minority groups, (11) benefits enjoyed

by the PAA because of its proximity to the municipality without paying its share of the taxes,

and (12) other factors.    In re Extension of Boundaries of City of Winona, 879 So.2d at 972-

73.

¶14.    Although some fall into the trap of strict adherence to the indicia as though they were

twelve conditions precedent to an annexation, this Court has held otherwise. The twelve indicia

of reasonableness are not to be treated as twelve distinct tests, rather, the chancellor must

weigh the totality of the circumstances, using these twelve indicia of reasonableness only as

a guide. Id. at 993 (Dickinson, J., dissenting) citing Matter of Enlargement of Municipal

Boundaries of the City of Jackson, 691 So. 2d 978, 980 (Miss. 1997). See also Extension

of Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 553 (Miss. 1995),

wherein we stated, “This Court has frequently reiterated its position that the factors to be

considered are not to be treated as separate, independent tests but rather indicia of

reasonableness, and that the ultimate determination must be whether the annexation is

reasonable under the totality of the circumstances.”

¶15.    We turn now to the special chancellor’s analysis of Pearl’s proposed annexation to

determine whether his finding of reasonableness was supported by substantial and credible

evidence.

        1. Need for Expansion

¶16.    In examining Pearl’s claim of a need for expansion, the special chancellor stated:

                Clearly, spillover growth has occurred into the proposed annexation area,
        and it is not required that a city be built out prior to spillover. While Pearl has
        considerable land available for development within its present borders, this

                                                       7
         alone is not the test, and the proposed annexation area is needed on the north
         side which presently has little developable land available. The City of Pearl is
         growing, both residentially and commercially, as is the proposed annexation area
         residentially, and it is reasonable that this small area be added to Pearl, even
         though the tax base may be unneeded by Pearl. The present City and the
         proposed annexation area are surrounded on all sides by municipalities and/or
         state institutions and a sizeable flood plain.          The combination of these
         municipalities, the flood plains, building activity, and the fact that an unzoned
         Rankin County permits uncontrolled growth, all combines to show a need for
         expansion in the present City.

¶17.     Although refusing to establish a litmus test, this Court has in prior cases approved

numerous factors to be considered by a chancellor in determining whether a municipality has

a need for expansion.    These factors include the city’s spillover development into the proposed

annexation area;2 the city's population and internal growth;3 the city's need for developable

land,4 and its remaining vacant land within the city;5 the need for comprehensive planning for

growth in the annexation area;6 increased traffic counts;7 the need to maintain and expand the



         2
       In re: Extension of Boundaries of City of Ridgeland, City of Jackson v. City of
Ridgeland, 651 So.2d 548, 554 (Miss. 1995).
         3
        Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168,1174 (Miss.
1994); In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.
2d 270 (Miss. 1999); In re: Extension of Boundaries of City of Ridgeland, City of Jackson v.
City of Ridgeland, 651 So.2d at 554.
         4
          Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168, 1173 (Miss.
1994).
         5
        Extension of Boundaries of City of Ridgeland v. City of Ridgeland 651 So.2d 548,
555 (Miss. 1995). See also In re Enlargement and Extension of Municipal Boundaries of City
of Biloxi, 744 So. 2d 270 (Miss. 1999).
         6
       Extension of Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548,
553 (Miss. 1995).
         7
        In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.
2d 270, 279 (Miss. 1999).

                                                8
City's tax base;8      limitations   due   to geography and surrounding cities;9          environmental

influences;10 the city's need to exercise control over the proposed annexation area to provide

comprehensive planning and growth;11 and increased new building permit activity.12

        Spillover development into the PAA

¶18.    According to the exhibits introduced by the City and other evidence presented at trial,

the only meaningful access road through the PAA, which connects the City to the substantial

growth and development along Lakeland Drive (Highway 25), is El Dorado Road. During the

past decade, substantial residential development has occurred along this corridor, including

more than six hundred new residential units between U.S. Highway 80 and Old Brandon Road.

There has also been, to a lesser extent, some commercial development.                The City provided

evidence of growth and development north along El Dorado Road, including over thirty

instances of residential and commercial construction.

¶19.    Michael Slaughter, the City’s expert in the fields of civil engineering and urban and

regional planning, testified that spillover growth into the PAA from Pearl was taking place.

While Pearl, with a population density of over 1,000 persons per acre, increased its population



        8
        Matter of Enlargement and Extension of the Mun. Boundaries of the City of Jackson,
691 So.2d 978, 789 (Miss. 1997).
        9
        In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.
2d 270, 279 (Miss. 1999).
        10
        Id. Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168, (Miss.
1994); Matter of City of Horn Lake, 630 So.2d 10, 17, (Miss. 1993).
        11
        Extension of Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548,
553 (Miss. 1995).
        12
             Id.

                                                   9
by approximately 12% from 1990 to 2000, the PAA experienced a 33% increase in population

during the same period and increased its population density from 283 persons per square mile

in 1990, to 377 in 2000. Relying on a field study, Slaughter testified that both commercial and

residential development was occurring in the PAA.       Furthermore, Slaughter found the PAA “in

dire need of proper planning and zoning.”

¶20.      Slaughter’s testimony, together with the other evidence in the record, was considered

by the special chancellor, and we cannot say he was manifestly wrong in his analysis of this

factor.

          The City’s population and internal growth

¶21.      The City’s population increased by over twelve % from 1990 to 2000, and during that

same period, the number of dwelling units increased from 19,588 to 21,961.         While not an

overwhelming population explosion, the City’s population is steadily increasing.     This Court

recently upheld an annexation by a city whose population growth “decreased by 7.6% from

1980 to 1990.”       In re Extension of Boundaries of City of Winona, 879 So.2d at 993

(Dickinson, J., dissenting).    Thus, we are unable to say that the special chancellor was

manifestly wrong to consider the City of Pearl’s twelve % population increase as a factor

supporting the reasonableness of the annexation.

          The City’s need for developable land

¶22.      The Objectors point out that the City of Pearl has approximately 5.7 square miles of

vacant, developable land left after its 1999 annexation, suitable for residential development.

Additionally, the Objectors point to Mayor Jimmy Foster’s testimony that the Riverwind

subdivision on Pearson Road, south of I-20, can accommodate substantial residential


                                                   10
development.     The Objectors argue that the availability of land for residential development is

particularly important in this case because Mayor Foster testified that the PAA would remain

residential if the annexation is approved.

¶23.    The City recognizes it has substantial land available for residential development. It

points out, however, that most of it lies south of I-20 in the area it annexed in 1999 and south

of a portion of the area it annexed in 1978.           However, the special chancellor found “little

developable land” to the north in the direction of the PAA.

¶24.    Our previous annexation decisions clearly distinguish the impact upon reasonableness

of available developable land in a city’s path of growth as opposed to developable land in other

areas. We have stated that “the fact that there may be some other vacant lands already available

in the City does not prohibit annexation nor does it require that an indicia be fount to be against

the community proposing annexation.”          Id. at 973.       Similarly, in In re Extension of

Boundaries of City of Hattiesburg, 840 So.2d 69 (Miss. 2003), the chancellor found the City

of Hattiesburg had “large sections of undeveloped land in South Hattiesburg.”           Nevertheless,

this Court refused to reverse the chancellor’s finding that “Hattiesburg’s need to expand was

reasonable,” based upon a need for developable land to the west, in the direction of the

proposed annexation area. Id. at 84-85.

¶25.    In arguing that Pearl has no need for expansion which would support its annexation

effort, the Objectors focus on Pearl’s slowly growing residential population, which increased

approximately 12% from 1990 to 2000.             However, the record reflects that the density of

population in the City of Pearl is more than double every other municipality in Rankin County,

except Brandon. Its density is four times that of neighboring Flowood.

                                                  11
¶26.    At trial, Shelly Johnstone testified on behalf of the Objectors as an expert in the field

of regional and municipal planning.         Even her testimony suggests the special chancellor’s

finding of Pearl’s need for expansion was reasonable and supported by the evidence.                  For

example, she testified that at a level of about two-thirds build-out,13 communities “need to be

considering adding territory to their community.” She further stated that Pearl’s build-out was

74 percent, leaving just 26 percent of the current city available for development.                 Other

testimony established that the PAA was only 57.2 percent developed.

¶27.    Based upon the record, we cannot say it was manifest error for the special chancellor

to find that Pearl has a need for expansion which supports Pearl’s annexation of the PAA.

        2. Path of Growth

¶28.    In discussing whether the PAA lies within the path of growth of Pearl, the special

chancellor found:

        The proposed annexation area does lie in the Pearl path of growth based upon
        recent building in Pearl, as well as within the proposed annexation area. Good
        roads exist and connect the two, and the proposed annexation area is Pearl’s only
        northern path for growth. Quite importantly, Pearl is the only water provider to
        the proposed annexation area.

¶29.    When determining the “path of growth” factor in prior cases, this Court has held that

the inquiry is primarily whether the PAA is in a path of growth for the municipality, not

necessarily the primary, main, or most urgent path.       See City of Winona, 879 So.2d at 977;

Extension of the Boundaries of the City of Hattiesburg, 840 So.2d at 86-87; In re City of

Horn Lake, 630 So.2d 10, 19 (Miss. 1993).                 Although many factors can weigh on a



        13
        Build-out is the term that expresses the percentage of the municipality that is developed or in
development. In other words, it is the percentage of the city no longer available for development.

                                                  12
chancellor’s evaluation of a municipality’s path of growth, this Court has held that the most

important factors are “the adjacency of the proposed annexation area to the City, accessibility

of the proposed annexation area by City streets, and spillover of urban development into the

proposed annexation area. City of Winona, 879 So.2d at 977, citing In re Enlargement and

Extension of Boundaries of City of Macon, 854 So.2d 1029, 1037 (Miss. 2003).

¶30.    There is no dispute that the PAA is adjacent to the City of Pearl. Also, as previously

discussed, El Dorado Road traverses the PAA and connects Pearl to the substantial

development and amenities to the north along Lakeland Drive. This road begins in the City of

Pearl as Cross Park Drive.         Pearl’s spillover development into the PAA has been previously

discussed.

¶31.    Because of the proximity of Flowood and Brandon, Johnstone testified that the PAA

“is not uniquely a path of growth for Pearl” and that much of Pearl’s recent development has

been to the south and west. However, the key question on this point is whether the PAA is in

a path of growth of Pearl, regardless of whether there may be other paths of growth. Also, the

fact that the PAA may lie in the path of growth of other municipalities does not negate that it

also lies in a path of growth of Pearl.

¶32.    As previously mentioned, the main corridor into and out of the PAA is El Dorado Road

which enters the PAA from Pearl.          Further, because of the proximity of Flowood to the

northwest, the airport to the north, and Brandon to the northeast, the PAA is Pearl’s only

possible northern path of growth. When planning the location of fire station #4, Pearl officials

chose its location for its proximity to the El Dorado Road area “knowing or thinking that we

may annex the El Dorado area.” Also, testimony established that Pearl has improved the road


                                                 13
conditions of the city streets near the PAA, indicating the growth and activity in that direction.

Additionally, Mayor Foster testified that between 1999 and the start of this trial, Pearl has

experienced new commercial growth near the PAA in its airport metroplex:

        It [the metroplex] has changed tremendously. There’s a retail, four or five other
        businesses in there. Suscom Communications moved right there (indicating).
        Mac Papers, which was headquartered in the state of Florida, moved right there
        (indicating)...There are some things going on right now. There is a Credit Union
        that is – I believe it’s Mississippi Telco Credit Union that is moving into that
        area. We start construction, I understand, in the next few months. There is
        going to be a small retail outlet built right there, and just several other things
        that are under construction now, actually.        Some of them may even be
        finished...On Crosspark Drive, there has been an office park built...there’s been
        a convenient store constructed in the corner of Old Brandon Road and
        Crosspark.


Finally, he stated that the area immediately to the east of these commercial projects is a

residential development finished just two years prior to the trial.

        Environmental influences

¶33.    The City of Pearl has no options for expansion to the west because of the proximity of

Richland and Flowood.        It has no options for expansion to the east because of the proximity

of Brandon.       The City produced evidence of substantial flood plains within its current

boundaries, and to the south.       Thus, due to the flood plains to the south, Pearl’s only viable

option for expansion is to the north.       Because of the proximity of Flowood, the airport, and

Brandon, northern expansion is limited to the PAA.

¶34.    Considering these factors, and based upon the evidence in the record, we cannot say the

special chancellor was manifestly wrong in finding the PAA to be in a path of growth of Pearl.

        3. Potential Health Hazards



                                                     14
¶35.   Some of the factors this Court has acknowledged in prior cases for this indicia of

reasonableness are: (1) potential health hazards from sewage and waste disposal; (2) a large

number of septic tanks in the area; (3) soil conditions which are not conducive to on-site septic

systems; (4) open dumping of garbage; and (5) standing water and sewage.            City of Winona,

879 So.2d at 979 (citations omitted).

¶36.   In considering the potential health hazards, the special chancellor held:

       It is undisputed that potential health hazards exist in some parts of the proposed
       annexation area because no central sanitary system is available. While septic
       tanks and private systems are workable, there is no overall monitoring or
       supervision, and a unified system can eliminate problems resulting from private
       systems, standing water, and the like. The fact that Pearl may have problems in
       certain areas is not controlling, as this is almost definitely true of most
       municipalities. Pearl may improve its own, but it certainly may improve the
       proposed annexation area in regard to potential health hazards.

¶37.   In briefing this indicator, the Objectors focused on the current health hazards present

in the City of Pearl rather than the lack of health hazards in the PAA. A proper analysis must

focus on potential health hazards from sewage and waste disposal in the proposed annexation

areas, and the trial court must consider the potential effect or impact of health hazards on

residents of the PAA.     See City of Winona, 879 So.2d at 971;               In re Enlargement and

Extension of Municipal Boundaries of City of Biloxi, 744 So.2d at 280.

¶38.   The municipality is not required to show that potential health hazards in the PAA affect

the citizens of the municipality.       A municipality’s track record for correcting and preventing

health hazards within its city limits should certainly be a factor for a chancellor to consider in

evaluating the potential health hazards of the PAA.         However, the primary focus must be on

hazards within the PAA.



                                                   15
¶39.    The City called Eugene Herring, an environmental health program specialist with the

Mississippi State Department of Health, to testify as an expert.             Herring testified concerning

numerous potential health hazards specifically identified in the PAA, created by individually

owned    septic tanks, sewerage discharge, and the lack of a central sewerage disposal system.

¶40.    The City also called Carl Furr, an expert civil engineer, who provided the following

testimony:

        [The PAA] is going to grow. This area is going to proliferate. It cannot continue
        to proliferate with septic tanks, or it’s going to be real serious problem out there
        in the future. Septic tanks are something that you really look at out in rural areas
        of the county, rather than inside a compact area as this particular area is. It’s got
        to be where, in this type of soil classification we have in this Jackson area,
        where you’ve got the clays, et cetera, that septic tanks simply won’t continue to
        work for this type of built-up area. So, with the rapidly growing, it is going to
        be very, very difficult to continue to proliferate with septic tanks.

¶41.    We cannot say that the special chancellor was manifestly wrong to find that this

indicator supported the reasonableness of annexation.

        4. Financial Ability to Make Improvements and Furnish Services

¶42.    When analyzing a municipality’s financial ability to make improvements and furnish

services to a proposed annexation area, courts have considered several factors, including: (1)

present financial condition of the municipality; (2) sales tax revenue history; (3) recent

equipment purchases; (4) the financial plan and department reports proposed for implementing

and fiscally carrying out the annexation; (5) fund balances; (6) the City's bonding capacity; and

(7) expected amount of revenue to be received from taxes in the annexed area. City of Winona,

879 So.2d at 980-81 (citations omitted).

¶43.    After evaluating Pearl’s financial stability, the special chancellor determined:



                                                    16
         Pearl is in stable and excellent financial condition as reflected by the testimony
         of experts Ron Morgan, Demery Grubbs and Michael Slaughter. Moody’s
         Investment Service (Exhibit P-18) reflects the same, and sales tax revenue is
         healthy (Exhibit P-79, Table 4). An extensive and detailed plan has been
         developed by Pearl to deal with the proposed annexation, which clearly shows
         Pearl’s ability to financially handle the transaction.       Pearl’s fund balances
         continue to grow and increase, and its projections reflect the same (Exhibit P-
         79). Pearl’s bonding capacity is strong, and the proposed annexation area would
         also produce revenue to Pearl. The evidence clearly indicates, speculation to
         the contrary, that Pearl has the financial ability to make the promised
         improvements and provide all services to the proposed annexation area.
¶44.     The exhibits mentioned by the special chancellor clearly and concisely illustrate Pearl’s

financial stability.      Pearl’s fire chief, Lewis Waggoner, and its chief budget officer, Ronnie

Morgan, testified to the continual upgrades in equipment for the fire department.       Further, at

the time of trial, Pearl was at 52% general operating bonded indebtedness.             Specifically

addressing Pearl’s financial stability, Demery Grubbs, an expert in the field of municipal

finance, testified that

         The services identified and the facilities identified in [Pearl’s Services and
         Facilities Plan] and the revenue that have been projected within this plan to pay
         for those services and facilities are well within the means and the financial
         ability of Pearl to provide those services,

while Mike Slaughter, an expert in the field of urban and regional planning and the associated

field of civil engineering, testified that, contrary to the objectors’ assertions, this annexation

“is not a tax-grab to try to shore up any deficiencies in the City of Pearl” because “the City of

Pearl can continue to provide the services to its current businesses and residents without this

annexation.”       The testimony and exhibits provide evidentiary support for the special

chancellor’s finding that Pearl has the financial ability to make improvements and furnish

services to the PAA as promised.

         5. Need for Zoning and Overall Planning


                                                   17
¶45.   This Court gives chancellors a wide latitude of discretion in analyzing whether this

indicator weighs against annexation.    Specifically, “[t]his Court has approved annexations even

where the City does not plan to provide zoning and planning and where the County has in force

its own zoning and planning ordinances.” In re Enlargement and Extension of Boundaries

of City of Macon, 854 So.2d 1029, 1041 (Miss. 2003).

¶46.   For the zoning and planning factor, the chancellor found:

       While Rankin County has recognized a need for planning, it has no zoning
       ordinance as testimony closed in this trial. The proposed annexation area, as
       would likely any unregulated area, contains some incompatible uses, and the
       Court believes zoning, however unpopular, has much to commend it. The
       inspection tour taken in this trial almost alone convinced the Court of the need
       for land use regulation afforded by zoning. The Court recognizes that existing
       use may be “grandfathered” and/or “excepted” but that all other areas will likely
       be enhanced by zoning. Community standards generally exert strong influences
       on what is contained therein, and the Court would be mildly surprised to learn
       that any adult entertainment establishment had located in the proposed
       annexation area, as objectors note. Zoning is comprehensive, and restrictive
       covenants apply only to the area involved. Zoning is often unpopular, and
       creates terrific legal conflicts; yet, it can and does bring about much good and,
       while the evidence supports a need for zoning, the inspection tour alone
       convinced the Court.

¶47.   The chancellor based his decision that the PAA needs zoning and overall planning on

his inspection tour and other evidence in the record. Some of the photographic exhibits reveal

incompatible land uses in the PAA.        For example, Roger Heatherly, director of community

development for the City of Pearl, testified that photograph six shows “an abandoned vehicle,

dilapidated building, and what is appears to be a house in the background.” Photographs 21, 22,

39, and 40 reveal abandoned vehicles.          Photograph 51 “shows unsightly conditions in a

residence and a building beginning to – that is partially dilapidated. Photograph 50 has “a lot

of debris...59 shows an abandoned vehicle, a TV, assorted debris, a mobile home that’s not in


                                                 18
good repair, possibly abandoned.”          “Assorted debris scattered throughout the property” is

shown in photograph 79 and “35 is showing 2 abandoned vehicles, possibly a third one in the

background.”     Photograph 41 is an example of an incompatible land use with “a business, a

mobile home and a residential, side-by-side.”          Johnstone testified that the newly enacted

subdivision regulations for Rankin County were fairly consistent with their Pearl counterparts.

She further testified “that Rankin County is moving to the International Code Council and

sending their inspectors to be trained for those.”      While Rankin County has many building

codes and sign ordinances similar to Pearl’s building codes and sign ordinances, Rankin

County has no zoning ordinance.

¶48.    Rankin County’s growing commitment to code enforcement and subdivision ordinances

is further evidence of the desirability of managing development with codes, ordinances, and

overall planning.      Since Pearl has zoning ordinances to assist overall planning while Rankin

County does not, we cannot say the special chancellor was manifestly wrong to weigh this

factor in favor of approval of the annexation.

        6. Need for Municipal Services

¶49.    Factors helpful in determining the PAA’s need for municipal services include: (1)

requests for water and sewage services; (2) plan of the City to provide first response fire

protection; (3) adequacy of existing fire protection; (4) plan of the City to provide police

protection; (5) plan of City to provide increased solid waste collection; (6) use of septic tanks

in the proposed annexation area; and (7) population density. City of Winona, 879 So.2d at 984

(citations omitted).




                                                  19
¶50.    However, this Court has also held that “[w]hen current services are adequate, the fact

that annexation may enhance municipal services should not be given much relevance, especially

as here where the evidence of the likelihood of enhanced service is greatly conflicting.”

Matter of Enlargement and Extension of the Mun. Boundaries of the City of Jackson, 691

So.2d 978, 984 (Miss. 1997) (citation omitted).

¶51.    In evaluating the PAA’s need for municipal services, Special Chancellor Roberts14

determined:

        The City of Pearl already provides water service to the proposed annexation area
        and sewer service in the Ashbury development. Since water service presently
        exists there, it, logically could be more easily improved and expanded. Pearl has
        several fire stations closer to the proposed annexation area than the nearest
        volunteer fire station which serves the proposed annexation area.             After
        annexation the proposed annexation area takes Pearl’s Superior Class 5 rating,
        rather than its present Class 10, an unprotected and the worst rating in the state.
        The availability of water, and a professional fire fighting department will clearly
        enhance the safety of the proposed annexation area. The existing population
        density, and the likely continued growth pattern, clearly establish a need for
        municipal level fire protection. The fact that tragedy has not occurred does not
        guarantee that it never will. While the evidence solidly establishes that the
        proposed annexation area is a law abiding area and that the Rankin County
        Sheriff’s Office provides good service, it is also true that the City could and
        should be able to provide not only comparable but, likely, quicker service, to the
        small annexation area. The Court, with some law enforcement administrative
        experience, believes the addition of municipal service to the proposed
        annexation area would constitute more efficient service. A centralized sanitary
        sewer system would more efficiently serve the proposed annexation area, and
        Pearl can provide the same better than any other provider. These centralized
        services are needed by the residents of the proposed annexation area.

¶52.    The PAA’s primary fire department is the Langford Volunteer Fire Department.

However, the record reflects that Pearl’s fire department – which serves as the PAA’s


        14
          While serving as a distinguished Justice on this Court, Special Chancellor Roberts authored
the majority opinion in City of Jackson and was therefore quite familiar with the concept of
enhancement of municipal services already available to the proposed annexation area.

                                                  20
secondary provider of fire protection – is closer in proximity to the PAA and is equipped with

more advanced equipment and more highly trained personnel.

¶53.    Although Pearl is already the exclusive provider of potable water to the PAA, it

currently provides no central sewerage disposal service to the residents of the PAA.       As the

provider of water for the area, Pearl installed fire hydrants and maintains and improves the

system as needed to sustain the growth that the PAA has experienced. Further, Pearl does not

charge Rankin County for any water that the Langford Fire Department requires for use in the

PAA.

¶54.    The record reflects that, other than a central sewerage collection system, the PAA

already has most all of the services it needs.       In evaluating the PAA’s need for a central

sewerage collection system and better fire and police protection, the special chancellor

weighed this factor in favor of annexation.    We find his decision to be a close call, but not

manifestly erroneous.

        7. Presence of Natural Barriers

¶55.    The special chancellor held that “[s]ince the only natural barriers involved here are ridge

lines which might impact a central sewer system, this is not an obstacle to annexation.        The

evidence showed no adverse effect by the ridge lines.”       The Objectors do not challenge the

special chancellor’s finding in this regard.

        8. Past Performance

¶56.    This Court has approved the examination of a municipality’s record of keeping promises

made in previous annexations as some indication of whether or not the municipality would

fulfill the promises to the proposed annexation area. See Extension of Boundaries of City of


                                                21
Ridgeland v. City of Ridgeland, 651 So.2d 548, 560 (Miss. 1995); Matter of Extension of

Boundaries of City of Jackson, 551 So.2d 861, 867 (Miss. 1989); Extension Boundaries of

City of Moss Point v. Sherman, 492 So.2d 289, 290 (Miss. 1986); City of Biloxi v. Cawley,

332 So.2d 749, 751 (Miss. 1976).

¶57.    In analyzing Pearl’s past performance, Special Chancellor Roberts ascertained:

        The evidence indicates that Pearl has performed well, not perfectly, in the past,
        as indicated by its 1978 Mississippi Supreme Court case 365 So.2d 952 (Miss.
        1978). All promises and city services listed have been addressed in a forward
        and progressive fashion in terms of water, sewer, fire and police protection,
        waste disposal, streets, and so forth. The trailer parks, grandfathered in, remain
        unsightly and a problem, but, legally, the City has few options in this regard.
        Overall, Pearl’s past performance passes the acid test, and all city officials
        indicated, credibly, that good performance would continue.

¶58.    In Pearl’s annexation of three parcels of land in 1978, it promised the following list of

promised improvements: prompt police, fire and pest protection; and within six years, grading,

draining, and improving existing streets; installing water lines and fire hydrants; installing

sewer lines; and installing street lighting. In re Extension of Boundaries of City of Pearl, 365

So.2d 952, 956 (Miss. 1978).

¶59.    Pearl presented evidence that these conditions had been substantially satisfied as well

as continued progress on promises made to residents annexed in 1999. In fact, as to Pearl’s

past performance in correcting and/or improving drainage situations since incorporation, Carl

Furr, the City’s expert civil engineer, testified:

        [t]he City of Pearl has been one that we represent that has been very aggressive
        and has had – we’ve had ongoing wastewater projects ever since 1974 to address
        annexed areas and to address existing areas where we would upgrade and add any
        wells and tanks to the system. Pearl has been very aggressive in their public
        works program and it continues to do so...The City of Pearl was a forerunner for
        Congress to pass appropriations of in excess of $10 million. The only city, the

                                                     22
         first city in Mississippi to do so, to go in and approve and riprap drainage ditches
         in the city of Pearl. It was a huge program administered by the then Soil
         Administration Service. And, as a result of that, other cities in the state saw
         what Pearl did and then that kind of proliferated from there. But they were
         forerunners in major drainage improvements. We’ve had a drainage plan in place
         since the early ‘70s that we have continued to work to channelize and replace
         inadequate structures that were put in prior to the annexation, and that’s one of
         the reasons why it is good to be able to control that under an annex – I mean
         under a municipality, than it is out in the country or county where you don’t have
         a good tool to do that.

The Objectors focus on trailer parks and flooding problems within Pearl’s city limits as proof

of Pearl’s bad past performance. However, evidence presented at trial suggested that the trailer

parks were “grandfathered in” when Pearl was incorporated and that some of the flooding

problem is due to the unregulated growth in a flood plain prior to incorporation.      While Pearl

has not perfectly fulfilled its promises and obligations from past annexations, the record

supports the special chancellor’s finding that it has substantially done so.

         9. Impact on Residents and Property Owners

¶60.     Regarding the impact on residents and other property owners, the special chancellor

found:

         The Court certainly sympathizes with the proposed annexation area objectors
         who wish to remain unincorporated, and the Court respects their apprehensions
         that their taxes will increase and that their land values will decrease. The
         proposed annexation area residents wish to remain as is, with no “citified”
         encroachment. Realistically, the area has changed, and is likely changing daily;
         the proposed annexation area is in a metropolitan area, and it is no longer rural,
         though it may seem so. It is growing and will do so whether annexed or not;
         annexation alone will not destroy any character already in existence, but it will
         plan for what is yet to be. Taxes will likely increase somewhat, but the benefit
         derived therefrom should exceed the cost. It is also just as probable that land
         values will increase rather than decrease; much of this may depend upon
         residents’ conduct and expectations. Proposed annexation area children will not
         be required to change schools. Much of the impact is perceived, which is very
         important, but if the perceptions should turn into harsh reality, which is,


                                                     23
        hopefully, unlikely, there are other avenues of relief for proposed annexation
        area residents. Many objectors indicated that they simply did not like Pearl, did
        not want to be a part of it, and just found the idea repulsive, so to speak. The
        truth of the matter seems to be that no other municipality wants the proposed
        annexation area, and the proposed annexation area is too small and too close to
        Pearl to be overlooked. While the Court understands and respects the views of
        the proposed annexation area residents, the facts and the law applicable thereto
        favor Pearl in this situation. The actual economic impact on the proposed
        annexation area residents should be beneficial, rather than detrimental, but other
        avenues are open to them, if needed.

¶61.    The Objectors’ primary argument under this indicator is that annexation by Pearl will

decrease their property values.      Over the City’s objection, Johnstone, the Objectors’ expert

witness in the field of regional and municipal planning, testified concerning a survey she

conducted by calling eleven central Mississippi realtors and asking their opinion of the impact

of annexation by Pearl on property values.          Johnstone admitted that she had never before

compiled such a survey and was unaware of other urban planners compiling a similar survey.

Thus, the City’s objection would seem to have merit, and it is apparent the Special Chancellor

placed little value on the uncrossexamined hearsay opinions of the eleven realtors.

¶62.    Further evidence of a negative economic impact would be an increase in taxes and a

connection fee for sewer services.       This Court has addressed the impact of higher taxes in

many prior annexation cases and has consistently held that the prospect of a tax increase is

“insufficient to defeat annexation.” In re Extension of Boundaries of City of Hattiesburg, 840

So.2d 69, 93 (Miss. 2003) (citing In re Enlargement and Extension of Municipal

Boundaries of the City of Biloxi, 744 So.2d at 284).




                                                   24
¶63.    Therefore, this Court is left with questionable evidence of a perceived future drop in

property values, a connection fee for central sewerage collection and disposal, and the

subjective revulsion expressed by approximately twenty residents of the PAA.

¶64.    As to the property values and connection fee, we find the special chancellor was well

within his discretion to determine they did not weigh heavily against the proposed annexation.

As to the desires of the residents of the PAA, we again point out that the Legislature has not

seen fit to allow them to vote. Unless and until it does, we must refrain from doing so, as we

are powerless to grant judicially what the Legislature withholds from its statutes.

        10. Impact on the Voting Strength of Protected Minority Groups

¶65.    The special chancellor held “[w]ithout contradiction, this factor favors annexation as

it will have no adverse impact on the voting strength of African Americans, or any other

minorities.” The Objectors do not challenge that finding.

        11. Benefits Enjoyed by the PAA because of its Proximity to the Municipality

¶66.    After analyzing whether, because of their close proximity to Pearl, the residents of the

PAA enjoy benefits without paying corresponding taxes, Special Chancellor Roberts held:

        This factor appears somewhat equal on a “quid pro quo” basis, because the
        proposed annexation area residents pay their taxes, et cetera, and they pay for
        whatever they purchase in Pearl, if they do. Speculatively, however, as growth
        and development occur, the tie between the proposed annexation area and
        existing Pearl is going to remain, and this factor certainly does not preclude
        annexation. While the proposed annexation area has far more residents than the
        actual objectors, it seems reasonable that a few, some, or maybe, many, do
        benefit already from the proximity. It is clear that those objectors who testified
        denied any romance of proximity, but it also seems just as clear to the Court that
        the several hundred who did not object may very well romance the proximity.




                                                    25
¶67.    It does not appear the special chancellor placed much weight on this factor.    We find

little in the record to indicate, one way or the other, whether the residents of the PAA enjoy

untaxed benefits from the City.        The PAA is surrounded on all sides by four separate

municipalities. Residents of the PAA have access to shopping in, and pay sales tax to, each of

the municipalities.   While the residents of the PAA clearly enjoy benefits because of their

proximity to the various municipalities, we find it would be difficult from the record before

us to determine which of those benefits are due to the proximity with Pearl, as opposed to

Brandon, Flowood, or Jackson.

        12. Other Factors

¶68.    As an additional factor, the Objectors focused on the proposed annexation’s probable

impact on schools. To this factor, Special Chancellor Roberts responded “[a]t this time, there

is no impact of annexation on schools, as school district lines do not automatically change with

municipal annexation. No other factors oppose annexation.”

¶69.    With the repeal of Miss. Code Ann. § 37-7-611, a municipal annexation no longer

mandates a change in school district boundary lines. Having raised no other additional factors

to oppose annexation and finding that annexation does not automatically change a

neighborhood’s school district, it is our opinion that the Special Chancellor was not in error

in holding that no other factors oppose annexation.




                                           CONCLUSION




                                                  26
¶70.    Pearl does not deny that it is still fighting to correct some of the problems that have

been present since incorporation due to its unregulated growth prior to incorporation.             When

Pearl was incorporated in 1973, it “was a hodge-podge of buildings, mobile homes, roads, and

sewer conveniences.” City of Pearl, 365 So.2d 952, 957 (Miss. 1978). In 1978 when this

Court approved Pearl’s annexation of three adjacent areas, we recognized the City of Pearl’s

desire to regulate these areas before they too became “densely populated with a ‘crazy quilt’

situation of development which will require uprooting and a new start in the matter of water,

streets, sewer, and other necessities that people have.”           Id.   Similarly, Pearl has expressed a

desire to regulate growth in the PAA to ease its transition into the municipality.

¶71.    Based upon the City’s burden of proving the reasonableness of a proposed annexation,

and in concert with our requirement, absent an abuse of discretion, to leave undisturbed a

chancellor’s finding of reasonableness, we affirm the Special Chancellor’s judgment approving

the petition for annexation.

¶72.    AFFIRMED.

     WALLER AND COBB, P.JJ., EASLEY, CARLSON AND GRAVES, JJ., CONCUR.
SMITH, C.J., DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.




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