                  IN THE SUPREME COURT OF MISSISSIPPI

                             NO. 2016-AN-01696-SCT

IN THE MATTER OF THE ENLARGING,
EXTENDING AND DEFINING THE CORPORATE
LIMITS AND BOUNDARIES OF THE CITY OF
CLARKSDALE, COAHOMA COUNTY,
MISSISSIPPI

v.

CITY OF CLARKSDALE, MISSISSIPPI

DATE OF JUDGMENT:                      11/14/2016
TRIAL JUDGE:                           HON. L. BRELAND HILBURN
TRIAL COURT ATTORNEYS:                 J. CHADWICK MASK
                                       JERRY L. MILLS
                                       C. KENT HANEY
                                       WILLIAM MICHAEL CHAFFIN
                                       CURTIS D. BOSCHERT
                                       TUJUANA S. McGEE
                                       WILBERT LEVON JOHNSON
COURT FROM WHICH APPEALED:             COAHOMA COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:               JERRY L. MILLS
                                       JOHN P. SCANLON
ATTORNEYS FOR APPELLEE:                J. CHADWICK MASK
                                       JACOB T. E. STUTZMAN
                                       MARGARETTE MEEKS
NATURE OF THE CASE:                    CIVIL - MUNICIPAL BOUNDARIES &
                                       ANNEXATION
DISPOSITION:                           AFFIRMED - 01/17/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE KITCHENS, P.J., KING AND BEAM, JJ.

      KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1.   The Chancery Court of Coahoma County granted in part the petition of the City of

Clarksdale, Mississippi, to annex land situated in Coahoma County, Mississippi, that
surrounds the city. Coahoma County appeals, arguing that the chancellor manifestly erred by

finding that the annexation was reasonable. Clarksdale cross-appeals, arguing that the

chancellor manifestly erred by finding that its annexation of certain land situated north of the

city was unreasonable. Finding that the chancellor’s decision was supported by substantial,

credible evidence and was not manifestly wrong, we affirm.

                                           FACTS

¶2.    The City of Clarksdale is located in the Mississippi Delta. The Town of Lyon borders

the city to the northeast. Highway 61 bypasses the city and runs along its southwest corner

up to its northeast corner. On December 8, 2014, Clarksdale adopted an amended ordinance

enlarging, extending, and defining its corporate boundaries; specifying the improvements to

be made in the annexed area; and defining the new boundaries. See Miss. Code Ann. § 21-1-

27 (Rev. 2015). Clarksdale filed a second amended petition for ratification, approval, and

confirmation of the amended ordinance on January 14, 2015, in the chancery court. See Miss.

Code Ann. § 21-1-29 (Rev. 2015).

¶3.    Clarksdale sought to annex five areas adjacent to its current municipal limits.

Proposed Annexation Areas (PAA) 1 and PAA 2 lie north of the city and are primarily

residential. PAAs 3, 4, and 5 include the Highway 61 bypass to the south and east of the city

and contain land used for commercial, residential, and rural purposes. PAAs 3, 4, and 5 also

include the planned Interstate 69 corridor that is expected to overlap the existing Highway

61 bypass. Lyon and Coahoma County filed answers opposing Clarksdale’s annexation

petition. Lyon initiated its own annexation proceeding for land including part of PAA 3. W.S.



                                               2
Heaton and Elsie W. Heaton filed a petition for inclusion in the Town of Lyon of realty

owned by them.

¶4.    After the 2015 hearing and inspection tour, the chancellor found that, considering the

twelve indicia of reasonableness, Clarksdale’s annexation of PAAs 3, 4, and 5 was

reasonable, but that its annexation of PAAs 1 and 2 was unreasonable. The chancellor denied

the Lyon annexation and a portion of the Heaton inclusion, decisions that are not at issue in

this appeal. The chancellor entered a final decree approving, ratifying, and confirming the

enlargement and extension of Clarksdale’s boundaries in accordance with his findings. See

Miss. Code Ann. § 21-1-33 (Rev. 2015).

                               STANDARD OF REVIEW

¶5.    This Court adheres to a limited standard of review in annexation matters. In re City

of Southaven, 5 So. 3d 375, 376 (Miss. 2009). Appellate review “is limited to the question

of whether the annexation is reasonable, under the totality of the circumstances.” Id. The

Court will not reverse the chancery court’s findings on reasonableness unless the decision

was manifestly wrong and lacked the support of substantial, credible evidence. In re City of

Meridian, 992 So. 2d 1113, 1116 (Miss. 2008). When conflicting, credible evidence is

before the chancery court, we will defer to that court’s findings. Bassett v. Town of

Taylorsville, 542 So. 2d 918, 921 (Miss. 1989). We will reverse only if the chancellor

applied an erroneous legal standard or if the Court has a firm and definite conviction that a

mistake was made. In re City of Hattiesburg, 840 So. 2d 69, 81 (Miss. 2003).




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                                      DISCUSSION

¶6.    This Court has set forth twelve indicia to guide a chancellor’s determination of

whether a proposed annexation is reasonable. In re City of Jackson, 912 So. 2d 961, 964

(Miss. 2005). These factors include

       (1) the municipality’s need to expand, (2) whether the area sought to be
       annexed is reasonably within a path of growth of the city, (3) potential health
       hazards from sewage and waste disposal in the annexed areas, (4) the
       municipality’s financial ability to make the improvements and furnish
       municipal services promised, (5) need for zoning and overall planning in the
       area, (6) need for municipal services in the area sought to be annexed, (7)
       whether there are natural barriers between the city and the proposed
       annexation area, (8) past performance and time element involved in the city’s
       provision of services to its present residents, (9) economic or other impact of
       the annexation upon those who live in or own property in the proposed
       annexation area, (10) impact of the annexation upon the voting strength of
       protected minority groups, (11) whether the property owners and other
       inhabitants of the areas sought to be annexed have in the past, and in the
       foreseeable future unless annexed will, because of their reasonable proximity
       to the corporate limits of the municipality, enjoy economic and social benefits
       of the municipality without paying their fair share of taxes, and (12) any other
       factors that may suggest reasonableness.

In re City of Meridian, 992 So. 2d at 1116. The twelve indicia must be considered together

to determine whether, under the totality of the circumstances, an annexation was reasonable.

Id. The Court also has identified a number of subfactors relevant to each indicium that “may

or may not” be considered in a particular case. See In re City of Macon, 854 So. 2d 1029

(Miss. 2003).

¶7.    Coahoma County argues that the chancellor erred by applying the indicia and

subfactors as a “checklist” without evaluating the overall reasonableness of the annexation.

The county contends that the chancellor’s order granting the annexation listed the evidence



                                              4
relevant to each indicium and subfactor, but failed to analyze how the evidence related to

each indicium or subfactor and how it—the evidence—related to whether the annexation was

reasonable under the totality of the circumstances. Reviewing the chancellor’s order as a

whole, we find that the chancellor not only outlined the evidence on each indicium, but also

considered the reasonableness of the annexation under the totality of the circumstances. The

chancellor specified that, “[a]lthough some arguments are not discussed in this opinion,

reference is hereby made, and those arguments are incorporated herein by reference. Every

point made by each party was considered by the court in reaching its decision.” We reject

Coahoma County’s assertion that the chancellor simply listed the evidence under each

indicium without considering the relevance of that evidence to the question of

reasonableness. We now review the chancellor’s findings on the twelve indicia and his

conclusions that Clarksdale’s annexation of PAAs 3, 4, and 5 was reasonable, but that its

annexation of PAAs 1 and 2 was unreasonable.

       1.     NEED TO EXPAND

¶8.    This Court has identified twelve subfactors which may or may not be considered in

determining a municipality’s need to expand:

       (1) spillover development into the proposed annexation area; (2) the City’s
       internal growth; (3) the City’s population growth; (4) the City’s need for
       development land; (5) the need for planning in the annexation area; (6)
       increased traffic counts; (7) the need to maintain and expand the City’s tax
       base; (8) limitations due to geography and surrounding cities; (9) remaining
       vacant land within the municipality; (10) environmental influences; (11) the
       [C]ity’s need to exercise control over the proposed annexation area; and (12)
       increased new building permit activity.

City of Jackson v. Byram Incorporators, 16 So. 3d 662, 683-84 (Miss. 2009) (quoting In


                                             5
re City of Winona v. City of Winona, 879 So. 2d 966, 974 (Miss. 2004). The chancellor

made findings on most of these subfactors.

       A.     Spillover

¶9.    Michael Slaughter, a professional engineer and certified planner, gave expert

testimony for Clarksdale in the area of urban regional planning and civil engineering.

Slaughter considered the twelve indicia in forming his opinions. He testified that “spillover”

is development that extends up to the fringes and beyond the boundaries of a municipality.

Evidence established that Clarksdale had extended water and sewer services to much of

PAAs 1 and 2. Slaughter posited that these services constituted spillover. He testified that,

in PAAs 3, 4, and 5, spillover is present in the form of businesses, particularly Sunbelt

Industrial Park (Sunbelt) in PAA 3. He explained that Sunbelt is surrounded by the city on

three sides. Per an interlocal agreement, Clarksdale provides fire protection to Sunbelt, and

Sunbelt also receives city water and sewer services. But Chris Watson, Coahoma County’s

urban and regional planning expert, testified that Clarksdale’s spillover into the PAAs was

minimal. While Watson recognized that several subdivisions located within the city had

expanded outside the municipal boundaries, he opined that these encroachments were best

characterized as urban sprawl, which is low-density development that haphazardly sprawls

away from a municipality.

¶10.   The chancellor recognized that PAAs 3, 4, and 5 have “considerably more”

commercial development than PAAs 1 and 2. Also, the chancellor noted that PAAs 3, 4, and

5 include the Highway 61 bypass and the future Interstate 69 (I-69) corridor. The chancellor



                                              6
recognized the presence in PAA 3 of Sunbelt, which enjoys city utility and fire protection

services and the presence of commercial development in PAA 5. The chancellor found that

several interchanges along the current Highway 61 bypass and future I-69 corridor lie

partially inside and partially outside the city limits.

¶11.   The chancellor concluded that “[i]n the final analysis, the presence of spillover is

minimal in the PAAs.” Coahoma County argues that the chancellor erred because no

spillover at all exisited in any of the PAAs. Conversely, Clarksdale contends that the

spillover in PAAs 1 and 2 was plentiful, not minimal. The evidence pertaining to spillover

in PAAs 1 and 2 showed that Clarksdale had extended water and sewer lines into those areas

that had assisted in enabling some residential development. This Court finds that the

chancellor relied on substantial, credible evidence in finding that some minimal spillover

occurred in all five PAAs.

       B.      Internal Growth

¶12.   Clarksdale presented copious evidence of an ongoing downtown revitalization, and

the chancellor found that this was credible evidence of internal growth. Coahoma County

argues that the chancellor’s conclusion that the downtown revitalization evidenced internal

growth was erroneous because downtown revitalization does not show a need for

developable land and, thus, a need to expand. We find that the chancellor did not manifestly

err by finding that the presence of downtown revitalization evidenced some internal growth.

       C.      Population Growth

¶13.   The evidence was undisputed that Clarksdale’s population is in decline. Slaughter



                                                7
admitted that Clarksdale’s population is declining. Clarksdale’s comprehensive plan showed

that its only population gains in the past fifty years occurred through an annexation in 1992

and that the city was experiencing out-migration, which testimony established describes the

phenomenon of people leaving an area. Slaughter testified that the rest of Coahoma County

is experiencing more out-migration than Clarksdale. But he also testified that Clarksdale’s

population density was high at 1,292 per square mile, supporting a need to expand. Watson

testified from United States Census data that, between 2000 and 2010, Clarksdale had lost

20 percent of its population. He said also that census estimates from April 2010 through July

2014 showed a population decline of 951 persons. Further, he testified, the population growth

that Clarksdale had projected in the 1992 annexation proceeding had not occurred.

¶14.   The chancellor found that Clarksdale’s population decrease was substantial and did

not weigh this subfactor in favor of either party. Coahoma County argues that the chancellor

erred by not weighing Clarksdale’s population decline against annexation. But this Court has

held that an annexation was reasonable despite the fact that the municipality’s population was

declining because the population density was high. In re City of Biloxi, 109 So. 3d 529, 542

(Miss. 2013) (citing City of Jackson, 16 So. 3d at 684-85). We find no manifest error in the

chancellor’s failure to weigh this factor against annexation.

       D.     Need for developable land

¶15.   Slaughter testified that a need for developable land had not motivated the annexation.

Rather, the purpose of the annexation was to annex PAAs 1 and 2, where the city provides

utility services, and PAAs 3, 4, and 5, where the city also provides some utility services and



                                              8
fire protection. According to Slaughter, a need exists in PAAs 3, 4, and 5 for uniform police

and fire protection and planning and zoning due to the Highway 61 bypass and the eventual

opening of I-69. Slaughter testified that the purpose of the annexation included enabling

Clarksdale to encompass future economic growth occurring along the future I-69 corridor.

¶16.   The evidence supported Slaughter’s testimony that Clarksdale in fact has an

abundance of developable land. A vacant land analysis performed by Slaughter showed that

38.5 percent of the land in Clarksdale, equating to 5.44 square miles, is vacant land

unconstrained by floodplains or wetlands. Slaughter testified that a large amount of this

vacant, unconstrained land is used as commercial farmland and, although classified as vacant,

will not and cannot be developed without consent of the landowners. Watson agreed that

Clarksdale has an abundance of vacant land and opined that it has no need for vacant land

to accomplish future growth. The chancellor found no dispute that vacant, developable land

existed in Clarksdale, but singled out PAAs 3, 4, and 5 as containing areas of potential

economic growth related to the future I-69 corridor.

¶17.   Coahoma County argues that Clarksdale’s population decline, when considered with

the fact that the city has no need for developable land, weighs against annexation. It points

to Clarksdale’s General Development Plan, updated in 2010, which provides that the 1992

annexation “provided ample frontier land for city expansion and the development of new

residential, commercial[,] and industrial areas.” The plan further concluded that the city had

ample land for infill development but that regulatory restraints prevented construction on

small vacant lots within the city, which hampered redevelopment in some neighborhoods.



                                              9
While Clarksdale has 3,483 acres of vacant, unconstrained land, the plan projected that the

city would use only 356 of those acres for new development between 2000 and 2020.

Further, Watson testified that, although portions of the Highway 61 bypass were inside the

city, the bypass had not developed commercially.

¶18.   Clarksdale correctly contends that the absence of a need for vacant land does not

defeat an annexation.“[T]he fact that vacant land remains in a city does not necessarily defeat

annexation.” In re City of Clinton, 955 So. 2d 307, 315 (Miss. 2007). In fact, “annexation

in various cities such as ‘Southaven, Madison, and Ridgeland, which had usable vacant land

of 43%, 59%, and 48%, respectively’ were approved by this Court.” Id. (quoting In re City

of Hattiesburg v. City of Hattiesburg, 840 So. 2d 69, 85 (Miss. 2003)). Coahoma County

argues that Clarksdale is the opposite of Southaven, Madison, and Ridgeland, because those

municipalities were undergoing population growth and rapid absorption of land, establishing

a nexus between the existing land supply and the need to expand. See City of Ridgeland, 651

So. 2d 548, 554-56 (Miss. 1995); City of Madison, 650 So. 2d 490, 496 (Miss. 1995); In re

City of Southaven v. City of Horn Lake, 630 So. 2d 10, 18 (Miss. 1993). Because an

abundance of vacant land in a municipality does not defeat annexation, the chancellor did not

err in failing so to find, even in the absence of population growth. The chancellor properly

evaluated this subfactor along with all of the other evidence and concluded that Clarksdale’s

annexation of PAAs 3, 4, and 5 was reasonable under the totality of the circumstances, but

that its annexation of PAAs 1 and 2 was unreasonable.




                                              10
        E.     Need for Planning

¶19.    The chancellor found that a need for planning existed in PAAs 3, 4, and 5 because of

the impending I-69 corridor. However, the chancellor found that Clarksdale had not

established a need for planning in PAAs 1 and 2. Coahoma County argues that, because the

timing of I-69 is speculative, the chancellor erred by finding that planning was necessary in

PAAs 3, 4, and 5. And Clarksdale argues that the presence of residential development in

PAAs 1 and 2 established a need for municipal planning in those areas.

¶20.    Clarksdale cites the testimony of Slaughter that, due to the existence of the city’s

water and sewer lines in PAAs 1 and 2, considerable residential development has occurred

there that exists beyond the reach of Clarksdale’s land-use controls. Slaughter testified that

PAAs 1 and 2 would benefit from the enforcement of Clarksdale’s subdivision regulations

and zoning ordinances. Testimony indicated that PAAs 1 and 2 had reached a level of

development at which centralized, sanitary sewers would be beneficial and that Clarksdale

was ready and able to provide this service to PAAs 1 and 2. And Watson admitted that a

municipality’s engineering specifications should apply to areas in which it has extended

utilities.

¶21.    No manifest error appears in the chancellor’s decision. Clarksdale presented a

compelling case for a need for planning on the extant Highway 61 bypass and future I-69

corridor in PAAs 3, 4, and 5. Clarksdale showed that, given the city’s present boundaries,

traffic weaves in and out of city limits along the Highway 61 bypass and future I-69 corridor.

Slaughter testified that planning and zoning regulations are necessary to ensure that the



                                             11
property along the bypass develops to its highest and best use. Coahoma County characterizes

the coming of I-69 as “mythical,” asserting that its eventual completion does not support

annexation. Watson testified that the Highway 61 bypass has been built to an interstate

highway standard. Malcolm Crank, the city’s economic development coordinator, testified

that the completion of I-69 could be ten years away, and he admitted that its actual timing

was unknown. Evidence demonstrated that other portions of I-69, which will run from

Canada to Mexico, have been completed in Mississippi. Although evidence established that

the exact timing of the completion of I-69 along the Highway 61 bypass is unknown, the

evidence raised no doubt about the eventual completion of such a highway.

¶22.   As to the need for planning in PAAs 1 and 2, Watson testified that the county’s

planning and zoning are sufficient for the character of those areas and their rate of

development. He also testified that the city has no need to exercise planning and zoning

control over the areas in the PAA to which it has extended water and sewer lines. This expert

testimony constituted substantial, credible evidence supporting the chancellor’s finding that

no need exists for planning by Clarksdale in PAAs 1 and 2.

       F.     Traffic Counts

¶23.   The chancellor found that, due to discrepancies in the traffic count data submitted by

both sides, the traffic count factor neither favored nor disfavored annexation. Slaughter

offered testimony about his traffic count analysis to show that much of the traffic that once

had traveled through downtown Clarksdale now flows along the Highway 61 bypass. But

Slaughter was impeached on cross-examination by his failure to use the most recent traffic



                                             12
count analysis and by errors in the underlying data caused by unreliable traffic counts

conducted by the Clarksdale Police Department. The chancellor was not manifestly wrong

in finding the traffic count data favored neither party.

       G.     Need to expand Clarksdale’s tax base

¶24.   While Coahoma County sought to establish that the annexation was a mere “tax grab,”

Slaughter testified that Clarksdale is the “economic engine” of Coahoma County and that,

with annexation, the city would benefit from additional sales tax revenues and ad valorem

taxes that would be used to provide services to the residents. He also testified that the

businesses located in PAA 3 and the subdivisions in PAAs 1 and 2 enjoyed municipal

services without paying taxes. Yet evidence established that the residents of PAAs 1 and 2

did pay increased rates to Clarksdale for the water and sewer services extended by the city.

The chancellor found that Clarksdale would benefit from the increased tax base provided by

annexation but that this factor did not favor or disfavor annexation.

       H.     Geographical limitations

¶25.   Other than the Town of Lyon, the chancellor found no geographical limitations.

       I.      Remaining vacant land within the municipality

¶26.   The chancellor found that the evidence clearly showed that vacant land existed inside

the city that could be developed, but the chancellor also found that PAAs 3, 4, and 5

contained areas of potential growth for Clarksdale “beyond the normal internal growth of the

city,” and that this subfactor weighed, “in part, for annexation.”




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       J.     Environmental influences

¶27.   The chancellor made no finding on this subfactor. Clarksdale cites Slaughter’s

testimony that a large floodplain dissects the northern part of the city, extending into PAAs

1 and 2. Slaughter testified that the presence of this floodplain supports annexation to ensure

the floodplain areas are maintained properly. But evidence was before the chancellor that the

county had taken measures to maintain the area in the floodplain.

       K.     Need to exercise control over the PPA

¶28.   The chancellor found that, due to the evidence that Clarksdale substantially had

expanded utility services into the PAA and that the PAA would benefit from municipal utility

control, this subfactor weighed in favor of annexation.

       L.     Building permits

¶29.   The chancellor made no findings on this subfactor. LaFondra Johnson, Clarksdale’s

building inspector, testified that, from 2005 to 2015, the city issued forty-two commercial

building permits and 113 new residential building permits. However, she admitted that more

than half of those building permits had been issued between 2005 and 2006 and that after that

period a dramatic decline in new construction occurred. Johnson and Crank testified about

the city’s ongoing revitalization efforts, in which numerous dilapidated homes and businesses

had been demolished or renovated. Crank testified that, as of February 2015, fifty-six

building renovation projects had been completed and thirty-seven were underway.

       II.    PATH OF GROWTH

¶30.   This Court has set forth the following subfactors that may or may not be considered



                                              14
in determining whether a proposed annexation is reasonably within a municipality’s path of

growth:

       (1) spillover development in annexation area; (2) annexation area immediately
       adjacent to City; (3) limited area available for expansion; (4) interconnection
       by transportation corridors; (5) increased urban development in annexation
       area; (6) geography; and (7) subdivision development.

City of Jackson, 16 So. 3d at 685. A city must show only that the proposed annexation area

is within a path of growth; it does not need to show that it is within the primary path of

growth. Id.

¶31.   That all five PAAs were immediately adjacent to Clarksdale, were accessible by city

streets, and had no geographic barriers was undisputed. In considering this factor, the

chancellor cited his earlier finding that some spillover development existed in PAAs 1 and

2 and that subdivisions in PAAs 1 and 2 received some support from Clarksdale. The

chancellor noted Watson’s testimony that the utilities Clarksdale had extended into PAAs 1

and 2 could not be considered spillover and that the city was not growing in any direction,

but had only potential areas of growth. The chancellor found that PAAs 3, 4, and 5 contained

some spillover and that annexation of those areas was supported by the future I-69 corridor.

¶32.   Clarksdale argues that the subdivision development in PAAs 1 and 2 would not have

occurred without the city’s considerable expenditures to provide water and sewer services

to those areas, evincing a path of growth. Certainly, “[t]his Court previously has found that

the extension of water and sewer services evidences a path of growth.” City of Jackson, 16

So. 3d at 686. Nonetheless, a municipality’s investment in infrastructure does not always

justify annexation. Id. Although Clarksdale has extended utilities to PAAs 1 and 2, we hold

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that, in light of the other indicia of reasonableness, the chancellor’s finding that the

annexation of PAAs 1 and 2 was unreasonable was supported by substantial, credible

evidence.

¶33.   Coahoma County argues that the chancellor erred by relying on the future I-69

corridor in considering Clarksdale’s path of growth because the timing of the interstate’s

completion is unknown. As discussed above, the record contains substantial evidence that

the eventual coming of I-69 is reality, not a myth. Therefore, the chancellor did not err by

relying on the completion of I-69 in considering Clarksdale’s path of growth. The evidence

that spillover development has occurred and that the new interstate highway will bring

further economic development supports the chancellor’s finding that PAAs 3, 4, and 5 are

in Clarksdale’s path of growth. Additionally, Clarksdale has extended some water lines,

sewer lines, and fire hydrants into PAAs 3, 4, and 5, further evincing that it has a path of

growth into those areas.

       III.   POTENTIAL HEALTH HAZARDS

¶34.   The subfactors that may or may not be considered in determining whether potential

health hazards exist that would impact the reasonableness of an annexation 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.

¶35.   The chancellor’s analysis focused on septic tanks in the PAA. The evidence showed,

and the chancellor found, that septic tanks were in use in those areas of the PAA to which

                                             16
the city had not extended sewer lines already. Slaughter testified that the presence of septic

tanks, without more, created a health hazard due to the potential that a septic tank could fail

and cause effluent to seep to the surface. He testified that the soils throughout much of the

PAA are not conducive to septic tanks, although the soils in PAA 1 are better than the soils

south of Clarksdale. He also testified that sewage had reached the surface due to septic tank

failure in PAA 4. And a homeowner verified that some septic tanks along New Africa Road

in PAA 4 leak when heavy rain occurs. Greg Gearhart, a civil engineer, gave expert

testimony for Clarksdale that portions of the city’s sewer plan for the PAA would be

completed within five years but that the project would not be finished until economically

feasible, and no date certain had been fixed for any sewer system improvements in the PAA.

¶36.   No evidence was adduced of any septic tank failure in PAAs 1 or 2. Watson testified

that the soil in PAA 1 is conducive to supporting the septic tanks located in that area. He

opined that, although the general rule is that septic tanks are a potential health hazard, the

septic tanks in PAA 1 are functioning at an acceptable level. He also opined that no existing

or potential health hazards are present in the PAA that would make annexation desirable.

Coahoma County argues that Clarksdale provided no evidence of the feasibility of installing

sewer lines in the PAA or any time frame in which they would be installed. The chancellor

relied on Coahoma County’s evidence, finding that “the presence of potential health hazards

was not established by the proof.”

¶37.   We find that the chancellor’s decision was supported by substantial, credible evidence.

Other than the mere presence of some septic tanks in PAAs 1 and 2, no proof of septic tank



                                              17
problems in those areas was presented. Coahoma County’s evidence supports the

chancellor’s ultimate conclusion that annexation of PAAs 1 and 2 was unreasonable. And

Clarksdale’s evidence that some septic tank issues were present in PAA 4 supports the

chancellor’s conclusion that annexation of PAAs 3, 4, and 5 was reasonable.

       IV.    FINANCIAL ABILITY

¶38.   This Court has developed a list of subfactors that may or may not be considered in

evaluating reasonableness related to a municipality’s financial ability to make improvements

and deliver promised municipal services:

       (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 Macon, 854 So. 2d at 1039. After considering these subfactors, the chancellor found

that Clarksdale was financially stable and that the city could fund the municipal services

necessary for all five PAAs.

¶39.   This Court finds that these conclusions were supported by substantial, credible

evidence. Slaughter testified that he had reviewed Clarksdale’s finances and that the city is

in very good financial condition. He testified that the balance of Clarksdale’s general fund

for the most recent fiscal year was $4,140,517. He testified that Clarksdale was in sound

financial condition, considering that its expenditures budget for that year was $12,139,119

and that it had more than $4 million remaining in the general fund. He testified that the

garbage fund was $1.229 million in 2013, the highest it had been since 2002. The city clerk,



                                             18
Cathy Clark, testified that the city had budgeted $11,987,920 for expenditures for the current

fiscal year.

¶40.   Slaughter reviewed the city’s audits for 2009 through 2014 and the final budget for

the fiscal year ending September 30, 2016. He also reviewed the assessed valuations for the

city from 1997 through 2014 for real property, personal property, public-utility property,

automobiles, and the total assessed valuations for each year. He testified that the assessed

valuations are used to generate ad valorem taxes by applying the city’s millage rate to the

amount of assessed value. He considered Clarksdale’s tax levies for its general fund and

other funds in reaching his opinion. Slaughter concluded that Clarksdale had an upward trend

in assessed valuation, from $62.5 million in 1997 to $87.4 million in 2014, which enhanced

ad valorem taxes.

¶41.   Slaughter also reviewed Clarksdale’s sales tax revenue history. He found that the sales

tax diversion to the city had been fairly steady, with a decline in 2009 and 2010 attributable

to the national economic downturn from which the city had rebounded. He found that the

sales tax diversion in 2013 had been $2.8 million, slightly higher than the 2005 sales tax

diversion of $2.77 million. In his opinion, the sales tax revenue history indicated that the city

is in sound financial condition.

¶42.   Clarksdale submitted a list of recent equipment purchases. Slaughter reviewed this list

and found that the city had made significant large equipment purchases, indicating it was

buying the equipment necessary to provide a high level of services to property owners. For

example, Clarksdale had purchased two new fire trucks, one for $538,537 and one for



                                               19
$397,576. The city also had purchased three knuckle boom trucks costing approximately

$129,000 each and two new street cleaners costing $193,215 each. The police chief testified

that the Board of Commissioners had given the police department all the manpower and

equipment it had requested.

¶43.   Slaughter testified that Clarksdale has a significant available bonding capacity. Clark,

the city clerk, testified that, as of September 30, 2014, the bonding capacity was $8,880,269

under the 15 percent rule. Under the 20 percent rule, the bonding capacity was $13,224,157.

Clark testified that the city had issued no bonds during that fiscal year but that it had made

payments on existing bonds. Slaughter testified that Clarksdale’s bonding capacity was

sufficient should the city need to borrow money to make improvements.

¶44.   The chancellor recognized that Clarksdale had submitted a services and facilities plan

for providing municipal services to the PAAs. The plan provided that no additional personnel

or equipment would be necessary for providing municipal services to the PAAs, with the

exception of the purchase of a knuckle boom truck and the hiring of a driver. Clarksdale

planned to finance the knuckle boom truck through a lease purchase for five years at an

annual cost of $28,400. The driver would receive a total annual salary and benefits of

$36,632. Further, Clarksdale planned to update the comprehensive plan to include the PAA

at a cost of $30,000, with an additional $10,000 to apply zoning and update the zoning map.

The city planned to spend $1,807,615 to extend water to the PAAs and $5,584,039 to extend

sewer service to the PAA. Slaughter emphasized that the existing water and sewer lines and

the proximity of the PAA to the city supported his opinion that providing services would be



                                             20
financially feasible. Clarksdale planned to provide street lighting to the PAA as well as

garbage service and mosquito control, with no additional equipment or personnel needed.

¶45.   The evidence showed that Clarksdale provides its citizens water, sewer, and electrical

utilities through Clarksdale Public Utilities (CPU). CPU provides electrical services only to

those property owners in CPU’s certificated area. CPU manages the utilities provided in the

city and in those portions of the PAA to which the city has extended utilities. CPU’s director,

Ray Luhring, testified that the city’s estimates for water and sewer costs were reasonable and

that the city could extend water and sewer services to the PAA and maintain existing lines

with no additional personnel or equipment. He also testified that CPU is no impediment to

Clarksdale’s provision of services to the PAA. He testified the city owns the water and sewer

lines and pays for improvements while CPU operates and maintains the lines. And he

testified that, if the city wants to extend utility lines into an area, CPU will do so.

¶46.   Slaughter examined the estimated projected revenue and expenditures for the PAA.

Clarksdale projected that it would collect $410,622 per year in ad valorem tax revenue from

the PAA based on the fiscal year 2015 tax levy of 74.80 mills. Relying on a letter from the

Mississippi Department of Revenue, Slaughter testified that the sales tax diversion from

businesses in the PAA would generate $65,973 for the fiscal year ending June 30, 2016.

Slaughter testified that, from a general fund perspective, after annexation, revenue would

exceed expenditures by $617,806 by year five. He testified that, due to the services that

Clarksdale would provide, this was not a tax grab. Slaughter and Clark both testified that the

annexation was not a tax grab and that it should finance itself.



                                               21
¶47.   Coahoma County argues that Clarksdale’s general fund balance is healthy due to tax

increases, not a healthy local economy. It contends that Slaughter’s sales tax calculations

failed to address inflation and that, in reality, sales tax diversions are decreasing, not stable.

It argues that, with annexation, Clarksdale will increase its land area by approximately 50

percent, yet the city proposes to add only one employee and one knuckle boom truck.

Coahoma County insists that Clarksdale needs to hire more police officers but has not

budgeted for them. And Coahoma County contends that Clarksdale has not conducted a

feasibility study regarding the installation of sewers in the PAA. Further, the county notes

that Clarksdale will experience an immediate revenue reduction once utility customers are

annexed because they no longer will be paying double rates for services.

¶48.   The chancellor found,

       The evidence establishes that the City of Clarksdale is in financially stable
       condition; that the City of Clarksdale can fund the municipal services needed
       for the five PAAs. Opponents state that the present financial health of the City
       of Clarksdale is based on increased taxes and not on increased municipal
       growth. Sales tax revenues of the City of Clarksdale represent a consistent
       income to the city, however, the opposition counters that, when an inflation
       factor is applied, there is a decreasing trend in City of Clarksdale’s income.
       The City of Clarksdale has purchased equipment to improve municipal
       services. The City of Clarksdale’s plan for providing municipal services to the
       PAAs is placed in the court record as Exhibit C-105. Although, the opposition
       questions the workability of the plan and its lack of feasibility studies,
       nonetheless, a plan has been provided.

The evidence summarized above provided substantial support for the chancellor’s decision

that Clarksdale is in stable financial condition and could fund municipal services.

Importantly, the chancellor did not award Clarksdale the entire area it sought to annex.

Unlike the primarily residential PAAs 1 and 2, PAAs 3, 4, and 5 have considerably more

                                               22
commercial development that can be expected to generate sales tax diversion. And PAAs 1

and 2 are the primary locations of city water and sewer services that will continue to generate

double utility rates. Clarksdale Chief of Police William Whit Read testified that, with its

current number of sworn police officers, the city could provide a higher level of law

enforcement services to the PAA than those provided by the county. Likewise, other city

officials testified to the feasibility of both financing and providing municipal services to the

PAA.

¶49.   The dissent, without addressing the voluminous evidence of Clarksdale’s finances,

decides from a comparison of the aerial maps of the 1992 annexation area and the PAAs that

Clarksdale’s annexation of PAAs 3, 4, and 5 is a tax grab. But, as discussed above,

Clarksdale submitted substantial evidence that it is in good financial condition and does not

need to annex additional land to shore up deficient finances. Similarly, in Poole v. City of

Pearl, 908 So. 2d 728, 738 (Miss. 2005), this Court found that a proposed annexation was

not a tax grab because the city could continue to fund its operations without the annexation.

In In re City of Jackson, cited by the dissent, numerous witnesses testified that the city

needed to expand its tax base to enable it to continue providing the same level of service to

its present residents. In re City of Jackson, 691 So. 2d 978, 982 (Miss. 2007). Such is not

the case here. And, unlike In re City of Jackson, Clarksdale “demonstrate[d] other valid

reasons for annexation other [sic] than mere tax base increases,” such as the city’s provision

of utility services and some fire protection to PAAs 3, 4, and 5 and the fact that a need exists

for uniformed police and fire protection and planning and zoning in those areas. Id. at 983.



                                              23
Although the dissent contends that Clarksdale’s petition was deficient because it has not

made an effort to extend infrastructure to areas it annexed in 1992, substantial evidence was

before the chancellor that Clarksdale has done just that. Its expert, Watson, testified that

Clarksdale had indeed done a good job providing services to the 1992 annexation area. And

Clarksdale showed it already has extended water and sewer services to portions of PAAs 3,

4, and 5. Thus, unlike In re City of Jackson, Clarksdale did “make an effort to extend . . .

infrastructure to the vacant, developable land within the existing boundaries and take steps

to encourage development in those areas.” Id. at 983. Further, as discussed below in the

economic impact analysis, the citizens of PAAs 3, 4, and 5 will receive something of value

in exchange for their tax dollars.

¶50.   We address Coahoma County’s argument concerning Clarkdale’s notice to citizens

of a tax increase. Coahoma County contends that Clarksdale failed to comply with the

mandatory public notice provisions of Mississippi Code Section 27-39-203 (Rev. 2017).

Clark testified that the city’s millage rate was raised from 74.8 mills in the 2014-15 fiscal

year to 76.22 mills in the 2015-16 fiscal year. Clark admitted that newspaper publication of

an increase in millage rate is required by statute. She explained that the total millage for

2014-15 and 2015-16 was 143.52. That amount included a millage for the city of 74.8 mills,

which was raised to 76.22 mills, with the rest attributable to the school district. Clark

explained that she gave no notice of the millage increase because the total millage rate of

143.52 did not change. But she acknowledged that those taxpayers outside the school district

did experience a tax increase of almost two mills, of which they had not received notice.



                                             24
¶51.   According to Mississippi Code Section 27-39-203(9), “Any governing body of a tax

entity shall be prohibited from expending any funds for the applicable fiscal year until it has

strictly complied with the advertisement and public hearing requirements set forth in this

section.” Miss. Code Ann. § 27-39-203(9) (Rev. 2017). Coahoma County contends that

Clarksdale did not comply with statutory notice provisions, which will require it to issue a

tax refund. Coahoma County cites Tunica County Board of Supervisors v. HWCC-Tunica,

LLC, 237 So. 3d 115, 116 (Miss. 2017), in which this Court affirmed an order for a tax

refund because the city had failed to comply with the statutory notice and public hearing

requirements.

¶52.   Because the legal consequences of Clarksdale’s compliance or noncompliance with

the notice provisions and whether it owes a tax refund were not before the chancellor for

decision in this annexation matter, they are not before this Court for decision on appeal.

Coahoma County did not show that a timely lawsuit had been filed against Clarksdale based

on its alleged noncompliance with statutory notice provisions. A conclusion that Clarksdale

will be ordered to pay a costly tax refund would be, at this juncture, speculative.

       V.       NEED FOR ZONING AND PLANNING

¶53.   In evaluating the need for zoning and planning in the PAA, the chancellor evaluated

incompatible land uses within the PAA and the needs within the PAA for building

inspections, building and zoning ordinances, zoning and planning to ensure public safety and

welfare, and enforcement of zoning ordinances. “This Court gives chancellors a wide latitude

of discretion in analyzing whether this indicator weighs against annexation. Specifically,



                                              25
‘[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.’”

Poole v. City of Pearl, 908 So. 2d 728, 739 (Miss. 2005).

¶54.   The chancellor found no persuasive evidence of a need for zoning control in PAAs

1 and 2 beyond that already provided by the county. Clarksdale argues that the chancellor

ignored its evidence that planning and zoning were needed in these areas. The county lacks

a comprehensive plan. Slaughter testified that the county’s zoning map, which had been

completed in 1974, was antiquated, difficult to read, and inaccurate, citing the fact that it did

not include the existing Highway 61 bypass. By contrast, Clarksdale’s comprehensive plan

was adopted in 2010 and does address the bypass. Slaughter testified that, particularly in

PAAs 1 and 2 where the development was mostly residential, the PAA needed building

inspections and code enforcement, building and zoning ordinances, and municipal-level

subdivision regulations.

¶55.   Slaughter also testified that certain conditions existed in the PAA that needed

remediation through municipal-level planning and zoning ordinances. He testified that the

county was not enforcing its planning and zoning regulations and that substandard streets and

drainage systems existed in PAA 1. He raised the concern that Clarksdale was unable to

apply its engineering specifications to developments tapping into its water lines. Johnson

testified that PAA 1 contained gravel roads and roads too narrow to allow the passage of

emergency vehicles. Clarksdale presented evidence of its broad regulations that would apply

to the PAA, including a comprehensive plan, general development plan, subdivision rules



                                               26
and regulations, and a zoning ordinance. Johnson testified that the city’s subdivision

regulations would apply to new subdivisions and that her department could extend building

inspection, code enforcement, and planning and zoning to the PAA. She said the city has an

aggressive program and a grant in place to eliminate blight. Johnson admitted that Clarksdale

must address its current zoning provisions regarding lot size because when a home on an

undersized lot is demolished, new construction cannot occur on the lot under the current

zoning provisions. She testified that the city had budgeted $30,000 to update the

comprehensive plan and $10,000 to apply zoning to the PAA.

¶56.   Watson testified that no need exists for zoning and planning in the PAA beyond what

the county already provides, specifically, zoning and subdivision regulations and a building

code that are appropriate for rural development. He testified that, due to the largely

undeveloped character of the PAA, city planning and zoning would make little difference.

Further, he took issue with the city’s enforcement of its comprehensive plan. He testified that

recent demolition of blighted housing had left vacant lots downtown and opined that

Clarksdale’s zoning regulations needed updating to ensure that new development would

occur on these undersized vacant lots. He also testified regarding the blighted conditions

existing throughout the city. Coahoma County submitted numerous photographs documenting

these conditions, including abandoned houses, broken windows, peeling paint, graffiti, lack

of maintenance, piles of trash, junked cars, piles of tires, and faded and damaged street signs.

Johnson testified that some of these instances of blight had been remedied before the trial.

¶57.   The chancellor’s finding that the planning and zoning regulations provided by the



                                              27
county were sufficient for PAAs 1 and 2 was supported by substantial, credible evidence.

The evidence about the largely rural character of PAAs 1 and 2 supported the chancellor’s

conclusion that annexation of those areas was unreasonable. Evidence was adduced of some

lack of enforcement of regulations on behalf of both city and county. The chancellor viewed

the entire PAA during the inspection tour and thus observed the conditions existing in

Clarksdale and in all five PAAs. The chancellor found that Clarksdale successfully had

established that a need exists for municipal zoning regulation in PAAs 3, 4, and 5. The

presence of businesses and industry in those areas along with the Highway 61 bypass and

future I-69 supported the chancellor’s conclusion that those areas reasonably would benefit

from municipal level planning and zoning such as that proposed to be provided by

Clarksdale.1

       VI.     NEED FOR MUNICIPAL SERVICES

¶58.   The subfactors that may or may not be considered in assessing the reasonable need for

municipal services in a proposed annexation area 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.



       1
        Coahoma County argues that the chancellor’s finding that planning and zoning are
needed in PAAs 3, 4, and 5 conflicted with his finding concerning the Town of Lyon’s
annexation of part of PAA 3 that because both Lyon and Clarksdale have comprehensive
zoning plans, this factor favored neither municipality. But these findings are easily
reconciled. The chancellor found that planning and zoning was needed in PAAs 3, 4, and
5, and that ultimately annexation of the portion of PAA 3 by Clarksdale, not Lyon, was
reasonable under the totality of the circumstances.

                                              28
City of Winona, 879 So. 2d at 984 (quoting City of Macon, 854 So. 2d at 1041-42)).

¶59.   The chancellor found that the increase in municipal services to the PAA would not

require significant increase in service personnel. The chancellor found undisputed that

Clarksdale had received requests for water and sewage services in the PAAs. The evidence

indicated that Sandy Acres subdivision in PAA 1 and Cypress Ridge subdivision in PAA 2

had requested water and sewer services. Clarksdale had received a request for water service

from Shady Nook Convenience Store in PAA 3. Clarksdale provides water and sewer

services to Sunbelt. Slaughter testified that the PAA would benefit from the full extension

of water and sewer services. The chancellor found that the city planned to provide sewer

service to those with septic systems but that the extant septic systems in the PAA were not

a major consideration.

¶60.   Also, the chancellor accepted Clarksdale’s evidence of its plan to extend fire and

police protection services to the PAA. Regarding fire protection, Ty Windham with the

Mississippi State Rating Bureau testified that the bureau conducts surveys of fire protection

in the state. Municipalities and fire protection districts are given a rating of one, the best, to

ten, the worst. The rating process evaluates the water supply, the fire department, the

communications center, and fire code and building code enforcement. Windham testified that

Clarksdale currently is rated Class 5. It has a twenty-four-hour, full-time professional fire

department. Windham testified that Clarksdale can extend Class 5 fire protection to the PAA.

He testified that Coahoma County does not have a full-time professional fire department and

that it provides Class 10 fire protection services, equivalent to no fire protection at all.



                                               29
¶61.   Clarksdale’s fire chief, Obert Douglas III, testified that the city’s response time is

three minutes. He testified that Clarksdale has 800 fire hydrants, that 95 percent of the PAA

already has fire hydrants installed, and that the city will install hydrants where needed. He

testified that it would be important for the entire Highway 61 bypass to have Class 5 fire

protection. He testified about the Clarksdale Fire Department’s speedy and effective response

to a fire at a peanut warehouse in Sunbelt in PAA 3, which the fire department already

services pursuant to an interlocal agreement. The county fire chief, Wayne Sneed, testified

that the county’s response time is ten minutes, and he agreed with Chief Douglas that a fire

doubles in intensity and coverage every minute.

¶62.   Slaughter reiterated that the Highway 61 bypass would benefit from quicker response

times and from the negation of jurisdictional confusion about whether the location of a fire

was in the city or the county. Slaughter also testified that the residential and agricultural areas

in PAAs 1 and 2 would benefit from increased fire protection. But Watson testified that,

given its low density, the PAA has no need for additional fire protection beyond the volunteer

fire department operated by the county. According to Watson, “cotton fields don’t need a fire

department.”

¶63.   Regarding law enforcement, the PAA is under the jurisdiction of the Coahoma County

Sheriff’s Department, which is responsible for the entire county, encompassing 582 square

miles. The county has twenty-two full-time sworn officers, with an average response time

of between seven and ten minutes. Clarksdale Chief of Police William Whit Read testified

that the Clarksdale Police Department had forty-eight sworn officers and that four new



                                                30
officers had been budgeted. The department planned to buy two new sport-utility vehicles

in the current fiscal year, along with new service weapons and radar units. The department’s

response time is two and one-half to three minutes. Both Chief Read and the sheriff of

Coahoma County, Fernando Bee, agreed that increased police visibility has a deterrent effect

on crime. Clarksdale submitted a plan for establishing police beats in the PAAs, but it did not

include adding more sworn officers.

¶64.   Evidence was undisputed that, unlike the city, the county could not provide radar

services to combat speeding on the Highway 61 bypass and future I-69 corridor. Chief Read

testified that jurisdictional confusion will persist if the Highway 61 bypass and future I-69

corridor are not annexed. He further testified that elimination of the jurisdictional confusion

will result in faster response times in PAAs 3, 4, and 5 because determining whether the city

or the county has jurisdiction before responding to an accident or emergency will no longer

be necessary. Chief Read also testified that the PAA needs a higher level of law enforcement.

Slaughter testified that, from an urban-planning perspective, the PAA needs increased fire

and police protection.

¶65.   Coahoma County argues that Clarksdale did not establish a need for increased

municipal services in PAAs 3, 4, and 5. The county’s expert, Watson, testified that the PAAs

were too sparsely developed to need increased municipal services. He testified that, due to

the sparse development, Clarksdale did not need to add more sworn officers after annexation,

but that it could best use its officers to fight crime downtown. He noted testimony detailing

numerous complaints of crime in Clarksdale. Clarksdale argues that its evidence of a need



                                              31
for municipal services in PAAs 1 and 2 supported its annexation of those areas.

¶66.   We find that the evidence on this indicium supported the chancellor’s conclusions that

Clarksdale’s annexation of PAAs 3, 4, and 5 was reasonable and that its annexation of PAAs

1 and 2 was unreasonable. While the evidence showed that all the PAAs contained rural

areas, PAAs 3, 4, and 5 also contained the Highway 61 bypass and future I-69 corridor.

Clarksdale presented strong evidence of a need to eliminate jurisdictional confusion in the

provision of emergency services on the bypass. The conclusion that the bypass and future I-

69 corridor would benefit from municipal level services is a reasonable one. Further, PAAs

3, 4, and 5 have within their boundaries businesses and industry, which support the existence

of a need for increased fire and police protection. While PAAs 1 and 2 contain low density

residential areas that could benefit from increased fire and police protection, the need is not

as strong as in PAAs 3, 4, and 5, and the chancellor was within his discretion in finding that

annexation of those areas was unreasonable when considering the totality of the

circumstances.

       VII.   NATURAL BARRIERS

¶67.   Regarding the natural barriers factor, this Court has said that “it is not a constraint

upon development that establishes unreasonableness under the natural barrier concept but

rather a condition that makes provision of municipal services impossible or prohibitively

expensive.” In re City of Columbus, 644 So. 2d 1168, 1175 (Miss. 1994). Consistent with

the testimony of Slaughter and Watson, the chancellor found that no natural barriers existed

which would impact annexation.



                                              32
       VIII. PAST PERFORMANCE

¶68.   The evidence on this indicium focused on Clarksdale’s performance in providing

municipal services since the 1992 annexation. Clarksdale presented testimony that it had

fulfilled its obligations from the 1992 annexation. Arch Corley, the city engineer, testified

that Clarksdale had made improvements to streets, bridges, and drainage throughout the 1992

annexation area. Buddy Bennett, with CPU, testified that Clarksdale had extended water and

sewer services to virtually all of the residents of the 1992 annexation area. Slaughter testified

that the city had extended Class 5 fire protection services and police beats to the 1992

annexation area.

¶69.   Coahoma County presented evidence of Clarksdale’s performance failures. Although

Clarksdale had committed to the hiring of consultants and to the performance of a drainage

study, it had not hired such consultants, and the study consisted of Corley’s merely driving

around the city spotting problems. Further, Coahoma County presented ample evidence of

blighted conditions in the city. And Clarksdale was seventeen years late in updating its

zoning ordinances after the 1992 annexation. Nonetheless, Watson testified that Clarksdale’s

overall performance had been good and that, considering its performance history alone, the

annexation should be approved.

¶70.   Also, several objectors to the annexation, primarily residents of PAAs 1 and 2,

testified about crime problems in the city. These objectors testified that they had been victims

of crimes such as automobile and home burglaries and armed robberies; several of these

individuals had been victims of such crimes on multiple occasions. Objectors testified that



                                               33
the Clarksdale Police Department often was slow to respond or simply did not respond at all.

One objector had moved out of Clarksdale into the PAA specifically to escape crime. A

Clarksdale resident testified that his neighborhood had hired a security service due to the

police department’s ineffectiveness. The objectors vehemently opposed being under the

jurisdiction of the Clarksdale Police Department and expressed satisfaction with county

services.

¶71.   The chancellor did not weigh this indicium for or against annexation, but found that

each side “ha[d] valid points of contention.”

       IX.    ECONOMIC OR OTHER IMPACT ON RESIDENTS

¶72.   This indicium requires evaluation of the fairness of an annexation to all parties. In re

City of Hattiesburg, 840 So. 2d 69, 82 (Miss. 2003). “[M]unicipalities must demonstrate

through plans and otherwise, that residents of annexed areas will receive something of value

in return for their tax dollars in order to carry the burden of showing reasonableness.” Id.

       [T]he Court is required to balance the equities by comparing the City’s need
       to expand and any benefits accruing to residents from the annexation with any
       adverse impact, economic or otherwise, which will probably be experienced
       by those who live in and own property in the annexation area. The mere fact
       that residents and landowners will have to start paying city property taxes is
       not sufficient to show unreasonableness.

City of Winona, 879 So. 2d at 988 (citations omitted). The Court has said that “[o]nly by

reviewing the annexation from the perspective of both the city and the landowner can the

chancellor adequately determine the issue of reasonableness. In short, the common thread

that must run through any reasonableness criteria is fairness.”City of Columbus, 644 So. 2d

at 1173 (quoting W. Line Consol. Sch. Dist. v. City of Greenville, 465 So. 2d 1057, 1059

                                             34
(Miss. 1985)).

¶73.   The chancellor made no specific finding on whether this factor favored annexation.

Coahoma County argues that Clarksdale has vast amounts of vacant land, that it has no need

to expand, and that annexation unfairly allows Clarksdale to impose its taxes on PAA

residents and property owners. The chancellor noted Clarksdale’s argument that increased

taxes is not a sufficient reason to deny annexation. And the chancellor recognized the

municipal services Clarksdale showed would be provided to the PAA residents after

annexation, resulting in lower insurance rates, reduced county taxes, reduced water rates,

full-time fire and police protection and water and sewer connections, all to the benefit of the

PAA’s property owners. But the chancellor also recognized that the objectors, especially the

ones from PAAs 1 and 2, had expressed satisfaction with county police and fire protection.

¶74.   Although the chancellor made no specific finding on whether this indicium favored

annexation, the chancellor’s opinion, read as a whole, indicates that he did consider fairness

in determining that annexation of PAAs 3, 4, and 5 was reasonable but that annexation of

PAAs 1 and 2 was unreasonable. Clarksdale showed that it would provide water and sewer

services, Class 5 fire protection, and police protection throughout the PAA. Ty Windham

testified that, with Class 5 fire protection, the fire insurance rates of PAA residents would

decrease. Slaughter verified that fire insurance rates would decrease for everyone except

agricultural landowners. The rates for city water paid by PAA property owners, now twice

the rates inside the city, would decrease after annexation. And Clarksdale presented evidence

of a need to expand due to some spillover, high population density, and the Highway 61



                                              35
bypass and future I-69 corridor. The fact that numerous objectors in PAAs 1 and 2 opposed

annexation and expressed satisfaction with county services supports the chancellor’s decision

that Clarksdale’s annexation of those areas was unreasonable. Additionally, no property

owner or inhabitant of PAAs 1 or 2 expressed a desire for annexation. Also supporting the

chancellor’s decision is the fact that some residents of PAAs 1 and 2 keep animals including

horses, llamas, pigs, and chickens on their property, and ambiguity existed about whether

these animals could be maintained in the city after annexation.

       X.     VOTING STRENGTH OF PROTECTED MINORITY GROUPS

¶75.   The chancellor found that Clarksdale’s proposed annexation would not have any

negative impact on minority voting strength. Slaughter testified that Clarksdale’s minority

population is 79 percent; after annexation, it would be 78 percent. He further testified that

Clarksdale’s minority population of voting age is 75 percent and that after annexation, it

would be 74 percent. Both Slaughter and Watson testified that the annexation would have

no negative impact on minority voting strength. Coahoma County avers that post-annexation

minority voting strength is not a contested issue.

       XI.    BENEFIT TO PROPERTY OWNERS IN PAA WITHOUT PAYING
              THEIR FAIR SHARE OF TAXES

¶76.   The chancellor recognized as undisputed that PAA residents worked, shopped,

attended school and church, and frequented recreational facilities inside Clarksdale.

Clarksdale’s mayor, Bill Luckett, testified that the residents of PAAs 1 and 2 derived all their

social and economic means and benefits from the city and that most people in those PAAs

work and shop in the city, using city streets and services. Slaughter testified that PAA


                                              36
residents benefit from proximity to the city without paying their fair share of taxes, a

situation that would be remedied by annexation. Watson did not dispute that PAA residents

enjoy economic and social benefits without paying taxes because they work, shop, and attend

church in the city, but he opined that their payment of sales taxes and rental charges for

recreational facilities compensated the city for the economic and social benefits they derived

from proximity to the city. The chancellor found that this factor weighed slightly in favor of

Clarksdale. We find that the chancellor’s decision was supported by substantial, credible

evidence and, considered along with the other indicia, supported the finding that annexation

of PAAs 3, 4, and 5 was reasonable and that annexation of PAAs 1 and 2 was unreasonable.

       XII.   OTHER FACTORS THAT SUGGEST REASONABLENESS

¶77.   The chancellor did not make an express finding that “other factors” weighed for or

against annexation. Under this indicium, the chancellor cited the jurisdictional problems in

PAAs 3, 4, and 5 generated by the fact that the path of the Highway 61 bypass and future I-

69 corridor weaves in and out of the city. The chancellor considered Slaughter’s testimony

that Clarksdale was unable to plan for the coming of the I-69 corridor because part of it lay

outside the city. But the chancellor also noted the testimony of County Administrator David

Vassal that the construction of I-69 along the bypass was, at best, “mythical” and that it was

unknown when the actual completion date would be determined.

¶78.   Coahoma County argues that the coming of I-69 along the bypass is “mythical”

because the date of completion is unknown. It posits that, because the chancellor mentioned

Vassal’s testimony, the chancellor actually found that the completion of I-69 along the



                                             37
bypass was “mythical,” and thus the chancellor erred by relying on future I-69 to find that

annexation of PAAs 3, 4, and 5 was reasonable. While the chancellor cited Vassal’s

testimony, the chancellor also recognized the jurisdictional and planning difficulties caused

by the Highway 61 bypass’s and future I-69 corridor’s weaving in and out of the city. The

chancellor also found that the future I-69 corridor created a need for city planning in PAAs

3, 4, and 5. It is clear from reading the chancellor’s opinion as a whole that he viewed the

presence of the Highway 61 bypass and future I-69 corridor as an important consideration

in finding that PAAs 3, 4, and 5 reasonably should be annexed.

¶79.   Coahoma County also argues that the chancellor erred by not considering the

competing interests of the Town of Lyon in enjoying any development potential created by

the Highway 61 bypass and future I-69 corridor. It cites the rule that, “[u]nder the present day

circumstances where there is competition among multiple municipalities for the same land,

it is essential that a chancellor evaluate the competing interests of the other city or cities

when considering the twelve indicia in the totality of the circumstances.” In re City of

D’Iberville, 867 So. 2d 241, 251 (Miss. 2004). But the chancellor thoroughly considered the

annexation petitions of both Clarksdale and Lyon and the arguments advanced by each,

including Lyon’s argument about being cut off from development along the bypass. The

chancellor also evaluated the municipal services proposed to be offered by both Clarksdale

and Lyon in PAA 3. We find no deficiency in the chancellor’s evaluation of the competing

petitions for part of PAA 3.

¶80.   Clarksdale raises an “other factor” not discussed by the chancellor. Citing certain



                                              38
restrictive covenants, Clarksdale attacks the chancellor’s decision not to allow annexation

of PAAs 1 and 2. Both Sandy Acres subdivision in PAA 1 and Cypress Ridge subdivision

in PAA 2 have restrictive covenants in which the developer and successors in interest agreed

to consent to annexation by Clarksdale in exchange for provision of city water. The evidence

showed that the covenants were generated by Clarksdale’s policy, adopted in 1981, of not

extending water to any unincorporated area without the developer’s agreement to future

annexation by Clarksdale. Clarksdale argues that, because these are covenants that run with

the land, they must be enforced.

¶81.   The restrictive covenants for Sandy Acres provide that

       Declarant agrees, for himself and for his heirs, administrators, executors and
       assigns, including all future owners of the property or successors in interest in
       the property, or any part thereof, that, in the event of an annexation petition or
       proceedings instituted by the City of Clarksdale, Mississippi, at any future
       time, neither the Declarant, the future purchasers nor any successors in interest
       will object to or in any way oppose the annexation of Sandy Acres Subdivision
       or any of the individual lots therein and will, if called upon by the City to do
       so, execute a Waiver of Process and Entry of Appearance, agreeing to the
       annexation of the Sandy Acres Subdivision and the individual lots therein by
       the City of Clarksdale. This covenant shall run with the land, shall be binding
       upon all future owners of any interest therein, and shall not be subject to any
       (I) modification by the majority of the owners of the property pursuant to
       Paragraph 11 nor (ii) modification, deletion or abandonment as provided in
       Paragraph 12 hereof.

The restrictive covenants for Cypress Ridge subdivision are similar but allow a change or

cancellation of the agreement with prior written consent of Clarksdale city officials.

¶82.   This Court has held that

       [a] covenant will “run with the land” if three conditions are met: “(1) the
       covenanting parties must intend to create such covenant; (2) privity of estate
       must exist between the person claiming [a] right to enforce the covenant and

                                              39
       the person upon whom [the] burden of covenant is to be imposed; and (3) the
       covenant must ‘touch and concern’ the land in question.”

Misita v. Conn, 138 So. 3d 138, 142 (Miss. 2014). If a covenant sets forth the restriction in

clear and unambiguous language, it will be enforced. Id. But restrictive covenants that are

void as against public policy will not be enforced. See Hudson v. Morrison Heights Baptist

Church, 782 So. 2d 726 (Miss. 2001).

¶83.   Clarksdale argues that the covenants run with the land, are binding, are unambiguous,

and must be enforced. Clarksdale argues that the chancellor’s failure to make findings on the

covenants rendered his decision erroneous and requires reversal of the finding that

annexation of PAAs 1 and 2 was unreasonable. But Clarksdale’s argument contravenes

public policy as expressed by the law of this state governing annexations. In the covenants,

Clarksdale and the subdivision developers and their successors in interest agreed that Sandy

Acres and Cypress Ridge would not oppose annexation. But a chancery court considering an

annexation petition must evaluate the twelve indicia to determine whether annexation is

reasonable under the totality of the circumstances, an undertaking that necessitates

consideration of the impact of annexation on PAA residents. In re City of Meridian, 992 So.

2d at 1116. If this Court were to permit restrictive covenants to muzzle PAA residents, a

chancellor would be unable to consider the totality of the circumstances. Further, in this

case, neither subdivision is adjacent to Clarksdale, and a holding that the covenants mandated

annexation of Sandy Acres and Cypress Ridge would lead to an absurd result in which

disconnected chunks of PAAs 1 and 2 become part of the city, while surrounding areas

remain in the county. We hold that restrictive covenants like the ones at issue in this case can


                                              40
be considered as part of the overall evidence relevant to assessing whether an annexation is

reasonable under the totality of the circumstances, but that they do not control. We find that

the chancellor, who expressly stated that he considered all of the evidence presented at trial,

properly considered the twelve indicia to determine whether the annexation was reasonable

and that he did not err by failing to grant Clarksdale any relief based upon the restrictive

covenants.

                                      CONCLUSION

¶84.   The chancellor’s decision that Clarksdale’s annexation of PAAs 3, 4, and 5 was

reasonable and that its annexation of PAAs 1 and 2 was unreasonable under the totality of

the circumstances was supported by substantial, credible evidence and was not manifestly

erroneous. The chancellor rendered his decision after carefully considering all evidence

presented in light of the twelve indicia and personally viewing the PAA during the inspection

tour. The chancellor appreciated the differences in character of PAAs 1 and 2 versus PAAs

3, 4, and 5, with PAAs 1 and 2 being primarily rural and residential and PAAs 3, 4, and 5

containing businesses and residences. The chancellor also took into account the Highway 61

bypass and future I-69 corridor. The dissent, without analyzing the twelve indicia under the

totality of the circumstances, discusses only the evidence disfavoring annexation of PAAs

3, 4, and 5 and concludes that annexation was unreasonable. After evaluating the evidence

in light of our standard of review, we find that the chancellor’s decision was a reasonable one

based on the evidence. Therefore, we affirm.2

       2
        Coahoma County has attached a 2012 Harrison County Chancery Court judgment
to its Combined Reply Brief and cites information from a 2018 Mississippi Attorney

                                              41
¶85.   AFFIRMED.

    WALLER, C.J., KING, COLEMAN, BEAM AND CHAMBERLIN, JJ.,
CONCUR. MAXWELL, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND ISHEE, J.

    MAXWELL, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶86.   If Clarksdale’s annexation of Proposed Annexation Areas 1 and 2 was unreasonable,

then its annexation of Areas 3, 4, and 5 is even more unreasonable.

¶87.   The twelve indicia of reasonableness “are not separate, independent tests which are

conclusive as to reasonableness.” In re City of Jackson, 691 So. 2d 978, 980 (Miss. 1997).

Rather, they serve as a guide for the court when making an “ultimate

determination”—“whether the annexation is reasonable under the totality of the

circumstances.” Id. (quoting W. Line Consol. Sch. Dist. v. City of Greenville, 465 So. 2d



General’s opinion on Clarksdale’s attempt to transfer funds from CPU’s reserve account to
the general fund. Clarksdale has filed a motion to strike the 2012 chancery court judgment
and reference to the information in the Attorney General’s opinion because this information
was not before the chancery court, which rendered its decision before the Attorney General’s
opinion was issued. The motion was passed for consideration with the merits of this appeal.

        Because this Court does not consider information outside the record, Hardy v. Brock,
826 So. 2d 71, 76 (Miss. 2002), we strike the reference to facts in a 2018 Attorney General’s
opinion from Coahoma County’s Combined Reply Brief. But we do not strike the 2012
chancery court opinion because, like the opinions of this Court, the opinion is a matter of
public record with precedential value. In support of its motion to strike the opinion, Coahoma
County cites this Court’s decision in Shumake v. Shumake, 147 So. 3d 352, 354 (Miss.
2014), in which we struck a court order that was attached to an appellate brief and not
included in the record. But in Shumake, the appellant attempted to use the attached order to
establish facts of record in the case. Here Coahoma County submits the extra-record order
as precedent, not to establish the facts of this case. Therefore, this situation is distinguishable
from Shumake, and we deny Clarksdale’s request to strike the order.


                                                42
1057, 1059 (Miss. 1985)). Both the chancellor’s final judgment and the majority opinion of

this Court dutifully go down the check list of each indicium of reasonableness. But neither

connects the dots and articulates why, under the totality of the circumstances, annexation of

Areas 3, 4, and 5 was a reasonable move for a city with a declining population and ample

undeveloped land.3

¶88.   They say a picture is worth a thousand words. And here, one need only look at “the

big picture”—that is, the maps showing the land Clarksdale already annexed in 1992 and the

land it now seeks to annex—to assess the reasonableness of the city’s claimed need to plan

for and capitalize on the future I-69 corridor.

¶89.   As shown by the 1991 map below, a quarter century ago Clarksdale annexed parts of

Coahoma County to ensure the city extended to the future I-69. The 1992 annexation took

in what is now the interchanges of the Highway 61 bypass with Highway 6, Highway 49, and

future I-69, as well as the northern half of the interchange with New Africa Road. But in the

decades since, none of that land has been significantly developed. So to claim development

along the future I-69 corridor as the need to expand is dubious at best.




       3
         “While it is true that this Court has allowed annexations even though there is not
significant population growth and/or a relatively high percentage of undeveloped land within
the existing city limits,” this Court has been clear that the “presence of these factors should,
at the very least, be an impediment to annexation.” In re City of Jackson, 691 So. 2d at 981.

                                              43
¶90.   Skepticism grows further when one looks at the second map of Proposed Annexation

Areas 3, 4, and 5 and the commercial businesses and residential properties located therein.

First, these areas are not adjacent to developed areas of Clarksdale. Instead, the city “leap

frogs”4 large swaths of undeveloped, agricultural land, reaching out to grab the nearest

businesses and residences. Second, from this map, it is clear that it is not just the land near

       4
         In In re City of Jackson, “leap frog development” was also at issue—that is, “the
interdispersement of large vacant tracts of land between developed portions of land.” As
the objectors’ expert in that case explained, having large areas of vacant land between
developed portions of the city “tends to be a drain on the economy and fiscal structure of the
city,” because the city has to expend “significant resources to extend infrastructure into
vacant areas and through vacant areas” to provide services to the developed area. Id. at 981-
82. In other words, to provide infrastructure and services to Areas 3, 4, and 5, Clarksdale
would have to build and travel across large vacant areas.

                                              44
the future I-69 corridor Clarksdale seeks. Instead, it is specifically and almost exclusively

land that already has houses and commercial property—in other words, people and entities

that can be taxed. So, I find it hard not to read this map as anything other than a “tax

grab”—something this Court has always viewed critically. See In re City of Jackson, 691

So. 2d at 982.




                                             45
¶91.   In In re City of Jackson, the capital city similarly tried to jump over undeveloped city

areas to annex already developed portions of Hinds County—an effort this Court found to

be unreasonable under the totality of the circumstances. Id. at 980-91. Instead, “[b]efore the

City of Jackson [could] annex[] more land and residents for which it has had to extend

infrastructure and provide services,” this Court held that Jackson “should make an effort to

extend that infrastructure to the vacant, developable land within the existing boundaries and

take steps to encourage development in those areas.” Id. at 983. Consistent with In re City

of Jackson, Clarksdale should have to do the same thing. Before it annexes more land,

residents, and taxable businesses for which it will have to provide additional infrastructure

and services, Clarksdale should at the very minimum make an effort to develop the areas that

it already annexed in 1992 along the future I-69 corridor.

¶92.   Until then, to claim the need to annex to capitalize on and uniformly govern the

development along the future I-69 corridor is unreasonable. Therefore, I dissent in part.

While I would affirm the portion of the chancellor’s judgment finding the annexation of

Areas 1 and 2 to be unreasonable, I would reverse the portion of the judgment regarding

Areas 3, 4, and 5 and instead render a judgment finding the annexation of these areas to be

unreasonable as well.

       RANDOLPH, P.J., AND ISHEE, J., JOIN THIS OPINION.




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