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Home My WebLink AboutResolution 04-1997 . . RESOLUTION NO. 4-97 WHEREAS, the City of Brookings is authorized pursuant to South Dakota Codified Laws Section 9-4-6 to exclude from the City property located upon the border of the limits of the City which is not laid out into lots and blocks, upon receipt of a written petition, describ-ing said territory sought to be excluded, signed by not less than three-fourths (3/4) of the legal voters residing upon said temtory and by the owner or owners of not less than three-fourths(3/4) of the value of said territory, and WHEREAS, the City of Brookings desires to exclude from its City limits the follow-ing described property, to-wit: Lot M-2, Warrior Commercial Park Addition and Lot M-2, Warrior Commercial Park Second Addition to the City of Brookings, County of Brookings, State of South Dakota, and WHEREAS, the aforesaid property is located upon the border of the present boun-daries of the City of Brookings, and WI�REAS, the City of Brookings has received a Petition for Exclusion of Territory signed by the owners of greater than three-fourths (3/4) of the value of the aforesaid property and there being no legal voters residing upon said territory, and said Petition being in confornuty with SDCL 9-4-6, now therefore and _ WI�REAS, subject to filing with City Finance Officer an Agreement requiring property owners or their successors, to participate in the road improvement cost in event the City elects to improve 25th Av adjacent to said property. BE IT RESOLVED by the City of Brookings, South Dakota, that the above described property is hereby excluded from the boundaries of the City of Brookings. Passed and approved this 28th day of January, 1997. CITY OF BROOKINGS � Mayor T: �a00K1p� O�`o�Q0�TE0 �f r �R•' �� STATE OF$p UTH DAKOTA COUNTY OF BROOKIN �a r a FlLfD THS s� DAY OF�19�AT yDd O'CLOC i{�M . . � �� .. 1 Bp� ' PAGE �7.� Finance Officer BY ,,. , R�QISTBR OF DEEDS ;`'�D�.O,o l��j�` �� o,��Mas o`co; SO: Q,0 ��p� � i�: V'AZ� � s �'i �%, C� •' f'.� //,'''s��ht4'��.�'�.cil��p�`o`` w . RESOLUTION NO. 4-97 WHEREAS, the City of Brookings is authorized pursuant to South Dakota Codified Laws Section 9-4-6 to exclude from the City property located upon the border of the limits of the City which is not laid out into lots and blocks, upon receipt of a written petition, describ-ing said territory sought to be excluded, signed by not less than three-fourths (3/4) of the legal voters residing upon said territory and by the owner or owners of not less than three-fourths (3/4) of the value of said territory, and WHEREAS, the City of Brookings desires to exclude from its City limits the follow-ing described property, to-wit: Lot M-2, Warrior Commercial Park Addition and Lot M-2, Warrior Commercial Park Second Addition to the City of Brookings, County of Brookings, State of South Dakota, and WHEREAS, the aforesaid property is located upon the border of the present boun-daries of the City of Brookings, and WHEREAS, the City of' �� has received a Petition for Exclusion of Territory signed by the owners of greater than thre� �1 _` °*he value of the aforesaid property and there being no legal voters residing upon sai�' q� �� ',n being in confornuty with SDCL 9-4-6, now therefore and � h�� /1 �� l � WHEREAS, subjF �a _4' � � ` S ,cer an Agreement requiring property owners or their successors, to par�._ '�d � 7'� .t cost in event the City elects to improve 25th �o G Av adjacent to said property. ,C�?� BE IT RESOLVED by the City of Bro�_ , South Dakota, that the above described property is hereby excluded from the boundaries of the City of Brookings. Passed and approved this 28th day of January, 1997. CITY OF BROOKINGS � � � ,n eR00K� ayor �� U. Z M"R•9 :� z 3 �o ��o�. �8g .,:o� iN�s� S u� Finance Officer I � r �'!. � . � . �' • � CHANGE OF I�SUNICIPAL BOUNDARIES 9-4-6 � y.��4.21. '�'�sferred to § 9-4-4.11. 9�.�, Annexation of unplatted territory subject to approval by count�� commissioners. No such resolution describing unplatted territory � therein may be adopted until it has been approved by the board of county � commissioner- of the county wherein such unplatted territory is situate. For j the purPoses of this section, unplatted territory� is any land which has not � been platted by a duly recorded plat or any agricultural land as defined in � 10-6-31. { I Source: SDC 1939, Z 45.2906 as added by could not, without property owner's consent, ( , SL 1955. ch 21�. § 1; 1982, ch 71, § 1. annex property by resolution on basis that ��platted" Defined. owner had previously recorded plat in accor- dance with statute relating to conveyancing. ! ` Use of word "platted" refers to platting for Rhodes v. City of Aberdeen (1951) 74 SD 179, submission to municipality for annexation 50 NW 2d 215. � {� rather than platting merely for purpose of transfer and recording conveyances and city ": , Y 7 9-4-6. Petition for exclusion of territory from municipality — Reso- � lution of governing body. On petition in writing signed by not less than ! three-fourth� of the legal voters and by the owners of not less than three- � fourths in value of the propert�� in any territory wzthin any municipality being upon the border thereof and not being laid out into lots and blocks, the � governing body may by resolution exclude such territory therefrom;provided, however, that if all the land sought to be excluded is more than one-half mile � from any platted portion of the municipality,the petition in such case need be signed by the owner only. Source: SL 188i, ch 104, § 2; CL 1887, Statutory procedure for excluding territory � 1115;RPo1C 1903,§ 1509;ftC 1919, � 6555; from city was applicable even though cit,y was SDC 1939, � 402901; SL 1939, ch 191. operating under special charter rather than general law.Coughran v.City of Huron(1903) Constitutionality. 17 SD 271, 96 NW 92. Power conferred upon city council to exclude ; territor}• and power conferred upon courts to "�� and Blocks." i review action b�•city council is not unconstitu- Territory sought to be excluded was not"laid ( tional delegation of legislative authority; fact out into lots and blocks" within meaning of that cit}�council passed resolution denying pe- etatute where only plat of land was made by tition for exclusion and,upon refertal,electors farm security administration dividing land of city sustained action of city council was in- into 25 tracts ranging in size from five to 140 consequential.Heineman v.City of Alexandria $cres irregular in shape and not subdivided (1913) 32 SD 365, 143 NW 291. into lots;subdivisions marked on plat with evi- dent view of impressing upon them character General or Special Charter Cities. of urban, as distinguished from rural, use are City's corporate exietence was properly es- Ruch as may be regarded as "lots and blocks" • tablished for purposes of proceeding to exclude within meaning of statute. Waring v. Town of ; territory where city made affirmative defense South Sioux Falls(1948)72 SD 215,31 NW 2d [ ' and mayor and members of city council testi- 766. � fied to official capacity;contention tnat incor- Phrase"laid out into lots and blocks'in stat- poration under general statute must be shown ute relating to exclusion of territory does not affirmatively to authorize proceeding to eg- necessarily have same narrow meaning as clude was not suatainable. Pelletier v. City of phrase"lots laid off and platted"in statute re- Ashton (1900) 12 SD 366, 81 NW 735. lating to annexation of territory.Batie v. City 31 __.._� 9-4-6 MUIVICIPAL GOVERNMENT of Webster,Day County(1963)80 SD 295, 122 grant petition for exclusion where result would NW 2d 764. be to divide city into two distinct tracts of land, Number and Value of Vote. one noncontiguous with the other.Cole v.City Requirement of statute that petition be of Watertown (1914) 34 SD 69, 147 NW 91. signed by not lesa than three-fourths of legal Exclusion order was pmper where land was ; . voters and by owners of not leas than three- compoeed of variously sized tracts ranging in i fourths in value of property in any territory acreage from five to 140, none of which was sought to be excluded must be substantially subdivided into lots and all of which was lo- ; complied v�ith and must be alleged and proved cated two and one-half miles from businesa sec- � by petitioning plaintiffs; order gran:ing exclu- tion of town and more than one-half mile from � sion would be reversed where there was no evi- nearest platted territory within town and � dence respecting number of legal voters within Where evidence showed that land was adapted i territory sought to be excluded and no evidence to nu'al rather than urban uses and only mu- that petition was signed by owners of not less nicipal service fumished owners of area was than three-fourths in value of property within grading of highways.Waring v.Town of South !� territory; "legal voters" referred to in statute Sioux Falls(1948)?2 SD 215,31 NW 2d 766. ' are legal voters residing within territory sought to be excluded.Oehler v.Big Stone City Petition for Court Rsview. (1902) 16 SD 86, 91 NW 450. Statute suthorizing court petition to review Exclusion petition signed only by owner of action of city board on request for exclusion of property was nonetheless valid where it �r- territory contemplated new and different peti- matively appeared that there was no legal tion than that filed with city board with result voter residing on land sought to be excluded that mandamus against city auditor compel- and petitioner was sole owner of entire tract. ling him to file in court petition which had Coughran v. City of Huron (1903) 17 SD 271, �en filed with city was improvidently 96 NW 92. granted;no provision of law authorizes city au- Telephone lines, light and power lines, and ��r to transmit petition filed with city to cir- pipelines lceated on property sought to be ex- cuit court; petition filed with city should re- ; cluded were not corporeal hereditaments such main on file in city auditor's off'ice.Hamaker v. � as should be considered in determining City of Highmore Q921) � SD 56. 185 NW _ whether exclusion petition was signed by 300. � owners of not lesa than three-fourths in value - of property. Waring v. Town of South Sioux �o� of Review. Falls (1948) 72 SD 215, 31 NW 2d 766. Council's refusal of petition to exclude terri- ' Partial Eacluaion Not Permisaible. tory should not be overruled by cireuit court ' Statute confers no right either upon city unless clearly showm that injustice would be � board or upon court to grant petition for exclu- done to remaining portion of city. Qualey v. sion as to certain parts of land involved and City of Brooitings (1904) 13 SD 581, 101 NW deny petition as to other parts;when court de- 713. termined that part of tenitory sought to be ex- cluded should not be disconnected from city, it "Territory" Defined• � neceasarily concluded that request of peti- Term"tenitory"as used in statute includes � tionera should be denied.Cole v.City of Water- all various piecea or parcels of land sought to town (1914) 34 SD 69, 1-�7 NW 91. be excluded or annexed and it is not necessary Under rule that court must deny entire ex- that each particular tract or parcel of land clusion petition where any part of territory in- within parcel sought to be excluded or annexed volved is inappropriate for exclusion, trial abut border of city so long as it is part of terri- court's finding that part of territory sought to tory which dces. Oehler v. Big Stone City be excluded had been "laid out into lota and (1902) 16 SD 86, 91 NW �50. blocks"deprived court of power to grant exclu- sion. Batie v. City of Webater, Day County ppiaions of Attorney General. (1963) 80 SD 295. 122 NW 2d 764. R,equirements for county commissioners ap- Particular 'IYacts as Appropriate for Es- Proval on platting, Report 1967-68, p.305. clueion. Neither city board nor court has authority to 32 .�-. ,�"��` *�` "�°`:�: -.� ,: � �� I i � CHANGE OF MUNICIPAL BOUNDARIES 9-4-8 �I, � 9-4-?. Publication of petition for exclusion of territory. No final ac- � tion shall be taken by the governing body upon any petition presented in t pursuance of the provisions of§ 9-4-6 until notice of the presentation of such ` petition has been given by the petitioners by publication at least once each week for two successive weeks. `': Source: SL 1887, ch 104, § 3; CL 1887, Refusal of Newspaper to Publiah. � § 1116;RPo1C 1903,§ 1510;RC 1919,§ 6556; Refusal of publisher of only legal newapaper , SDC 1939, � 452902. in town to publish petition of property owners desiring exclusion of their property from corpo- Cross-References. rate limits effectively prevented property Publication of notice, Chapter 17-2. owners from having petit:on acted upon by Necesaity for Notice. tow'n board and precluded them fmm benefits � ; Cit y council cannot act u pon an y petition for of right given them under statute. Mack v. exclusion before required notice of its preaenta- C o s t e l l o (1 9 1 3) 3 2 S D 5 1 1, 1 4 3 N W 9 5 0, A n n � tion has been given.Weiland v.City of Ashton Cas 1916A 384. � � (1904) 1 i SD 621, 98 NW 87. , 9-4-5. Petition to circuit court for exclusion of territory after refusal by governing body. Upon the failure of the governing body to grant the t request contained in a petition presented in accordance with the provisions of � §§ 9-4-6 and 9-4-7, for thirty days after the last publication of the notice or � upon a refusal to grant such request, the petitioners may present their peti- tion to the circuit court of the county in which such municipality or the greater portion of it is situated,by filing such petition with the clerk of courts. Source: SL 1887, ch 104, § 4; CL 1887, erty where, after exclusion, remaining as- � 1117;RPo1C 1903, § 1511;RC 1919, � 6557; sessed value of property in town exceeded SDC 1939, § 452903. bonded indebtednesa by almost eight times and Constitutionali Where only direct benefit to property from sec- tY• tion-line road was such as would accrue to any ' Statute giving court jurisdiction to approve landowner having highway running past his or disapprove action of city council in refusing property;objection that continued exclusion of , to grant petition for exclusion was not uncon- lands was causing disintegration of town could stitutional on basis that authority to exclude not avail town where it did not appear how [erritory fmm city is vested in Legislature.Pel- much of its reduction in assessed valuation was letier v. City of Ashton (1900) 12 SD 366, 81 due to exclusion of land and how much to de- NW 735. preciation of value, nor how much increase in Statute is not unconstitutional as conferring tax value was due to installation of municipal ; leqislative power upon courts.Wickhem v.City improvements. Kaiser v. Town of Ravinia of Alexandria(1909)23 SD 556, 122 NW 597. �1931) 58 SD 339, 236 NW 294. , Power conferred upon city council to exclude Nature of Proceeding. territory and power conferred upon courts to Exclusion proceedings are not"actions"so as ; review action by city councii is not unconstitu- to be subject to abatement rule. Waring v. tional delegation of legislative authority; fact Town of South Siouac Falls(1948)72 SD 215,31 that city council passed resolution denying pe- ;vW 2d 766. tition for exclusion and,upon referral,electors of city sustained action of city council was in- P8�81 Grant of Exclusion. rnneequential.Heineman v.City of Alexandria Statute confers no right either upon city �1913) 32 SD '365, 143 NW 291. board or upon court to grant petition for exclu- sion as to certain parts of land involved and M�nicipal Indebtedness as Reason for deny petition as to other parts;when court de- Denying Exclusion. termined that part of territory sought to be ex- �I�ial court did not abuae discretion in grant- cluded should not be disconnected from city, it ��R exclusion petition even though town had necessarily concluded that request of peti- � bonded indebtedness and maintained section- tioners should be denied.Cole v.City of Water- ��e h�qhway along perimeter of excluded prop- town I 1914) 34 SD 69, 147 NW 91. 33 � i :; ii �� !� :�