2008 Legislation
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HOUSE BILL NO. 524<br /> – Cities, annexation, revised


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H0524......................................................by STATE AFFAIRS
ANNEXATION - Amends existing law to revise annexation categories; to revise
the evidence of consent to annexation; and to revise procedures for
evidence of consent for Category C annexations.

02/13    House intro - 1st rdg - to printing
02/14    Rpt prt - to Loc Gov

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008


                              IN THE HOUSE OF REPRESENTATIVES

                                     HOUSE BILL NO. 524

                                 BY STATE AFFAIRS COMMITTEE

  1                                        AN ACT

  6    Be It Enacted by the Legislature of the State of Idaho:

  7        SECTION  1.  That  Section  50-222, Idaho Code, be, and the same is hereby
  8    amended to read as follows:

  9        50-222.  ANNEXATION BY CITIES. (1)  Legislative  intent.  The  legislature
 10    hereby  declares  and  determines  that it is the policy of the state of Idaho
 11    that cities of the state should be able to annex lands  which  are  reasonably
 12    necessary  to  assure  the  orderly  development of Idaho's cities in order to
 13    allow efficient and economically viable provision of  tax-supported  and  fee-
 14    supported  municipal  services,  to  enable the orderly development of private
 15    lands which benefit from the cost-effective availability of municipal services
 16    in urbanizing areas and to equitably allocate the costs of public services  in
 17    management of development on the urban fringe.
 18        (2)  General  authority.  Cities  have  the authority to annex land into a
 19    city upon compliance with the procedures required  in  this  section.  In  any
 20    annexation  proceeding,  all  portions  of  highways lying wholly or partially
 21    within an area to be annexed shall be included within the area annexed  unless
 22    expressly  agreed  between  the  annexing  city and the governing board of the
 23    highway agency providing road maintenance at the time of annexation.  Provided
 24    further, that said city council shall not have the power to declare such land,
 25    lots or blocks a part of said city if they will be connected to such city only
 26    by  a shoestring or strip of land which comprises a railroad or highway right-
 27    of-way.
 28        (3)  Annexation classifications. Annexations shall be classified and proc-
 29    essed according to the  standards  for  each  respective  category  set  forth
 30    herein. The three (3) categories of annexation are:
 31        (a)  Category A: Annexations wherein:
 32             (i)   Aall  private  landowners  raise no objection have consented to
 33             annexation, or annexations of. Annexation where all  landowners  have
 34             consented may extend beyond the city area of impact provided that the
 35             land  is  contiguous  to  the  city  and  that the comprehensive plan
 36             includes the area of annexation;
 37             (ii)  Aany residential enclaved lands of less that than  one  hundred
 38             (100)  privately-owned  parcels,  irrespective of surface area, which
 39             are surrounded on all sides by  land  within  a  city  or  which  are
 40             bounded  on  all  sides by lands within a city and by the boundary of
 41             the city's area of impact; or
 42             (iii) The lands are those for which owner approval must be given pur-
 43             suant to subsection (5)(b)(v) of this section, or which  are  bounded


  1             on all sides by lands within a city and by the boundary of the city's
  2             area of city impact.
  3        (b)  Category B: Annexations wherein:
  4             (i)   The  subject lands contain less than one hundred (100) separate
  5             private ownerships and platted lots of record and where not all  such
  6             landowners have consented to annexation; or
  7             (ii)  The  subject lands contain more than one hundred (100) separate
  8             private ownerships and platted lots of record  and  where  landowners
  9             owning  more than fifty percent (50%) of the area of the subject pri-
 10             vate lands have evidenced their consented to annexation at the outset
 11             prior to the commencement of the annexation process; or
 12             (iii) The lands are the subject of  a  development  moratorium  or  a
 13             water  or  sewer  connection  restriction  imposed  by state or local
 14             health or environmental agencies; provided such lands  shall  not  be
 15             counted  for  purposes  of determining the number of separate private
 16             ownerships and platted lots of record  aggregated  to  determine  the
 17             appropriate category.
 18        (c)  Category  C:  Annexations wherein the subject lands contain more than
 19        one hundred (100) separate private ownerships and platted lots  of  record
 20        and  where  landowners owning more than fifty percent (50%) of the area of
 21        the subject private lands have not evidenced their consented to annexation
 22        at the outset prior to commencement of the annexation process.
 23        (4)  Evidence of consent to annexation.  For  purposes  of  this  section,
 24    prior  consent  to  annex  shall  be deemed given valid only when evidenced by
 25    written authorization or approval instrument executed  by  the  owner  or  the
 26    owner's  authorized  agent. Consent shall be implied for the area of all lands
 27    connected to a water or wastewater collection system operated by the city  and
 28    for  lands  subject  to  a  written  consent  to  annex recorded in the county
 29    recorder's office only if the connection was requested or agreed to in writing
 30    by the landowner prior to July 1, 2008. Written consent  to  annex  lands,  if
 31    must  be  recorded  in  the county recorder's office, shall to be binding upon
 32    subsequent purchasers, heirs, or assigns of lands addressed  in  the  consent.
 33    Lands  need  not  be contiguous or adjacent to the city limits at the time the
 34    landowner consents to annexation for the property to be  subject  to  a  valid
 35    consent  to annex; provided however, no annexation of lands shall occur, irre-
 36    spective of consent, until such land becomes contiguous or  adjacent  to  such
 37    city.
 38        (5)  Annexation  procedures.  Annexation of lands into a city shall follow
 39    the procedures applicable to the category of lands as established by this sec-
 40    tion. The implementation of any annexation proposal wherein the  city  council
 41    determines  that annexation is appropriate shall be concluded with the passage
 42    of an ordinance of annexation.
 43        (a)  Procedures for category A  annexations:  Lands  lying  contiguous  or
 44        adjacent  to  any city in the state of Idaho may be annexed by the city if
 45        the proposed annexation meets the requirements of category A. Upon  deter-
 46        mining that a proposed annexation meets such requirements, a city may ini-
 47        tiate  the  planning  and zoning procedures set forth in chapter 65, title
 48        67, Idaho Code, to establish the comprehensive  planning  policies,  where
 49        necessary, and zoning classification of the lands to be annexed.
 50        (b)  Procedures  for  category  B annexations: A city may annex lands that
 51        would qualify under the requirements of category B annexation if the  fol-
 52        lowing requirements are met:
 53             (i)   The lands are contiguous or adjacent to the city and lie within
 54             the city's area of city impact;
 55             (ii)  The  land  is  laid off into lots or blocks containing not more


  1             than five (5) acres of land each, whether the same shall have been or
  2             shall be laid off, subdivided or platted in accordance with any stat-
  3             ute of this state or otherwise, or whenever the owner  or  proprietor
  4             or any person by or with his authority has sold or begun to sell  off
  5             such  contiguous  or adjacent lands by metes and bounds in tracts not
  6             exceeding five (5) acres, or whenever the land is surrounded  by  the
  7             city.  Splits  of  ownership which occurred prior to January 1, 1975,
  8             and which were the result of placement of  public  utilities,  public
  9             roads  or  highways, or railroad lines through the property shall not
 10             be considered as evidence of an intent to develop such land and shall
 11             not be sufficient evidence that the land has been laid off or  subdi-
 12             vided in lots or blocks. A single sale after January 1, 1975, of five
 13             (5)  acres or less to a family member of the owner for the purpose of
 14             constructing a residence shall not constitute a sale within the mean-
 15             ing of this section. For purposes of this  section,  "family  member"
 16             means  a  natural  person  or  the  spouse of a natural person who is
 17             related to the owner by blood, adoption or marriage within the  first
 18             degree of consanguinity;
 19             (iii) Preparation  and  publication  of  a  written  annexation plan,
 20             appropriate to  the  scale  of  the  annexation  contemplated,  which
 21             includes, at a minimum, the following elements:
 22                  (A)  The manner of providing tax-supported municipal services to
 23                  the lands proposed to be annexed;
 24                  (B)  The  changes  in  taxation and other costs, using examples,
 25                  which would result if the subject lands were to be annexed;
 26                  (C)  The means of providing fee-supported municipal services, if
 27                  any, to the lands proposed to be annexed;
 28                  (D)  A brief analysis of the  potential  effects  of  annexation
 29                  upon  other  units  of  local government which currently provide
 30                  tax-supported or fee-supported services to the lands proposed to
 31                  be annexed; and
 32                  (E)  The proposed future land use plan and zoning designation or
 33                  designations, subject to public hearing, for the lands  proposed
 34                  to be annexed;
 35             (iv)  Compliance  with  the notice and hearing procedures governing a
 36             zoning district boundary change as  set  forth  in  section  67-6511,
 37             Idaho Code, on the question of whether the property should be annexed
 38             and,  if  annexed, the zoning designation to be applied thereto; pro-
 39             vided however, the initial notice of public  hearing  concerning  the
 40             question  of annexation and zoning shall be published in the official
 41             newspaper of the city and mailed by first class mail to  every  prop-
 42             erty  owner  with lands included in such annexation proposal not less
 43             than twenty-eight (28) days prior to the initial public hearing.  All
 44             public  hearing notices shall establish a time and procedure by which
 45             comments concerning the proposed annexation may be received in  writ-
 46             ing  and heard and, additionally, public hearing notices delivered by
 47             mail shall include a one (1) page summary  of  the  contents  of  the
 48             city's proposed annexation plan and shall provide information regard-
 49             ing  where  the annexation plan may be obtained without charge by any
 50             property owner whose property would be subject to the annexation pro-
 51             posal.
 52             (v)  In addition to the standards set forth elsewhere  in  this  sec-
 53             tion,  annexation  of  the  following  lands  must meet the following
 54             requirements:
 55                  (A)  Property, owned by  a  county  or  any  entity  within  the


  1                  county,  that is used as a fairgrounds area under the provisions
  2                  of chapter 8, title 31, Idaho Code,  or  chapter  2,  title  22,
  3                  Idaho  Code, must have the consent of a majority of the board of
  4                  county commissioners of the county in which the  property  lies;
  5                  and
  6                  (B)  Property,  owned  by a nongovernmental entity, that is used
  7                  to provide outdoor recreational activities  to  the  public  and
  8                  that has been designated as a planned  unit development of fifty
  9                  (50) acres or more and does not require or utilize any city ser-
 10                  vices must have the express written permission of the nongovern-
 11                  mental entity owner.
 12             (vi)  After  considering  the  written  and oral comments of property
 13             owners whose land would be annexed and other  affected  persons,  the
 14             city council may proceed with the enactment of an ordinance of annex-
 15             ation  and  zoning.  In  the  course of the consideration of any such
 16             ordinance, the city must make express findings, to be  set  forth  in
 17             the  minutes  of  the city council meeting at which the annexation is
 18             approved, as follows:
 19                  (A)  The land to be annexed meets the applicable requirements of
 20                  this section and does not fall within the exceptions  or  condi-
 21                  tional exceptions contained in this section;
 22                  (B)  The annexation would be consistent with the public purposes
 23                  addressed in the annexation plan prepared by the city;
 24                  (C)  The  annexation  is  reasonably  necessary  for the orderly
 25                  development of the city;
 26             (vii) Notwithstanding any other provision of this  section,  railroad
 27             right-of-way  property  may  be annexed pursuant to this section only
 28             when property within the city adjoins or will adjoin  both  sides  of
 29             the right-of-way.
 30        (c)  Procedures  for  category  C annexations: A city may annex lands that
 31        would qualify under the requirements of category C annexation if the  fol-
 32        lowing requirements are met:
 33             (i)   Compliance  with  the  procedures  governing  category B annex-
 34             ations; and
 35             (ii)  Evidence of consent to annexation based upon the following pro-
 36             cedures:
 37                  (A)  Following completion of all procedures required for consid-
 38                  eration of a category B annexation, but prior to enactment of an
 39                  annexation ordinance and upon an affirmative action by the  city
 40                  council,  the  city  shall mail notice to all private landowners
 41                  owning lands within the area to be  annexed,  exclusive  of  the
 42                  owners  of  lands that receive water or sewer service and owners
 43                  of lands that are subject to a recorded consent to  annex  which
 44                  complies  with  subsection (4) of this section defining consent.
 45                  Such notice shall invite property owners to either give  written
 46                  consent or express written opposition to the annexation, include
 47                  a  description of how that consent or opposition can be made and
 48                  where it can be filed,  and  inform  the  landowners  where  the
 49                  entire  record  of  the subject annexation may be examined. Such
 50                  mailed notice shall also include  a  legal  description  of  the
 51                  lands  proposed  for  annexation  and a simple map depicting the
 52                  location of the subject lands.
 53                  (B)  Each landowner desiring to consent to or  oppose  the  pro-
 54                  posed annexation must submit the consent or opposition, in writ-
 55                  ing,  to the city clerk by a date specified in the notice, which


  1                  date shall not be sooner later than twenty-one  (21)  forty-five
  2                  (45) days after the date of the mailing of such notice.
  3                  (C)  After the date specified in the notice for receipt of writ-
  4                  ten  consent,  or  opposition,  the city clerk shall compile and
  5                  present to the city council a  report  setting  forth:  (i)  the
  6                  total  physical  area  sought  to be annexed, and (ii) the total
  7                  physical area of the lands, as  expressed  in  acres  or  square
  8                  feet, whose owners have newly consented in writing to the annex-
  9                  ation,  plus the area of all lands receiving water or sewer ser-
 10                  vice from the city and the  area  of  all  lands  subject  to  a
 11                  recorded  prior  consent to annex. Objections received after the
 12                  conclusion of the twenty-one (21) day period shall not  be  con-
 13                  sidered  unless  the late objection is due to the city's failure
 14                  to follow the procedures provided  herein.  Objections  received
 15                  from  owners of lands subject to a recorded consent to annex, or
 16                  from owners receiving water or  sewer  service  from  the  city,
 17                  shall  not be considered objections for purposes of this section
 18                  which complies with subsection (4) of this section defining con-
 19                  sent. The clerk shall immediately report the results to the city
 20                  council.
 21                  (D)  Upon receiving such report, the city council  shall  review
 22                  the  results  and  may  thereafter  confirm  whether consent was
 23                  received from the owners of a majority of the  land.  areas  and
 24                  those  providing  written consent, in addition to all lands sub-
 25                  ject to the implied consent  provisions  set  forth  herein  and
 26                  those  subject  to consent of record in the office of the county
 27                  recorder. The results of the report shall be  reflected  in  the
 28                  minutes  of  the  city council. If the report as accepted by the
 29                  city council confirms that owners of more a majority of the land
 30                  area have consented to annexation, than oppose such  annexation,
 31                  the  city  council  may  enact an ordinance of annexation, which
 32                  thereafter shall be published and become effective according  to
 33                  the  terms  of the ordinance. If the report confirms that owners
 34                  of more a majority of the land area oppose have not consented to
 35                  the annexation, than consent to such annexation, the category  C
 36                  annexation shall not be authorized.
 37        (6)  The  decision of a city council to annex and zone lands as a category
 38    B or category C annexation shall be subject to judicial review  in  accordance
 39    with the procedures provided in chapter 52, title 67, Idaho Code, and pursuant
 40    to  the  standards  set  forth in section 67-5279, Idaho Code. Any such appeal
 41    shall be filed by an affected person in  the  appropriate  district  court  no
 42    later  than twenty-eight (28) days after the date of publication of the annex-
 43    ation ordinance. All cases in which there may arise a question of the validity
 44    of any annexation under this section shall be advanced as a matter of  immedi-
 45    ate  public  interest and concern, and shall be heard by the district court at
 46    the earliest practicable time.
 47        (7)  Annexation of noncontiguous municipal airfield. A city may annex land
 48    that is not contiguous to the city and is occupied by a municipally  owned  or
 49    operated  airport  or  landing  field. However, a city may not annex any other
 50    land  adjacent  to  such  noncontiguous  facilities  which  is  not  otherwise
 51    annexable pursuant to this section.

Statement of Purpose / Fiscal Impact

                    STATEMENT OF PURPOSE
 This bill implements two recommendations of the interim land use
 study group of 2007, and makes additional technical changes.
 First, this bill clarifies that Category A annexation which
 requires consent of all property owners may extend beyond the area
 of impact so long as the comprehensive plan includes the area of
 annexation. Second, the bill eliminates future implied consent to
 annexation arising from a property owner s hook up to water or
 sewer services.
 Consent to Annexation is an element of all three categories of
 annexation under Idaho Code section 50-222, however, currently
 consent includes implied consent when a property owner hooks up to
 either city water or sewer services. No notification is required
 to advise that hooking up to those services constitutes consent to
 be annexed, and no written acknowledgement is necessary verifying
 that a property owner intended to give consent to annexation.
 Under these amendments cities are not prohibited from requiring
 consent to annexation as a condition of hooking the property owner
 up to sewer or water services, however, such consent must be given
 by written instrument, and not simply implied by the hook up.
 Technical changes to Category A create subparagraphs for different
 annexation options within the category following the
 organizational pattern of Category B options. Changes also clarify
 the procedure for obtaining Category C annexation consents by
 removing the requirement to collect and tabulate objections, and
 clarifying the time frame for which consents must be returned to
 the clerk after being solicited under Category C procedures.

                   There is no fiscal impact.

 Name:   Rep. Lynn Luker
 Phone:  (208) 332-1111
 Rep. Cliff Bayer
 Senator Russ Fulcher

 STATEMENT OF PURPOSE/FISCAL NOTE                            H 524