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Chip Drago
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City fires back at lawsuit seeking
to block Sept. 18 annexation vote

By Chip Drago
Mobile Bay Times
Attorneys for the city fired back immediately to a lawsuit challenging its Sept. 18 west Mobile annexation election, seeking a summary judgment that the suit has no merit.

A lawsuit contending the four-area annexation proposal was "arbitrary and capricious" in its division was filed earlier Tuesday.

The suit contends that the city identified favorable or pro-annexation voters and crafted a plan which guaranteed the capture of tax revenue-rich Schillingers Road while encircling and politically neutering nearby areas which would ultimately have no other choice than to annex to the city. 

The city, however, asserts that the plan is not devised cynically to divide and conquer the proposed areas of annexation, but instead reflects the distinct identities of established neighborhoods.

According to City Attorney Larry Wettermark, the legal standard is whether the proposal is "fairly debatable," and if it is "fairly debatable" and not a clearly unreasonable proposition, then the court will not substitute its judgment for that of an elected body, the Mobile City Council in this case which declared its intent as the "public good."

"The annexation lines were not drawn with the interest of 'public good' but, rather, strictly along economic and political lines and have no basis in the 'public good' but rather were drawn to avoid conflicts of interests of parties and representatives of parties and therefore, bear no rational basis to any legitimate 'public good,'" the lawsuit states.

Mobile Mayor Sam Jones said the areas are not gerrymandered for political reasons, but are homogeneous, and the voters can decide the annexation issue for themselves on Sept. 18 after proponents and opponents make their cases.
"First of all this (the lawsuit) appears to be an attempt to keep the people in each community from voting to make its own decision," Jones said. "I don't see any basis for it other than that, an effort to prevent their right of voting and making the decision on their own behalf. If every one of the areas A through D makes its own decision, no one is cut out or brought in against its will. There is no gerrymandering. It's letting neighborhoods vote for themselves. It is community voting. Four distinctly different neighborhoods are each given an opportunity to determine their future without voters in other neighborhoods influencing the outcome of their decision. We think the people in those communities have the right to make those decisions for themselves."

In addition to the commercial swatch along Schillingers Road, Area A is primarily the Mobile Terrace community. Area B, while not a dedicated neighborhood, is generally seen as an entity existing between Old Shell Road and Airport Blvd., according to the city. Area C is the Lakeview neighborhood. Area D is Pine Run, principally.

Voters in areas designated A, B, C and D would separately determine whether to join the city.

The four areas generally exist within a corridor between Cody Road, the present city limits, and just west of Schillingers Road, which has boomed commercially in recent years, from Hitt Road on the south to Ziegler Blvd on the north.

There are a total of about 4,000 residents and almost 1,900 voters in the areas. Based on recent figures, the successful annexation of Area A would boost city sales tax revenues more than $10 million annually.

The lawsuit contends that Area A was intentionally configured to embrace the 'yes' votes in Mobile Terrace and the tax revenues along Schillingers Road.

"The 'opportunity to vote' granted to the citizens of Areas B and C is a 'sham' since the city of Mobile has reason to know that Areas B and C will most likely vote against annexation," the lawsuit reads.

The plaintiffs argue that the inclusion of Areas B and C is intended to "cloak" the election with a "robe of legitimacy."

"They (the plaintiffs) make all sorts of assumptions about how people are going to vote," Jones said. "That's why you have an election: to see how people vote and let them make their choice."

"There have been any number of annexation court challenges and the courts have established two things: one is the doctrine of judicial restraint, that the court will not substitute its judgment for that of an elected body unless the matter is so unreasonable that it is not fairly debatable," said Wettermark. "If it is fairly debatable, that's the end of the game. You respect the decision and the court has no business coming in and interfering with this election."

Ultimately the voters should decide for themselves which, said Jones, is indisputably fair. Further, the mayor suggested the city has no crystal ball enabling it to see the future and know which way any of the four areas will vote.

"That's one thing listed in there for sure that's not true," he said. "We have put forth an equal effort in each of the four areas. We've worked all four areas and we are continuing to work them. We want all four of them to be part of the city. If they say yes or no, it's up to the voters there, not us. We want them to have the right to vote."

The city's motion for summary judgment included an affidavit from Jones and extensive documentation in support of its arguments, said Wettermark.

The case has been assigned to Mobile County Circuit Judge Rick
Stout. No hearing has yet been set.
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