Sunrise Manor Town Protective Ass'n v. City of North Las Vegas

[715] OPINION By the Court, Zenoff, J.: This court in County of Clark v. City of North Las Vegas, 89 Nev. 10, 504 P.2d 1326 (1973), ruled invalid two annexation ordinances adopted by the City of North Las Vegas. We held that a proper construction of NRS 268.582 rendered the petitions for annexations inadequate and that the action by the City in confirming the annexations was invalid. The taxpayers now seek return of their monies paid during the period of the annexation. The trial court denied them relief on the ground that the annexations were de facto and therefore effective for the period of time that they were approved by the trial court until subsequently our decision reversing that judgment on appeal was rendered. In relation to that determination the trial court ruled that the City of North Las Vegas acted under color of delegated authority and valid statutes in attempting annexations nos. 38 and 41, that there was colorable compliance with the annexation statutes, that the City had assumed full responsibility for the annexed areas and during such annexation period provided all municipal services thereto and that any errors in regard to these annexations were technical errors. The above-stated finding by the trial court that services were provided to the annexed areas is undisputed. We feel, also, that to avoid these damages a stay of execution of the trial court’s approval of the annexations or a writ of prohibition to halt its enforcement pending the original appeal should have been sought. In those instances the final decision would have come earlier and the payments avoided. Instead, the City, acting in reliance on the trial court’s judgment, proceeded with the annexations, the collection of the taxes and the providing of services to the annexed areas. De facto annexation is predicated on the prevention of substantial disruptions that may result in the disannexation of an [716] area. For the concept of de facto annexation to be applied four elements must be present: (1) a constitutional or statutory provision under which the annexation might lawfully have been accomplished; (2) an attempted compliance in good faith with the provisions; (3) a colorable compliance with the provisions; and (4) an assumption in good faith of municipal powers over the annexed territory. Port Valdez Company, Inc. v. City of Valdez, 522 P.2d 1147 (Alaska 1974); Ash Realty Corporation v. City of Milwaukee, 130 N.W.2d 260 (Wis. 1964); see also Peterson v. Bountiful City, 477 P.2d 153 (Utah 1970). We are concerned here with the issue of whether or not there was colorable compliance. Colorable compliance with the statutory provisions does not exist if the defect is of a material nature as opposed to a technical defect. Port Valdez Company, Inc. v. City of Valdez, supra; Peterson v. Bountiful City, supra. Whether a procedural defect is so material that it vitiates colorable compliance with the applicable statute and thereby strips the annexation of de facto municipality protection parallels the test of plain error in civil cases; whether the error is so substantial as to result in injustice. Port Valdez Company, Inc. v.^City of Valdez, supra. Our holding in County of Clark v. City of North Las Vegas, supra, was that as to annexation no. 38, the petition did not properly describe the unincorporated areas developed for urban purposes which was proposed for annexation; as to annexation no. 41, the petition did not contain the necessary number of signatures as required by statute. Our task on that appeal was to construe the uncertainty of the meaning of NRS 268.-582 as to what constituted the basis for determination of the “10 percent of property owners” required for an annexation petition. Not until the entry of that opinion was doubt removed and the defect in the annexation petitions determined. Until then how many signatures were required for how much area was anybody’s guess except that areas were described and signatures affixed in good faith to a reasonable approximation. It is apparent that in a case such as this where a statutory interpretation must be rendered in order to determine the validity of an annexation petition that there is colorable compliance with the statutory provisions until such interpretation is made. Further, such an error is of a technical and unsubstantial nature under these circumstances. This was not the case in [717] Peterson v. Bountiful City, supra, where the statute was clear but the number of signatures was still nevertheless insufficient. We agree with the trial court’s application of the doctrine of de facto annexation and that de facto annexation existed in this case. To compel the City of North Las Vegas to give the taxpayer^ their money back after the services for which the taxes were collected were performed would be manifestly unfair. The only other issue raised on appeal that need be discussed is appellants’ assertion that the trial court improperly disallowed the awarding of attorney fees. Appellants fail to cite any authority for this claimed' error and thus it need not be considered. General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972). Further, NRS 18.010(3)(a) allows attorney fees to be awarded only if a plaintiff is the prevailing party, which appellants were not in this action for damages. Affirmed. Mowbray and Thompson, JJ., concur.