Request By:
Honorable Scott G. Miller, Jr.
Mayor, City of Versailles
Versailles, Kentucky 40383
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 12 in which you indicate that a controversy has arisen regarding the annexation of certain tracts of land by the City of Versailles. Your related facts and question are as follows:
"As you know, Versailles is a fourth class city. In each of the annexations in question, the City through the City Council read and published an ordinance which accurately defined the land proposed to be annexed. In each of the annexations in question, however, the City failed to file a petition or obtain a judgment of annexation from the Circuit Court as required by KRS 81.210.
"The question has arisen as to whether or not, in the absence of a suit and judgment as required by KRS 81.210, the land in question may be properly annexed under the provisions of KRS 81.275. More specifically, I believe the question is whether KRS 81.275 essentially prescribes alternate methods for a fourth class city to annex land if the owners indicate their consent."
KRS 81.210, governing the annexation of unincorporated territory by a city of the fourth class, is peculiar to this class of city in that it requires that the city file a petition in circuit court within thirty days after the adoption and publication of an annexation ordinance. See
City of St. Matthews v. Beha, Ky., 549 S.W.2d 842 (1977). All other classes of cities operate under the annexation procedure outlined for cities of the first class which simply requires the passage of an ordinance proposing the annexation and a second ordinance where no protest is filed. The cardinal rule with respect to annexation is that the statutory procedure must be followed in detail, otherwise the annexation fails. We refer to the case of
City of St. Matthews v. City of Beechwood Village, Ky., 373 S.W.2d 427 (1963), from which we quote the following:
"The annexation of property by a city is a political act within the exclusive control of the legislature. Sanitation Dist. No. 1 of
Jefferson County v. City of Louisville, 308 Ky. 368, 213 S.W.2d 995. The statutory procedure prescribed must be followed in creating this political subdivision.
Turner v. Kelly, 217 Ky. 773, 290 S.W. 711."
See also
Highland Park v. Reker, 173 Ky. 206, 190 S.W. 706 (1917), and McQuillin, Municipal Corporations, Vol. 2, § 7.29.
KRS 81.275 reads as follows:
"Whenever any city has enacted an ordinance proposing to annex any territory and the annexation of the territory is being challenged in the manner provided by law, the city may proceed to annex any land contained in the area proposed to be annexed, which is contiguous to the borders of the city, if the owner of such land consents to the annexation. "
We believe the above statute, enacted alone in 1966 as Chapter 155, was basically designed to fit the annexation procedure outlined for cities of the first class, which includes cities of all classes other than the fourth. The reason for this is that the wording of KRS 81.275 clearly refers to the enactment of an ordinance proposing to annex the territory, which fits said procedure. Though we believe it was designed for the procedure outlined for first class cities, we do believe that KRS 81.275 could be applied but only after the basic requirements of KRS 81.210 have been followed, which includes the filing of a petition in circuit court. Of course, we do not reach this situation under the facts presented.
Under the circumstances we do not believe that the land in question can be annexed by the City of Versailles under the provisions of KRS 81.275 in view of the City's failure to file the required petition in circuit court pursuant to KRS 81.210 which is a basic statutory requirement for annexation under any circumstances.