Request By:
Honorable William S. O'Daniel
Commissioner, Department for Local Government
909 Leawood Drive
Frankfort, Kentucky 40601
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 5 in which you relate that the question has been raised concerning the statutory requirements for annexation by a city of the fourth class. Your question involves the following:
"KRS 81.210 and 81.220 state the procedure to be followed. The city adopts an ordinance which describes the territory to be annexed and then files a petition in circuit court. If no defense is made, the court renders a judgment annexing the proposed territory. If a defense is made and the court finds for the city, the proposed annexation shall be decreed; and the city annexes the territory by adoption of another ordinance.
"Does the statute require a city of the fourth class to adopt an annexation ordinance after the court renders a judgment annexing the territory when no defense is made to the court action?"
The answer to your question would be in the negative. The statutory procedure prescribed by the legislature for annexing territory by cities of all classes must be followed without exception.
City of St. Matthews v. City of Beechwood Village, Ky., 373 S.W.2d 427 (1963).
With respect to annexation by cities of the fourth class, such a city is required, pursuant to KRS 81.210, to enact an ordinance describing the territory to be annexed which must be published pursuant to Ch. 424 KRS. Within thirty (30) days after the adoption, publication and advertisement of the ordinance, a petition must be filed in circuit court setting forth the fact that the ordinance had been passed and published, including the contents thereof and praying for a judgment to annex. Notice of the filing of the petition must be given in the same manner as notice was given of the enactment of the ordinance. If no defense is made as prescribed by the statute, the court shall render judgment annexing the proposed territory. There is no requirement under this statute [where no defense is made] that the ordinance shall be adopted a second time following the rendering of the judgment. In other words, the judgment itself declaring that the property is annexed makes the initially passed ordinance effective. We also might point out that only one publication is required for the publication of all ordinances under the charter of fourth class city law, namely KRS 86.090(4).
It is of course otherwise where a protest is made against the annexation under the terms of KRS 81.220. In such a case, subsection (2) clearly requires that following the annexation judgment, the city is specifically required to enact a second ordinance annexing the territory described in the judgment.