Request By:
Honorable Ralph E. McClanahan
Estill County Judge/Executive
Estill County Courthouse
Irvine, Kentucky 40336
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 20 in which you relate that there is a Four Million Eight Hundred Twenty Thousand Dollar ($4,820,000) housing project involving the city of Irvine to be financed by HUD, however, before HUD will give its financial approval the property must be annexed to the city. The problem is that the land is not contiguous with the present city limits, and Estill County owns a strip of property between the city boundary and the proposed housing project. You have drawn a small map indicating the location of the two pieces of property to be annexed. Under the circumstances, your initial question is as follows:
"The question is, can the City of Irvine, Kentucky, annex this property, which is used as a road department garage area for the County, so that the housing project can be annexed into the City?"
Our response to the above question would be in the affirmative. Referring to McQuillin, Mun. Corps., Vol. 2, § 7.18b, it is pointed out that under the laws of most states a city may extend its boundaries to include territory belonging to a county, a district, the state or the United States. This section further points out, however, that the city can exercise no control over such property that will interfere with the superior authority owning the property though city laws may be enforced upon such territory as elsewhere, so long as they do not encroach upon the other government's sovereign rights or powers.
Reference is also made to the case of
Commissioners of Sinking Fund v. Howard, Ky., 248 S.W.2d 340 (1952), in which the court declared that the city of Louisville had the power to annex adjoining territory, including an area embracing a naval ordinance plant which was owned by the United States, irrespective of the fact that the federal area was under the exclusive jurisdiction of Congress. In so holding, the court said that:
". . . But in the case before us, the act of annexation by the city did not, of itself, represent any effort or attempt by the city to exercise jurisdiction within the area of the ordinance plant. The city merely elected that the area be included within its geographic boundaries as a political subdivision of the state.
"We are impressed with the argument on behalf of the city that the annexation involved only a question of political geography, and not a clash of political sovereignties. . . ."
You next state that no people live in the area involving the county property but of course the land is owned by all of the people of Estill County. In this respect you raise the additional question as to whether a petition against annexation can be filed by county residents living outside of the county property proposed to be annexed.
KRS 81A.420 (2) reads as follows:
"If following the publication of the annexation ordinance pursuant to subsection (1) of this section and within sixty (60) days thereof, or if in any annexation proceeding where the annexing city has not adopted a final annexation ordinance, within sixty (60) days following the effective date of this Act, fifty percent (50%) of the resident voters or owners of real property within the limits of the territory proposed to be annexed petition the mayor in opposition to the proposal, an election shall be held at the next regular election occurring at least sixty (60) days after the petition is presented sented to the county clerk. (Emphasis added).
The above statute would clearly indicate that no protest petition can be filed by other than either resident voters [meaning registered voters] or owners of real property located in the proposed area to be annexed. Of course, there are no qualified voters living in the area, however, the county does own the property and it is possible [though we know of no case law on the subject] that the fiscal court could, on behalf of the county, file a petition of protest. On the other hand, we do not believe county residents living outside the area can protest on behalf of the county. These are questions that only the court can determine.
Your third question deals with the sixty (60) day petition deadline and is to the effect that where there is no objection to the annexation insofar as to either the housing project landowner or the county fiscal court, would it be necessary to wait until the conclusion of the 60-day period before the annexation can be accomplished.
Normally, we would have to answer that question in the affirmative because the statute itself makes no exception, however, irrespective of this we believe that the right to remonstrate against the proposed annexation can be waived by the parties in question. This right clearly exists as pointed out in McQuillin, Mun. Corps., Vol. 2, § 7.36. This should be done in writing, either jointly or separately by the parties, and filed with the city clerk.