Request By:
Mr. John M. McCarty
Attorney at Law
P.O. Box 189
Hawesville, Kentucky 42348
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 20, in which you, on behalf of the City of Hawesville, raise several questions concerning the annexation of certain property by the city. You present the following facts and questions:
"1. On Tuesday, November 3, 1981, the question of the annexation of two tracts of land located in Hancock County, Kentucky to the city limits of Hawesville, Kentucky was placed on the local ballot.
2. Tract 1, which was bounded on the North by Kentucky Highway 1847, and did not include the description of Kentucky Highway 1847, did not receive the requisite 75% vote in opposition of annexation.
3. Tract 2, which included the property bounded on the South by Kentucky Highway 1847, and which did not incude the description 1847, and which did not include the description of Kentucky Highway 1847, received the requisite 75% vote in opposition of annexation.
4. An individual owning property located within Tract 2 approached city officials after the election and requested that his property be annexed into the city.
Questions which have arisen regarding these facts are as follows:
1. Does KRS 81A.460 prevent the City of Hawesville from annexing property located within a tract which has been rejected by the voters for annexation, when the property owner of such property petitions the city for annexation before the expiration of the 5 year period?
2. Does the contiguous property requirement of KRS 81A.410 apply to Kentucky Highways which separate parcels of land which the city desires to annex? "
Our response to your initial question would be in the affirmative. KRS 81A.460 reads as follows:
"If a proposal by a city to annex all or part of another city or unincorporated territory, or to reduce its boundaries is rejected by the voters of the city or territory proposed to be annexed or stricken, no further steps to annex or strike the same city or territory shall be taken within five (5) years from the date of rejection, nor shall the question of annexation or striking off be again submitted within that period."
The above statute is similar to an earlier statute coded as KRS 81.270, repealed in 1980 by the present legislation. The earlier statute which barred any attempt to annex territory affected by an adverse judgment for two years after said judgment, has been construed in a number of cases to the effect that a former judgment adverse to annexation of a territory barred a subsequent attempt to annex a smaller area than that covered by the prior annexation ordinance. See Angle v. City of Louisville, 312 Ky. 383, 227 S.W.2d 407 (1950); Overstreet v. City of Louisville, 310 Ky. 1, 219 S.W.2d 405 (1949), and City of St. Matthews v. Morrow, Ky., 408 S.W.2d 471 (1966).
In response to your second question, we are enclosing a copy of OAG 76-444 in which this office attempted to define the term "contiguous" with respect to the annexation of territory under KRS 81A.420. This opinion held that a city's attempt to annex in a single ordinance two tracts of land, divided by a highway, was improper and that these tracts should have been annexed by two separate ordinances. There is, however, law to the contrary, as cited in OAG 76-505, copy attached, to the effect one annexation ordinance annexing two separate areas not contiguous to each other does not invalidate the ordinance where both tracts are contiguous to the annexing city. We suggested, however, that the city should enact separate annexation ordinances for each of the separate areas, citing the case of Voorhes v. City of Lexington, Ky., 377 S.W.2d 57 (1964), where the Court sustained the city's enactment of eighteen ordinances annexing separately described areas around the city.