Request By:
Ms. Peggy Sue Byrd
Loyall City Clerk
P.O. Box 127
Loyall, Kentucky 40854
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your recent letter concerning the proper procedure for the city to follow in order to annex two different territories on opposite ends of the city, both of which are contiguous to the city but not to each other. You particularly raise the question as to whether or not such annexation should be done by a single ordinance or two different ordinances.
Your question has previously been raised and answered in OAG 76-505, a copy of which we are attaching. This opinion, however, was written prior to the enactment of the 1980 legislation authorizing possible referendums on the subject based upon appropriate petitions from the residents of the area to be annexed. See KRS 81A.420. In the enclosed opinion we point out that there are certain decisions cited in McQuillin to the effect that one annexation ordinance relating to two separate areas not contiguous to each other does not violate the statute. However, as also pointed out, an Illinois case declared that the word "territory" contemplates a contiguous tract and does not permit annexation of different territories or tracts by a single ordinance. Also of more importance is a Kentucky case cited, Voorhees v. City of Lexington, Ky., 377 S.W.2d 57 (1964) where the court sustained the city's enactment of 18 separate ordinances annexing 18 separately described areas around the city. To be more specific we quote the following excerpt from the Voorhees case to wit:
"[1] The appellants first challenge the validity of Ordinance No. 3413. It is shown that the ordinance before us was one of eighteen ordinances simultaneously enacted on August 25, 1955. Each of the eighteen ordinances proposed annexation of separately described areas. . . . It is urged that since the residents of an area to be annexed may not split the area for the purpose of resisting annexation, the city should not be permitted to split the area to be annexed. But there is nothing in this record to reflect that Ordinance No. 3413 is splitting an area. It encompasses one unit area. We find no merit in the argument."
You will note that in OAG 76-505 we concluded that it would be better for the city to enact separate annexation ordinances for each of the separate tracts of territory that were not contiguous to each other. We now believe more firmly that this is the proper procedure for the city to follow, particularly in view of a referendum possibility and the fact that to lump the two separate territories together which would require a single protesting petition would not, in our opinion, be legally proper. In other words, the residents of each separate territory should be allowed to vote on the question of whether or not that particular territory is to be annexed.