Request By:
Mr. Edward K. Dishon
2859 Longbranch Road
Union, Kentucky 41091
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of January 6 in which you seek an opinion concerning the procedure a city must follow in order to strike territory from its boundary. You outlined a sequence of events which you understand is the correct procedure and raise the following questions:
"Assuming that the sequence of events delineated in the preceding paragraphs is correct, I would appreciate an opinion from you as to whether or not the provisions of paragraph 4 above apply to de-annexation and, if a de-annexation attempt is unopposed, the onus of a vote is not mandated or necessary. Also, does the five-year moratorium apply to any attempt to re-annex a de-annexed territory? "
We will not state the sequence of events you have outlined because they do not apply where a city desires to strike territory from its corporate limits. KRS 81A.440 provides that a city may reduce its boundary by following the procedure outlined in KRS 81A.430. This statute relates solely to annexation of all or part of another city and reads as follows:
"Whenever a city desires to annex all or part of a city of the second, third, fourth, fifth or sixth class, the legislative body of the city proposing to annex shall enact an ordinance stating the intention of the city to annex. Such ordinance shall accurately define the boundary of the city or portion thereof proposed to be annexed, declaring it desirable to annex the city or portion thereof and providing that the question of annexation shall be submitted to the qualified voters of the city or portion thereof to be annexed at the next regular election. The mayor of the city proposing to annex shall certify the action of the city to the county clerk, who shall have printed on the ballots provided for use in the city or portion thereof proposed to be annexed, the question: 'Are you in favor of annexing to the City of ?' If a majority of those voting on the proposition favor annexation, the city proposing to annex shall pass an ordinance declaring the other city or portion thereof annexed, and that city or portion thereof shall then be a part of the annexing city."
The above statute requires the city to enact a de-annexing ordinance which of course defines the boundary of the territory to be stricken from the city. Following the enactment of the ordinance which must be published pursuant to KRS 424.130(1)(a) requiring only one publication within 30 days after its enactment, the mayor is then required to notify the county clerk of such action and to request that the question of de-annexation be submitted to the qualified voters of the territory to be stricken from the city at the next November election. Following the referendum on the subject, and if a majority of those voting on the proposal favor the de-annexation of the territory, the city shall pass a second ordinance declaring such territory be stricken from the city.
The above procedure answers your initial question.
In answer to your second question concerning the right of the city to attempt to re-annex a de-annexed territory in less than five years, we refer you to the five-year moratorium statute, KRS 81A.460, which 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 applies, of course, only with respect to a negative vote on the question of the annexation of all or part of another city or unincorporated territory, or a reduction of the city's boundaries. In other words, this moratorium statute would apply in the event the city's attempt to strike territory from its boundary fails. On the other hand, if the de-annexation is approved, the city would be authorized to attempt to re-annex the territory at any time by following the terms of KRS 81A.420.