Request By:
Mr. Robert F. Byrd
City Councilman
P.O. Box 553
Loyall, Kentucky 40854
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of February 17 in which you relate that the city is in the process of annexing certain sections of unincorporated land and it has been presented with a petition challenging the proposed annexation. Under the circumstances, the city seeks answers to the following questions:
"(1) The area affected contains five voter precincts. However, not all voters in the five precincts are affected by said proposed annexation. Therefore, who can legally sign petition against annexation?
(2) Mayor was presented with said petition on Jan. 01, 1984. What action should be taken by council after receiving petition, and what is the time frame?
(3) Will this be on the Nov. general election, or will it be a special election? In either case, who will be allowed to vote in it? If in the general election, what is the procedure for checking the legality of the voter on this issue? If this is a special election when would this occur?
In response to your initial question as to those persons legally qualified to sign the petition protesting annexation, we refer you to KRS 81A.420(2) which authorizes any registered, and therefore qualified, voter residing within the proposed area to be annexed or any owner of real property located within the territory who may or may not be a registered voter and who may or may not actually live within the area, to sign the protesting petition. The percentage required can, of course, consist of a combination of registered voters and property owners.
In response to your second question, we are enclosing a copy of OAG 80-604 in which we point out that the language of the statute is vague and unclear as to the procedure to be followed by the mayor after he receives the petition. However, we concluded that although it is basically the responsibility of the mayor to check the petition to see if it contains the required number of signatures and that the signatures are voters or property owners in the area to be annexed, it would be necessary for him to seek the assistance of the county board of elections and particularly the county clerk who have in their possession the registration records. On the question of ascertaining whether a petitioner who is not registered but owns property within the area is qualified, such information would necessarily have to be obtained from the local tax records.
With respect to your question concerning the time frame the petition must be reviewed by the mayor, there is none except the 60-day provision under KRS 81A.420(2) to the effect that an election shall be held at the next regular election at least 60 days after the petition is presented to the clerk. Here the statute is poorly drawn since we assume that the reference to the petition being presented to the clerk really refers to it being presented to the mayor.
In response to your question concerning when the election on the question would be held, it could only be held at a November election as pointed out in OAG 83-149, copy attached. As to who would be entitled to vote on the question, the answer would be those registered and qualified voters in the territory proposed to be annexed. This would of course exclude qualified property owners who are not registered but who may have signed the petition.
We are not sure that we understand your last question concerning the procedure for checking the legality of the voter on the question. Obviously, only those voters who are registered and living in the territory at the time of the election are eligible to vote on the question. You may, however, have in mind the percentage necessary to defeat the annexation or in other words the meaning of the provision under subsection (2)(c) of KRS 81A.420 which provides that if 75 percent or more of the qualified voters in the area to be annexed oppose the annexation, the ordinance shall be ineffective. This provision has been construed in the case of