Request By:
Joan Kincaid
Owen County Clerk
Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Statutes construed: KRS 81A.410, KRS 81A.412, KRS 81A.420, KRS 81A.425
OAGs cited: OAG 82-531, OAG 83-149
Opinion of the Attorney General
Owen County Clerk Joan Kincaid has requested an opinion from this office asking the following questions:
Is it legal for a city to annex roads, then businesses, then individuals' homes over a period of time? Is spot annexing of businesses legal? Is this annexing of roads, businesses, and homes an issue that can be put on a ballot?
We interpret "spot annexing" to mean annexing an individual area or property. According to Ms. Kincaid, the City of Owenton has voted to take only roads into the city, and has stated a plan to take in businesses after that. Ms. Kincaid indicates that these annexation ordinances have not been voted on. We separate these issues into two questions:
(1) What properties may a city annex; specifically, may a city "spot annex" an individual property or a road?
(2) What procedures must a city follow in order to annex a property?
Regarding the first question, a city may "spot annex" individual areas provided the requirements of KRS Chapter 81A are otherwise met, and a city may not annex roads only without some valid municipal purpose.
KRS 81A.410(1) specifies which properties a city may annex:
(1) ? a city legislative body may extend the city's boundaries to include any area:
Under KRS 81A.410(1), a city may only annex areas that are contiguous to the city at the time of the annexation proceeding, and which are suitable for urban purposes without reasonable delay. There is no specification as to the size of the property or a minimum number of properties to be annexed, so a city may "spot annex" an individual property provided it qualifies under KRS 81A.410(1).
Ms. Kincaid indicates that the City of Owenton is also annexing roads only. Annexing a road only is referred to as "corridor annexation" and is generally disfavored as violating contiguity requirements. In Ridings v. City of Owensboro, 383 S.W.2d 510, (Ky. 1964), a city passed two ordinances, each annexing a property which was not contiguous with the city and the public highway leading to that property. The Kentucky Supreme Court found that "proper contiguity should not be found to exist in such situations unless the corridor or finger itself has a municipal value, i.e., unless it alone serves some municipal purpose. Otherwise, the use of the corridor or finger must be considered a mere subterfuge." Id. at 512; see also Griffin v. City of Robards, 990 S.W.2d 634, 640-41 (Ky. 1999); OAG 82-531. We conclude that annexation of roads only is suspect; annexation of a road only must have a valid municipal purpose.
Regarding the second question of the procedures that a city must follow to annex a property, "KRS 81A.400-.470 set out the methods for annexation by cities other than those of the first class? They permit annexation by two separate methods: by the unanimous consent of all the property owners in the area proposed to be annexed (KRS 81A.412) and without the consent of the affected landowners (KRS 81A.420)." White v. City of Hillview, No. 2009-CA-1334, 2010 WL 3292944 at *2 (Ky. App. 2010). The City of Owenton is a fifth-class city. Under KRS 81A.412, a city may annex a property provided that all of the property owners subject to annexation give prior consent in writing. If the property owners do so, the notice and waiting period provisions of KRS 81A.420 and 81A.425 do not apply, and the city may annex the land by a single ordinance.
If the property owners subject to annexation do not give their prior consent in writing, a city wishing to annex a territory must follow the procedures of KRS 81A.420. KRS 81A.420(1) requires the city to enact an ordinance stating its intention to annex the property, and KRS 81A.425 requires notice to the property owners and specifies the manner in which it must be given. If the city fails to comply with the notice provisions of KRS 81A.425, KRS 81A.425(7) provides that the ordinance shall be voidable in a Circuit Court action if the court finds that it resulted in material prejudice to the substantial rights of the affected property owners. Under KRS 81A.420(2), if 50% of the property owners subject to annexation petition the mayor in opposition to the proposal within 60 days of the ordinance declaring the intention to annex, the ordinance must be placed on the ballot of the voters in the affected precincts at the next regularly scheduled general election in November. Williams v. City of Hillview, 831 S.W.2d 181, 182 (Ky. 1992); OAG 83-149. If 55% or more of the voters oppose annexation, the ordinance is ineffectual for any purpose, but if less than 55% oppose annexation, the area is annexed under KRS 81A.420(2)(b) and (c). Failure to comply with these requirements makes the ordinance voidable in court. Headley Bluff Land Co. v. City of Cadiz, No. 2005-CA-1197, 2007 WL 1378410 at *1 (Ky. App. 2007).
In sum, we maintain that a city may spot annex individual properties consistently with KRS 81A.410(1). A city may not annex roads only without a valid municipal purpose. If the owners of property subject to annexation have not provided their prior consent in writing, a city must comply with the notice and ballot requirements of KRS 81A.420 and KRS 81A.425. Failure to comply with those requirements makes the annexation ordinance voidable in court.