Request By:
Robb Adams, Mayor
City of Carrollton
Opinion
Opinion By: Daniel Cameron,ATTORNEY GENERAL;Heather L. Becker,Assistant Attorney General
Opinion of the Attorney General
The City of Carrollton contemplates annexing a state highway that extends from the City limits to Interstate 71. Thus, the City seeks the guidance of this Office concerning what constitutes a valid "municipal purpose" when a city proposes to annex a strip or corridor of land. 1
KRS 81A.410 to 81A.470 governs a city's power to increase or reduce its boundaries through annexation. KRS 81A.410 permits "a city legislative body to extend the city's boundaries to include any area . . . [w]hich is adjacent or contiguous to the city's boundaries at the time the annexation proceeding is begun, and which by reason of population density, commercial, industrial, institutional, or governmental use of land . . . is urban in character or suitable for development for urban purposes without unreasonable delay[.]" KRS 81A.410(1)(a), (b). When the area proposed to be annexed is a "corridor" or "road only," Kentucky courts ask whether the area proposed to be annexed serves a municipal purpose of its own.
In
Ridings v. City of Owensboro , 383 S.W.2d 510 (Ky. 1964), the former Court of Appeals held that, when a city proposes to annex a corridor or finger, and the corridor or finger is the only parcel providing contiguity between the other parcels to be annexed, contiguity is lacking, unless the corridor or finger serves some municipal purpose. Ridings , 383 S.W.2d at 512. In Ridings , the City of Owensboro sought to annex three subdivisions and the public highways on which they were located. The public highways, though, were the only means of contiguity among the parcels. The court concluded that the public highways could not be annexed to provide contiguity, and that, to be annexed, the public highways had to have municipal value of their own. Leaving the question of what constitutes a municipal purpose for another day, the court suggested that annexation of a highway alone could serve a legitimate municipal purpose. Id. The Supreme Court of Kentucky revisited its corridor annexation jurisprudence in
City of Lebanon v. Goodin , 436 S.W.3d 505 (Ky. 2014), wherein it reaffirmed Ridings as valid authority to the extent that contiguity is required for corridor annexation. See Goodin , 436 S.W.3d at 513 n.15.
The Court of Appeals next revisited the issue of corridor annexation in
Merritt v. City of Campbellsville , 678 S.W.2d 788 (Ky. App. 1984). In Merritt , the City of Campbellsville proposed to annex a corridor. 2In finding that the corridor annexation was a proper exercise of the city's annexation power under KRS 81A.410, the court concluded that the corridor could be developed and noted that it already served a municipal purpose by housing water mains. Merritt , 678 S.W.2d at 791.
In
Griffin v. City of Robards , 990 S.W.2d 634 (Ky. 1999), the Supreme Court addressed both the contiguity and municipal purpose requirements for annexation. The court found that the subject corridor did not serve a present municipal purpose, even though the proponents of annexation indicated a future desire to install natural gas, sanitary sewers, and fire hydrants. Griffin , 990 S.W.2d at 640. Because the municipal utilities identified did not exist at the time of annexation, the Court found annexation of the corridor improper because the only other purpose was to establish contiguity. Id. The court firmly held, " Ridings requires that there be a concrete and tangible municipal value or purpose existing at the time incorporation or annexation of the corridor of territory is sought." Id. (citing Ridings , 383 S.W.2d at 512). The Court then said that "[w]hen such a tangible step as, for example, the laying of water mains occurs, at that point and no sooner it might be appropriate to permit a finding of contiguity[.]" Griffin , S.W.2d at 641. Distinguishing between the "barren corridors" in Ridings and the "speculation" of services in Griffin , the Griffin Court again cited to Merritt , noting that pre-existing water mains constituted a sufficient municipal use. Id.
Most recently, the Court of Appeals, in an unpublished decision in England Hill Volunteer Fire District, Inc. v. City of Catlettsburg , affirmed the Boyd Circuit Court's decision permitting corridor annexation when the proposed territory included a sanitary lift station with water/sewer lines running on or under the proposed territory. No. 2018-CA-000472-MR, 2019 WL 2562973, at *3 (Ky. App. Jun. 21, 2019), disc. rev. denied (Ky. Oct. 24, 2019). In England Hill , the City of Catlettsburg proposed to annex a portion of U.S. Highway 23 and two tracts of land owned by a development company. The local volunteer fire district challenged the annexation as an impermissible corridor annexation. After considering Merritt and Goodin , the Boyd Circuit Court found that the water mains and sewer lines served a legitimate municipal purpose supporting annexation. Id. at *2.
This Office has previously opined that the annexation of roads only is disfavored and suspect. See OAG 12-005 (Apr. 17, 2012); OAG 82-531 (Sept. 24, 1982). As the case law demonstrates, corridor annexation must be exercised with caution. The corridor must have an independent use or value to the annexing authority apart from the property desired at the other end of the corridor. The municipal use or value must be real and present, not speculative or hypothetical. In its letter requesting this Opinion, the City states that it owns and maintains gas, water, and sewer lines throughout the strip of land that it seeks to annex. In response to the City's first question, based upon the foregoing authority, and because the public utility lines presently exist, the proposed corridor serves a current, legitimate municipal purpose as Kentucky courts have construed this requirement. For these reasons, it is the opinion of this Office that the City may annex the corridor, assuming all other prerequisites to annexation are satisfied.
In conclusion, Ridings, Goodin , and Merritt are dispositive of the question presented. Those cases instruct that when a corridor serves a present municipal purpose, a corridor, standing alone, may be annexed. In its request for an opinion, the City states that it owns, operates, or maintains utility lines running under the corridor it seeks to annex. For this reason, it is the Attorney General's opinion that the City may properly exercise its annexation authority to annex the corridor.
Footnotes
Footnotes
1 The City also asks whether a city's desire to increase revenue by annexing properties contiguous to a corridor constitutes a sufficient, legitimate, or valid municipal purpose to permit annexation of the corridor alone. Because the City represents that the strip of land to be annexed is contiguous to the City's boundaries and because the City currently maintains utilities through the corridor, it is unnecessary to address this question and the Attorney General declines to do so. 40 KAR 1:020 § 4.
2 Though the Merritt court ordered the annexation nullified, the court did so on notice grounds.