Could a Kentucky city annex one property or a road without a public vote?

Plain-English summary

Owen County Clerk Joan Kincaid asked about a city's plan to annex roads first and nearby businesses later, and whether residents would vote. The Kentucky Attorney General said in 2012 that a city could annex one property at a time if each area met KRS 81A.410(1)'s contiguity and urban-character conditions. Annexing a road alone was suspect unless the corridor itself served a valid municipal purpose.

The opinion set out two procedural paths. If every affected property owner gave prior written consent, the city could annex by one ordinance without the ordinary notice and waiting-period steps. Without that consent, the city had to give statutory notice; a ballot followed if at least half of the affected owners petitioned in opposition within 60 days. The AG did not say every annexation automatically went to a public vote.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Cities considering an individual property

The AG read KRS 81A.410(1) as imposing no minimum parcel size or count. The proposed area still had to be adjacent or contiguous when proceedings began and urban in character or suitable for urban development without unreasonable delay. Those conditions, rather than the number of parcels, governed the “spot annexation” question.

Cities considering a road corridor

The opinion relied on Kentucky cases holding that a corridor used only to reach an otherwise noncontiguous area could be a subterfuge. It said a road-only annexation needed a municipal purpose of its own.

Property owners and election officials

With unanimous prior written consent, KRS 81A.412 allowed a single ordinance. Without it, the AG described notice under KRS 81A.425 and the KRS 81A.420 opposition-petition process. If at least 50% of owners petitioned within 60 days, the proposal went to voters in the affected precincts at the next November general election. Opposition from 55% or more of those voters made the ordinance ineffectual under the statute as the AG described it.

Common questions

Could a Kentucky city annex one business property by itself?

The AG said yes if the property satisfied the statute's contiguity and urban-use conditions. It identified no minimum number of properties that a city had to annex together.

Could a city annex only a road to reach other property?

The opinion said a road-only annexation was suspect and required a valid municipal purpose for the road itself. A corridor used merely to claim contiguity did not satisfy the rule it drew from Kentucky cases.

Did every property owner get a vote?

No automatic ballot was described. Under the nonconsensual route, at least 50% of affected owners had to petition in opposition within 60 days to trigger the election described in the opinion.

What if the city failed to give the required notice?

The opinion said the ordinance could be voided in circuit court if the notice failure materially prejudiced the affected owners' substantial rights. It also described failure to follow the annexation procedure as making an ordinance voidable, rather than automatically void.

Background and statutory framework

The request concerned Owenton, which the opinion identified as a fifth-class city. KRS 81A.410(1) supplied the criteria for territory to be annexed. KRS 81A.412 addressed unanimous written consent; KRS 81A.420 and KRS 81A.425 supplied the nonconsensual procedure, including notice and the opposition-petition route to a ballot. The AG applied Kentucky court decisions on corridor annexation and compliance with annexation procedure.

Citations and references

• KRS 81A.410(1): contiguity and urban-character requirements.
• KRS 81A.412: annexation with prior written consent of all affected owners.
• KRS 81A.420: declaration of intent, opposition petition, and election procedure.
• KRS 81A.425: notice and possible court remedy for materially prejudicial defects.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_d83fb6b7-b008-47d9-997e-77d225410fed/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_d83fb6b7-b008-47d9-997e-77d225410fed

Original opinion text

OAG 12-005
April 17, 2012
Subject:

Whether a city may annex individual properties or
roads, and what procedures must be followed for annexation

Requested by:

Joan Kincaid
Owen County Clerk

Written by:

Matt James
Assistant Attorney General

Syllabus:

A city may “spot annex” individual areas. A city may
not annex roads alone without a valid municipal purpose. A city must follow the procedures of KRS Chapter 81A in order to validly annex properties, and annexation ordinances not in compliance are voidable in court.

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 busi-

OAG 12-005
Page 2

nesses 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: (a) Which is adjacent or contiguous to the city's boundaries at the time the annexation proceeding is begun; and (b) Which by reason of population density, commercial, industrial, institutional, or governmental use of land, or subdivision of land, is urban in character or suitable for development for urban purposes without unreasonable delay. 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).

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Page 3

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 re-

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Page 4

sulted 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 83149. 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.

Jack Conway
Attorney General

Matt James
Assistant Attorney General