Can a Kentucky city annex a strip of road or land because its utility lines run through it?

Plain-English summary

The City of Carrollton wanted to annex a state highway corridor running from the city limits to Interstate 71 and asked whether the presence of its own utility lines under that corridor is enough of a "municipal purpose" to allow the annexation. Annexing a thin strip or "corridor" of land is treated cautiously in Kentucky, because cities sometimes try to use a road or strip just to reach a more desirable parcel at the far end. The law requires the corridor itself to have an independent municipal value.

The Attorney General concluded that pre-existing utility lines satisfy that requirement. The opinion walked through the case law. Ridings v. City of Owensboro established that a corridor used only to create contiguity cannot be annexed unless it serves a municipal purpose of its own. Merritt v. City of Campbellsville found that a corridor already housing water mains served such a purpose. Griffin v. City of Robards drew the line clearly: the municipal value must be "concrete and tangible" and exist at the time of annexation, so a mere future desire to install gas, sewers, and hydrants was not enough. The Supreme Court reaffirmed this framework in City of Lebanon v. Goodin, and an unpublished Court of Appeals decision (England Hill) upheld a corridor annexation where water and sewer lines already ran through the territory.

Applying those cases, the opinion concluded that because Carrollton already owns and maintains gas, water, and sewer lines throughout the strip it wants to annex, the corridor serves a current, legitimate municipal purpose. So the city may annex it, assuming all other annexation prerequisites are met. The opinion declined to address a separate question about annexing to increase revenue, because the utility lines already resolved the matter.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

KRS 81A.410 to 81A.470 govern a city's power to change its boundaries by annexation. KRS 81A.410(1)(a) and (b) permit annexation of an area adjacent or contiguous to the city that is urban in character or suitable for urban development. For corridor or "road only" annexations, Kentucky courts ask whether the corridor serves a municipal purpose of its own. The opinion synthesized Ridings v. City of Owensboro (corridor used only for contiguity needs independent municipal value), Merritt v. City of Campbellsville (existing water mains supply that value), Griffin v. City of Robards (the value must be concrete and present, not speculative), City of Lebanon v. Goodin (reaffirming Ridings on contiguity), and the unpublished England Hill Volunteer Fire District v. City of Catlettsburg (water and sewer lines supported annexation), along with prior opinions OAG 12-005 and OAG 82-531 cautioning that road-only annexation is disfavored. Because Carrollton already owned and maintained utility lines throughout the strip, the corridor served a present municipal purpose under KRS 81A.410.

Citations and references

Statutes:

• KRS 81A.410 (incl. (1)(a), (b)); KRS 81A.410 to 81A.470

Cases:

• Ridings v. City of Owensboro, 383 S.W.2d 510 (Ky. 1964)
• City of Lebanon v. Goodin, 436 S.W.3d 505 (Ky. 2014)
• Merritt v. City of Campbellsville, 678 S.W.2d 788 (Ky. App. 1984)
• Griffin v. City of Robards, 990 S.W.2d 634 (Ky. 1999)
• England Hill Volunteer Fire District, Inc. v. City of Catlettsburg, 2019 WL 2562973 (Ky. App. Jun. 21, 2019)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2020-20.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
December 30, 2020
OAG 20-20
Subject: When a city proposes to annex a corridor of land under which its utility lines run, does the presence of the utility lines constitute a sufficient, legitimate, or valid municipal purpose to permit the annexation, assuming all other requirements are met?
Requested by: Robb Adams, Mayor, City of Carrollton
Written by: Heather L. Becker, Assistant Attorney General
Syllabus: When a city, or a subdivision thereof, owns and maintains gas, water, and sewer lines running through a corridor of land, assuming all other prerequisites to annexation are satisfied, the corridor serves a legitimate municipal purpose sufficient to satisfy the requirements of KRS 81A.410.

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.[2] In 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.

Daniel Cameron
ATTORNEY GENERAL
Heather L. Becker
Assistant Attorney General

[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.