Could a Kentucky city cancel an annexation referendum by repealing its intent ordinance?

Plain-English summary

After opponents petitioned against a proposed annexation in Flemingsburg, the city considered repealing its ordinance declaring an intent to annex. The AG said repeal would not cancel the required election. Under KRS 81A.420, a proper opposition petition triggered a vote, and the statute said that election “shall” be held.

The AG distinguished the election from completion of annexation. Even if the vote did not defeat the proposal, annexation still required a later city ordinance. The city could therefore let the election proceed and then decline to enact that final ordinance. The opinion also warned that cancellation by repeal would let a city restart the petition period repeatedly until opponents failed to petition.

Currency note

This opinion was issued in 1992. 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

City officials

The AG concluded that repeal of an intent-to-annex ordinance after a valid opposition petition would not erase the duty to hold the election. It said the city retained the option of ending the proposal after the vote simply by not adopting the ordinance that would complete annexation.

Voters and property owners in the proposed territory

The opinion described a sixty-day period to petition against annexation after the city's initial ordinance. Once a proper petition was filed, it said a vote had to occur at the next regular election satisfying the statutory timing rule. Under the statute as the AG described it, opposition by at least 55 percent of voters made the ordinance ineffectual.

Common questions

Could the city repeal its first ordinance and avoid the annexation vote?

No. The AG read the statutory election requirement as mandatory once a proper opposition petition had been filed.

Did a vote allowing annexation automatically bring the territory into the city?

No. The opinion said the city still had to pass a final annexation ordinance. It could choose not to do so.

Why did the AG reject cancellation by repeal?

Besides the statute's mandatory language, it said that rule would let a city repeat the process until residents failed to submit another opposition petition in time.

Background and statutory framework

KRS 81A.420 supplied the annexation sequence described in the opinion: an intent ordinance, an opportunity for affected voters and property owners to petition, an election after a proper petition, and a separate ordinance to complete annexation if the city chose to proceed. The AG treated the petition-triggered election as a required step, while leaving the later annexation decision with the city under the 1992 law it considered.

Citations and references

• KRS 81A.420: annexation procedure interpreted by the AG.
• KRS 81A.420(2): petition-triggered election requirement quoted in the opinion.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG92-147.htm

Original opinion text

OAG 92-147

October 30, 1992

W. Todd Walton II

105 North Main Cross Street

Flemingsburg, Kentucky 41041-1396

Dear Mr. Walton:

You have asked whether a city may repeal an ordinance stating an intention to annex territory and thereby avoid a referendum on the question. We conclude that it may not.

The procedures regarding annexation are set out in KRS 81A.420. The process begins with the city's passing an ordinance declaring an intent to annex a specified territory. Voters and property owners within the territory then have sixty days to present a petition opposing annexation. If a proper petition is filed, “an election shall be held at the next regular election occurring at least sixty (60) days after the petition is presented to the county clerk.” KRS 81A.420(2). If 55% of the vote opposes annexation, the ordinance is deemed ineffectual. If less than 55% of the vote opposes annexation, the annexation does not automatically become effective; rather the city must enact an ordinance annexing the territory to the city in order to complete the annexation process.

Your inquiry apparently arises from a situation in which a petition was filed opposing annexation in Flemingsburg, and the city now wants to drop the matter by repealing its ordinance stating an intent to annex. We believe that a repeal of the ordinance would be ineffective for three reasons.

First, the statute is mandatory is stating that an election shall be held after a proper petition is filed.

Second, the city is not bound to go through with annexation, even if the election results favor it. Annexation is not effective until the city passes an ordinance following the election, and the city may avoid annexation by simply failing to adopt the ordinance.

Third, allowing the city to avoid the election by repealing its initial ordinance would make the annexation process subject to manipulation. The city could adopt its initial ordinance, then repeal it after the petition is filed, and then enact another similar ordinance to start the process again. Citizens who signed the first petition might decline to sign a second one, believing that they would be signing the same petition twice. The cycle of adopt and repeal could be repeated until the opponents of annexation fail to produce a petition within sixty days, at which time the city could proceed to annex without an election. Although this scenario is perhaps unlikely, we believe that the statute should be construed to prevent the opportunity for such manipulation.

In conclusion, we find that the city must conduct the election as planned, and may if it chooses simply decline to adopt an ordinance completing annexation after the election.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General