[1992/oagheade.htm]

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