Request By:
Ms. Marlene Duffy
Associate Director
Buffalo Trace Area
Development District, Inc.
327 W. Second Street
Maysville, Kentucky 41056
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 12 in which you present the following facts and question:
"The City of Tollesboro, a sixth class city in Lewis County, has been involved in an annexation suit for the past three (3) years. In an opinion rendered February 15, 1980, the annexation process was ruled void due to a technicality - a quorum was not present at the time the ordinance proposing annexation was adopted. (See attached ruling).
"The question arises - does the City have to wait two (2) years to resubmit a proposal for annexation as prescribed in KRS 81.270? The ruling did not address the questions of whether the annexation had negative effects on the citizens of Tollesboro as specified in the statutes. Does this regulation apply equally to procedural errors in annexation? "
According to the judgment of the Court of Appeals that you enclose, the court declared that the annexation ordinance was void by reason of the fact that there was no quorum present when it was adopted. Accordingly, an adverse judgment was rendered reversing the lower court without any decision on the merits of the case. Thus, the question raised is whether this judgment constituted an adverse judgment within the meaning of KRS 81.270(1) thereby invoking the two-year bar to further attempt to annex the same territory.
Our response to this would be in the affirmative and we refer you to the case of
City of St. Matthews v. Morrow, Ky., 408 S.W.2d 471 (1966). The action in this case was dismissed in lower court on the protestants' motion for a summary judgment because the boundary line was inadequately defined in the annexation ordinance. The lower court's judgment was affirmed by the Court of Appeals. As a consequence, there was no adjudication on the merits of the case. The court however held that the provisions of KRS 81.270(1), prohibiting any further attempt to annex the same territory within the two years following an adverse judgment, applied. In so holding the court cited the case of
Engle v. City of Louisville, 312 Ky. 383, 227 S.W.2d 407 (1950), and the case of
Overstreet v. City of Louisville, 310 Ky. 1, 219 S.W.2d 405 (1949), and quoted from the latter case as follows:
"'* * * It appears in that case [reference is to Overstreet] as it does in this one, that there had not been a trial on the merits. Nevertheless, there was a judgment adverse to annexation, and it was an effectual bar for the period of two years.'"
The court further said, after citing the Overstreet case, that to render effective an adverse judgment, as the term is employed in the statute (KRS 81.270), it is not necessary that a remonstrance suit be determined on its merits, and if a judgment is adverse to annexation, no further attempt to annex the same territory shall be made within two (2) years.
Under the circumstances, the adverse decision in regard to the city's annexation ordinance [though not reaching the merits] would, in our opinion, prohibit any further attempt on the part of the city to annex the same territory within two (2) years.