Request By:
Mr. S. T. Prestridge
P.O. Box 571
Harlan, Kentucky 40831
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of September 19 in which you relate that you are a property owner and a registered voter in an area proposed to be annexed by the city of Harlan pursuant to the terms of KRS 81A.420. You further relate that over 50% of the registered voters and property owners in the territory have signed a petition, addressed to the Mayor of the city of Harlan, opposing the annexation. The petition, however, was filed with the Harlan City Clerk on September 22, 1980. Under the circumstances, you raise the following questions:
"(1) Is the City Clerk the proper person with whom this petition, addressed to the Mayor, should be filed.
"(2) Will the earliest election at which the question of annexation can be put on the ballot be the general election to be held in November 1981."
In response to your initial question, KRS 81A.420 (2) provides that:
". . . fifty percent (50%) of the resident voters or owners of real property within the limits of the territory proposed to be annexed petition the mayor in opposition to the proposal, 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. " (Emphasis added).
The above statute clearly provides that the protesting petition must be addressed to the mayor which would normally mean that it be filed with the mayor; however, since the city clerk is responsible for keeping the records of the city which would reflect when the petition had been filed to determine whether it was filed in compliance with the statutory deadline, we believe that it would be in proper compliance with the statute where the petition is addressed to the mayor but filed with the clerk who, in turn, would of course be responsible for notifying the mayor of such filing and recording.
Subsection (2) (a) then requires the mayor of the city to deliver a certified copy of the annexation ordinance to the county clerk who in turn is required to place the question on the ballot. Here again, the mayor must obtain a certified copy of the ordinance from the clerk who, as we say, is responsible for keeping the records of the city. This would add substance to the conclusion that the city clerk would, in fact, be the appropriate person with whom the petition should be filed, assuming of course that it is addressed to the mayor, as required by statute. At the same time, it would be equally proper for the petition to be presented directly to the mayor.
In response to your second question, KRS 81A.420 (2) provides that when the petition is filed within the time prescribed therein, 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. Thus, if the petition is filed with the city clerk on September 22, 1980, no election on the question of annexation could be held at the coming November 4, 1980 election under any circumstances since it would be impossible to comply with the 60-day minimum time period after the petition is presented to the county clerk.
Since the question cannot be placed on the November, 1980 ballot because of the time element, it would appear that the referendum would be required to be held in abeyance until the following regular election occurring in November, 1981. This, in effect, would hold up the annexation proceedings until after the 1981 election.