Request By:
Mr. Guy B. Hawes, Jr.
City Councilman
Highland Heights, Kentucky 41076
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of March 3, in which you relate that the City of Highland Heights is in the process of annexing Northern Kentucky University. However, there appears to be some concern that the student population may have an undue influence in city elections and this involves your initial question as to whether or not the city can annex all of the Northern Kentucky University property except the area in which the dormitories are located.
KRS 81A.410 provides in effect that a city may extend its boundaries to include any area which is adjacent or contiguous to the city boundaries. The word "contiguous" is defined in the case of
Parson v. Dils, 172 Ky. 794, 189 S.W. 1158 (1916) in the following manner:
"'Adjacent, in actual close contact, touching, near; adjoining, neighboring; lying adjoining; touching sides; touching along a considerable line.'
"While there would seem to be from this definition some divergence of opinion as to the exact meaning of the word contiguous, we are inclined to adopt that meaning which would make two tracts of land contiguous where they have a common corner, and which would make it possible to step from one to the other without crossing any other tract of land."
Next, referring to McQuillin, Municipal Corporations, Vol. 2, § 7.20, dealing with the subject of contiguous or adjacent territory, we quote the following:
"It has been said that lands must be so situated with reference to the corporation that it may reasonably be expected that after annexation they will unite with the corporation in making a homogeneous entity, which will afford to its several parts the ordinary benefits of local government." (Emphasis added.)
On the other hand, it has been held that contiguity of territory is not necessarily destroyed by reason of the existence or formation or enclaves or islands of unincorporated land lying within it. However, as pointed out in
Town of Waukechon v. Showano, 53 Wisc. 2nd 593, 193 N.W.2d 661, the creation of such islands of unincorporated areas within the city limits of the city must be based on reasonableness. What is reasonable is of course difficult to define and is in fact a judicial question. Again referring to McQuillin, § 7.23, we quote the following which appears to be apropros to your question:
"Thus, where annexation results in a grossly unfair and unnatural division of political units so as to raise the substantial probability that certain electors within such units may or will have greater voting power than other electors, an annexation will be set aside. Reasonableness, moreover, in this context is a judicial question, . . . ."
It would thus appear that any attempt to exclude the student population from voting in city elections by the creation of so-called islands of unincorporated territory within the territory annexed would be an unreasonable and unnatural division, thereby denying certain electors within the unit of their right to vote as distinguished from others that may live in the proposed annexed territory, as pointed out above. As a consequence, we would seriously doubt the validity of any attempt to annex the university's property to the exclusion of the student dormitories located on the university campus.
In view of our answer to your initial question, your second questions concerning the application of a payroll tax become moot.
Your third question as to whether or not the city may strengthen the voting requirements must be answered in the negative since the voting qualifications are controlled by our constitution and state statutes. See Chapter 116, KRS, and Section 145 of the Kentucky Constitution.
Your last question is that in the event the city adopts the ward system with respect to its elections, what can be done if there are no candidates running from certain wards.
Pursuant to KRS 83A.100, the city legislative body may divide the city into the same number of wards as there are members of the legislative body and these wards must be as nearly equal in population as practical. If the ward system is adopted, members of the legislative body are to be elected at large in the November election. However, each candidate must reside in the ward he seeks to represent. If a person seeks party nomination, he is voted on exclusively by the registered voters of his party residing in the ward in which the candidate resides.
In answer to your specific question and in the event there are no candidates filing for election from a particular ward, or wards, as the case may be, then the voters throughout the city have the opportunity at the November election to elect a person who resides in the ward by "write-in" votes. Of course such voters have the right, irrespective of whether there are candidates listed on the ballot from a particular ward, to write in the name of a qualified person of their own choice for that particular ward.