Request By:
Hon. Ralph H. Stevens
Attorney at Law
P.O. Box 850
50 North Lake Drive
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in answer to your letter of May 10 in which you enclose a copy of Ordinance #4-83 recently enacted by the city of Prestonsburg which proposes to annex a tract of land adjacent to its northern limits. Following publication of the ordinance, a petition was filed by resident voters and owners of real property within the boundaries of the territory requesting a referendum on the proposed annexation and such was ordered to be held at the November 8 election. Under the circumstances you raise the following questions:
"1. Does the ordinance as enacted comply with KRS 81A.420 which requires that the ordinance "shall accurately define the boundary of the unincorporated territory proposed to be annexed?
2. Assuming no map and certified copy of the ordinance has been filed in the office of the County Clerk pursuant to KRS 81A.470, has the City complied with the statutory law when the issue may now stand ready to be placed upon the November, 1983, ballot?
3. Assuming that no map and list of residents in the area to be annexed has been filed with the County Court Clerk pursuant to KRS 81A.475 has the statutory law been complied with when the issue may now stand ready to be placed upon the election ballot for November, 1983?
4. Assuming that the territory proposed to be annexed embraces in part certain precincts, and since KRS 81A.420(2)(a) states that only those persons who reside within the territory proposed to be annexed shall be permitted to vote, is the City required to comply with the provisions of KRS 81A.470 and KRS 81A.475 prior to the date of the specified election, and if so when should they comply with same?
In response to your initial question, KRS 81A.420(1) requires that the annexation ordinance accurately define the boundary of the unincorporated territory proposed to be annexed. The annexation ordinance contains the following description of the territory under Section 1:
"'Beginning at a line in the current corporate limits, said line being at the current northern city limits on US 23 and KY 460 and going in a northerly direction in the middle of the natural course of the Levisa Fork of the Big Sandy River, following the river to the bridge crossing into Auxier, Kentucky and following a line parallel to the Auxier Bridge crossing US 23 and KY 460 and going to the top of the hill and following the ridge of the hills in a southerly direction along US 23 and KY 460 to a point at the current northern limits of the City of Prestonsburg, Kentucky and thus connecting with the present city limits including all houses, businesses and all property between the current corporate limits of the City of Prestonsburg including Spradling Branch, Lick Branch and Jane Brown Branch located along US 23 and 460 in Floyd County Kentucky.'"
KRS 81A.420 does not specifically say that the boundaries shall be defined by metes and bounds and is, therefore, less definite. However, we believe that the description meets the definition of the phrase and we refer you to the case of Forrester v. Terry, Ky., 357 S.W.2d 308 (1962), from which we quote the following:
". . . The generally accepted meaning of that term (metes and bounds), is the boundary lines and corners of a piece of land with their terminal points and angles. Bouvier's Law Dictionary; Ballentine's Law Dictionary. We take this from 27 Words and Phrases p. 239:
'Metes and bounds means the boundary line or limit of a tract, which boundary may be pointed out and ascertained by rivers and objects, either natural or artificial, which are permanent in character and erection, and so situated with reference to the tract to be described that they may be conveniently used for the purpose of indicating its extent. The metes and bounds of a tract are as definitely fixed by locating its center line and naming the width of the tract as if the lines of its true boundary had been given by acres and distances, and the description thus given would in such a case prevail over a description given by acres and distances. People v. Guthrie, 46 Ill.App. 124, 128; U.S. v. 5.324 Acres of Land, D.C.Cal., 79 F.Supp. 748, 755.'
[4] In locating lines or boundaries of land, it is a familiar rule that 'monuments' - including streams and other natural objects - are superior to all other calls in a description. We have had many broad descriptions in old land grants and patents that were equally as general as the present one, but none have ever been declared void on account of indefiniteness."
The above case involved the establishment of a water conservancy district under Chapter 262.700 KRS, particularly the requirement that the area of a district be defined by metes and bounds pursuant to KRS 262.720. By comparing the case definition of the term "metes and bounds" with the ordinance description of the territory to be annexed, we believe it sufficiently describes said territory even within the terms of the definition.
In response to questions two and three, both KRS 81A.470 and 81A.475 requiring an accurate map of the annexed territory with the metes and bounds description together with a certified copy of the ordinance to be recorded in the county clerk's office and requiring whenever a city annexes territory that the legislative body provide the county clerk with a map clearly locating the boundaries of the territory that has been annexed along with a list of names and addresses of property owners and registered voters within the area, are requirements that are not to be complied with until after the territory has actually been annexed. As a consequence these statutory requirements are not to be complied with prior to the referendum on the question of whether or not the territory is to be annexed. This appears to be the clear intent of the language contained in these sections. We refer you to the case of Louisville Shopping Center v. City of St. Matthews, Ky., 335 S.W.2d 307 (1982) which construes a number of sections of the 1980 annexation legislation involving a referendum on the question which clearly must precede any final annexation.
In response to your fourth question, there is nothing in the annexation act that requires the city to comply with the provisions of KRS 81A.470 and 81A.475 on the sole ground that the annexation proposal embraces part of certain precincts which would naturally cause split precinct voting with respect to the referendum. Thus, since we believe the referred to statutes are only post-annexation effective, as pointed out in response to questions two and three, the city is not required to comply therewith prior to the referendum. The procedure for annexation must be strictly followed and from which no deviation is permitted. See City of St. Matthews v. City of Beechwood Village, 373 S.W.2d 427 (1963), from which we quote the following:
"The annexation of property by a city is a political act within the exclusive control of the legislature. Sanitation Dist. No. 1 of Jefferson County v. City of Louisville, 308 Ky. 368, 213 S.W.2d 995. The statutory procedure prescribed must be followed in creating this political subdivision. Turner v. Kelly, 217 Ky. 773, 290 S.W. 711."
We should add, however, that the city should fully cooperate with the county clerk and board of elections in determining those qualified voters living within the territory proposed to be annexed so that the precinct list can be so marked as to identify whether or not a certain voter is entitled to vote on the referendum.