City of Lebanon Annexation Declared Invalid by KY Court of Appeals

[lebanonfan]

This just in from the Kentucky Court of Appeals. It appears sometimes
"political expediency" isn't so expedient, after all.
_________________________________________


CITY OF LEBANON v. GOODIN


CITY OF LEBANON, Kentucky, Appellant v. Elinor B. GOODIN, Trustee of
and on behalf of Elinor B. Goodin Revocable Trust; Randall Lawson;
Connie Lawson; Gerry D. Rogers; Karen P. Rogers; Darrell Shewmaker;
and Rose Lee Shewmaker, Appellees.


No. 2010–CA–000941–MR.

-- July 15, 2011
Before TAYLOR, Chief Judge; ACREE and COMBS, Judges.


Kandice D. Engle–Gray, Lebanon, KY, for appellant.Theodore H. Lavit,
James L. Avritt, Sr., Lebanon, KY, for appellees.R. Temple Juett,
Laura Milam Ross, Lexington, KY, for amicus curiae The Kentucky League
of Cities.

OPINION

The City of Lebanon, Kentucky, (City) brings this appeal from an April
22, 2010, summary judgment of the Marion Circuit Court declaring
invalid certain ordinances annexing unincorporated real property into
the City. We affirm.

The present controversy centers upon the City's annexation in 2006 of
some 415–acres of real property pursuant to Kentucky Revised Statutes
(KRS) 81A.420.1 Elinor B. Goodin, trustee of and on behalf of Elinor
B. Goodin revocable trust, Randall Lawson, Connie Lawson, Gerry D.
Rogers, Karen P. Rogers, Darrell Shewmaker, and Rose Lee Shewmaker
(collectively referred to as appellees) owned property within the
proposed annexed area and opposed annexation. Nevertheless, the City
proceeded with annexation and successfully annexed the property under
KRS 81A.420.

Appellees challenged the propriety of the annexation in circuit court.
They argued that KRS 81A.420 was unconstitutional and/or that the City
improperly manipulated the boundaries of the annexed area to achieve
success under KRS 81A.420. Both parties filed motions for summary
judgment under Kentucky Rules of Civil Procedure (CR) 56. Initially,
the circuit court rendered summary judgment in favor of the City and
concluded that annexation was proper. Thereafter, upon appellees' CR
59 motion to vacate, the circuit court decided otherwise and rendered
summary judgment in favor of appellees. The circuit court concluded
that the City's manipulation of the boundaries of the annexed property
rendered the annexation “void.” This appeal follows.

The City contends that the circuit court improperly rendered summary
judgment declaring the annexation void. After carefully reviewing the
parties' briefs, the record, and applicable law, we conclude that
summary judgment was proper. Our reasoning is as follows.

Summary judgment is proper where there exists no material issue of
fact and movant is entitled to judgment as a matter of law. Kentucky
Rules of Civil Procedure 56; Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476 (Ky.1991). And, all facts and inferences
are to be viewed in a light most favorable to the nonmoving party.
Steelvest, 807 S.W.2d 476.

To begin, the property annexed by the City consisted of approximately
415–acres and was held by thirteen separate land owners. Attached to
this Court's Opinion is a map illustrating the boundaries of the
annexed property. Upon review of this map, it becomes immediately
apparent that the boundaries of the annexed property were unusually
configured and resulted in five separate parcels of nonannexed
property being located within the parameters of the annexed property.
It was to these tortured boundaries that appellees objected, and it
was because of these boundaries that the circuit court ultimately
invalidated the annexation.

While it is clear that the establishment of boundaries for annexed
territory constitutes a political act within the exclusive control of
the General Assembly, it is equally settled that a municipality must
follow statutory procedures and mandates when establishing those
boundaries. See Louisville v. Kraft, 297 S.W .2d 39 (Ky.1957); Kelley
v. Dailey, 366 S.W.2d 181 (Ky.1963); Ridings v. City of Owensboro, 383
S.W.2d 510 (Ky.1964); Griffin v. City of Robards, 990 S.W.2d 634 (Ky.
1999); Rector v. City of Bowling Green, 594 S.W.2d 891 (Ky.App.1979).
One such statutory mandate is set forth in KRS 81A.410, which
provides:

(1) Except as provided in KRS 67C.111(3), a city legislative body may
extend the city's boundaries to include any area:

(a) Which is adjacent or contiguous to the city's boundaries at the
time the annexation proceeding is begun[.]

KRS 81A.410(1)(a).

A plain reading of KRS 81A.410(1)(a) reveals that the boundaries of
annexed property must be “adjacent or contiguous” to a municipality's
boundaries. Simply stated, only property adjacent or contiguous to a
city may be annexed. However, “adjacent or contiguous,” as utilized in
KRS 81A.410(1)(a), is not defined therein, and to resolve this appeal,
it is necessary to define same.2 To do so, we look to legislative
intent and to the history of annexation law in this Commonwealth.

Prior to enactment of KRS 81A.410(1)(a), a mandate of contiguity
between boundaries of annexed property and boundaries of a
municipality was recognized as fundamentally implicit in this
Commonwealth's statutory annexation scheme by the Supreme Court in
Ridings, 383 S.W.2d 510. Therein, the Court pointed out that “[t]he
substantial weight of authority from other jurisdictions appears to be
that contiguity is required even in the absence of a specific
statutory requirement to that effect.” Id. at 511 (emphasis added). In
discussing its holding, the Court cited to KRS 84.040, which required
second-class cities to be composed of “adjacent and compact
territory.”3 The Court reasoned that the General Assembly's
utilization of the terms “adjacent and compact” signaled its
underlying intent that the boundaries of the City and any annexed
property must be “contiguous.” Id. In effect, the Supreme Court
equated the terms “adjacent and compact” with the term “contiguous” in
the context of municipality annexation. Moreover, the Supreme Court
concluded that a contiguity mandate is implicit in this Commonwealth's
municipal annexation law.

Further support for the intrinsic correlation of the terms “adjacent”
and “contiguous” is found in Parsons v. Dils, 172 Ky. 774, 189 S.W.
1158 (1916). In Parsons, the Supreme Court defined contiguous as
meaning “[a]djacent, in actual close contact, touching, near․” Id. at
1159. Here, contiguous was plainly defined as meaning adjacent. And, a
significant number of other jurisdictions have interpreted “contiguous
or adjacent” in municipality annexation statutes as being
quintessentially equivalent terms. See Hillman v. City of Pocatello,
74 Idaho 69, 256 P.2d 1072 (1953), criticized on other grounds by
Alexander v. Trustees of Village of Middleton, 92 Idaho 823, 452 P.2d
50 (1969); Johnson v. City of Hastings, 241 Neb. 291, 488 N.W.2d 20
(1992); Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980);
City of Middletown v. McGee, 39 Ohio St.3d 284, 530 N.E .2d 902
(1988); City of Ada v. Whitaker, 202 Okla. 249, 212 P.2d 482 (1949);
St. Andrews Public Service Dist. v. City Council of City of
Charleston, 339 S.C. 320, 529 S.E.2d 64 (S.C.Ct.App.2000), rev'd on
other grounds, 349 S.C. 602, 564 S.E.2d 647 (2002); City of Pasadena
v. State ex rel. City of Houston, 442 S .W.2d 325 (Tex.1969); Town of
Lake v. City of Milwaukee, 255 Wis. 419, 39 N.W.2d 376 (1949); Board
of County Com'rs of County of Laramie v. City of Cheyenne, 85 P.3d 999
(Wyo.2004).

Considering legislative intent and case law interpreting same, we
interpret “adjacent or contiguous” in KRS 81A.410(1)(a) as
collectively imposing a contiguity mandate upon the boundaries of
annexed territory in relation to municipal territory.4 In other words,
we interpret KRS 81A.410(1)(a) as mandating that the boundaries of
annexed territory must be contiguous to the boundaries of the
municipality.5 This mandate of contiguity in annexation has been well
recognized and defined in Kentucky. Ridings v. City of Owensboro, 383
S.W.2d 510; Griffin v. City of Robards, 990 S.W.2d 634 (Ky.1999);
Merritt v. City of Campbellsville, 678 S.W.2d 788 (Ky.App.1984).

In Ridings, 383 S.W.2d 510 and Griffin, 990 S.W.2d 634, the Supreme
Court set forth a test to determine if the boundaries of annexed
property and of a municipality were contiguous. To reach a
determination upon contiguity, the court must consider the boundaries
of the annexed property in relation to the boundaries of the
municipality. Ridings, 383 S.W.2d 510; Griffin, 990 S.W .2d 634.
Annexed property is considered contiguous to municipal property if the
boundaries of the annexed property are touching or sharing common
boundaries with the municipality and if the boundaries of the annexed
property are natural or regular. Griffin, 990 S.W.2d 634. If the
annexed property has unnatural or irregular boundaries, the annexed
property does not per se violate the contiguity requirement of KRS 81A.
410(1)(a). Griffin, 990 S.W.2d 634. Rather, the court must then
determine whether a concrete or tangible municipal value or purpose
exists to justify the unnatural or irregular boundaries. Ridings, 383
S.W .2d 510; Griffin, 990 S.W.2d 634. If such municipal value or
purpose exists, the boundaries of annexed territory are deemed
contiguous; on the other hand, if no such municipal value or purpose
exists, the boundaries of annexed territory fail to meet the
contiguity mandate. Ridings, 383 S.W.2d 510; Griffin, 990 S .W.2d 634.

Turning again to the attached map outlining the boundaries of the
annexed territory, we cannot say that the boundaries are natural or
regular. As hereinbefore pointed out, five separate parcels of
nonannexed property are located within the annexed property resulting
in some sixteen directional boundary changes of the annexed property.
It is quite obvious that the boundaries of the annexed property were
not drawn naturally or regularly. To explain these oddly drawn
boundaries, we turn to the circuit court record.

The record indicates that the City manipulated the annexed property's
boundaries so as to ensure success of the proposed annexation. Upon
this point, the circuit court recognized:

(8) In order to guarantee the success of its annexation [City]
intentionally included in the annexation all properties whose owners
approved annexation, but omitted therefrom enough properties whose
owners opposed annexation.

․

(10) [City] arranged the boundary lines and predetermined the result
of the election by eliminating most of the opposition thereto.

(11) [City] knew, prior to the first reading of its annexation
ordinance, that of the thirteen owners whose property was included in
the annexation, eight approved annexation and five opposed it.

(12) [City] knew, prior to the first reading of its annexation
ordinance, that there were not enough property owners opposed to
annexation to require an election, or enough resident voters to defeat
annexation in the event of an election.

From these uncontroverted facts, it is evident that the City
manipulated the boundaries to the annexed property and, in so doing,
intentionally omitted sufficient dissenting property owners so as to
ensure success of the annexation. While the City's actions may have
been politically expedient and may have ensured success of the
annexation, we cannot conclude that a concrete or tangible municipal
value or purpose existed justifying the unnatural and irregular
boundaries of the annexed property. See Ridings, 383 S.W.2d 510;
Griffin, 990 S.W.2d 634. Accordingly, we conclude that the boundaries
of the annexed property were not contiguous or adjacent to the
boundaries of the City per KRS 81A.410(1)(a) and that the annexation
violated the statute. See Ridings, 383 S.W.2d 510; Griffin, 990 S.W.2d
634.

We view the City's remaining contentions of error as moot.

In sum, we hold that the circuit court properly rendered summary
judgment declaring the City's annexation invalid.

For the foregoing reasons, the summary judgment of the Marion Circuit
Court is affirmed.

FOOTNOTES

1. The City of Lebanon, Kentucky, enacted two ordinances (Ordinance
05–13 and Ordinance 06–01) to effectuate the annexation.

2. The interpretation of a statute presents a question of law, and
our review proceeds de novo. City of Worthington Hills v. Worthington
Fire Protection District, 140 S.W.3d 584 (Ky.App.2004).

3. Kentucky Revised Statutes 84.040 was repealed effective July 15,
1980.

4. When the term “or” is utilized in a statute, it is ordinarily
interpreted in the disjunctive as meaning “an alternative.” the
american heritage dictionary 873 (2nd ed.1982); McDaniel v. McDaniel,
165 S.W.2d 966 (Ky.1942). However, the term “or” is defined in the
conjunctive when necessary to effectuate legislative intent as
“synonymous or equivalent.” the american heritage dictionary 873 (2nd
ed.1982); Chilton v. Gividen, 246 S.W.2d 133 (Ky.1952); Overnite
Transp. Co. v. Gaddis, 793 S.W.2d 129 (Ky.App.1990).

5. Although not binding on this Court, our interpretation is also
consistent with two Opinions of the Attorney General of Kentucky (OAG)
82–157 and OAG 82–531.

TAYLOR, Chief Judge.

ALL CONCUR.

[Fred]

Don't you think this decision will be appealed all the way to the Ky.
Supreme Court?

[Francis MARION]

My heart goes out to the McCarty family that made such a valiant
effort to save their house and lot from this walmart annexation.
walmart should have simply renovated the existing building at 208 and
68. Grants and tax-payer backed loans paid for the utlity upgrades to
service the new walmart-plex out Campbellsville Hwy, and the city of
lebanon took tyrannical steps to annex private properties in the
county. i sure would like to know how much sales tax and property tax
revenue walmart has actually contributed to the marion county
economy.
Congratulations to the Goodins and the Lawsons for fighting the good
fight in defense of private property rights. How could I expect any
less from our local lex luthor look-alike (crenshaw).

S O
2