WHITE (HARRIS G.), ET AL. VS. CITY OF HILLVIEW, KENTUCKY
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RENDERED: AUGUST 6, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001334-MR
HARRIS G. WHITE, JR., AND ANNETTE
WHITE; PATRICIA CONWAY; HAROLD
MCLAUGHLIN AND LORRAINE
MCLAUGHLIN; DAVID RIGGLE AND
ORA RIGGLE; DONALD RIGGLE; MARK
J. ZENEMKA, WADE WEBB AND ROSE
WEBB; IRVIN COY; FONDA VANDIVER
AND WILBERT VANDIVER; DARRELL
JOHNSTON; LARRY TACKETT; JEFFREY
G. WHITE; LORI PRICE AND PAUL PRICE
v.
APPELLANTS
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, SPECIAL JUDGE
ACTION NO. 08-CI-00535
CITY OF HILLVIEW, KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, KELLER, AND LAMBERT, JUDGES.
COMBS, JUDGE: Appellants; Harris G. White, Jr., and Annette R. White;
Patricia Conway; Harold McLaughlin and Lorraine McLaughlin; David Riggle and
Ora Riggle; Donald Riggle; Mark G. Zenemka; Wade Webb and Rose Webb; Irvin
Coy; Fonda Vandiver and Wilbert Vandiver; Darrell Johnston; Larry Tackett;
Jeffrey G. White; and Paul Price and Lori Price, appeal from an opinion and order
of the Bullitt Circuit Court dismissing with prejudice their challenge to the validity
of a city ordinance purporting to annex certain territory in the county. The
appellants argue that the ordinance is invalid because the city failed to comply with
the provisions of Kentucky Revised Statute[s] (KRS) 81A.420 pertaining to
annexation without the consent of affected landowners. In the alternative, they
contend that the annexation scheme is unconstitutional as it promotes the exercise
of arbitrary power. After carefully considering counsels’ arguments and the
pertinent statutes, we affirm.
On February 18, 2008, the city proposed annexation of a portion of
the right of way of East Blue Lick Road and adjoining portions of the CSX railroad
property in Bullitt County.1 In accordance with the provisions of KRS 81A.420,
the city published its ordinance proposing the annexation. The appellants, who
were the plaintiffs below, responded with a petition to the city’s mayor opposing
the proposed annexation. The city attorney rejected the petition. In a letter dated
April 9, 2008, the city attorney explained that the provisions of KRS 81A.420 limit
“the class of protestants to resident voters or owners of real property within the
limits of the territory proposed to be annexed.” The attorney concluded that “you
fail to meet either of these requirements.”
1
The city was later permitted to amend its legal description of the area proposed for annexation.
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On April 18, 2008, the plaintiffs filed an unverified complaint for
declaratory judgment and injunctive relief against the City of Hillview. The
plaintiffs alleged that they were in fact resident voters and/or owners of real
property within the limits of the territory proposed to be annexed and that they had
properly petitioned the mayor in opposition to the proposed annexation. They
alleged that the city was about to proceed to adopt an ordinance annexing the
subject property without first having conducted an election and placing the matter
on the ballot as required by the provisions of KRS 81A.420. In their first amended
complaint, the plaintiffs alleged that the statutory annexation scheme violated
various provisions of both the federal and state constitutions.
The City of Hillview responded with a motion to dismiss the
complaint pursuant to the provisions of Kentucky Rule[s] of Civil Procedure (CR)
12.02. The City contended that each of the appellants lacked standing to challenge
the annexation since they were not resident voters or owners of real property
within the limits of the territory proposed to be annexed. It contended further that
the provisions of KRS 81A.420 were constitutional.
On March 23, 2009, the trial court entered an opinion and order
granting the City’s motion to dismiss. The trial court concluded that the plaintiffs
lacked standing to challenge the annexation since none of them was a resident
voter or owner of record of the land annexed. And it rejected the plaintiffs’
contention that they had any other direct interest in the territory sufficient to confer
standing. The trial court upheld the constitutionality of the annexation statute and
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denied the plaintiffs’ subsequent motion to alter, amend, or vacate. This appeal
followed.
The appellants present two issues for our review. They contend that
the trial court erred by concluding that they lacked standing to contest the
annexation of the subject territory. In the alternative, they argue that the trial court
erred by concluding that the Commonwealth’s statutory annexation scheme does
not violate Section 2 of the Kentucky Constitution. We shall address these issues
in the order in which they were presented by the parties’ briefs.
The appellants contend that the trial court erred by concluding that
they lacked standing to contest the annexation of the subject property. We note at
the outset that issues involving standing are inherent in the concept of subject
matter jurisdiction. If the plaintiffs lack standing with respect to a particular claim,
the court is without jurisdiction to consider the issue they raise. The parties have
not disputed the broad authority of the trial court in this case to make factual
determinations that are decisive of the purely legal question of its own jurisdiction
or to dismiss the action if it determines that its jurisdiction has not been
established. See Berthelsen v. Kane, 759 S.W.2d 831 (Ky.App. 1988). We review
questions related to the court’s jurisdiction de novo.
The plaintiffs cannot establish standing to contest the annexation of
the subject territory either under the provisions of the Commonwealth’s
declaratory judgment act or under its statutory annexation scheme. KRS 418.045
provides as follows:
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[a]ny person . . . whose rights are affected by statute,
municipal ordinance, or other government regulation . . .
provided always that an actual controversy exists with
respect thereto, may apply for and secure a declaration of
his right or duties. . . .” (Emphasis added.)
The plaintiffs must establish a judicially recognizable interest that is neither remote
nor speculative. Fourroux v. City of Shepherdsville, 148 S.W.3d 303 (2004) citing
City of Louisville v. Stock Yards Bank and Trust Co., 843 S.W.2d 327 (Ky. 1992).
KRS 81A.400 -.470 set out the methods for annexation by cities other
than those of the first class; these provisions are applicable to the City of Hillview.
They permit annexation by two separate methods: by the unanimous consent of all
the property owners in the area proposed to be annexed (KRS 81A.412) and
without the consent of the affected landowners (KRS 81A.420). Pursuant to the
provisions of KRS 81A.420, those in the area to be annexed who are resident
voters or owners of real property within the limits of the territory proposed to be
annexed have standing to petition the mayor in opposition to the proposed
annexation. Additionally, the courts have held that a taxpayer who does not vote
or own property in the area to be annexed but who does live in the municipality
that is seeking the annexation has standing “if he shows that he is being personally,
substantially, and adversely affect by the annexation, and that the damage to
himself is different in character from that sustained by the public generally.” King
v. City of Corbin, 535 S.W.2d 85, 86 (Ky. 1976).
In this case, the circuit court concluded that none of the plaintiffs had
established his or her standing to contest annexation under the statute since none of
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them was a resident voter or owner of real property within the limits of the territory
proposed to be annexed; nor were they residents of the city seeking annexation.
The trial court relied on the deeds filed in the record and cited our decision in
Fourroux v. City of Shepherdsville, 148 S.W.3d 303 (Ky.App. 2004).
In Fourroux, we considered whether Harris White (an appellant
herein) and others had established standing to challenge Shepherdsville’s
ordinance annexing a portion of Highway 1020 in Bullitt County. In that case,
White asserted his standing by claiming ownership to the centerline of Highway
1020 by virtue of his ownership of property adjacent to the west side of that
highway. He also claimed a potential reversionary interest in the property to the
center line in the event that the road ever ceased to be used as a public highway.
We concluded that White lacked a judicially recognizable interest in the city’s
ordinance, observing as follows:
Deeds in the record clearly show that the Commonwealth
has fee simple title to the road deeded to the
Commonwealth by appellants White and Myers’
predecessors in title. Appellants’ assertion of a
reversionary interest is a mere expectancy. It does not
create standing as there is no present or substantial
direct interest affecting appellants. It also does not
create a “justiciable controversy” giving the court
jurisdiction of the action for declaratory judgment
purposes. Under the declaratory judgment act, courts
will not decide speculative rights or duties which may or
may not arise in the future, but only rights and duties
about which there is a present actual controversy
presented by adversary parties. Commonwealth ex
rel.Watkins v. Winchester Water Works Co., 303 Ky.420,
197 S.W.2d 771 (1946). Additionally, appellants
originally testified and deeds in the record indicate that
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appellants did not own any part of Highway 1020 but
instead owned property west of Highway 1020.
Appellants were not “owners of record” as required by
KRS 81A.412. (Emphasis added.)
Fourroux, 148 S.W.3d at 307. White had also contended that his status as an
owner of property in an agricultural conservation district adjacent to the annexed
territory afforded him standing to contest the city’s ordinance. We disagreed,
holding that “the potential of putting the existence of the district ‘at risk’ does not
make an actual controversy” sufficient to justify the court’s jurisdiction under the
provisions of the Declaratory Judgment Act. Id. at 308.
Again, in the case presently before us, the circuit court specifically
rejected the appellants’ contention that they retained any reversionary interest in
East Blue Lick Road and/or in the railroad crossing easements or that they were
otherwise “owners of record” as contemplated by the provisions of KRS 81A.412.
The appellants are not owners of real property in the city seeking
annexation – nor are they residents of the city. Thus, the circuit court did not err
by concluding that they are not “owners of record of the land to be annexed” as
contemplated by the provisions of 81A.412. Consequently, we agree with the
conclusion of the trial court that the appellants do not have standing under that
statute to seek an adjudication of their claim.
Since the appellants sought a determination related to the validity of a
municipal ordinance, they do fall within the general scope of the declaratory
judgment act. However, they have not made a showing of a “direct interest
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resulting from the ordinance” sufficient to confer standing. See City of Ashland v.
Ashland F.O.P. No. 3, Inc., 888 S.W.2d 667, 668 (Ky. 1994). The appellants
contend that our decision in Fourroux can be distinguished since the city’s
annexation of East Blue Lick Road affects them more directly. The appellants
argue that the annexation permits the use of heavy trucks on East Blue Lick Road.
They contend that this misuse or abuse of the road impairs its condition and
interferes with their lawful use of the road. Additionally, the appellants contend
that the city’s annexation decision deprives them of the opportunity to benefit from
a municipal sewer system -- leaving them dependent on septic systems instead.
We are not persuaded that these allegations constitute a judicially cognizable
interest in the city’s ordinance sufficient to justify the court’s jurisdiction under the
provisions of the declaratory judgment act.
There is nothing to prevent a city from annexing only a particular
portion of the territory adjacent to it. A city is not required to consider the
potential impact of its failure to offer municipal services to those outside the
property proposed for annexation. 56 Am. Jur. 2d Municipal Corporations Sec. 45
(2000). Moreover, the appellants’ longstanding use of the road does not entitle
them to its exclusive use. Violations of regulations or safety issues must be
addressed in another forum.
As an alternative to their standing argument, the appellants contend
that the trial court erred by failing to conclude that the provisions of KRS 81A.420
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are unconstitutional because they vest arbitrary power in the city in contravention
of Section 2 of the Kentucky Constitution.
[I]f Hillview can annex [the roadway and adjacent
railroad easement], and not provide [the appellants] a
forum and standing to protest the sufficiency of the
annexation, then the annexation scheme is arbitrary and
violates the Kentucky Constitution.
Appellants’ brief at 7-8. Section 2 of the Kentucky Constitution provides that
“absolute and arbitrary power . . . exists nowhere in a republic. . . .” It has been
said that “whatever is contrary to democratic ideas, customs and maxims is
arbitrary. Likewise whatever is essentially unjust and unequal or exceeds the
reasonable and legitimate interests of the people is arbitrary.” Sanitation District
of Jefferson County v. Louisville, 213 S.W.2d 995, 1000 (Ky. 1948).
Annexation is a “political act within the exclusive control of the
legislature.” Louisville Shopping Center, Inc., v. City of St. Matthews, 635 S.W.2d
307, 310 (Ky. 1982). By enacting the provisions of KRS 81A.420, the General
Assembly created a uniform method by which a city such as Hillview could
enlarge its boundaries even where it could not obtain the unanimous consent of
those owning property or living within the territory proposed to be annexed.
The statutory provisions include a variety of requirements on the part
of the city in seeking to expand its limits: precise compliance with a detailed
annexation procedure requiring an ordinance describing the city’s intention to
annex; direct notice to the affected landowners; publication of the annexation
ordinance; an extensive waiting period; the participation of resident voters and
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owners of real property within the limits of the territory proposed to be annexed; a
possible election on the annexation question; and, depending on the results of the
election, the passage of an ordinance finally annexing the territory.
If fewer than 50% of the resident voters or owners of real property
within the limits of the subject territory file a petition of opposition with the mayor
of the city seeking the annexation, the General Assembly has authorized the city to
enact an ordinance annexing the territory described in the ordinance without
submitting the issue to an election. Consequently, where residents and landowners
of a territory proposed to be annexed largely agree to annexation, the legislature
has seen fit to exclude the participation of non-residents and non-landowners.
The legislation has not resulted in the exercise of arbitrary power by
the city. On the contrary, the General Assembly has carefully crafted a procedure
by which cities must take into account the benefits and the burdens of the
expansion of its municipal boundaries and must consider the positions of those
deemed legitimately interested in and affected by the decision.
There is no evidence to suggest that the City of Hillview exceeded its
legislative authority. Nor did it undertake an application of the statute that was
otherwise arbitrary or capricious. There was no violation of Section 2 of the
Kentucky Constitution under the facts of this case.
We affirm the order of the Bullitt Circuit Court dismissing this action.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
John E. Spainhour
Shepherdsville, Kentucky
Mark E. Edison
Shepherdsville, Kentucky
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