LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT V. CITY OF PROSPECT, KENTUCKY
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RENDERED : JANUARY 22, 2009
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2006-SC-000903-DG
LOUISVILLE/ JEFFERSON COUNTY
METRO GOVERNMENT
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NOS . 2005-CA-001235-MR AND 2005-CA-001305-MR
JEFFERSON CIRCUIT COURT NO. 02-CI-006764
CITY OF PROSPECT,
KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCHRODER
REVERSING
The subject matter of this appeal dates back to the annexation frenzy of
the 1980s in Jefferson County. Both the City of Louisville and the City of
Prospect sought to annex the property in question . Although Louisville's
annexation ordinance (first reading) was first in time, the trial court ruled the
delay in completing the annexation was unreasonable, deferring to the City of
Prospect's annexation ordinance. We interpret KRS 81A.005 as giving the City
of Louisville priority over the City of Prospect to annex the property in question
and KRS 79 .310, as amended and applicable in this case, as allowing the City
of Louisville up to twenty-two years to complete the annexation process. With
the adoption of Metro Government, the need for a second reading was moot.
Before Metro Government was adopted, the City of Prospect had no priority to
annex the property in question. After the Louisville /Jefferson County Metro
Government form of government was adopted, the City of Prospect had no
authority to annex the property in question. Therefore, the attempted
annexation was void .
On May 8, 1984, the City of Louisville gave the first reading to an
annexation ordinance for the property in question. I At that time, the City's
code2 required an annexation ordinance's second reading to occur within six
months of the first readdnn3 or the ordinance to be reintroduced.
Consequently, the Board of Aldermen would reintroduce the first reading every
six months . The last reintroduction of the "first reading" was conducted on
April 8, 1986. Subsequently, the code was amendd4 to exclude annexation
ordinances from the requirement that the second reading occur within six
months of the first reading.
In 1986, the City of Louisville and Jefferson County entered into a
legislative-authorized compacts under KRS 79 .310, which called for the parties
to create a cooperative framework for cohesive governance of the territory. In
1986, the General Assembly also amended KRS 81A.005, to adopt a procedure
for annexations by a city of the first class when a cooperative compact is in
1 Ordinance-140-5-84 .
2 City of Louisville Codified General Ordinance ยง 30.15(B) .
3 Id.
4 Ordinance No. 266, Series 1986.
5 Resolution No. 36, Series 1986 .
effect. KRS 81A.005(3) gives annexation priority to a city of the first class over
other cities within Jefferson County.
On August 2, 2002, the City of Prospect, then a city of the fourth class,
received a request from the owners of the property in question to annex the
property into Prospect. The City of Prospect annexed the property on
September 9, 2002, by adopting an ordinance6 under KRS 81A.412, which
allows a single reading and summary proceedings when each of the owners of
the property to be annexed consents to the annexation.
The City of Louisville and the Jefferson County Fiscal Court (now
Louisville/Jefferson County Metro Government7) brought this action against
the City of Prospect on September 10, 2002, to declare its September 9, 2002,
annexation void ab initio . The trial court entered summary judgment in favor
of Prospect and the Court of Appeals affirmed, holding that the City of
Louisville lost its priority over Prospect due to Louisville's failure to enact its
annexation ordinance within a reasonable time . This Court granted
discretionary review to determine whether KRS 81A.005 or KRS 79.310
authorized delays or constitutes a legislative moratorium on annexations in
Jefferson County while the metro form of government was being considered.
Appellant's first argument before this Court is that the Court of Appeals
erred in determining that the first reading of the Louisville annexation
ordinance occurred on April 8, 1986, rather than on May 8, 1984. The basis
6 Ordinance No. 429, Series 2002 .
7 Merger occurred January 6, 2003 .
for this argument is that although the "first reading" was on May 8, 1984, the
ordinance was not adopted with a second reading within six months as
required by Louisville's Codified General Ordinance Section 30 .15(8), and thus
expired. Therefore, the reintroductions were not a continuation of the original
ordinance, but new ordinances . Under this reasoning, only when Section
30.15(8) was amended to eliminate the six month requirement, would an
ordinance have a lasting effect . That "first reading" was on April 9, 1986 . On
the other hand, the Appellant argues that the reintroductions of the 1984 "first
reading" ordinance allowed the 1984 ordinance to remain valid and preserved
the continuity of the 1984 ordinance, which allowed Louisville to maintain its
priority in annexation over Prospect's annexation ordinance .
KRS 81A.005(3) would give Louisville's annexation "first reading" priority
over Prospect's annexation ordinance if Louisville "had a first reading . . . as of
January 1, 1986 ." If the "first reading" was the April 9, 1986, reading, then
instead of Louisville receiving statutory priority, "ordinances . . . enacted prior
to July 15, 1986, shall, at the discretion of the court, be remanded on the
docket . . . during the term of the compact." KRS 81A.005(3) (emphasis added) .
Although the trial court found the 1984 ordinance was still in effect, the Court
of Appeals reversed on this issue . The Court of Appeals ruled that because,
pursuant to rules of the Louisville Board of Aldermen, the proposed ordinance
was "reintroduced" every six months, the "first reading" of the ordinance was
on April 8, 1986, after which time the reintroduction requirement for
annexation ordinances was removed. Citing City of St. Matthews v. Arterburn,
419 S .W.2d 730 (Ky. 1967), and Arterburn v. City of St . Matthews , 512 S .W.2d
505 (Ky. 1974), the Court of Appeals ruled further that Louisville's proposed
annexation ordinance lost priority over the 2002 Prospect ordinance due to
Louisville's failure to enact the annexation ordinance within a reasonable time .
We agree with the trial court that the May 8, 1984, date is applicable
here. At the time of its adoption, the "first reading" was assigned a tracking
number (Ordinance-140-5-84) . There was no statutory requirement that
required passage or reintroduction within six months, only the Louisville City
Code of Ordinances (Section 30 .15(B)) . To see if the reintroductions were
intended to begin anew or preserve the status quo, we must look to the
language of Section 30 .15(B), and the surrounding circumstances . The "first
reading" was reintroduced these dates : October 15, 1984 ; April 9, 1985 ;
October 8, 1985 ; and April 8, 1986. The reintroductions did not contain a new
ordinance number, but retained the original (Ordinance-140-5-84) and the
original ordinance was stamped "Reintroduced" followed by the date of the
Aldermen's meeting where it was read. Section 30 .15(B) at the time in
question, until amended in 1986, provided :
No proposed ordinance shall be passed by the Board of
Aldermen at any meeting if six months or more have
elapsed since the month of the introduction of the
proposed ordinance or the month of the last action by
the Board of Aldermen on that ordinance unless or
until that proposed ordinance has been re-introduced
and read at a previous meeting of the Board within the
prior six-month period of time .
Thus, the reintroductions, which did not require a new vote, were merely a
savings clause to keep the "first reading" from expiring. Therefore, we agree
with the trial court that the date of Louisville's "first reading" of its annexation
ordinance was May 8, 1984, and we reverse the Court of Appeals on that issue .
Even though both the trial court and the Court of Appeals reached
opposite results on the above issue, both determined Louisville had lost its
priority over the Prospect annexation ordinance for failure to enact the
annexation within a reasonable time . Appellant contends the rationale of the
Arterburn cases$ is not applicable in this case because of the Compact
agreement 9 and legislation, 10 which were enacted after the Arterburn cases,
and which, in effect, created a moratorium on annexation of the property in
question. We agree . City of St. Matthews v. Arterburn , 419 S.W.2d 730,
involved an annexation case wherein the City of St. Matthews gave a
notification of proposed annexation and then did nothing further until some
five and a half years later. The trial court agreed with the owners of the land
being annexed that the delay was unreasonable . This Court's predecessor, the
Court of Appeals, reversed and remanded for a determination of whether the
delay was justified or excusable, "in the absence of a statute fixing a time
limit." Id. at 732 . On remand, the hearing was conducted and the matter
ended up before our predecessor in Arterburn v. City of St. Matthews, 512
8 419 SM.2d 730 (Ky. 1967) and 512 S.W.2d 505 (Ky. 1974) .
9 Resolution No . 36, Series 1986.
10 KRS 81A.005(3) ; KRS 79.310 ; KRS 79 .335 .
S .W.2d 505. Again, our predecessor prefaced its discussion and decision on
the reasonableness of the delay, and whether the delay was "justifiable or
excusable" with a caveat, "in the absence of a statutory provision fixing a time
certain for municipal action in completing legislation . . . ." Id . at 506 (citing
City of St . Matthews v. Arterburn, 419 S .W.2d at 732) .
In the case before us, we have a detailed legislative scheme, which
undeniably facilitates a transition from the City of Louisville to the
Louisville /Jefferson County Cooperative Compact, and eventually, to the
Louisville/Jefferson County Metro Government . The scheme involved a
number of statutes, which all have to work together. The General Assembly
said such in the statutes :
KRS 79 .335 . Nonseverability of provisions governing
cooperative compacts
If any provision of KRS 79 .310, KRS 81A.005, or KRS
79 .315 to 79 .330 is held to be unconstitutional or
invalid, that provision shall not be severable but KRS
79 .310, KRS 81A .005, and KRS 79 .315 to 79.330 shall
be invalidated, because it is the intention of the
General Assembly that the provisions of KRS 79 .310,
KRS 81A .005, and KRS 79 .315 to 79 .330 are so
essentially and inseparably connected with and
dependent upon every other provision that KRS
79 .310, KRS 81A.005, and KRS 79 .315 to 79 .330
would have not been enacted without the inclusion of
every provision in KRS 79 .310, KRS 81A .005, and in
KRS 79 .315 to 79.330.
Originally, the General Assembly allowed Louisville and Jefferson County up to
twelve years to govern through the cooperative compact. KRS 79 .310(2) . 11 As
11
Effective 7-15-86 .
the expiration time approached, the General Assembly authorized a ten year
extension . 1.2 Metro Government took effect January 6, 2003, which eliminated
the cooperative compact, and gave the Louisville /Jefferson County Metro
Government jurisdiction over all of Louisville and unincorporated Jefferson
County.
Louisville's "first reading" of the annexation ordinance gave it priority
over Prospect's annexation ordinance. Both Arterburn cases dealt with what
would be a reasonable time to complete the annexation in the absence of a
statutory provision fixing a time for completion. That is not the case before us.
We have a statutory scheme requiring completion within twenty-two years .
Before the expiration of the statutory limitation, the Louisville /Jefferson
County merger took place, negating the necessity for further action. Because
the statutory period had not expired before Prospect's ordinance was enacted,
the Prospect annexation ordinance in question is void .
For the foregoing reasons, the opinion of the Court of Appeals is reversed
and the City of Prospect's (annexation) Ordinance No. 429, Series 2002, is
declared void .
All sitting. All concur.
12
HB 624, Chapter 104, 1998, effective 6-1-98.
COUNSEL FOR APPELLANT:
Irvin G. Maze
Maze 8v Frockt, PLLC
429 W. Muhammad Ali Blvd, Suite 504
Louisville, KY 40202
Mark Wesley Dobbins
Sandra Finley Keene
Tilford, Dobbins, Alexander, Buckaway 8v Black
401 West Main Street, Suite 1400
Louisville, KY 40202
N . Scott Lilly
Louisville/Jefferson County Metro Government
Second Assistant County Attorney
531 Court Place, Suite 900
Louisville, KY 40202
COUNSEL FOR APPELLEE :
Grover C . Potts, Jr.
Jennifer Beth Starr
Wyatt, Tarrant 8s Combs, LLP
2800 PNC Plaza
500 West Jefferson St.
Louisville, KY 40202
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