479 S.W.2d 596 | Ky. Ct. App. | 1972
Northfield, a sixth-class city in Jefferson County, adopted an ordinance for annexation of territory, one part of which was residential and the other part commercial in character. A number of the owners of commercial property, constituting less than ten percent of the freeholders in the territory proposed to be annexed, brought a remonstrance suit attacking the proposed annexation on various grounds. The circuit court entered a summary judgment declaring the annexation void. The city has appealed.
The ground on which the circuit court held the annexation void was that- under the rationale of Prudential Building & Loan Association v. Urban Renewal & Community Development Agency, Ky., 464 S.W.2d 629, and City of Louisville v. McDonald, Ky., 470 S.W.2d 173, a city cannot annex territory without first holding a trial-type hearing and making findings of fact. The two cases were not intended by this court to stand for any such proposition.
The substance of the holding of the two cases is that a trial-type, due-process hearing, with findings of fact, is required of a legislative body if it is not acting in a policy-making or law-making role, but in an adjudicatory fashion with respect to the situation of a particular property owner by reason of particular facts peculiar to his property. The enumeration in Prudential of various factors which collectively required the holding of an evidentiary hearing was in final analysis simply an expression of the thought that the circumstances of that case were such that the legislative action had left the area of policy-making and addressed itself to a particular property situation. Prudential was not an annexation case in any respect.
Our decisions have made it clear that annexation of territory to a city is a legislative matter in the policy-making area. See Gordon v. City of Louisville, Ky., 357 S.W.2d 693; Mitchell v. City of Central City, Ky., 354 S.W.2d 281; City of Louisville v. Kraft, Ky., 297 S.W.2d 39. Cf. Ward v. City of Ashland, Ky., 476 S.W.
Our conclusion, is, therefore, that a city is not required to hold a trial-type hearing as a prerequisite to annexation of territory.
In the trial judge’s memorandum opinion in this case, he cites authorities for “the proposition that, prima facie, plaintiff’s property should not be annexed.” From the context of the entire opinion it is clear that this was not intended as a separate, independent ruling, but was by way of attempted correlation with a statement in Prudential with reference to the facts, creating a prima facie case against amendment of the urban renewal plan. In view of the fact that the territory sought to be annexed in the instant case is urban in nature, and the city, though residential in character, has had a substantial period of existence, there is little basis on which the annexation could be found to be against the interests of the city, absent a showing that the capacity of the city to function as a sound going concern would be over-extended; and the mere imposition of taxes on the annexed territory is not manifest injury. Kraft, supra.
We are remanding the case for proceedings conforming to the established practice for remonstrance suits.
We agree with the trial court’s ruling that the giving of notice to the fiscal court, of the annexation ordinance, was sufficient, though done by the city attorney rather than by the city clerk as KRS 81.290(1) provides.
We do not pass on the sufficiency of the remonstrance complaint, nor on the constitutionality of the annexation statutes, since the circuit court did not reach those issues.
The judgment is reversed, with directions for further proceedings in conformity with this opinion.
. When Kraft speaks in terms of the courts’ confining their fact-finding function to what is elear and obvious, it is in effect saying that the courts will find against annexation only where annexation would be unreasonable under the circumstances.
