'Swiss cheese' annexation case

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Supreme Court hears Lebanon annexation case

By Stephen Lega

The fate of an annexation approved more than six years ago by the Lebanon City Council now rests in the hands of the Kentucky Supreme Court.

On Nov. 14, Attorney Keith Brown presented the city's case, while Attorney Jim Avritt Sr. spoke on behalf of the property owners who opposed the annexation.

In February of 2006, the city annexed approximately 415 acres on the city's southwest border. Some of the property owners in the area presented a petition expressing their opposition to the annexation and seeking an election. The city deemed the petition insufficient because fewer than 50 percent of the resident property owners in the annexed area had signed the petition. Many of the opponents of the annexation owned businesses in the annexed property.

Marion Circuit Judge Allan Bertram initially sided with the city in upholding the annexation. After attorneys for the opposing property owners filed a motion for Bertram to reconsider, he ruled that the annexation was invalid.

After the Court of Appeals agreed that the annexation was invalid, the city then appealed to the Kentucky Supreme Court, which heard the case last week.

Justice Daniel J. Venters said he'd never seen an annexation like the one presented in this case, referring to it as a "Swiss cheese" annexation.

"This is the first one I've seen that has holes in the middle," he said.

Brown acknowledged that, but added that he was not aware of anything in state statutes that would make it illegal. He argued that the city had fulfilled the requirements for a non-consensual annexation, including publication of the city's intent to annex the property and meeting requirements that the annexed property be contiguous to the existing city border. Specifically, Brown said the annexed property connected to the city limits along 4,780 feet. He also noted that the annexed property includes a Super Wal-Mart.

"If this isn't contiguous and suitable for urban development, I don't know what is," Brown said.

Justice Mary C. Noble said there appeared to be two factors to consider, the first of which was contiguity.

"Contiguity is a strict standard," Noble said. "Either it touches or it doesn't touch."

She said the Court of Appeals seems to have added a second criteria, whether the annexation was done arbitrarily. Brown disputed any claim that the annexation was arbitrary.

"There's a rational basis for the Lebanon annexation in the ordinance," he said.

The Court of Appeals ruled that the city's annexation was invalid in part because the city had intentionally omitted some property owners who were opposed to the annexation to ensure the success of the annexation.

Justice Bill Cunningham said even though the city excluded certain properties, the annexation essentially gives the city power over those property owners.

"If this is approved, forever more you will have the political power over the people in the enclaves," he said.

Avritt argued on behalf of opposing property owners and in favor of the Court of Appeals decision. He said the city had "gerrymandered" the annexation, and he added that the court can always consider the motivation of a legislative body.

Venters asked if the city's motivation was to include the Wal-mart as conducive to the city's development or to omit the carved out areas.

"I think the motivation that applies in this case is to why the city excluded certain properties," Avritt said.

Venters then asked if the city should have been required to include more opposing property owners. Following that remark, Cunningham asked if this would require the courts to determine what are natural and regular boundaries.

"That's going to basically put us [the courts] in the surveying business," Cunningham said.

Avritt said the court would have to look at the facts of the case. He noted that the trial court found that if the boundary would have been natural, then it would have followed Hwy. 208. Instead the city went around certain properties whose owners were opposed to being annexed.

In response to a question from Justice Lisabeth Hughes Abramson, Avritt said if all that was required was for the properties to touch, then there would be no prohibition against corridor annexation (in which a thin piece of property is annexed to connect two non-adjacent properties).

Avritt argued that by excluding some of the property owners who were opposed to annexation, the city guaranteed there would be no opportunity for an election regarding the annexation. Avritt concluded that even if the court finds that the annexed property is contiguous to the city, then the court should still consider whether the annexation was arbitrary.

"The argument I'm making here is that the city did indeed abuse its rights in this particular case," Avritt said.

Since the annexation was approved in 2006, the city has collected more than $540,000 in property taxes, occupational taxes and restaurant taxes in the annexed area. That money will remain in an escrow account until a final court decision has been handed down.