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RENDERED:  MARCH 20, 2009; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2008-CA-001056-MR
CITY OF PIKEVILLE; FRANK E. JUSTICE;
AND DONOVAN BLACKBURN APPELLANTS

APPEAL FROM PIKE CIRCUIT COURT
v. HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 06-CI-01482
PIKE COUNTY, KENTUCKY;
ANNE THOMPSON CASSADY;
AND BALLARD W. CASSADY APPELLEES

OPINION
AFFIRMING

** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
BUCKINGHAM, SENIOR JUDGE:  The City of Pikeville, its Mayor, Frank E.
Justice, and its City Manager, Donovan Blackburn, appeal from an order of the
1 Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
Pike Circuit Court that granted a motion to dismiss their petition for a declaration

of rights and their statutory action.  The issue is whether the City has a statutory or equitable right to challenge a vote against the annexation of property belonging to the appellees, Ballard W. and Anne Thompson Cassady.  The trial court concluded that the City did not, and we affirm.  
On June 7, 2006, the City enacted Ordinance No. 0-006-010 which stated its intent to annex certain unincorporated territory in accordance with KRS 81A.420(1), which states:
When a city desires to annex unincorporated territory, the legislative body of the city proposing to annex shall enact an ordinance stating the intention of the city to annex. The ordinance shall accurately define the boundary of the unincorporated territory proposed to be annexed, and declare it desirable to annex the unincorporated territory.
Id. The area that the ordinance proposed to annex included part of a tract of property owned by the Cassadys, although it did not include the portion on which their house and outbuildings are located.  
The statutory framework for challenging such annexation ordinances is contained in KRS 81A.420(2), which provides that a question on the annexation may be placed on the next election ballot.  The statute states in pertinent part:
If following the publication of the annexation ordinance pursuant to subsection (1) of this section and within sixty
(60) days thereof, . . . fifty percent (50%) of the resident voters or owners of real property within the limits of the territory proposed to be annexed petition the mayor in opposition to the proposal, an election shall be held at the next regular election if the petition is presented to the county clerk and certified by the county clerk as sufficient not later than the second Tuesday in August preceding the regular election:
(a)
The mayor of the city shall deliver a certified copy of the ordinance to the county clerk of the county in which the territory proposed to be annexed is located, who shall have prepared to be placed before the voters in each precinct embraced in whole or in part within the territory proposed to be annexed the question:

Download 2008-ca-000657.pdf

Kentucky Law