Annexation in Kansas
| Jurisdiction | Kansas,United States |
| Pages | 18-39 |
| Publication year | 2001 |
| Citation | Vol. 70 No. 10 Pg. 18-39 |
| Date | 01 November 2001 |
70 J. Kan. Bar Assn. 10, 18-39 (2001). Annexation in Kansas
70 J. Kan. Bar Ass'n, November/December 2001 18-39 (2001)
I. Introduction
Annexation is a legislative action taken by a municipality to increase or alter its boundaries. ..."[2] Cities annex for a variety of reasons: to allow for proper growth of the city; to enable the city to plan and provide public services to its residents such as streets, water, and sewer; and to ensure that persons living immediately outside the city, who receive the benefit of city services, are required to contribute to the payment for those services.[3] A conflict often arises between a city seeking property to expand its boundaries and residents of an unincorporated area who do not want to be part of the city.
A secondary source of conflict arises when different cities eye the same area for growth potential.[4] Cities have standing to challenge certain types of annexations and can exercise that prerogative to guard their interests.[5] However, recognizing the drawbacks of litigation, cities also have entered into intergovernmental agreements to resolve the potential conflicts by dividing the pie, so to speak, in a manner agreeable to the cities involved.[6] Why and how a decision is made to annex is beyond the scope of this article. However, once the decision is made, the annexation process must follow the statutory procedure. These requirements are the focus of this article.
The setting of city boundaries is "purely"[7] and "absolute[ly]"[8] a legislative matter. The nature of the legislature's power over the annexation process is demonstrated by K.S.A. 12-529 which prevents the annexation of any property that is part of a U.S. military reservation.[9] This prohibition arose out of a controversy surrounding Fort Riley in 1982 when the city of Junction City, under the authority then set out in K.S.A. 12-519, et seq., adopted an ordinance announcing its intent to annex Fort Riley.[10] This annexation attempt generated "a great deal of activity in opposition to the annexation" in the state legislature, culminating in passage of H.B. 3166, which took effect on April 15, 1982.[11] This bill, now K.S.A. 12-529, was expressly made retroactive to cover any annexation proceedings that commenced after Dec. 31, 1981.[12] This retroactive application was upheld on appeal and Junction City's attempt to annex Fort Riley was, for this and other reasons, invalidated.
Legislative authority, in regard to annexation, was preserved when cities received constitutional home rule powers in 1961.[13] The Legislature has delegated legislative authority for setting boundaries to the cities, subject to the approval of the board of county commissioners in some types of annexations, if done in accordance with the requirements set out in the statutes. The statutory procedure for annexation is set out in K.S.A. 12-519 et seq., and is "completely controlled by statute."[14] Cities have no inherent rights outside of these statutes to annex territory.[15] The intent behind the statutory requirements for annexations is to protect the rights of the landowners who are being annexed, while at the same time allowing cities to grow in an appropriate manner.[16] Peripheral issues concerning annexation are addressed in other chapters of the Kansas statutes and in administrative regulations.[18]
Annexations under K.S.A. 12-519, et seq., can be discussed in light of the three types: unilateral,[19] island,[20] and county approved.[21] Commentators differ somewhat on the division of annexations into the first two types, unilateral and island. One view is that all K.S.A. 2000 Supp. 12-520 annexations are "unilateral" because the city can annex the property without first obtaining permission from another governmental entity, i.e. the board of county commissioners.[22] Another view is that annexation of land adjoining the city, which requires the consent of the landowner,[23] is not unilateral because the city cannot act without the landowner's consent.[24] For the purposes of this article, the term unilateral refers to any annexation conducted under K.S.A. 2000 Supp. 12-520(a)(1) through (7).
Despite these separate types of annexations, they do share some common issues and requirements. The general format for annexations begins with a resolution by the city indicating its intent to annex certain land.[25] Following adoption of the resolution, subject to some exceptions, the landowners must be formally notified of the proposed annexation, and given the opportunity to speak at a public hearing.[26] After the hearing, the city must then adopt and publish an ordinance annexing the land involved.[27] The annexation is not effective until the publication of the ordinance.[28] In some types of annexations the city must also prepare a service plan showing its intent to extend municipal services to the area being annexed.[29]
Before the particulars of each type of annexation are discussed, several points should be made. Most importantly, the law of annexation in Kansas was completely revised in 1967.[30] The Kansas Supreme Court has characterized this recodification of the annexation laws to be "a single, comprehensive enactment under which reasonably expeditious annexation to cities might be had."[31] Major amendments to the annexation statutes were subsequently added in 1974 and 1987.[32] Consideration of case law prior to those dates must be made in light of any subsequent statutory changes.
The 1974 amendments added requirements that the city prepare service plans indicating its intentions for the extension of municipal services to the area to be annexed.[33] The service plan requirements were strengthened in the 1987 amendments. The 1974 changes also included protection from annexation of unplatted agricultural property, and extended standing to challenge annexations to the landowners involved. Finally, the 1987 amendments to county approved annexations spelled out what factors the county commission had to consider in sitting as a quasi-judicial body.
Where the landowners have not petitioned for or consented to the annexation, the legislature has provided for a number of procedural protections such as public hearings, notice, service plans and specific time frames for the city or county commission to meet. These requirements must be substantially complied with or the annexation may be invalidated on judicial review.[34] The Legislature has also expressly provided that nothing in the annexation statutes authorizes the annexation by a city of land that is already part of another city.[35] Finally, the legislature has provided for specific definitions of key terms as used in the act, including the terms "adjoins," "land devoted to agricultural use" and "owner."[36]
II. UNILATERAL ANNEXATIONS
The Requirements and Exceptions
A unilateral annexation under K.S.A. 2000 Supp.12-520, is a "direct annexation by cities of relatively small tracts, usually platted land adjoining or within a city, or unplatted land owned by the city or owned by someone who petitions for or consents to the annexation."[37] In order to qualify as platted, the plat must have been recorded with the county register of deeds.[38] Annexation under K.S.A. 2000 Supp. 12-520 requires the existence of at least one of the following requirements:
1) The land is platted,[39] and some part of the land adjoins the city.
2) The land is owned by or held in trust for the city or any agency thereof.
3) The land adjoins the city and is owned by or held in trust for any governmental unit other than another city, except that no city may annex land owned by a county which has primary use as a county-owned and operated airport, or other aviation related activity or which has primary use as a county owned and operated zoological facility, recreation park or exhibition and sports facility without the express permission of the board of county commissioners of the county.[40]
4) The land lies within or mainly within the city and has a common perimeter with the city boundary line of more than 50 percent.[41]
5) The land if annexed will make the city boundary line straight or harmonious and some part thereof adjoins the city, except no land in excess of 21 acres shall be annexed for this purpose.[42]
6) The tract is so situated that 2/3 of any boundary line adjoins the city, except no tract in excess of 21 acres shall be annexed under this condition.
7) The land adjoins the city and a written petition for or consent to annexation is filed with the city by the owner.[43]
Key exceptions, however, exist regarding annexation for land described in K.S.A. 2000 Supp. 12-520; for example, no part of any unplatted tract of land of twenty-one (21) acres or more can be annexed if the land is devoted to agricultural use.[44] "Devoted to agricultural use" means that either the exclusive or primary use of the land is agricultural.[45] This exception initially was set at fifty-five (55) acres or more, and included a requirement that the agricultural use be "for profit."[46] The size of the area is now reduced to 21 acres or more, but the agricultural use does not need to be for profit.[47]
The fact that a tract of land devoted to agricultural purposes includes a rural or suburban residence, by itself, does not remove the property from the protection of K.S.A. 2000 Supp. 12- 520(b).[48] However, where the agricultural use is not the primary use of the property, then the protection from annexation may not be available.[49] Annexation of unplatted tracts of twenty-one (21) acres or more that are dedicated to agricultural use may still be accomplished, either with the consent of the landowner, or under the county...
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