Memorandum

City of Lawrence

Legal Department

TO:              David L. Corliss, City Manager

FROM:         Randall F. Larkin, Staff Attorney

cc:               Toni Ramirez Wheeler, Director of Legal

                   Scott McCullough, Director of Planning

                             and Development Services

DATE:         June 8, 2011

RE:              Legal Requirements for K.S.A. 12-520c Annexation

_____________________________________________________________

This Memorandum provides a review of the requisite procedures for the annexation of approximately 67 acres owned by the Rothwells.

Annexations under K.S.A. 12-520c

The subject 67 acres, owned by the Rothwells, is not adjacent or contiguous to the boundaries of the City. It is located north and west of the City in Douglas County along the Farmer’s Turnpike and north of I-70. It lies just southeast of the 155 acres that the City annexed in 2008 and immediately west of the 51 acres that the City annexed in 2010. Because it is not adjacent or contiguous to the boundaries of the City, the subject 67 acres may only be annexed following the procedures established at K.S.A. 12-520c. K.S.A. 12-520c permits a city to annex land that is not adjacent or contiguous to it if three conditions are met. First, the land must be located in the same county as the city which is annexing it. Second, the owner must either request or consent to the annexation. And, third, the Board of County Commissioners must find that the annexation “will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within the county.” K.S.A. 12-520c(a).

On March 21, 2011, the Rothwells filed with the City a request to annex the subject 67 acres. On April 5, 2011, the City Commission officially received the Rothwells’ request for annexation. Because the subject property exceeds ten (10) acres in size, in accordance with City annexation policy, the Governing Body referred the request for annexation to the Lawrence-Douglas County Planning Commission for recommendation. On May 25, 2011, the Planning Commission voted, by an 8-1 margin, to recommend that the City approve the request for annexation and annex the subject 67 acres.

Procedural Requirements

As noted above, in order to annex the subject 67 acres, the three requirements established at K.S.A. 12-520c(a) must first be met. At this point in the proceedings, two of the three requirements have been met. First, the subject 67 acres, is located in Douglas County, Kansas. The Rothwells, as owners of the subject 67 acres, have requested that the land be annexed. Thus, they have consented to the annexation. The final requirement of K.S.A. 12-520c(a), is that the Board of County Commissioners find that annexation of the subject 67 acres “will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within the county.” K.S.A. 12-520c(a)(3). That has not yet been done.

Accordingly, if the governing body accepts the Planning Commission’s recommendation and deems it advisable to proceed with the annexation of the subject 67 acres, the governing body shall, by resolution, request that the Board of Douglas County Commissioners find that annexation of that land “will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within the county.” K.S.A. 12-520c(a)(3). (Obviously, if the governing body overrides the Planning Commission’s recommendation, then the request for annexation is denied and there is no need to seek the input of the Board of County Commissioners).

Assuming that the governing body adopts the resolution and transmits it to the Board of County Commissioners, the Board of County Commissioners has 30 days from receipt of the resolution in which to make the statutory findings and to notify the City of its findings. It must be noted, however, that any failure by the Board of County Commissioners to follow that time constraint will not invalidate the proceedings.

Unlike annexations under K.S.A. 12-520, consensual annexations of non-adjoining and non-contiguous land do not require notice, a public hearing, or a determination that the proposed annexation will not cause manifest injury “to the owners of any land proposed to be annexed, or to the owners of land in areas near or adjacent to the land proposed to be annexed or to the city if annexation is disapproved.” K.S.A. 12-521(c).

Therefore, in the event that the Board of County Commissioners finds that annexation of the subject property “will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within the county,” the final action of the City – if the governing body deems it advisable -- is to adopt an ordinance annexing the subject 67 acres. Then, to complete the annexation process, the ordinance is published in a newspaper of record, at which time it becomes effective, and the City Clerk files certified copies of the annexation ordinance with the County Clerk, the Register of Deeds, and the County Election Officer. Once that is completed, the subject 67 will have been annexed into the City.

Notice to Rural Water District of City’s Intent to Annex

K.S.A. 2010 Supp. 12-539 provides that, not less than 60 days before the date of any ordinance annexing any land, the city seeking annexation give written notice to any rural water district of the city’s intent to annex said land and the city’s plan for providing water service to the land being annexed. See id. On April 12, 2011, the City Commission authorized the City Manager to provide written notice to Rural Water District No. 6 of the City’s intent to annex the subject 67 acres and to provide the City’s plan for the provision of water service. On April 21, 2011, in compliance with the City Commission’s authorization and the state statute, the City Manager transmitted notice to Rural Water District No. 6.

If the City designates a different water supplier than the rural water district, then the City must purchase the property, facilities, improvements, and going concern value of the facilities of the rural water district in question. See K.S.A. 2010 Supp. 12-541(a). K.S.A. 2010 Supp. 12-541(b) provides a procedure for determining the value of the property, facilities, improvements, and going concern of the rural water district in the event the City and the rural water district cannot agree on the value. At the present time, City staff recommends that Rural Water District No. 6 continue supplying water to the annexed land. In a letter, dated May 9, 2011, Rural Water District No. 6 has agreed to continue to supply the subject 67 acres with water.