Alabama Advisory Opinions November 22, 2002: AGO 2003-038 (November 22, 2002)

AGO 2003-038.

Dear Judge Davis:

This opinion of the Attorney General is issued in response to your request.

Under section 11-42-40, et seq ., of the Code of Alabama, when a city council passes a resolution seeking to annex territory made up of two separate parcels, each parcel being contiguous to the boundary of the city, but not contiguous to the other parcel, may a single election be held that covers both parcels?

The annexation at issue is proposed pursuant to the provisions of section 11-42-40, et seq. , of the Code of Alabama.

Ala. Code §§ 11-42-40 to 11-42-88 (1989). Sections 11-42-40 and -41 authorize any city with a population of 25,000 inhabitants or more to extend its corporate limits by adopting a resolution finding that the public health or public good requires that certain territory should be annexed into the city limits. Id . A certified copy of this resolution and the map of the proposed area must be presented to the probate judge in the county where the land is located.

Ala. Code § 11-42-42 (1989). The probate judge must enter an order directing "an election to be held by the qualified electors residing within the territory described in such plat or map."

Ala. Code § 11-42-43 (1989). Section 11-42-42 provides that the "territory must be contiguous to the boundary of the city at some point."

Ala. Code § 11-42-42 (1989).

Your request provides that on November 19, 2002, the Mobile City Council passed a resolution, pursuant to section 11-42-41 of the Code of Alabama, seeking to annex certain territory on the western edge of the city's present boundary. Upon receipt of the certified resolution and the proposed annexation map, you noted that the territory proposed to be annexed consisted of two distinct parcels, which are individually contiguous to the City of Mobile, but are not contiguous to each other at any point. Thus, the question has arisen as to whether a single election covering the territories described in the resolution must be ordered or separate elections covering each distinct parcel.

The question raised has been addressed by the Alabama Supreme Court in Fetters v. City of Hoover , 518 So. 2d 55 (Ala. 1987). In that case, the plaintiff challenged an annexation arguing that the city should not be allowed to annex "holes" or "islands" that are not contiguous to each other. Id . at 58. The annexation in that case was conducted pursuant to section 11-42-1, et seq ., of the Code of Alabama, wherein section 11-42-2 requires that the territory to be annexed "must be contiguous to the boundary of and form a homogenous part of the city or town."

Ala. Code § 11-42-2(10) (1989). Finding that the territory must be contiguous only to the existing boundary of the city, the Court stated:

Fetters does not cite any Alabama cases for support, and we reject his view that the statute mandates that the territories to be annexed be contiguous to each other . Id. at 59 (emphasis in original).

The Court also cited another annexation case, which involved section 11-42-42, in which it held that in an "annexation election, the city does not divide the territory into districts. . . . To hold in plaintiffs' favor on this issue would require a city to annex in incremental steps, annexing only small homogeneous communities or areas at each step." Fetters at 59, quoting City of Birmingham v. Smith , 507 So. 2d 1312, 1321 (Ala. 1987).

As stated above, the proposed annexation in this case is made pursuant to section 11-42-42, which requires that the "territory must be contiguous to the boundary of the city at some point."

Ala. Code § 11-42-42 (1989). The decision in Fetters clearly stands for the proposition that the annexation statutes do not require that the territories to be annexed must be contiguous to each other. Accordingly, the annexation election contemplated in section 11-42-43 is a single election for the purpose of annexing all of the territory described in the city's resolution. The "whole territory is either annexed or not depending on the vote over the whole territory." City of Birmingham , 507 So. 2d at 1321 (Ala. 1987).

The property proposed to be annexed by the City of Mobile's resolution satisfies the requirement that it is contiguous to the City of Mobile. There is no requirement that the territories to be annexed must be contiguous to each other; thus, a single election covering all of the proposed territory described in the resolution should be held by the probate judge.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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