Alabama Advisory Opinions December 01, 2010: AGO 2011-15 (December 1, 2010)

AGO 2011-15.

Dear Mr. Smith:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Boaz.

Is it necessary to hold an election or a vote by those wishing to have their property annexed into the corporate limits of the City of Boaz if all electors residing on or holding title to such territory execute a petition for annexation in compliance with section 1142-21 of the Code of Alabama?

If the answer to the question above is that a vote or election is required, what would be the requirements for such an election, and who would certify the results?

In your letter of request, you informed this Office that there is a married couple who own ten acres of land in Etowah County that is contiguous to the corporate limits of the City of Boaz. This property does not lie within the corporate limits or police jurisdiction of any other municipality. The only persons over the age of eighteen, qualified to vote, who live on or hold title to the territory in Etowah County, which is desired to be annexed into the City of Boaz, are this married couple. Although this property is located in Etowah County, the City of Boaz is located partially in Marshall County and partially in Etowah County.

You informed this Office that certain municipal officials are of the opinion that the requirements for a vote on the issue of annexation is moot and not required because the owners of the parcel of land petitioned to have the land annexed into the city limits. Hence, the crux of your inquiry is whether the signing of the petition was sufficient to act as a vote in the annexation of land or whether a vote or election is required.

Section 1 of the Etowah County Local Amendment to the Recompiled Constitution of Alabama sets forth specific requirements for annexation. This section states as follows:

Any municipality that was not located wholly within the boundaries of Etowah county prior to January 1, 1986, shall not annex any property within Etowah County without the approval of the electorate of said territory expressed in a vote on the issue of said annexation.

The provisions of this amendment shall not apply to any territory presently annexed within Etowah county by a municipality located outside of the county.

The legislature may pass local or general acts to supplement this amendment, so long as such acts do not contravene the provisions of this amendment.

Based on this constitutional amendment, the electorate residing on property in Etowah County must approve of the annexation of property by way of a vote prior to the annexation taking place. This provision, however, stands in contrast with section 11-42-21 of the Code of Alabama, which authorizes annexation by unanimous consent of property owners. This section states, in pertinent part, as follows:

Whenever all of the owners of property located and contained within an area contiguous to the corporate limits of any incorporated municipality located in the state of Alabama and such property does not lie within the corporate limits or police jurisdiction of any other municipality, shall sign and file a written petition with the city clerk of such municipality requesting that such property or territory be annexed to the said municipality, and the governing body of such municipality adopts an ordinance assenting to the annexation of said property to such municipality, the corporate limits of said municipality shall be extended and rearranged so as to embrace and include such property and such property or territory shall become a part of the corporate area of such municipality upon the date of publication of said ordinance... .

The petition required by this section shall contain an accurate description of the property or territory proposed to be annexed together with a map of the said territory showing its relationship to the corporate limits of the municipality to which said property is proposed to be annexed and the signatures of all the owners of the property or territory described. It shall be the duty of the governing body to file a description of the property or territory annexed in the office of the judge of probate of the county in which the municipality is located.

The Alabama Constitution is superior to any statutes, local ordinances, or regulations that may stand in conflict with the Constitution. Bassett v. Newton, 658 So. 2d 398 (Ala. 1995). As such, the provisions of section 11-42-21 may not be interpreted in a manner that would forego or negate the necessity of a vote as set out in section 1 of the Etowah County Local Amendments to the Recompiled Constitution of Alabama. Thus, property may not be annexed into a municipality located in Etowah County without a vote of the electorate who reside on the property to be annexed.

You further inquire as to the manner in which a vote or election should be held and who should certify the results. Although the Constitution does not explicitly set forth the manner in which the vote should transpire, sections 11-42-1, et seq., and 11-42-40, et seq., of the Code may offer guidance. Conversely, the City of Boaz may choose to seek a declaratory judgment regarding its particular factual situation and whether a petition to annex that is signed by all individuals seeking annexation who are eligible to vote in such an annexation election would satisfy the vote requirement of section 1 of the Etowah County Local Amendments to the Recompiled Constitution of Alabama.

Pursuant to section 1 of the Etowah County Local Amendments to the Recompiled Constitution of Alabama, the City of Boaz is required to conduct a vote of those persons seeking to have his or her property, which is located in Etowah County, annexed into the City of Boaz. Although the manner in which this vote should be held is not specified, the City of Boaz may glean guidance from other statutory authority where a vote is required prior to annexation.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Monet Gaines of my staff.

Sincerely,

TROY KING

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

TK/MMG

1045817/144941