November 21, 1995

ATTORNEY GENERAL OPINION NO. 95- 116

Michelle M. Suter

DeSoto City Attorney

City Center Square

1100 Main, Suite 2001

Kansas City, Missouri 64105

Re:	Cities and Municipalities--Additions, Vacation and Lot Frontage; Annexation by Cities; Conditions Which Permit Annexation; Definition of "Adjoin"

Synopsis:	For purposes of annexation, properties that adjoin a military reservation do not adjoin a city unless the properties lie upon or touch the city boundary line or lie upon or touch a highway, railway or watercourse which abuts the city boundary line and separates such city and the properties by only the width of such highway, railway or watercourse. Cited herein: K.S.A. 12-519; K.S.A. 1994 Supp. 12-520; K.S.A. 12-529.

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Dear Ms. Suter:

As city attorney for the city of DeSoto you inquire whether a city may annex properties that would adjoin a city boundary line but for a military reservation that adjoins the city. Evidently, property owners whose property adjoins the sunflower ammunition plant are desirous of being annexed by the city except that their properties do not touch the city boundary line. [The ammunition plant is a military reservation and, therefore, cannot be annexed by the city. K.S.A. 12-529.] You inquire whether the city may use K.S.A. 1994 Supp. 12-520(a)(7) to annex the properties at issue here.

K.S.A. 1994 Supp. 12-520(a)(7) states as follows:

"(a) Except as hereinafter provided, the governing body of any city, by ordinance, may annex land to such city if any one or more of the following conditions exist:

. . . .

"(7) The land adjoins the city and a written petition for or consent to annexation is filed with the city by the owner." (Emphasis added).

K.S.A. 12-519(d) defines "adjoin" as follows:

"(d) 'Adjoins' means to lie upon or touch (1) the city boundary line; or (2) a highway, railway or watercourse which lies upon the city boundary line and separates such city and the land sought to be annexed by only the width of such highway, railway or watercourse." (Emphasis added).

You indicate that the properties at issue here do not touch the city boundary line because they are separated from the boundary line by the military reservation. It is your position that the military reservation should be treated as a highway, railway or watercourse so that these properties may be deemed to adjoin the city pursuant to K.S.A. 1994 Supp. 12-520(a)(7).

The power of a municipality to alter its boundaries by annexation is controlled by statute. State, ex rel. Foster v. City of Kansas City, Kansas, 186 Kan. 190 (1960). K.S.A. 1994 Supp. 12-520 permits a city to annex land if one or more of the conditions set out in the statute exists. Banzer v. City of Wichita, 237 Kan. 798, 805 (1985). Subsection (a)(7) permits annexation only if land adjoins the city and the property owner consents.

One of the cardinal rules of statutory interpretation is to review the language of the statute itself. National Union Fire Insurance Company of Pittsburg, Pennsylvania v. Midland Bancor, Inc., 854 F.Supp. 782 (D.Kan. 1994). When a statute is plain and unambiguous a court must give effect to the legislative intent as expressed rather than determine what the law should or should not be and a court may not supply an omission in a statute. Carlson v. Carlson, 4 Kan.App.2d 63 (1979); Richards v. Etzen, 231 Kan. 704 (1982). Clearly, a military reservation is not a highway, railway or watercourse and, therefore, it is our opinion that a city may not annex properties adjoining a military reservation under the authority of K.S.A. 1994 Supp. 12-520(a)(7) unless the properties in question "adjoin" the city as that term is defined in K.S.A. 12-
519.

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

Mary Feighny

Assistant Attorney General

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