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AGO 1953 No. 173 - November 20, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

CITIES AND TOWNS ‑- PETITION METHOD OF ANNEXATION OF CONTIGUOUS TERRITORY ‑- EFFECT OF MISDESCRIPTION IN ANNEXING ORDINANCE

1. A city or town may validly annex by ordinance a tract of land all of which was included in, although smaller than, the tract described in the petition for annexation.

2. An ordinance purporting to annex property not described in the petition for annexation is void.  Such a void ordinance cannot be vitalized by amendment.

3. Unless conditions have materially changed so as to make annexation now disadvantageous, there is no legal impediment to the reenactment of the ordinance of annexation based upon the original petition and hearing.

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                                                               November 20, 1953

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 173

Attention:  !ttMr. A. E. Hankins

            Chief Examiner

Dear Sir:

            We have your letter of October 21, 1953, in which you requested an opinion concerning several matters relating to the annexation proceeding in the city of Kennewick.  You indicate that in 1952 a petition was filed with the city of Kennewick petitioning for the annexation of a tract known as Fox addition.  The petition was in proper form and signed by the requisite number of property owners.  The property description contains slightly more area than intended inasmuch as the description omitted the limitation "lying north of Kennewick Irrigation District Canal Right-of-Way."  The description contained in the posted and published notices of hearing was correct.  The annexation was approved and the annexing ordinance was drawn.  Through inadvertence the description in the ordinance contained the following language:

             [[Orig. Op. Page 2]]

            "* * * and that portion of the SW 1/4 of Section 2, * * *"

            What was intended was:

            "* * * and that portion of the SW 1/4 of the SW 1/4 of Section 2, * * *"

            The erroneous description enclosed an area much larger than was described in the petition or notices and shown on the plat.  From these facts you pose the following questions:

            1. Where the description on a petition for annexation includes more property than is intended, and the posted and published notices contain a description which limits the description on the petition, and where the action of the City officials is based upon the description as it should have been, is an ordinance valid which annexes the property described in the posted and published notices?

            2. Can the present City council pass an ordinance amending the section of the annexing ordinance containing the description, for the purpose of correcting the error?

            3. If the answer to question No. 2 is Yes, then will the amendment make the annexation effective as of the date the original ordinance was passed, which was June 20, 1952?

            4. In the event that an amendment of the section of the annexing ordinance to correct the description is not valid, then would it be possible to pass another ordinance of annexation containing the same wording as the prior annexing ordinance with the description correct?  In other words, could an ordinance passed now, based upon the notices and hearings held in 1952 before a prior city council and approved by them, be used as a basis of an annexing ordinance by the present city council without going through the whole procedure again at this time, starting with a new petition?

            In our opinion these questions should be answered as follows:

            1.         Yes.

            2.         No.

            4.         Yes.

             [[Orig. Op. Page 3]]

                                                                     ANALYSIS

            1. Examination of the ordinance for annexation of Fox Addition to Kennewick and the fact that the petition was filed with the city council indicate that the petition method of annexation was employed pursuant to RCW 35.13.130 et seq. RCW 35.13.150 provides in part as follows:

            "Following the hearing, the council or commission shall determine by ordinance whether annexation shall be made.  They may annex all or any portion of the proposed area but may not include in the annexation any property not described in the petition.  * * *"

            Thus it appears clear that the annexing ordinance would have been valid if it had described a tract all of which was included within, although smaller than, the tract described in the petition.

            2. It appears evident that the annexing ordinance was void because, by reason of the erroneous description, it constituted an annexation of property not described in the petition, contrary to the express prohibition in the statute.  An ordinance in conflict with the state law of general character and state‑wide [[statewide]]application is universally held to be invalid.  37 Am.Jur. 787, Municipal Corporations, § 165.  Puget Sound Traction, Light & Power Company v. Grassmeyer, 102 Wash. 482.  The general rule is that void ordinances cannot be amended and that an ordinance passed as an amendment to a previous ordinance which never took effect is invalid.  A void ordinance cannot be vitalized by amendment and reenactment is necessary to validate such an ordinance. 6 McQuillin Municipal Corporations, (3rd Ed.) 183 and 184, and cases cited therein.

            4. We can conceive of no legal impediment to the reenactment of the ordinance of annexation based upon the original petition and hearing.  The only circumstance which invalidated the original annexation proceeding appears to be the inadvertent misdescription in the ordinance of annexation.  The statute prescribes no time limitation within which the ordinance must be acted upon subsequent to the hearing.  Unless conditions have changed materially in the meantime so as to make the proposed annexation less advantageous, either to the city or to the owners of the property sought to be annexed, we can find no  [[Orig. Op. Page 4]] valid reason for subjecting the signers of the petition to the expense of publication and posting of a notice of hearing a second time.  The effective date of annexation will be the date fixed in the valid ordinance of annexation.

Very truly yours,

DON EASTVOLD
Attorney General


ANDY ENGEBRETSEN
Assistant Attorney General

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