KS Supreme Court Holds Annexation Agreement Invalid

This post was authored by Amy Lavine, Esq.

The Kansas Supreme Court held in July that a written agreement between two cities to restrict their future annexations was unenforceable.

The agreement at issue was executed in 2006 between the City of Olathe and the City of Spring Hill, and it delineated the boundary for each city’s annexation authority for the area located between the two cities; the City of Olathe agreed not to annex property south of the boundary line, the City of Spring Hill agreed not to annex property north of the line, and both cities reserved their rights to annex properties within their respective boundary lines. The agreement did not include any expiration date and instead stated that it would remain in effect until it was terminated by the mutual consent of both cities. In 2021, the City of Spring Hill notified the City of Olathe that it is intended to annex property north of the boundary line, in contravention to the agreement. This prompted the City of Olathe to commence litigation to enforce the agreement.

Upon review, the Kansas Supreme Court concluded that the agreement was unenforceable as a governmental action that could not bind subsequent city councils, and it declined to grant the City of Olathe’s request for injunctive relief. The court explained that its decision was based on the “longstanding common law rule that an elected governing body may not use its legislative power to constrain future governing bodies to follow general policy decisions.” As the court explained:

The essence of this rule lies in the fundamental philosophy of American democracy. Within the constraints of constitutionally protected rights, it is the will of the electorate that determines policy decisions. If an elected governing body is allowed to bind future bodies to a particular course of action, the effect is to silence the will of voters in the future…. To hold otherwise would invite elected governing bodies to make their policies permanent, defeating the ability of future voters to set their own courses, leading to archaic legislation, stagnation, and an inability to respond to changed circumstances.

While this rule prevents “governmental” or “proprietary” agreements from binding future governing bodies, it allows legislatures to undertake certain kinds of “administrative” and “proprietary” obligations. The court explained that governmental and legislative agreements tend to relate to “affairs of political jurisdiction and promoting the public welfare at large. Such powers involve policymaking, and such a function cannot be contracted away….” As relevant to the cities’ annexation agreement, the court noted that “the development, introduction, or improvement of services are, by and large, considered governmental, but the routine maintenance of the resulting services is generally deemed proprietary.” The agreement, the court found, reflected “quintessential policy considerations” regarding the development, introduction, and improvement of services, and it was therefore clearly governmental and could not be considered a valid contract with any binding effect on future elected councils. It was not an agreement to provide services that might be considered “administrative,” the court said, since “the Agreement does not establish who would provide services, what those services would be, when those services would be provided, or even if those services would be provided.”

The City of Olathe argued that the agreement was nevertheless authorized under a state statute relating to annexation contracts. As the court pointed out, however, the statute explicitly only allowed contracts that are authorized by law, and “a contract that is of open-ended duration that seeks to restrain the policy decisions of future municipal governments is, as we have just observed, not authorized by law.” For similar reasons, the court also dismissed the City of Olathe’s contention that the agreement was authorized by its home-rule powers. To hold otherwise, the court emphasized, would undermine the entire concept of home rule, since “it would take away from elected municipal governments the ability to make decisions and act according to the will of the voters if prior governments had committed them to policy courses .”

City of Olathe v. City of Spring Hill, 512 P.3d 723 (Can 7/1/22).

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