A 1979 annexation and boundary agreement between Layton and Clearfield may be illegal, a 2nd District judge said Thursday, asking attorneys for the two cities to submit legal arguments on it within the next three weeks.

Judge Rodney S. Page said the agreement restricts future city councils in zoning and annexation action, which he said is clearly illegal under Utah law.The judge's ruling caught the attorneys and city officials from Layton and Clearfield off guard. They came to court to argue whether an injunction Page issued a month ago in an annexation dispute between the two cities should be lifted or made permanent.

The battle is over 73 acres of property near 28th West and 10th North that was annexed at the owners' request into Layton early in July.

The property lies between the two cities and Clearfield sought to annex it first, but the owners balked at the terms the city stipulated in return for providing sewer and water for development. Developers Blake Hazen and Ed Green plan a 300-home subdivision on the property.

A similar dispute between the two cities in 1978 led first to a lawsuit and eventually to an agreement signed in April 1979 that Layton would not actively pursue any further annexations in the area, allowing property owners to decide which city they wish to join, and that no property would be annexed without written consent from Clearfield.

Both Clearfield Mayor Neldon Hamblin and City Recorder Richard Waite testified Thursday that no written or verbal consent had been given to Layton to annex the property.

After the July annexation, Clearfield City Attorney Lawrence Waggoner sought and obtained a temporary injunction barring Layton from issuing building permits or providing utility hookups for the disputed property until its status is determined.

Waggoner cited the 1979 agreement Thursday, arguing no permission was granted to Layton for the annexation and that allowing it to keep the property would do irreparable harm to Clearfield.

Layton City Attorney Mark Arnold argued his city lived up to the agreement, holding several negotiating sessions with Clearfield to resolve the problem. The property owners petitioned Layton for annexation, Arnold said, adding that if Clearfield has a problem with Layton's action it should have appealed to the county's boundary commission before going to court.

But Page startled both Waggoner and Arnold by saying the original agreement may be illegal and the briefs submitted by the two city attorneys are irrelevant to the case.

State law is clear that city councils cannot bind future councils on acts of discretion, Page said, and zoning and annexation matters are clearly discretionary acts.

And, Page said, going to the boundary commission may not be the answer because no appeal was filed within five days of the annexation, as the law requires.

Page said his research into the 1979 agreement shows it was not signed or ratified by the court, so it does not carry the weight of a court order. The court simply noted that Layton and Clearfield had reached an agreement on their boundary dispute at the time and ordered their 1979 lawsuit dismissed, the judge said.