February 5, 2010
Boards of Mayor and Aldermen:
Cities A, B, and C have asked the following question: Does the recent case of City of
Harriman v. Roane County Election Commission, No. E2008-02316-COA-R3-CV (Dec. 28,
2009), provide authority for the City A to annex by ordinance a certain rock quarry that lies outside
the city’s Urban Growth Boundary (UGB)? As I understand the facts, the quarry proposed for
annexation is 10 miles from the city, but as the roads go, not as the crow flies.
That case, if it is upheld on appeal, would permit a city to annex territory outside its UGB
by ordinance, if it follows the procedure outlined in Tennessee Code Annotated, ' 6-51-111(d),
which, according to the interpretation given that statute by the Court of Appeals, only requires the
annexing municipality propose (but not obtain) “a change in the urban growth boundary to the
coordinating committee....”
But that case does not resolve two questions that I have previously addressed for City A
and City B, but have decided to address them a second time with the hope of making my answers
more clear:
1. Would the annexation of the rock quarry be “contiguous” to the city?
2. Who would have standing to challenge the annexation?
Answer to Question 1
Under the facts I have been given, the annexation of the rock quarry would not be
contiguous to the city as required by both Tennessee Code Annotated, ' 6-54-102 (annexation by
ordinance) and Tennessee Code Annotated, ' 5-54-104 (annexation by referendum). As I
understand those facts, an annexation taking in a one foot wide corridor running approximately 6.5
to 10.0 miles down county roads, and meandering left down this road, right down this road, and so
on, for the indicated distances. The suggestion that such an annexation is contiguous to any of
those cities under Tennessee law reflects legal fantasy, and would, in fact, produce what the
Tennessee courts have called an “archipelagic monstrosity.”
Answer to Question 2
This question is difficult to answer, but I have no doubt that in light of the absurd
annexation proposed, the Tennessee courts would be liberal in extending standing to groups and
perhaps to individuals challenging such an annexation under the Declaratory Judgements Act.
February 5, 2010
Page 2
There are presently two ways to challenge annexations: a quo warranto challenge based on
the unreasonableness of the annexation, and a challenge under the Declaratory Judgements Act.
It is plain to me that the annexation proposed is patently unreasonable. However, quo warranto
challenges to annexations can be made only by property owners inside the annexed area. The
only owner of the property in the territory proposed for annexation wants a city (apparently any
city) to annex the quarry. For that reason, there are no other property owners on the property who
would have standing to being a quo warranto challenge to the annexation, no matter how
unreasonable the annexation in question would be.
The Tennessee Supreme Court in at least two cases has apparently drawn narrow bounds
for challenging annexations under the Declaratory Judgments Act. In addition, based on the cases
I have read regarding the standing of persons to bring challenges under the Declaratory
Judgements Act, absent some plaintiffs who are both directly damaged by the annexation in ways
not common to the public in general, the Tennessee courts would be required to liberally apply the
standing requirements to other potential plaintiffs. Read my treatment of Bristol v. Earhart,
below, carefully so that it is understood why the plaintiff in that case did not have standing to bring
a quo warranto challenge against the annexation in that case, but did have standing to bring a
challenge against the annexation under the Declaratory Judgments Act. It is not likely that any
person objecting to the annexation of the quarry can claim the same kind of injury that the plaintiff
in Bristol v. Earhart claimed. However, I am convinced that the Tennessee courts would be
liberal in granting potential plaintiffs standing to challenge the annexation of the quarry for the
simple reasons that the annexation would be so absurd under existing Tennessee law, yet would
not otherwise be subject to challenge for the equally absurd reason that nobody would have
standing to challenge it.
Analysis of Question 1
Tennessee’s annexation law does not mention the word “contiguous.” Tennessee Code
Annotated, ' 6-51-102, speaking of annexation by ordinance, says: “A municipality...may extend
its corporate limits by annexation of such territory adjoining its existing boundaries....” Tennessee
Code Annotated, 6-51-104, speaking of annexation by referendum, says, “A municipality...may
propose extension of its corporate limits by annexation of territory adjoining to its existing
boundaries.” But the Tennessee courts in Town of Bartlett v. City of Memphis, 482 S.W.2d 782,
and State ex rel. Maury County Farmers Co-Op Corp. v. City of Columbia, 362 S.W.2d 210
(1962), expressly point to a requirement that “adjoining,” or “adjoining to” in the clear sense that
those words mean “contiguous” in the sense of touching the city.
The word “Contiguous” is defined by Black’s Law Dictionary, 6th Ed. 1990, as “In close
proximity; neighboring, adjoining; near in succession; in actual contact touching at a point or along
a boundary; bounded or traversed by. The term is not synonymous with ‘vicinal.’” But in State ex
rel. Earhart v. City of Bristol, 970 S.W.2d 948 (Tenn. 1998), the Tennessee Supreme Court
February 5, 2010
Page 3
expanded the meaning of “contiguous.” There the Court held that Tennessee Code Annotated,
section 6-51-103, which limited quo warranto annexation challenges to property owners inside the
annexed territory and within 30 days of the date of annexation, applied only to challenges based
on the reasonableness of the annexation. It permitted property owners annexed in 1995 by the City
of Bristol to challenge a corridor annexation adopted in 1989, and to which the territory annexed
in 1995 was attached. Citing State ex rel. Collier v. City of Pigeon Forge, 599 S.W.2d 545 (Tenn
1980), the Court frowned upon corridor annexations, declaring that, “As in any annexation, and
more particularly one wherein a geometrically irregular parcel of land is annexed, the Court must
scrutinize the stated and ostensible purpose of the annexation.” [At 995] The geometrically
irregular parcel of land in this case involved the 1989 corridor annexation that did not take in
people, private property or commercial activity, but which touched the city. The court said about
contiguity in connection with such annexations that:
The majority of courts have interpreted the requirement that the
annexed area be “contiguous” to not allow the annexation of thin
strips of land to connect a larger parcel of land to a municipality.
[Citation omitted.] These decisions articulate the principle implicit in
the Tennessee statute. [At 954.] Earlier, the concept of an
annexation creating a “archipelagic monstrosity” appeared in City
of Kingsport v. State ex rel. Crown Enterprises, Inc., 562 S.W.2d 808
(Tenn. 1978). There Crown Enterprises challenged Kingsport’s
annexation of 806 acres, which included within that acreage Crown
Enterprise’s 85-acre industrial park. The trial court found the
annexation unreasonable for several reasons, one of which was the
85 acre site did not need city services. The Tennessee Supreme
Court rejected the trial court’s view, declaring that:
The whole process of annexation would be frustrated if the city
could only annex those properties then in need of city services.
The result of this would tend to create islands of unincorporated
areas within a city and the archipelagic monstrosity thus created
would thwart the rendition of essential city services and would not
be in the public interest.
Appellees do not contest the annexation of the remaining property.
Should we uphold their contention the result would be the creation
of an 85 acre island or enclave, completely surrounded by the City
of Kingsport. This area thus omitted would be within, but not a
part of a city. Absent the most compelling considerations, such a
situation would be intolerable and an annexation that produced
such a result would not meet the test of reasonableness. [At 814.]
[Emphasis is mine.]
Annexations that leave what are called donut holes, or islands are usually “contiguous” to
the city in the sense that the annexed territory actually touches the municipal boundaries; they are
usually surrounded by those boundaries. The same is true of “balloon,” “corridor,” ”string,” and
“shoestring” annexations; one end of the balloon, corridor, string or shoestring usually touches the
annexing municipality. But they are generally not contiguous for the purposes of Tennessee
annexation law, or the law of numerous other states, for that matter. [See Anno: What Land is
Contiguous or Adjacent to Municipality so as to be Subject to Annexation, 49 A.L.R.3d 589
(1972).]
Analysis of Question 2
Ostensibly, however, Earhart applies only to annexations that do not take in people, private
property or commercial activity. The Tennessee Court of Appeals gave it such an interpretation
in the unreported case of Snell v. City of Murfreesboro, 1004 WL, 124032 (2004). There the
territory annexed by the city included several acres and 1,600 feet of road right of way that
connected those acres to the city. The plaintiffs who owned property abutting the road (but not in
the annexed territory), challenged the annexation under the Declaratory Judgement Act, arguing
that the road right of way contained no people, private property, or commercial activity, and that
the annexed property was not contiguous to the city.
The court held that the plaintiffs lacked standing to challenge the annexation by ordinance
under Tennessee Code Annotated, ' 6-51-103(a)(1) because they did not live in the territory
annexed as required by that statute. The court also rejected the plaintiff’s Earhart claim, declaring
that the annexation did include people and private property (in the territory at the end of the road
right of way), and reasoned that:
Earhart clearly applies only in those situations where a municipality
passes an ordinance that “purports to annex an area that does not
include people, property, or commercial activity and is, therefore
void.....” Because the annexed territory in this case does include
people and private property, the quo warranto remedy is available to
challenge the annexation ordinance in question; it is just not
available to Appellants. The alternative remedy of declaratory
judgement is therefore not available to Appellants under the
rationale set out in Earhart under both T.C.A. ' 6-51-103 and
Earhart. Appellants lack legal standing to challenge the
annexation ordinance. .... [At 5]
This question arises under Earhart and Snell: Who would have standing to challenge the
annexation ordinance passed by City A, City B, and City C? Under Tennessee Code Annotated, '
6-51-103(a)(1)(A), “Any aggrieved owner of property” that borders on or lies within the area to be
annexed has 30 days to challenge the annexation. (But State ex rel.Cordova Residents for the
Environment v. City of Memphis, 862 S.W.2d 525 (Tenn. App. 1992), held that the “borders on”
part of the statute unconstitutional. For that reason, in a quo warranto annexation suit only the
owners of the property that lies within the annexed area have standing to challenge the annexation.
Judging by what I have been told and read about the annexation in question, the quarry owners are
not going to challenge the annexation; they are promoting it.
But the courts have equity jurisdiction in annexation cases that are not brought under the
quo warranto statute found in Tennessee Code Annotated, ' 6-51-103. It is said in Bristol v.
Earhart, above, that
But where the quo warranto proceeding is not available alternative
equitable remedies are not barred. “[W]here the remedy by quo
warranto is available, it is usually held that there is no concurrent
remedy in equity, unless by virtue of statutory provision. But if quo
warranto is not an adequate remedy, it will not be a bar to alternative
remedies.” 65 Am Jur.2d Quo Warranto ' 7 (1972) The availability
of other remedies is specifically acknowledged in section 6-51-113
(1992), which provides, “Except as specifically provided in this part,
the powers conferred by this part shall be in addition and
supplemental to, and limitations imposed by this part shall not effect
the powers conferred by any other general, special or local law.”
The Tennessee Declaratory Judgment Act is just such another
general law conferring the power to challenge the validity and
construction of statutes and municipal ordinances.... [At 953]
Town of Oakland v. Town of Somerville, 2003 WL 22309498 (Tenn. Ct. App. 2003) above,
citing Earhart, said the same thing in allowing the Town of Oakland to sue the Town of Somerville
in a declaratory judgment suit upon the allegation that Somerville’s ordinance was void for having
been enacted after Oakland’s annexation of the same territory having been passed
on final reading but before the effective date of the Somerville’s ordinance, and that Somerville had
breached its agreement with Oakland regarding an annexation reserve agreement between them.
But in Highwoods Properties, Inc. v. City of Memphis, ____ S.W.3d ____, 2009 WL
2226091 (Tenn.) (July 27, 2009), above, the Tennessee Supreme Court does a comprehensive
review of the development of annexation law in Tennessee, including the effect of the 1998
amendments to the annexation laws. That review says this about annexation in UGBs:
A municipality may annex an area within its urban growth
boundaries using methods established by the 1955 Act.... If,
however, the municipality wishes to annex an area outside its growth
boundaries, it must either propose an amendment to its growth
boundaries or rely on the referendum annexation methods.....Thus,
the 1998 Amendments reflect a balance. While, on one hand, the
new restrictions discourage annexations that extend beyond a city’s
predicted area of growth, on the other, the 1998 Amendments assure
that a municipality will not bear the burden of proof in a quo
warranto challenge when it does exercise its powers within predicted
boundaries..... [At 8] [Emphasis is mine.]
But the Court also drew a line around Declaratory Judgement Act suits in annexation cases,
pointing to two conditions that it had imposed on such suits in Bristol v. Earhart:
First, we permitted only challenges to ultra vires acts, that is, tests of
“[t]he validity of an annexation ordinance alleged to exceed the
authority delegated by the legislature.” Earhart, 970 S.E.2d at 954.
Second, we stated that it is only Awhere the quo warranto
proceedings is not available, [that] alternative equitable remedies are
not barred. Id. At 952 (citing 65 Am.Jur.2d Quo Warranto ' 7
(1972) (“[W]here the remedy by quo warranto is available, it is
usually held that there is no concurrent remedy in equity, unless by
virtue of statutory provision.”) [(Emphasis added (by court]) [At 10]
Highwoods appears to bring Town of Oakland v. Town of Somerville, into question. It
emphasized that Bristol v. Earhart involved a case where the absence of people in the annexed area
meant that there would be no plaintiffs: no plaintiffs, no case, no case, no remedies for an ultra vires
annexation. The court rejected Count 1 of the plaintiff’s claim, which was that plaintiffs in a quo
warranto suit (which did not include the plaintiffs in Highwoods) attacking an annexation ordinance
on the grounds of its reasonableness had settled that case, the result of which was a different
annexation ordinance than the one originally challenged. The court declared that Count 1 did not
satisfy either of the two conditions of declaratory judgements suits: They did not allege or show that
the ordinance was void, and they had not filed a quo warranto suit. The court declared that they
could have been plaintiffs in the quo warranto suit, that generally procedural issues in annexation
cases belong in quo warranto challenges, and that “our limited holding in Earhart did not overrule
the longstanding principle, articulated in those cases, that Tennessee courts have no authority to
vacate an annexation based on procedural defects, except insofar as those defects bear on the
questions presented in a timely filed quo warranto action.” [At 10]
The Highwoods court did declare that Count 2 of the plaintiff’s complaint that the effect of
the annexation resulted in unequal taxes in different areas of the annexation, in violation of Article
II, Section 28 of the Tennessee Constitution, could go forward under the Declaratory Judgment Act
suit (even though the court rejected the unequal tax claim). The reasons were obviously that the
claim was a constitutional one, and that “Moreover, the Plaintiff’s allegations in Count 2 challenge
the taxation scheme incident to the annexation and not to the propriety of the annexation itself.” [At
11]
But the facts that apply to the proposed annexation by City A, City B, and City C,
proposed an annexation so legally absurd on its face, and one which the Tennessee Supreme Court
obviously did not contemplate any city would attempt when it handed down Bristol v. Earhart, and
Highwoods, above. But let me make two points here:
1. Bristol v. Earhart clearly allows a property owner to challenge annexations where the
annexation of his property is attached to illegal annexations done years before. It escapes me why
a city would want to jeopardize future annexations that attach to a one foot wide corridor that
meanders down county roads for several miles.
2. While one can argue that under Bristol v. Earhart and Highwoods, nobody would have
immediate standing to challenge to those cities’ annexation of the quarry under the Declaratory
Judgement Act, it would defeat the language in those cases to give that Act such a reading. Both
cases stand for the promotion that the Declaratory Judgments Act applies when there are no other
remedies to an illegal annexation. That is exactly the position all the residents of whichever city
annexed the quarry would find themselves: no remedy to an annexation that would clearly be
noncontiguous to the city, whether the annexation were done by ordinance or referendum. .
The problem with using the Declaratory Judgements Act is that case law applying that Act
requires the person making the challenge to the government action at issue to have standing.
Generally, in order to achieve standing, a person must be able to show that he is injured by the
action of the government in a way that is not common to the general public. It is not clear to me
what kind of injury a person who is not a resident of the annexed area could show to achieve
standing. But it has been held that the Act is to be given a broad interpretation. Given the
egregious circumstances surrounding the annexation, it is difficult to believe that the Tennessee
courts would simply throw up their hands if the annexation were challenged by any organized
group (and perhaps even person) owning property or residing around the quarry or maybe even
along the one foot annexed strip of land. Indeed, Bristol v. Earhart itself contains language broad
enough for those courts to find standing on the part of such groups and even individuals.
3. The case of City of Harriman v. Roane County Election Commission (and, I presume,
the proposed annexation of the quarry that City A, City B, and City C are considering) has
generated legislation asking the General Assembly to prohibit municipal annexations outside their
Urban Growth Boundaries.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/