December 10, 2015
Dear Sirs,
It was a pleasure meeting with you. During our meeting, you requested the following information:
1. What is the process for amending an urban growth boundary? T.C.A. § 6-58104(d)(1) provides that the process for amending an urban growth boundary is “the same
as the procedures in this section for establishing the original plan,” which is detailed
below.
2. Who has standing to challenge the annexation of any parcels by the city?
“Aggrieved owners of property,” which are the property owners within the territory to be
annexed, have authority to challenge the annexation.
3. For parcels within the urban growth boundary, what are the options and steps for
annexation of the parcel after the 2015 amendments to state law? Under the
legislation passed in 2015, two methods remain for annexation within a city’s UGB:
annexation by resolution and annexation by referendum.
Process for Amending the Urban Grown Boundary
First, you asked for the process of amending an urban growth boundary (“UGB”). David Connor,
formerly of CTAS, and Dennis Huffer, formerly of MTAS, collaborated in 2005 to provide a
detailed explanation of amending a UGB. Unlike most annexation processes from even last year,
the content found in Amending Comprehensive Growth Plans, 2005, is still current. I have
attached the full publication for your review. However, below is a short synopsis of the process.
1. Three year lapse since adoption. Three years after the original UGB was adopted by
the local government planning advisory committee (“LGPAC”) and absent
extraordinary circumstances, the growth plan may be amended as often as deemed
necessary by the county and cities. T.C.A. § 6-58-104(d)(1). After the requisite three
years, which has now passed for all cities, the process for amending the UGB is “the
same as the procedures in this section for establishing the original plan.” T.C.A. § 658-104(d)(1).
2. Develop and research proposed amendments. The city (or county) seeking the
amendment must research and examine several factors as outlined in T.C.A. § 6-58106(a)(2):
Before formally proposing urban growth boundaries to the
coordinating committee, the municipality shall develop and
report population growth projections; such projections shall be
developed in conjunction with the University of Tennessee. The
municipality shall also determine and report the current costs and
the projected costs of core infrastructure, urban services and
public facilities necessary to facilitate full development of
resources within the current boundaries of the municipality and
to expand such infrastructure, services and facilities throughout
the territory under consideration for inclusion within the urban
growth boundaries. The municipality shall also determine and
report on the need for additional land suitable for high density,
industrial, commercial and residential development, after taking
into account all areas within the municipality's current
boundaries that can be used, reused or redeveloped to meet such
needs. The municipality shall examine and report on agricultural
lands, forests, recreational areas and wildlife management areas
within the territory under consideration for inclusion within the
urban growth boundaries and shall examine and report on the
likely long-term effects of urban expansion on such agricultural
lands, forests, recreational areas and wildlife management areas.
In addition, T.C.A. § 6-58-106(a)(3) requires the city to hold two public hearings
prior to proposing the amendments:
Before a municipal legislative body may propose urban growth
boundaries to the coordinating committee, the municipality shall
conduct at least two (2) public hearings. Notice of the time, place
and purpose of the public hearing shall be published in a
newspaper of general circulation in the municipality not less than
fifteen (15) days before the hearing.
According to a 2003 opinion of the attorney general, the city does not need to
research or hold public hearings if no other city nor the county intends to respond
formally to the proposed change or propose an alternative amendment to the growth
plan of its own. Op. Tenn. Att’y Gen. 03-154 (Dec. 2, 2003).
3. Request consideration of amendment. To formally initiate the consideration of the
amendment, the city must file notices with the mayor of all other cities within the
county and with the county mayor. At that time, T.C.A. § 6-58-104(d)(1) requires the
coordinating committee (see composition listed below) to reconvene within 60 days
of the receipt of notice, and after using the same process for the original adoption as
outlined in T.C.A. § 6-58-106, the coordinating committee must then submit the
proposed amendment with its recommendation (either for or against) to each local
government’s legislative/governing body:
Upon receipt of such notice, the county mayor or county
executive shall take appropriate action to reconvene or reestablish
the coordinating committee within sixty (60) days of the receipt of
the notice. Except as provided for in this subdivision (d)(1), the
procedures for amending the growth plan shall be the same as the
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procedures in this section for establishing the original plan. The
burden of proving the reasonableness and necessity of the
proposed amendment shall be upon the party proposing the
change. It is the duty of the coordinating committee to submit the
proposed amendment with its recommendation either for or
against the amendment to the county legislative body and to the
governing body of each municipality within the county for their
approval or disapproval within six (6) months of the date of the
coordinating committee's first meeting on the proposed
amendment. After the proposed amendment is approved by the
county legislative body and the governing body of each
municipality and by the local government planning advisory
committee, the amendment shall become part of the county's
growth plan.
T.C.A. § 6-58-104.
4. Consideration and ratification. Each local legislative/governing body has 120 days
to ratify or reject and proposed amendments. If the body fails to act within 120 days,
the inaction is deemed as a ratification. If the county or any city rejects the
recommendation of the coordinating committee, the city is required to submit its
objections and reasons for the objections. The coordinating committee may then
reconsider, recommend a revised amendment, and resubmit the revised amendment to
the local governments for reconsideration. If the revised or recommended
amendment is also rejected, the coordinating committee may request that the
secretary of state provide an alternative method of dispute resolution.
5. Approval of LGPAC. If the amendment is ratified by all appropriate local
governments, approval by LGPAC is automatic. In all other cases, LGPAC must
examine the plan to ensure the plan meets the requirements of T.C.A. § 6-58-106.
6. Filing with county register’s office. After final approval by LGPAC, a copy is sent to
the county mayor for filing with the county’s register’s office.
Tennessee Code Annotated § 6-58-104(a)(1) specifies the composition of the coordinating
committee as the following:
(A) The county mayor or the county mayor's designee, to be confirmed by the
county legislative body; provided, that a member of the county legislative body
may serve as such designee subject to such confirmation;
(B) The mayor of each municipality or the mayor's designee, to be confirmed by
the municipal governing body;
(C) One (1) member appointed by the governing board of the municipally owned
utility system serving the largest number of customers in the county;
(D) One (1) member appointed by the governing board of the utility system, not
municipally owned, serving the largest number of customers in the county;
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(E) One (1) member appointed by the board of directors of the county's soil
conservation district, who shall represent agricultural interests;
(F) One (1) member appointed by the board of the local education agency having
the largest student enrollment in the county;
(G) One (1) member appointed by the largest chamber of commerce, to be
appointed after consultation with any other chamber of commerce within the
county; and
(H) Two (2) members appointed by the county mayor and two (2) members
appointed by the mayor of the largest municipality, to assure broad representation
of environmental, construction and homeowner interests.
As we previously discussed, T.C.A. § 6-58-118 allows the city to annex by referendum outside the
UGB without reconvening the coordinating committee if three requirements are met. T.C.A. § 658-118 provides:
A municipality may expand its urban growth boundaries to annex a tract of land
without reconvening the coordinating committee or approval from the county or
any other municipality if:
(1) The tract is contiguous to a tract of land that has the same owner and has
already been annexed by the municipality;
(2) The tract is being provided water and sewer services; and
(3) The owner of the tract, by notarized petition, consents to being included
within the urban growth boundaries of the municipality.
Standing to Challenge Annexation
Next, you asked who has standing to challenge an annexation. “Aggrieved owners of property,”
which are the property owners within the territory to be annexed, have authority to challenge the
annexation. The following from the 2014 MTAS Annexation Handbook provides a still-current
analysis:
“Aggrieved Owners of Property”
Under T.C.A. § 6-51-103(a)(1)(A) any “aggrieved owners of property” that
borders on or lies within the territory annexed have 30 days to challenge an
annexation. Notwithstanding the statutory language that gives abutting
landowners the right to challenge an annexation, State ex. rel. Cordova Area
Residents for the Environment v. City of Memphis, 862 S.W.2d 525 (Tenn.
App.1992), held that part of the statute unconstitutional. For that reason, only the
owners of property that lies within the territory proposed for annexation have
standing to challenge the annexation.
An aggrieved owner of property challenging an annexation loses his cause of
action upon his transfer of ownership of the property. McNamee v. City of
Knoxville, 824 S.W.2d 550 (Tenn. Ct. App. 1991).
A county that owned a mere easement in county roads in the territory sought to be
annexed was not an “aggrieved owner of property” within the meaning of T.C.A.
§ 6-51-103(a)(2)(A), held State ex rel. Kessel v. Ashe, 888 S.W.2d 430 (Tenn.
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1994). In that case, the county admitted that it did not own the fee to its roads.
The court distinguished Spoone v. Mayor of Morristown, 431 S.W.2d 827 (1968),
in which the court had earlier held that a county that owned the roads and a school
in the area proposed for annexation was an aggrieved owner of property. The
county’s interest in the roads in that case was not clear, and the question was
whether a legal person as well as a natural person could qualify as an “owner of
property” under T.C.A. § 6-51-103(a)(2)(A).
However, I will caution the city regarding future annexations. If, in the future, the city attempts to
annex a new parcel of property without the consent of the owner and the city uses property that
was annexed improperly as the means of making the new property contiguous to the municipal
border, the owner of the property that is being proposed for annexation could challenge the
previous annexation.
Post-2015 Process for Annexation
Finally, you asked what process may be used for annexation after the 2015 amendment to
annexation. Under the legislation passed in 2015, two methods exist for annexation within a city’s
UGB: annexation by resolution and annexation by referendum.
Annexation by Resolution
After being petitioned by the property owner, the city may propose annexation of the property by
resolution under T.C.A. § 6-51-104. Please note that property that is being primarily used for
agricultural purposes may only be annexed by resolution with the owner’s consent. T.C.A. § 6-51104(a). Below is a synopsis of the process:
1. The landowner will need to petition the city in writing for annexation of that
portion of the land that he is seeking to have annexed.
2. The city’s governing body then must pass a resolution for proposed
annexation in accordance with T.C.A. § 6-51-104. The resolution must include a
proposed plan of services and the plan of services must meet the requirements set
out in T.C.A. § 6-51-102.
3. The proposed plan of services and proposed resolution for annexation shall
then be “promptly” sent to each landowner within the area proposed for
annexation. Please refer to the language in T.C.A. § 6-51-104(b)(1)(A) related to
the type of notice that must be provided regarding the proposed resolution for
annexation.
4. After the resolution for proposed annexation that includes a proposed plan of
services is sent to the effected landowners, the city must send the proposed plan
of services to the planning commission for review, if there is a planning
commission. T.C.A. § 6-51-102(b)(4). The planning commission has 90 days to
study the proposed plan of services and issue a report on it.
5. Additionally, the city must have a public hearing on the proposed plan of
services that is noticed in accordance with the language in T.C.A. § 6-51102(b)(4) and T.C.A. § 6-51-101(3).
6. If the municipality does not maintain a separate school system, written notice
of the proposed annexation must be sent to all affected school systems as soon as
possible, but no later than thirty days prior to the public hearing referenced above.
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7. Once the plan of services is finalized, the city’s governing body must approve
a resolution of annexation that includes the finalized plan of services.
8. Upon adoption of the annexation resolution that includes the finalized plan of
services, a copy of the resolution is to be sent to the county mayor in whose
county the property being annexed is located. T.C.A. § 6-51-104(b)(1)(A).
9. The city then needs to have the resolution, which describes the property that
was annexed, recorded with the county property assessor. A copy of the resolution
is to be sent to the Comptroller of the Treasury and the county property assessor.
See T.C.A. § 6-51-121 which only mentions annexation by referendum, but
should also be done for annexation by consent.
Annexation by Referendum
The process for annexation by referendum is much like annexation by resolution except that
ultimately the issue of whether to annex is decided by the voters who reside within the territory to
be annexed. The process as set forth in T.C.A. §§ 6-51-104 – 6-51-105 is as follows:
1. The city’s governing body must pass a resolution for proposed annexation in
accordance with T.C.A. § 6-51-104. The resolution must include a proposed plan
of services and the plan of services must meet the requirements set out in T.C.A. §
6-51-102.
2. The proposed plan of services and proposed resolution for annexation shall
then be “promptly” sent to each landowner within the area proposed for
annexation. Please refer to the language in T.C.A. § 6-51-104(b)(1)(A) related to
the type of notice that must be published regarding the proposed resolution for
annexation.
3. After the resolution for proposed annexation that includes a proposed plan of
services is sent to the effected landowners, the city must send the proposed plan
of services to the planning commission for review, if there is a planning
commission. T.C.A. § 6-51-102(b)(4). The planning commission has 90 days to
study the proposed plan of services and issue a report on it.
4. Additionally, the city must have a public hearing on the proposed plan of
services that is noticed in accordance with the language in T.C.A. § 6-51102(b)(4) and T.C.A. § 6-51-101(3).
5. If the municipality does not maintain a separate school system, written notice
of the proposed annexation must be sent to all affected school systems as soon as
possible, but no later than thirty days prior to the public hearing referenced above.
6. Once the plan of services is finalized, the city’s governing body should pass a
resolution to place the question on the ballot that includes the finalized plan of
services.
7. After 30 days, but prior to 60 days after such publication as described in
T.C.A. § 6-51-104(b)(1)(A) (see #2 above), the city must submit the proposed
annexation to the county election commission for an election to be held at the
city’s request and expense. T.C.A. § 6-51-105(a). The questions will have
possible answers of “For Annexation” and “Against Annexation.” T.C.A. § 6-51105(c). In addition, the city may submit the question to all qualified voters in the
municipality. In which case, both the majority of those residing within the
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territory and a majority of those voting in the municipality must approve the
referendum. T.C.A. § 6-51-105(e).
8. After certification of the election referendum results to the city, the city must
forward a copy of the certification to the county mayor in whose county the
property being annexed is located. T.C.A. § 6-51-105(d).
9. If a majority of the voters approve the annexation, it becomes effective thirty
days after certification of the election. The city needs to have the resolution,
which describes the property that was annexed, recorded with the county property
assessor. A copy of the resolution is to be sent to the Comptroller of the Treasury
and the county property assessor. T.C.A. § 6-51-121.
It is my understanding that the city is considering annexation of a parcel within the UGB that is
surrounded by parcels already within the city. The city may use either annexation by referendum
or annexation by resolution for this process. However, if the parcel is not occupied by a resident,
the landowner will need to petition for annexation by providing his/her written consent to be
annexed, as there will be no resident available to vote in a referendum.
With warmest regards,
Stephanie K. Allen
Legal Program Manager
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