January 14, 2004
Dear Mayor:
You and other city officials have the following questions. The answers to some of them
reflect almost pure guess work. No one would dispute the proposition that Chapter 1101 is not a
model of legislative draftsmanship. In addition, predictions that it would create a blizzard of
litigation that would result in the interpretation of at least some of its provisions did not
materialize.
QUESTION 1
Because under Chapter 1101, the County growth plan reflects the annexation reserve
agreements made between the political entities in the county, rather than the division of the
county into urban growth boundaries, planned growth areas, and rural areas, do the provisions of
Chapter 1101 regarding the establishment of urban growth boundaries and the extension of urban
services apply to the County’s annexation reserve areas?
ANSWER
A. Provisions of 1101 regarding the establishment of urban growth boundaries in
annexation reserve areas:
It appears to me that the annexation reserve areas of the political entities in the County
became the urban growth boundaries for those entities, and that the same provisions in Chapter
1101 that govern urban growth boundaries, apply to such annexation reserve areas. Tennessee
Code Annotated, ' 6-58-104(a)(7)(A)B(B), says:
(7)(A) Notwithstanding any provisions of this chapter or any other
provision of the law to the contrary, any annexation reserve
agreement or any agreement of any kind either between
municipalities or between municipalities and counties setting out
areas reserved for future municipal annexation and in effect on
May 19, 1998, are ratified and remain binding and in full force and
effect. Any such agreement may be amended from time to time by
mutual agreement of the parties. Any such agreement or
amendment may not be construed to abrogate the application of
any provision of this chapter to the area annexed pursuant to the
agreement or amendment.
January 14, 2004
Page 2
(7)(B) In any county with a charter form of government, the
annexation reserve agreements in effect on January 1, 1998, are
deemed to satisfy the requirements of a growth plan. The county
shall file a plan based on such agreements with the committee.
Although Chapter 1101 nowhere expressly says that in counties having a charter form of
government the annexation reserve areas are the urban growth boundaries, that is its strong
implication. Tennessee Code Annotated, '6-58-107 says that not later than July 1, 2001, a
growth plan for “each county” shall be submitted to and approved by the local government
planning advisory committee in accordance with Tennessee Code Annotated, ' 6-58-104. The
growth plan, continues the same statute, “shall include, at a minimum, documents describing and
depicting municipal corporate limits, as well as urban growth boundaries, planned growth areas,
if any, and rural areas, if any, approved in conformance with the provision of ' 6-58-104.”
Tennessee Code Annotated, ' 6-58-101(6), also defines “Urban growth boundary” as line
encompassing territory established in conformance with the provisions of ' 6-58-106(a), and
approved in accordance with the requirements of ' 6-58-104. Finally, Tennessee Code
Annotated, ' 6-58-104(d)(2), provides that, “In any county with a charter form of government
with annexation reserve agreements in effect on January 1, 1998, any municipality or the county
may immediately file a proposed amendment [to the growth plan] after May 19, 2998.” Those
statutes indicate that Tennessee Code Annotated, ' 6-58-104(B) simply permits the urban growth
boundaries in charter counties to reflect the annexation reserve agreements.
B. Provisions of 1101 regarding the extension of urban services in annexation reserve
areas:
As pointed out above, Tennessee Code Annotated, ' 6-58-104(a)(7)(A), says that, “any
such [annexation reserve] agreement or amendment may not be construed to abrogate the
application of any provision of this chapter to the areas annexed pursuant to the agreement or
amendment.” There is no exception made in Chapter 1101 for annexation reserve areas in
charter counties. Moreover, the public policy stated for Chapter 1101 stated in Tennessee Code
Annotated, includes, “With this chapter the general assembly intends to establish a
comprehensive growth policy for this state that: ....(3) more closely matches the timing of
development and the provision of public services.”
QUESTION 2
Is there a definition of “reasonable time” for the extension of sewer service?
ANSWER
January 14, 2004
Page 3
I can find no Tennessee cases, or cases from any other jurisdiction, interpreting that
phrase in that context.
Tennessee Code Annotated, ' 6-51-102(b)(1), provides that:
Before any territory may be annexed under this section by a
municipality, the governing body shall adopt a plan of services
establishing at least the services to be delivered and the projected
timing of services. The plan of services shall be reasonable with
respect to the scope of services to be provided and the timing of the
services.
Tennessee Code Annotated, ' 6-51-102(b)(2) provides for the list of services that the
plan of services “shall include.....” Tennessee Code Annotated, ' 6-51-102(3) then declares that,
“The plan of services shall include a reasonable implementation schedule for the delivery of
comparable services in the territory to be annexed with respect to the services delivered to all
citizens of the municipality.” However, Tennessee Code Annotated, ' 6-58-103, expresses the
purposes of Chapter 1101, one of which is: “(3) More closely matches the timing of development
and the provision of public services.” In addition, Tennessee Code Annotated, ' 6-58-107,
provides that the land use decisions must be consistent with the growth plan (whatever that
means), and that the “goals and objectives of growth plan include the need to:....(3) Establish an
acceptable and consistent level of public services and community facilities and ensure timely
provision of those services and facilities.” Finally, Tennessee Code Annotated, ' 6-58106(a)(1), which provides for how urban growth boundaries are supposed to be defined, declares
that “(D) Identify territory in which the municipality is better able and prepared than other
municipalities to efficiently and effectively provide urban services....”
Chapter 1101 is silent with respect to what constitutes what is reasonable either as to the
scope of services or as to the timing of the services. Surprisingly, there have been no reported or
unreported cases on those two questions since the passage of Chapter 1101. (The unreported
case of State ex rel. Boren v. Town of Orlinda, 2000 WL 1514296 (Tenn. Ct. App.) held that the
City of Orlinda’s annexation of certain territory was unreasonable under the annexation law as it
existed before Chapter 1101 was adopted, mostly because the city’s plan of services proposed
few services not already being provided by the City of Portland, and did not even include sewer
services.) It can be argued that under Tennessee Code Annotated, ' 6-51-102(3), a plan of
services need not provide for every service listed in Tennessee Code Annotated, ' 6-51-102(2),
only services “comparable” to the services received by all other citizens of the city, but read
together, the above statutes that speak of the purposes and policies of Chapter 1101 suggest that
January 14, 2004
Page 4
it was the intention of Chapter 1101 that in urban growth boundaries (where urban growth is
supposed to occur) that annexed areas get urban services within some reasonable period. It is
difficult to believe that urban services does not include utilities, including sewer service.
It was held in pre-Chapter 1101 cases that courts and juries were allowed to consider a
number of factors in determining whether an annexation ordinance was reasonable, and those
factors were not exclusive. In State ex rel. Collier v. City of Pigeon Forge, 599 S.W.2d 545
(Tenn. 1980), it was said that:
While other factors may be considered, the primary test of the
reasonableness of an annexation ordinance must be the planned
and orderly growth and development of the city, taking into
consideration the characteristics of the existing city and those of
the area proposed for annexation. [At 548]
That test was vague and elastic. I suspect the same thing will be true of any post-1101
cases regarding the reasonableness of plans of services. Courts have adopted the “totality of
circumstances test” in many areas to determine whether something does or does not meet a vague
standard in the law. That test is probably the one the courts will apply to plans of services.
However, the policy and letter of chapter 1101 undoubtedly reflects the intent of the general
assembly to strengthen the plan of services provisions of the old annexation to insure that city
services available in existing parts of cities were provided on a timely basis to annexed areas.
Precisely what that intent means in any given case probably does depend upon the “totality of
circumstances.” More will be said about that in the next question.
QUESTION 3
Upon annexation of an area, does the city have a responsibility to provide sewer service
to a previously developed area with approved septic systems already in place?
ANSWER
At first glance, Under Chapter 1101, the answer is no; the plan of services provision of
that law is concerned only with the provision of municipal services to annexed areas of the cities.
However, if a city provides utility services to a newly annexed area without providing the same
service in existing parts of the city, under circumstances that are difficult, if not impossible to
determine in advance, the city could conceivably be guilty of the discriminatory provision of
sewer service. In a left-handed way, Chapter 1101 can even be used to support that claim.
The ANSWER to QUESTION 3 points to several statutes that cite the purposes and policies of
Chapter 1101 indicating and intent in Chapter 1101 that public services be consistent within
January 14, 2004
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urban growth boundaries (and planned growth areas and rural areas). If that is true, a person in
the existing part of the city could make a left-handed claim that a city providing utility services in
annexed areas under Chapter 1101 but which he does not get is aided by Chapter 1101 in his
complaint of discrimination.
Within a city, the extent to which is allowable for the city to provide utility services to
one class of citizens and not to another, depends upon a number of actors. The treatment of the
question of whether and under what conditions a municipality can be required to extend utility
systems to equalize the provision of utility services is covered in 48 ALR2d 1222. As that
treatise points out, generally municipalities have considerable discretion in the provision of
utility services, usually based on the difficulty and cost of providing the service in question. The
rule in Tennessee is similar. It is not at all clear what impact Chapter 1101 would have on that
rule.
Some Tennessee cases contain broad language that at first glance seem to say that all
inhabitants of a city are entitled to utility service under the same conditions, but those cases
involve the question of whether the municipality could refuse to turn on the water already piped
to a particular establishment for one reason or another, not main extensions. [J.W. Farmer v.
Mayor and City Council of Nashville, 127 Tenn. 509 (1912); Watauga Water Co. v. Wolfe, 99
Tenn. 429 (1897); Crumley v. Watauga Water Co, 99 Tenn.419 (1897). But even those cases
permit reasonable classifications of service. Crumley, citing with approval a Nebraska case,
declares that the duty of a private water company "is to furnish water at reasonable rates to all the
inhabitants of the municipal corporation, and to charge each inhabitant for water furnished the
same price it charges every other inhabitant for the same service, under the same or similar
conditions. [At 425] The same rule with respect to a public water plant was announced in
Farmer, citing Wolfe:
... such a water company is charged with the public duty of
furnishing water to all the inhabitants of the city of its location
alike, without discrimination, and without denial, except for good
and sufficient cause; but that such a company may adopt
reasonable rules for the conduct of its business, and the operation
of its plant.... [At 515]
With respect to the obligation of a public utility to provide main extensions the
dispositive case is probably Chandler Investment Co. v. Whitehaven Utility District, 311 S.W.2d
603 (1958). There the Court made two important points. First, it agreed with the general
proposition that:
January 14, 2004
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a franchise holder may not deprive a potential customer of needed
water, power, lights or any other utility when the holder of the
franchise is not in a position to supply that which was
contemplated it should have available under the terms of the
franchise. Likewise, we agree with the insistence of the appellant
that the rights under a franchise may be lost by a non-user [citing
42 Am.Jur., Public Utilities, Section 20.]
Second, it outlined the considerations that go into the question of whether a utility is
required to make a main extension where the franchise or charter does not require the provision
of utility service to all potential customers. The Court's language on this point is worth quoting
at length:
In the absence of an express provision in the franchise or charter
obligation of a public service company requiring it to furnish the
designated service to every inhabitant of such territory, the right of
an inhabitant of such territory to demand an extension of service
for his benefit is not absolute and unqualified but is to be
determined by the reasonableness of the demand therefor under the
circumstances involved. [Emphasis is mine.] The law on this
questionseems to be well-stated in 42 Am.Jur. page 602, and we
quote from said work as follows: 43 Am.Jur.--Public Utilities and
Services--"Sec. 48. Reasonableness of Demand for Extension.-[Which is now found in 64 AmJur2d, sec. 44] The right of an
inhabitant or group of inhabitants of a community or territory
serviced by a public service company to demand an extension of
service for their benefit is not absolute and unqualified, it is to be
determined by the reasonableness of the demand therefor under the
circumstances involved. The duty of a public service company to
extend its service facilities, and the reasonableness of a demand for
such extension, depends, in general, upon the need and cost of such
extension, and the return in revenue which may be expected as a
result of the extension; the financial condition of the utility; the
advantages to the public from such an extension; and the franchise
or charter obligation to make such extension. In this last respect, a
water company may be compelled to extend its mains so as to
supply all the inhabitants of the municipality by which it is
franchised, if its charter requires it to do so. Furthermore, although
a franchise ordinance provides that a water company need not
extend its water mains along any ungraded street or alley, if the
January 14, 2004
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company has voluntarily extended its main along such a street, it
cannot refuse to supply a customer thereon, on the theory that it
was compelled to build along the street in the first place.
In regard to the reasonableness of the cost which an extension will
entail, it is not necessary that a particular extension of service shall
be immediately profitable, or that there shall be no unprofitable
extensions, the criterion being generally whether the proposed
extension will place an unreasonable burden upon the utility as a
whole, or upon existing consumers. As to the costs involved in
making an extension, various elements, such as the type or quality
of construction to be used and the use of any existing equipment or
facilities, enter into the determination of this matter. But while the
utility cannot fix the limits of the proposed extension at territory
which will yield an immediate profit, and, on the other hand,
cannot be required to make unreasonable extensions, there is a
point midway between these extremes at which the utility may
require of the proposed customer assistance in the necessary outlay
in furnishing the service. In this respect, various methods have
been adopted, depending upon the circumstances of the particular
cases, in determining the amount of the contribution or assistance
which may be required. It has been held, however, that the utility
cannot compel prospective customers to purchase stock as a
condition precedent to extending its service. [At 611-612]
Tennessee Code Annotated, '7-35-401 et seq. does not require such a scope of
service. Indeed, Tennessee Code Annotated, ' 7-35-414 requires that it is the duty of the board
of water and sewer commissioners:
by ordinance, to establish and maintain just and equitable rates and
charges for the use of and the service to be rendered by such
waterworks and/or sewage system, to be paid by the beneficiary of
the service. Such rates and charges shall be adjusted so as to
provide funds sufficient to pay all reasonable expenses of
operation, repair and maintenance, provide for a sinking fund for
payment of principle and interest on bonds when due, and maintain
an adequate depreciation account, and they may be
readjusted as necessary from time to time by amendment to the
ordinance establishing the rates then in force... [Emphasis is
mine.]
January 14, 2004
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Further, Tennessee Code Annotated, ' 7-35-416 provides that municipalities may enter
into service contracts "with one or more other cities or towns or with corporations, firms, or
individuals to furnish service by such works...but only to the extent of the capacity of the
works...."
Those two provisions collectively suggest that the statute does not require utility service
to be furnished to all residents of the city on demand. They do suggest that the city can require
the recipients of water and sewer service to pay for the main extensions, that the city can
take into consideration the capacity of the utility plant when making extension decisions, and that
the city is required to adopt by ordinance reasonable rules and regulations governing the
provision of such service. In addition, City of Parson v. Perryville Utility District, 594 S.W.2d
401 (Tenn. Ct. App. 1979) holds that a municipality has a continuing duty to revise service rates
to insure the utility system is self-supporting and the rates equitable. The cost of main extensions
probably constitute "rates and charges" within the meaning of Tennessee Code Annotated, '
7-35-404.
But it needs to be re-emphasized that Tennessee Code Annotated, ' 7-35-414 requires
that the criteria establishing any priority of service be reflected in an ordinance.
QUESTION 4
The City is considering the establishment of “Estate Residential” and/or “Agricultural”
zoning districts when annexing certain areas which may already be developed, or set aside for
development, as single family residential lots of two acres and up. Under the annexation plan of
services, in such districts all municipal services, except sewer service will be extended upon
annexation by the city. Would such a plan of services be legally defensible?
ANSWER
I doubt that such a plan of services would be legally defensible, unless such districts exist
in the existing part of the city. In the ANSWERS to QUESTIONS 2 and 3, I have already
pointed to the purposes and policy provisions of Chapter 1101 that suggest that Act contemplates
the provision of all municipal services in annexed areas that are available in the existing cities on
some kind of reasonable schedule. But even if that is true it is difficult to determine exactly how
such a rule would work in individual cases.
Unfortunately, there are few cases directly on the question of under what circumstances a
municipality is required to extend sewer service in annexed areas, even where a statute requires
such service. In addition, the primary case in this area involves an annexation law whose plan of
services provision does not appear as emphatic as does the plan of service provisions of Chapter
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1101. In State ex rel. Cox v. City of Raymore (Mo. Ct. App. 1987), the city, in its petition to
annex certain territory, declared:
That the city is able to furnish normal municipal services of the
city in the manner provided in the city ordinances to all of said
areas within a reasonable time after annexation, including, but not
restricted to, fire protection, police protection, municipal water
service, and health protection; and is, in fact, already furnishing
many of these services to most of said areas at the present time.
Apparently annexation is a judicial function in Missouri, for the trial court granted the city’s
annexation petition, finding that, “The plaintiff will be able to provide its normal municipal
services to its citizens within the annexed area within a reasonable time after such annexation...”
[At 911]
After being denied water service by the city in the annexed area, Cox petitioned for a writ
of mandamus requiring the city to provide the service, arguing that the city was required to
provide that service as a result of its annexation petition, and the judicial degree granting the
petition. The Court did not agree, declaring that, “All that was required in the Sawyers Act
proceeding was that the city allege that it would be able to provide its normal municipal service
within a reasonable time after annexation, not that it was bound to do so.” [At 911] The Court
reasoned that:
What this case turns on is the issue of whether the furnishing of
water service is ministerial or a discretionary act of the City.
Although appellants’ property lies within the City’s corporate
limits, it has been rather uniformly held that, although there exists
a basic underlying obligation of a city owning general domestic
water system to supply all applicants in substantially like position
to those being served, a city cannot be compelled to extend its
system at the instance of a prospective customer. This is because a
municipality exercises a discretionary function in deciding whether
or not to extend its system to an entirely new section within its
territorial limits.... [At 911]
No matter what it may have promised in its petition for annexation, mandamus was not an
appropriate remedy because the city still had the discretion to extend water service, based, the
Court continued, on a number of factors, including physical remoteness of the locality in which
service is sought and disproportionate expense is involved. There was no evidence in this case,
concluded the court, of where in the city’s corporate limits appellant’s property was located or
how far from existing water lines it is, or anything as to the cost of providing them service. [At
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911] [Also see Schriever v. Mayor and City Council of Cumberland, 181 A. 433 (Ct. App. Md.
1935)].
Cox v. City of Raymond raises a fascinating question as to the real impact of the plan of
services provisions of Chapter 1101, at least in individual cases. But the plan of services
provisions in Chapter 1101 appears to considerably limit a municipality’s discretion complying
with a plan of services. It provides that “An aggrieved owner of property” in the annexed area
can bring an equitable case to enforce the plan of services after six months following the
effective date of the annexation ordinance. The court’s remedies are broad. If it finds that the
municipality has materially and substantially failed to comply with its plan of services for the
territory in question, without any excuse that is consistent with Tennessee Code Annotated, ' 651-108, the court “shall” issue a writ of mandamus to compel the municipality to provide the
services contained in the plan, and enjoin the court from further annexations until it complies
with the plan.
But what is in, or is not in, the plan of services might be an issue only with respect to a
challenge of the annexation ordinance. Under Tennessee Code Annotated, ' 6-58-111 and 6-51103(a)(2)(B), after the adoption of the growth plan, a property owner residing in the territory
proposed for annexation may challenge the annexation on the ground that it is unreasonable.
Although the growth plan must be reasonable as to the scope and timing of services, there
appears to be nothing in Chapter 1101 that permits the challenge of the plan of services on the
grounds that it is unreasonable, except insofar as the unreasonableness of the growth plan makes
the annexation unreasonable. Under Tennessee Code Annotated, ' 6-58-109, after the effective
date of the annexation ordinance, the remedy of a property owner in annexed territory unhappy
with the plan of services is enforcement of the plan of services. There appears to be nothing in
Chapter 1101 that gives the courts the right to amend a plan of services that it may feel is
unreasonable.
Cathy v. City of Dickson, 2002 WL 970429 (Tenn. Ct. App.), touches the edge of this
question, but is not particularly helpful. There Cathy sued the City of Dickson, claiming the
latter’s annexation of her property was unreasonable. The city repealed the ordinance, but she
persisted, demanding that the city be barred from annexing her place for 24 months under
Tennessee Code Annotated, ' 6-51-103. One of her arguments was that the plan of services
contained no implementation schedule and that the city had no plans for providing services that
she claimed the city acknowledged were needed. What services were at issue is not indicated in
the case. But the Court denied her relief, declaring that the city’s repeal of the annexation
ordinance rendered her ' 6-51-103 claim moot. In doing so, the Court did point to the plan of
services provisions in Tennessee Code Annotated, ' 6-51-102, declaring that:
The code requires that “the governing body shall adopt a plan of
services establishing at least the services to be delivered and the
projected timing of the services. The plan of services shall be
reasonable with respect to the scope of services to be provided and
January 14, 2004
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the timing of the services.” Tenn. Cod. Ann. ' 6-51-102(b)(1)
(1998). Section 102(b)(2) lists the minimum services to be
included in such plan. Tenn. Code Ann. ' 6-51-102(b)(2) (1998).
But the reasonableness of the plan of services came up in this case only as part of a claim
that the annexation ordinance was unreasonable, not as a separate claim that the plan of services
was not reasonable and that somehow could be fixed by the Court.
QUESTION 5
Would consolidation of the City and County governments affect the annexation reserve
areas established prior to, and revised during, the Chapter 1101 planning process? I assume that
this question contemplates the city, and other cities remaining separate entities within the
metropolitan government.
ANSWER
Like other questions addressed in this letter, this is a difficult one to answer. Tennessee
Code Annotated, ' 6-58-103(a) says, “The provisions of this chapter do not apply to any county
having a metropolitan government...” Section 2 of Chapter 1101 created a new chapter 58 of
Title 6 of Tennessee Code Annotated, consisting of '' 3 through 16 of Chapter 1101. For that
reason, “this chapter” referred to in Tennessee Code Annotated, ' 6-58-103(a), above applies to
Tennessee Code Annotated, title 6, chapter 58. It seems clear, then, that Tennessee Code
Annotated, title 6, chapter 58, did not apply to existing metropolitan governments. But
Tennessee Code Annotated, ' 6-58-103(b) speaks of metropolitan charter commissions created
after the adoption of Chapter 1101, and the effect of the failure of a metropolitan charter created
by such a charter commission to be adopted with respect to other provisions of Chapter 1101, it
appears that Tennessee Code Annotated, ' 6-58-103 also takes metropolitan governments
created after the adoption of Chapter 1101 out from under Tennessee Code Annotated, title 6,
chapter 58.
But even if that is so, what is the effect of that fact on annexation reserve agreements in
charter counties that were “blessed” by Tennessee Code Annotated, title 6, chapter 58,
specifically ' 6-58-(a)(7)(A). That provision reads as follows:
Notwithstanding any provision of this chapter or any other
provision of law to the contrary, any annexation reserve agreement
or any agreement of any kind between municipalities or between
municipalities and counties setting out areas reserved for future
municipal annexations and in effect on May 19, 1998, are ratified
and remain binding and in full force and affect. Any such
agreements or amendment may be amended from time to time by
mutual agreement of the parties....
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That statute produces a strong argument that it was not the intent of the General
Assembly in taking metropolitan government out from under Tennessee Code Annotated, title 6,
chapter 58, that the annexation reserve agreements preserved under the authority of that very
statute, would fall with the creation of a metropolitan government.
I am at a loss to figure out what would happen if a metropolitan government were created
in which some of the municipalities in the county that have annexation reserve agreements
joined, and some municipalities in the county that have annexation reserve agreements did not
join. In metropolitan governments the county and municipal governments are merged. [Frazier v.
Carr, 360 S.W.2d 449 (1962); Templeton v. Metropolitan Government, 650 S.W.2d 743 (Tenn.
Ct. App. 1983). Tennessee Code Annotated, ' 7-3-101, which is part of the Metropolitan
Government Charter Law, also says:,
Any metropolitan government created and established hereunder
shall acquire and succeed to all rights, obligations, duties and
privileges of the county and of the cities consolidating; and,
without the necessity of formality of deed, bill of sale, or other
instrument of transfer, the metropolitan government shall become
the owner of all property previously belonging to the county and
cities.
In light of those cases and that statute, I am not sure how municipalities that do not join the
metropolitan government would enforce annexation reserve agreements with respect to
municipalities that do join the metropolitan government. I assume that such agreement would be
enforced against the metropolitan government.
QUESTION 6
Can an area that was annexed prior to Chapter 1101 bring suit to enforce compliance with
the plan of services that was prepared for that area?
ANSWER
The answer is no, at least under Chapter 1101, unless the annexation ordinance at issue
was not final on November 25, 1997.
Under the pre-1101 annexation law, the plan of services provision expressly gave
property owners in annexed areas a limited remedy when a municipality did not comply with its
plan of services: the right to file a suit for mandamus to require the publication of progress
reports on the plan of services required by Tennessee Code Annotated, ' 6-51-108. However, it
may be possible in some circumstances for such property owners to file suits on the grounds of
January 14, 2004
Page 13
discriminatory provision of municipal services. But with respect to municipal services under preChapter 1101, the cases holding that municipalities still retain discretion as to the extension of
such services in annexed areas might apply. [See State ex rel Cox v. City of Raymore, 723
S.W.2d 910 (Mo. Ct. App. 1987). That case is analyzed in the answer to QUESTION 4.]
QUESTION 7
Can an annexation be prohibited because the plan of services for an area that was annexed
before Chapter 1101 has not been completed?
ANSWER
The answer is not clear. Under Tennessee Code Annotated, ' 67-51-102(b)(5), “A
municipality many not annex any other territory if the municipality is in default on any prior plan
of services.” That statute does not distinguish between plans of services adopted prior to Chapter
1101 and after 1101.
It has been held that a statute that creates a new right, takes away a vested right, or
impairs contractual obligations violates Article I, '20, of the Tennessee Constitution, and is,
therefore, invalid. [Collier v. Memphis Gas Light & Gas Water Div., 657 S.W.2d 771 (Tenn. Ct.
App. 1983); Anderson v. Memphis Housing Authority, 534 S.W.2d 125 (Tenn. Ct. App. 1975)]
But Article I, ' 20 probably does not apply to the right of the state to regulate its political
subdivisions. However, generally, under the rules of statutory construction statutes operate only
prospectively, unless a clear, unequivocal contrary intent is evidenced in their provisions, and
when a statute is capable of being read to apply either retrospectively or prospectively, it will be
read to apply prospectively. [Hannum v. Bank of Tennessee, 41 Tenn. 398 (1860); Woods v.
TRW, Inc., 557 S.W.2d 274 (Tenn. 1977); Kee v. Shelter Ins., 852 S.W.2d 226 (Tenn. 1993);
James Cable Partners v. City of Jamestown, 43 F.3d 277 (6th Cir. 1995); Westland Drive Serv.
Co. v. Citizens & S. Realty Investors, 558 S.W.2d 439 (Tenn. Ct. App. 1977); Menefee Crushed
Stone Co. v. Taylor, 760 S.W.2d 223 (Tenn. Ct. App. 1988), and many other cases]. Neither
Tennessee Code Annotated, ' 6-51-102(b)(5), nor any other provision in Chapter 1101 that I can
find unequivocally says the former applies retrospectively; therefore, under the rules of statutory
construction, arguably, it should be read to apply only to plans of services adopted after Chapter
1101
QUESTION 8
Tennessee Code Annotated, ' 6-51-101(a)(3)(A) prohibits a city with a population
greater than 10,000 from increasing its land area more than 25% in a 24 month period by
annexation by ordinance on its own initiative. If a group of citizens petition the city to annex an
area and the city annexes the area by ordinance based on the citizen petition, would the annexed
area count towards the 25% limit?
January 14, 2004
Page 14
ANSWER
Probably not.
Chapter 1101 clearly recognizes two distinct forms of annexation by ordinance.
Tennessee Code Annotated, section 6-51-102(a)(1), provides that:
A municipality, when petitioned by a majority of its residents and
property owners of the affected territory, or upon its own initiative
when it appears that the prosperity of such municipality and
territory will be materially retarded and the safety and welfare of
the inhabitants and property engaged, after notice and public
hearing, by ordinance, may extend its corporate limits by
annexation of such territory adjoining its existing boundaries...
[Emphasis is mine.]
Public Acts 1998, Chapter 1101, did not amend Tennessee Code Annotated, section 6-51102(a)(1); it remains as it stood before that passage of that Act.
It is worthwhile to note that ' 9(e) of Chapter 1101, provides with respect to annexation
into other counties, that a city can by “ordinance upon its own initiative” annex territory only in
the county in which its city hall is located, except in certain circumstances. Let us assume that '
9(e) is ambiguous on the question of whether “upon its own initiative” also applies to annexation
by petition of citizens in territory in a county outside the city. The Tennessee courts have said
that under the rules of statutory construction:
Our role in construing statutes is to ascertain and give effect to the
legislative intent without unduly restricting or expanding a statute’s
coverage beyond its intended scope. [Citation omitted.] We must
determine the legislative intent, whenever possible, from the plain
language of the statute, ‘read in the context of the entire statute,
without any forced or subtle construction which would extend or
limit its meaning.’ [Citation omitted.] Moreover, statutes’in pari
materia’--those relating to the same subject or having a common
purpose--must be construed together, and the construction of one
statute, if doubtful, may be aided by considering the words and
legislative intent indicated by the language of another statute.
[Citations omitted.] Finally, the Legislature is presumed to have
knowledge of its prior enactments, and to know the state of the law
at the time it passes legislation. [Citation omitted.] [Wilson v.
Johnson County, 879 S.W.2d 807, 809-810 (Tenn. 1994).]
January 14, 2004
Page 15
Under those and other rules of statutory construction it is also the duty of the courts to
construe a statute so that no part will be inoperative, superfluous, void or insignificant, and to
give effect to every word, phrase, clause and sentence of the act in order to carry out legislative
intent; that the courts should assume that the General assembly used each word in a statute
purposefully and that the use of these words conveyed some intent and had some meaning and
purpose; and that courts must harmonize statutes whenever possible, and lean in favor of a
construction that will render every word operative rather than one which may make some idle
and nugatory. [Tiger Creek Bus Line v. Tiger Creek Transportation Association, 216 S.W.2d 348
(Tenn. 1948); Day v. North American Rayon Corp., 140 F. Supp. 490 (E.D. Tenn. 1956);
General Care Corp. v. Olsen, 705 S.W.2d 642 (Tenn. 1968); Loftin v. Langsdon, 813 S.W.2d
475 (Tenn. Ct. App. 1991); Dingman v. Harvell, 814 S.W.2d 362 (Tenn. Ct. App. 1991); Crow v.
Fergeson, 814 S.W.2d 721 (Tenn. 1991)].
That the phrase “upon its own initiative” in Section 9(e) of Public Acts 1998, Chapter
1101, tracks exactly the same phrase in Tennessee Code Annotated, section 6-51-102(a)(1), lends
support to the presumption that the General Assembly knew that the latter statute provided for
annexation by ordinance upon petition of property owners and annexation by ordinance upon the
initiative of the city, and for that reason intentionally restricted only annexation upon the city’s
initiative in Section 9(e). Indeed, it probably can be said with some confidence that the ad hoc
committee that handled Public Acts 1998, Chapter 1101, was consciously aware that annexation
by ordinance could be obtained upon petition of residents and property owners, and “upon its
own [the city’s] initiative,” and intended to restrict only annexation upon the initiative of the city.
Section 9(e) of Public Acts 1998, Chapter 1101, and Tennessee Code Annotated, section
6-51-102(a)(1), are “in para material”; they both relate to annexation, specifically the means by
which annexation can occur. When they are read together, the phrases “upon its own initiative”
in both statutes are mutually supporting. Reading them that way also renders them both
effective, and gives them consistent meaning and purpose.
There is no reason that the same logic does not apply to annexation upon a city’s own
initiative under Tennessee Code Annotated, ' 6-51-103(a)(3)(A).
QUESTION 9
Who is “qualified voter” in an annexation referendum? I assume this question
contemplates that term in the context of Tennessee Code Annotated, ' 6-51-105, which provides
that in annexation referenda the approval or disapproval of the annexation turns upon “qualified
voters who reside in the territory proposed for annexation.”
ANSWER
January 14, 2004
Page 16
Sometimes it can be difficult to figure out what the term “qualified voter” means in a
particular statute. However, in the case of the annexation by referendum statute found at
Tennessee Code Annotated, ' 6-51-105, it probably means registered qualified voters. A similar
question arose in Tennessee Attorney General’s Opinion 99-077. It appears to me that opinion is
correctly reasoned. It opines that under Tennessee’s election law one can be a “qualified voter”
if one is qualified to register to vote, but that one cannot vote unless he is registered to vote. For
that reason, that opinion concludes that a Lebanon City Charter provision requiring the approval
of the sale of a utility franchise be supported by a “three-fourths majority of the qualified voters
of said City” in a referendum held for that purpose, meant approval by three-fourths of the
qualified registered voters of the city. Tennessee Code Annotated, ' 6-51-105 itself answers
the question of what is the qualified registered voter base from which the approval of an
annexation referendum is calculated: “....a majority of all the qualified voters voting thereon in
the territory to be annexed,” or in the event there are two elections as authorized by that statute, a
majority of the voters voting in the territory to be annexed, and a majority of the voters voting in
the city.
QUESTION 10
Is a plan of services required for an area annexed by referendum?
ANSWER
No.
All of the provisions in Chapter 1101 that pertain to plans of services with respect to
annexation amended Tennessee Code Annotated, ' 6-51-102, which governs annexation by
ordinance. Nothing in Chapter 1101 disturbed Tennessee Code Annotated, '' 6-51-104 and
105, which govern annexation by referendum.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/