March 28, 2012
The City has asked the following question: Does the recent case of City of Harriman v.
Roane County Election Commission, 2011 WL 2278873, provide authority for the city to annex by
referendum a certain rock quarry several miles from the city as the roads meander. That
Tennessee Supreme Court case overturned the earlier Tennessee Court of Appeals case by the
same name in which the latter court had held that a municipality could annex by ordinance territory
outside its urban growth boundary (UGB) merely by proposing an amendment to its UGB. But it
was already the law—and as Harriman v. Roane County Election Commission made clear is still
the law—that a municipality could annex territory outside its UGB, by referendum.
I have previously addressed the question about the prospect of a successful annexation of
the rock quarry done by ordinance. My opinion was that the answer was no because the proposed
annexed territory was not contiguous to the city. Under the facts I have been given about the
annexation of the rock quarry by referendum, the annexation would still not be contiguous to the
city as required by both Tennessee Code Annotated, § 6-54-102 Tennessee Code Annotated, §
5-54-104 (annexation by referendum), and would therefore be illegal.
Initial voter inquiry by city
But the immediate question bearing on the legality of the annexation has to do with the
annexation election rather than the issue of contiguity. As I understand the facts, the territory
proposed for annexation contains at most one or two voters, whose votes will undoubtedly be solid
for the annexation. That fact standing by itself reflects no immediate legal problem, but the
prospect that there might be more voters than any of the parties contemplate is an immediate legal
problem. I cannot tell from the annexation map I have been furnished what property fronting the
one foot right of way that is being annexed what property, if any, contains residents whose
property borders on the territory to be annexed. The reason that question is important arises from
the case of Committee to Oppose the Annexation of Topside and Louisville Road v. City of Alcoa,
881 S.W.2d 269 (Tenn. 1994). There, in an annexation done by referendum, the Tennessee
Supreme Court expanded the definition of “resident” for the purposes of the annexation law
generally, and overturned the referendum on the ground that, “It is clear from the record that the
procedures followed by the City of Alcoa and the county election commission for the referendum
of approval or disapproval of the qualified voters residing in the territory proposed for annexation
did not meet the requirements of either T.C.A. § 6-51-105 or of the election laws of the state.” [At
271]
The reason the procedures did not meet the requirement of the election law of the state
follow in the Court’s own words:
Under the statues governing elections in this state a legal election
could not be conducted which excluded the residents whose
property abutted the right-of-way proposed for annexation on one
side and included the property owners on the opposite side. The
right to vote is fixed by the precinct in which they reside ad not on
which side of the road they may live. The Court of appeals
recognized that some of the aggrieved property owners have their
dwelling houses upon parcels of land lying partially within the area
to be annexed and that the determination of a person’s residence
under our election code is provided n T.C.A.§ 2-2-122(a)…. [At
272]
In determining that the procedures violated T.C.A. 6-51-105(a), the court rejected both the
Court of Appeal’s and the Tennessee Attorney General’s opinions, that “where a portion of a
person’s property is included within the proposed area of annexation but the structure of the
residence of that person in not included within the proposed area of annexation, such person does
not ‘reside in the territory proposed for annexation.” [At 272] The rule, announced the
Tennessee Supreme Court, is that:
We are of the opinion that under the provisions of T.C.A. §
6-51-105 residency includes the curtilage of the qualified voters
who reside in the territory proposed for annexation. In this instance,
those residents along the right-of-way whose curtilage extends into
the territory proposed for annexation were entitled to vote in the
referendum. [At 272]
The Court provided several definitions of “curtilage:”
Although commonly discussed in Fourth Amendment terms,
curtilage is defined in 25 C.J.S as having a well defined legal
meaning in the administration of both civil and criminal law. In
terms of use, "curtilage” is defined as a space necessary and
convenient and habitually used for the family purposes and carrying
on of domestic employments; the space of ground adjoining the
dwelling house, used in connection therewith in the conduct of
family affairs and for carrying of domestic purposes; the ground
adjacent to a dwelling house and used in connection therewith; the
yard, or the ground or the yard or field which is near to, and used in
connection with, the dwelling. See Welch v. State, 289 S.W.510,
511, 154 Tenn. 60 (1926). This Court in State v. Prier, 725 S.W.2d
67, 670 (Tenn. 1987), discussed the common law definition of
curtilage as “the area to which extends the intimate activity
associated with the “sanctity of a man’s home and privacies of
life.’” Black’s Law Dictionary, Fifth edition, 1979, p. 346, includes
a more comprehensive definition. “A piece of ground commonly
used with the dwelling house. A small piece of land, not
necessarily enclosed, around the dwelling house, and generally
includes the buildings used for domestic purposes in the conduct of
family affairs. A courtyard or the space of ground adjoining the
dwelling house, necessary and convenient and habitually used for
family purposes and the carrying on of domestic employments. A
piece of ground within the common enclosure belonging to a
dwelling house, and enjoyed with it, for its more convenient
occupation. [At 272-73]
It seems prudent for the city to make an initial determination of how many persons might
be qualified voters in the territory to be annexed (obviously taking into consideration of who may
reside along the right-of-way, and taking into consideration those residents’ curtilage); otherwise,
the annexation may fail for denying voters the right to vote on the annexation.
Assuming that the proposed annexation is on proper track from a voter perspective, the city
still should consider what I believe is the likelihood that the annexation is not contiguous with the
city. But in consideration of the limited judicial review presently accorded annexations by
referendum the courts might be required to broaden their scope of that review, which I am quite
confident they would do if confronted with the question of whether this annexation were legal.
As I understand those facts, the annexation takes in a one foot wide corridor running
approximately 6.5 miles down county roads, and meandering left down this road, right down this
road, and so on, for the indicated distance. I previously said that the suggestion that such an
annexation was contiguous to the city under Tennessee law reflected a legal fantasy that would
produce what the Tennessee courts have called an “archipelagic monstrosity,” and would
ultimately be held illegal. I still believe that is the case with respect to an annexation of the
property by referendum.
The meaning of contiguity in annexations
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 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).]
But as far as I can determine, with one exception, Tennessee annexation law takes up the
question of whether an annexation is contiguous only in cases of annexation by ordinance. That
fact is important because of the generally limited judicial review that appears to apply to
annexations by referendum in Tennessee.
Contiguity in an annexation by referendum was an issue in Smith v. Town of Church Hill,
828 S.W.2d 385 (Tenn. Ct. App. 1991). Indeed, it was a major issue considered by the court in
determining whether the annexation reflected a valid 14th Amendment challenge to the annexation,
which appears to presently be the only grounds upon which an annexation by referendum can be
challenged in Tennessee. In the court’s own words:
The Smiths do not challenge the constitutionality of T.C.A §
6-51-104 or § 6-51-105 (which govern annexation by referendum)
under which their property was annexed, nor do they contend that
the Town did not properly follow the statutes in the annexation
proceedings. Their sole contention relates to a small area where
the portion of the Smith farm which was annexed in 1986 borders on
the west bank of the Holston River. Even though the 126 acres of
the Smith farm which was taken into the Town in 1986 border on
and are contiguous with the subdivision together with the remaining
portion of the Smith Farm, the Smiths contend this creates a corridor
of narrow strip of land which was included in the annexation for the
sole purpose of making the land in the subdivision contiguous with
the Smith farm. In their brief, the Smiths cite the dictum of the
court in the case of State ex rel. Collier v. City of Pigeon Forge, 599
S.W.2d 545 (Tenn. 1980) as supportive of their contention. [At 387]
In Collier v. City of Pigeon Forge, the dictum to which the court referred said:
We should emphasize that this is nor, as appellants insist, merely a
“strip” or “shoestring” or “corridor” annexation, although it is long
and lean. Such annexations, so long as they take in people, private
property or commercial activities, and rest on some rational basis,
are not per se to be condemned. We do not deal with an annexation
wherein a city attempts to run its corporate limits down the
right-of-way of an established road without taking in a single piece
of property. Such an annexation it is perhaps questionable and is
not here involved. As in any annexation, and more particularly one
where a geometrically irregular parcel of land is annexed, the Court
must scrutinize the stated and ostensible purpose of the annexation.
(Emphasis ours [the court’s] [At 387]
But the Smith court declared that, “Nor are we dealing with that kind of situation in the
case at bar [Smith].” The court made that claim by pointing to a map of the annexed territory at
issue:
A map of the annexed territory shows it begins at the corporate
limits along the north end of the subdivision near the western bank
of the Holston river; thence in an easterly direction crossing the
Holston River to its east bank; thence with the meanderings of the
east bank of the river in a southeasterly and a northwesterly
direction some 16,000 feet; thence crossing the river to the Town
corporate limits; encompassing some 1,096 acres all of which has as
its inner boundary line the corporate boundary line of the Town and
as its outer boundary line the east bank of the Holston River. All of
the property is within one mile of the Town hall. [At 386]
The court concluded that the annexed territory was contiguous to the city, made so by the
connection of the subdivision and the farm by the river bed. Interestingly, it also concluded that,
“All of the property was within one mile of the Town hall. [At 386]
Smith was not concerned with Pigeon Forge and Crown enterprises, above, which
respectively which raised the specter of “geometrically irregular” annexations and annexations
that create an “archipelagic monstrosity” (even though in the case of corridor annexations they
may take in persons, property and commercial enterprises). Or if it was concerned, found the
annexation contiguous even though two separate pieces of annexed land were connected by a river
bed, which ran 16,000 feet. .
But it appears to me that there is a big difference between the annexation in Smith and the
one being considered in your City. The annexation in Smith involved what appears to be a
compact annexation of a “corridor”—the river bed--, the 16,000 feet of which drew the entire
annexed territory together in contiguity with the city. The corridor in your City’s proposed
annexation extends 6-1/2 miles, much of it only one foot wide. That corridor zig-zags a great
distance between the existing city and the rock quarry. The corridor in Smith could hardly be said
to be a “geometrically irregular” annexation or to produce an “archipelagic monstrosity” but the
proposed annexation appears to me to be as close to meeting both as an annexation can get.
The problem of plaintiffs in annexation by referendum cases
The question at this point is: what kind of issues can be raised about contiguity in
annexations by referendum? As indicated above, the contiguity question arose in Smith only with
respect to whether the connection of the territories at issue by the river bed reflected a Fourteenth
Amendment Due Process or Equal Protection violation with respect to the plaintiffs. Frankly, I
have not had time to research or otherwise consider exactly how such a violation would arise in an
annexation by referendum case, outside of annexation referendum problems such as were an issue
in Committee to Oppose the Annexation of Topside and Louisville Road. But if I am correct that
the annexation of the kind proposed by the City violates the contiguity requirement of the
annexation by referendum law contained in Tennessee Code Annotated, § 6-51-105, it is still not
clear to me whether that violation, standing alone, can even be challenged before or after an
annexation by referendum, let alone determine how it creates a Fourteenth Amendment problem.
But let me make it clear here, that if the city denies residents in the area proposed for
annexation the right to vote if they are otherwise qualified voters, those persons undoubtedly have
Fourteenth Amendment Due Process and Equal Protection claims, not to mention claims under
Committee to Oppose…, which, incidentally, mentioned only the state election law and the
annexation law as a basis for such claims.
Smith was based on State ex rel. Vicars v. Kingsport, 659 S.W.2d 367 (Tenn. App. 1983).
A reading of that case indicates that it might not have even allowed a challenge to an annexation by
referendum based solely on its lack of contiguity (but as pointed out above, Smith did).
The Vicars court rejected a challenge to an annexation done by referendum. The plaintiffs
in that case argued that an annexation referendum was held in which the annexation was soundly
defeated. Shortly thereafter, the city “redefined” the boundaries of the annexation to include
more citizens in favor of the annexation. At the second referendum, the annexation was successful.
The city argued that an annexation by referendum is not subject to review by the courts, “since our
statutes only expressly authorize court review in annexation by ordinance cases.” [At 368]
The court held that an annexation by referendum was reviewable by the courts on
constitutional grounds, apparently “if the evidence establishes constitutional infirmities either in
the adoption of a resolution calling for a referendum or in the election process.” [At 369] But the
court found no constitutional infirmities in the annexation, citing State ex rel. Wood v. City of
Memphis, 510 S.W.2d 889 (Tenn. 1974), and declaring that, “In the Wood case, our Supreme
Court held, ‘Moreover, in annexation cases, there is no equal protection or due process argument
that can properly be made when the statute is properly followed.’ As we have said, in this case the
city followed the statute.” [At 370] But presumably the annexation was contiguous to the existing
city in that case. Had that not been so, the city would not have followed Tennessee Code
Annotated, § 6-51-104. But Smith does stand for the proposition that contiguity in an annexation
by referendum is reviewable, but only for the question of whether the lack of contiguity somehow
violates the plaintiff’s Fourteenth Amendment rights.
However, I think a good argument can be made that what the court said in Bristol v.
Earhart, above, and Highwoods Properties, Inc. v. City of Memphis, below, apply to annexations
by referendum as well as annexations by ordinance, because those cases stand for the broad
proposition that were there are no legal avenues available to challenge an annexation, equity will
support such challenges.
There are presently two ways to challenge annexations by ordinance: a quo warranto
challenge based on the unreasonableness of the annexation, and a challenge under the Declaratory
Judgments Act. Again, annexations by ordinance are subject to a quo warranto challenge, but
annexations by referendum are not.
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 affect
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]
But in Highwoods Properties, Inc. v. City of Memphis, ____ S.W.3d ____, 2009 WL
2226091 (Tenn.) (July 27, 2009), above, the Tennessee Supreme Court did 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 Judgment 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 “where 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) (“Where 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 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 judgments 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]
Under the facts of the proposed City annexation, there are no legal means for a challenge to
that annexation. there being no statute that authorizes a challenge, and the courts having made an
exception only for challenges on constitutional grounds. The immediate plaintiffs in an annexation
by referendum could be expected to be the owners of the property in the proposed territory, but in
this case they are the proponents of the annexation, and have made costly promises to the city to
approve the annexation. From a policy standpoint, if nobody else (such as Committee to Oppose the
Annexation…) can challenge the annexation except property owners only on Fourteenth
Amendment grounds, there appears no reason that annexation far more distant from cities than
6-1/2 miles are possible, and even likely. It was said in Earhart, that, “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] The Highwoods Court, speaking
about Earhart, also said, “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 “where the quo
warranto proceedings is not available, [that] alternative equitable remedies are not barred.” It
seems a short step for the courts to allow that vehicle to be used as an equitable remedy when the
legal remedy for challenging an annexation by referendum is so narrow.
The problem with using the Declaratory Judgments 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 an owner of the annexed property or a resident of the
annexed area could show to achieve standing after the annexation referendum is successful. But it
has been held that the Act is to be given a broad interpretation. Given the egregious circumstances
surrounding the City annexation, it is difficult to believe that the Tennessee courts would simply
throw up their hands if the annexation were challenged for the lack of contiguity by any organized
group and perhaps other persons. Indeed, Bristol v. Earhart and Highwoods themselves contain
language broad enough for those courts to find standing on the part of such groups and even
individuals.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/