February 23, 2005
Dear City Manager:
You have the following question: Is a plan of services adopted in connection with an
annexation done in 1961 binding upon the city?
In my opinion, the answer is no.
I have the plan of services in question. However, the letter accompanying the plan of
services says, “The street in yellow has not been constructed. However, it was platted at the time
of annexation.” Paragraph 2 speaks of street improvements and construction in general, but says
nothing about any specific street.
In all events, under the annexation law in effect in 1961, the plan of services provisions
contained no remedy for the failure of a city to comply with its plan of services. Unlike many
states whose annexation laws provide specific statutory remedies for annexation plans of services
that are not fulfilled, Tennessee’s annexation statute contained no such remedy until the passage
of Public Acts 1998, Chapter 1101. In 1961, Tennessee’s annexation statute provided only that
with respect to annexation by ordinance, a municipality of more than 1/4 square mile or more
than 500 population was required to adopt a plan of services, setting forth the identification and
projected timing of municipal services proposed to be extended into the annexed area, and that
the plan be submitted to the planning commission. The plan of services at issue complied with
that statutory requirement.
The “reasonableness” of the plan of services has been an issue in several cases, but only
in connection with the reasonableness of the annexation. [See State ex rel. Balsinger v.
Madisonville, 435 S.W.2d 803 (Tenn. 1968); State ex rel. Hudon v. City of Chattanooga, 512
S.W.2d 555 (Tenn. 1974); State rex rel. Sexton v. Town of Huntsville, 1992 WL 109432 (Tenn.
App.)(unreported)]. The courts in those cases spoke of no remedies where the city failed to
comply with the plan of services. Surprisingly, as far as I can determine, there has never been a
Tennessee case involving an allegation that a municipality failed to live up to its plan of services.
Tennessee Attorney General’s Opinion 94-105 opined that the only remedy property
owners in annexed areas had with regard to the enforcement of the plan of services, was the
enforcement of the procedural requirements contained in the annexation statute. It must be noted
here that those procedural requirements were not added to the annexation statute until 1974; the
City annexed the territory in question in 1961. For that reason, it is not likely that those
procedural requirements even apply to your city’s 1961 annexation. But let us assume that they
do for the purpose of determining the limited effect they would have on that annexation.
The procedural requirements at issue in OAG 94-105 were that: Beginning a year after
annexation, and annually thereafter until the services contained in the plan of services had been
delivered, the city had to publish in a newspaper of general circulation, and have a public hearing
on, its progress toward the accomplishment of the plan of services. A property owner in the
annexed area could file a suit for a writ of mandamus, but not to compel the city to accomplish
the plan, only to compel it to comply with the publication and hearing requirements. OAG 94105 concludes that, “Nothing in this statute, or any other provision of Tennessee law, suggests
that a service plan adopted in anticipation of annexation creates an enforceable right in the
residents of the property proposed to be annexed.”
That appears to be an accurate statement of the law. It is arguable that the residents of the
annexed area have some equitable rights to the services contained in the 1961 plan of services,
but even if that is true, due to the long period that has passed since 1961, and other limits upon
the exercise of equitable rights, they may have some problems enforcing such rights. It may also
be possible for such residents to file a suit on grounds that they are being denied the Equal
Protection of the Law in the delivery of city services (presumably utility services). Their success
in pursuing such a suit would depend upon comparison of such services received by other
residents of the city.
Public Acts 1998, Chapter 1101 considerably strengthened the plan of services provisions
of the annexation law, and gave residents of annexed areas enforceable equitable rights to
services contained in the plan of services. The General Assembly plainly has the authority to
make statutes operate retrospectively with respect to their political subdivisions, but Chapter
1101's plan of service provisions appear to apply only to annexations that were not final on
November 25, 1997. [Section 20. Also see Tennessee Code Annotated, ' 6-51-102(a)(2)(A),
and Tennessee Code Annotated, ' 6-51-108(b).]
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/