February 21, 2005
Re: Annexation contest
Dear City Attorney:
As you know, all of us involved in municipal law thought for years that quo warranto
under T.C.A. § 6-51-103 was the exclusive method for contesting an annexation ordinance. We
thought this because the annexation statute provides no other method for contesting such an
ordinance. The General Assembly provided this method under the state constitution’s Municipal
Boundaries Clause, found in Article XI, § 9, which provides that “The General Assembly shall by
general law provide the exclusive methods ... by which municipal boundaries may be altered.”
Then in State ex rel. Earhart v. City of Bristol, 970 S.W.2d 948 (Tenn. 1998), the state Supreme
Court found by interpretation another way to contest an annexation ordinance and, if the
ordinance is found invalid, thus to alter the municipality’s boundaries. Under this ruling,
ordinances that have been passed years before can in some cases be contested and the land
annexed removed from the municipality’s boundaries.
Since providing a method for contesting an annexation ordinance is part of providing the
exclusive method for altering municipal boundaries, the ruling in Earhart appears to be on
unsteady constitutional ground. The Earhart case, of course, allows declaratory judgment
actions to be brought in some cases to contest an annexation ordinance. The action could be
brought years after the ordinance was passed. Indeed, in that case, the declaratory judgment
action, which was filed in 1995, contested ordinances that were passed in 1989. Because the
General Assembly is supposed to provide the exclusive method by which municipal boundaries
may be altered, I believe the holding in Earhart should and will be confined to a very narrow set
of circumstances set out in the case.
The 1989 ordinances in Earhart did not include any people, private property, or
commercial activity. Therefore there was no one to contest them under the quo warranto statute.
The ordinances took in only right-of-way. The court recognized under Hart v. City of Johnson
City, 801 S.W.2d 512 (Tenn. 1990), that relative to quo warranto:
Under the clear language of the statute, suits for quo warranto on the grounds that the
annexation is not reasonably necessary to the safety and welfare of the inhabitants of the
property involved, are limited to persons owning property within the territory ... . 970 S.W.2d at
952.
Since there were no such owners in the territory annexed in 1989, however, the quo warranto
statute was not available then. Held the court:
[W]here 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). 970 S.W.2d at 952.
An alternative remedy in this case since quo warranto was not available, according to the court,
is the Declaratory Judgment Act, under which the validity, and not the reasonableness, of the
ordinances could be contested. Obviously the same limitations on standing and time for bringing
suit do not apply to a declaratory judgment action that apply under the quo warranto statute.
In the unreported case of Snell v. City of Murfreesboro, No. M2003-02716-COA-R3-CV,
2004 WL 1924032 (Tenn. App. 2004), property owners who owned land contiguous to property
annexed by Murfreesboro tried to bring a quo warranto and a declaratory judgment action to
contest the annexation. They did not own any of the land purported to be annexed. Relative to
the quo warranto action, the court cited Hart, supra, and State ex rel. Cordova Area Residents
for the Environment v. City of Memphis, 862 S.W.2d 525 (Tenn. App. 1992), in holding:
[T]he only property owners allowed to contest an annexation ordinance by way of the quo
warranto proceeding delineated in T.C.A. § 6-51-103 are those who own property within the
annexed area.
Since the plaintiffs did not own property in the annexed territory, they could not bring a quo
warranto suit. They also lacked standing to bring the declaratory judgment action. The court read
the holding in Earhart very narrowly:
Earhart clearly applies only in those situations where a municipality passes an ordinance
that “purports to annex an area that does not include people, private property, or commercial
activity and is, therefore, void.”
The court further holds that the declaratory judgment remedy is not available when quo
warranto is, even if it might not be available to the particular contestant:
Because the annexed territory in this case does include people and private property, the
quo warranto remedy is available to challenge the annexation ordinance in question; it is just not
available to Appellants. The alternative remedy of declaratory judgment is therefore not available
to Appellants under the rationale set out in Earhart. Under both T.C.A. § 6-51-103 and Earhart,
Appellants lack legal standing to challenge the annexation ordinance at issue in this litigation.
This Murfreesboro case is, as I indicated above, unreported, so it has limited
precedential value. But in the absence of reported cases, it is the best we can do. There are two
(2) other unreported cases on declaratory judgment actions to contest annexation ordinances,
but they deal with contests by other governmental entities and appear to be granting some
leeway for other cities and counties to contest the validity of annexation ordinances. They are
Town of Oakland v. Town of Somerville, No. W2002-02301-COA-R3-CV, 2003 WL 22309498
(Tenn. App.) and Jefferson County v. City of Morristown, No. 03A01-9810-CH-00331, 199 WL
817519 (Tenn. App.). But for contests by property owners when quo warranto is available, it
should be the exclusive remedy, and the person contesting the ordinance should have to own
property in the territory annexed by the ordinance to have standing.
On the question of splitting the annexed area up into several parcels to be annexed by
several ordinances, the courts appear to give discretion to the city to determine how best to
proceed. I have not been provided a map of your proposed annexations, so I do not know how
they look or if each annexation has territory that adjoins the city’s current boundaries. Under
T.C.A. § 6-51-103, of course, the annexed territory must adjoin the city’s current boundaries. An
attempt to annex property that does not adjoin the city’s boundaries would be void. Town of
Bartlett v. City of Memphis, 482 S.W.2d 782 (Tenn. App. 1972). Although there do not appear to
be any cases in Tennessee in which splitting the ordinances has been a deciding issue, the
general rule elsewhere seems to be that the whole annexed parcel must be somewhere
contiguous and adjoining, but that the individual parts do not have to be. See 49 A.L.R.3d 589,
What Land is Contiguous or Adjacent to Municipality so as to be Subject to Annexation.
The case of State ex rel. Maury Farmers Coop Corp. v. City of Columbia, 362 S.W.2d
219 (Tenn. 1962), presents an issue that is almost the opposite of yours, but shows the
discretion that cities have in fashioning annexation ordinances. In this case the city annexed two
(2) parcels of property with one ordinance. Each parcel was contiguous with the city’s current
boundaries, but the parcels were not contiguous to or adjoining each other. The court held that
the city could annex these separated parcels with one ordinance, and if the annexation of one
parcel was determined unreasonable, that parcel could be elided from the ordinance. You might
find some way for the holding in this case to support your motion to sever.
I agree with you that under Hart, Cordova, and the Murfreesboro case discussed above,
only property owners in the territory annexed by an ordinance should have standing to contest it
under 6-51-103. They should not have standing to contest other ordinances. And if quo warranto
is available to contest the ordinances, then declaratory judgment should not be.
I hope this is helpful. If you have further questions, please feel free to call.
Sincerely,
Dennis Huffer