|Legal Opinion: |
Text of Document: September 21, 2009
Under the facts related to me, some years ago (before your County's growth plan was approved) your City apparently did what your facts, accompanied by a map titled [city name] Balloon, call a "balloon annexation," which took in part of "A" Pike and an unnamed road, and the balloon of which was territory the city used as a landfill (but has since become a softball complex developed by the City). But as the map located by the MTAS Library and titled [city name] (and subtitled Internet Mapping-Maintained by [county name] County GIS, the annexation reflects a double string. One string includes "A" Pike running some distance from the junction of "A" Pike and the unnamed street west through what is now City B's UGB and into what is now your city's UGB. The other string is the unnamed street that runs south of "A" Pike and connects with your city.
But the map titled [city name] Balloon does not necessarily show a balloon at the end of the string running between the unnamed street running between your city and the junction of "A" Pike. Neither does the map located by the MTAS Library, entitled [city name].... Both show what are apparently pieces of property which I assume reflect what were the landfills, and now reflect the softball complex. But the [city name] Map, which is much more clear, shows the pieces of property to be in City B's UGB, but do not reflect that they were annexed by your city.
In all events, whether or not your city's annexation in question was a "balloon" that included the landfill, or a "string," that did not, the annexation clearly blocks City B from annexation within its UGB west of the unnamed city street and south of "A" Pike. In addition, should City B annex territory in its UGB either north of south of the part of "A" Pike that is a city street but in City B's UGB, the street would act as a similar block to City B's annexations in its UGB. However, I assume that the City B's two questions apply to annexation in its UGB west of the unnamed city street.
Question 1. Assuming your city would not challenge the action itself, what would be the effect if City B proceeded with an annexation of its UGB areas across the "string" (either annexing the string or just annexing the UGB area)? Would the annexation be void or voidable. If voidable, could the defect be "cured" by a subsequent ordinance once the string or a part thereof is deannexed? Who would have standing to challenge the annexation across the string if it is not included in the actual area of the string?
Question 2. Can City B begin the process (proceed with the annexation study, planning commission review of the plan of services, public hearing and related processes, and even have a first reading on an annexation of the cut-off area) in anticipation of your city's eventual deannexation of the road, so that when your city does deannex the road, City B can simply have the second reading of the annexation ordinance?
As I indicated earlier by e-mail, I have looked at that question repeatedly over the months, hoping that Westlaw or a bolt of lightning would cast a light upon a reasonably certain answer. That has not happened. Unfortunately, I cannot find a case from Tennessee or any from other jurisdiction that I think would supply a court with directions on how to handle those questions; they seem to me to involve ones of first impression.
The Contiguity Problem
The facts indicate that City B's northeastern UGB is bisected by a part of "A" Pike (and apparently an unnamed street), which are now your city streets that are the product of a balloon annexation done by your city some years before Chapter 1101 required comprehensive county growth plans. Primary questions related to both your questions are whether City B's attempt to annex territory inside its UGB, including the street, or beginning across that street, would create an annexation that would be subject to a challenge immediately or later on the ground that it is not contiguous to City B.
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 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 the 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).]
Statutory Law Governing Establishment
of UGBs and Appeals of Growth Plans
Under Tennessee Code Annotated, ' 6-58-106 UGB ' s are supposed to meet several qualifications, among them, "Identify territory that is contiguous to the existing boundaries of the municipality." [subsection (a)(1)(B) However, City B ' s UGB is contiguous to that city; the contiguity problem arises at the point that the unnamed city street bisects that part of the city ' s UGB (and if City B wants to annex north or south of the part of "A" Pike that is in your city).
The law governing the adoption of the growth plans that each county was required to adopt under Chapter 1101 is well known. In fact, your county's growth plan growth included City B's UGB, which itself contains the offending city street. All of the cities in the county, including your city and City B, and the county itself, would have had to agree to City B's UGB, before the county growth plan was adopted by the Local Government Planning Advisory Committee (LGPAC). In fact, under Tennessee Code Annotated, 6-58-104(c)(1):
IF urban growth boundaries, planned growth areas and rural areas were recommenced or revised by a coordinating committee and ratified by the county and each municipality therein;
THEN the local government planning advisory committee shall grant the approval and the growth plan shall become immediately effective.
As I understand the facts, that is the position that both your city and City B find themselves with respect to the latter ' s UGB.
There is a statutorily limited right of judicial review of the growth plan, both in scope and time. Tennessee Code Annotated, ' 6-58-105(a) provides that:
The effected county, an effected municipality, a resident of such county or an owner of real property located within such county is entitled to judicial review under this section, which shall be the exclusive method for judicial review of the growth plan and its urban growth boundaries, growth areas and rural areas.... Such petition [to the chancery court] shall be filed during the sixty day period after the final approval of such urban growth boundaries, planned growth areas and rural areas by the local government planning advisory committee.....
Subsection (b) provides that the petitioner has the burden of proof that the UGB [or other planning areas] are "invalid because the adoption or approval was granted in an arbitrary, capricious, illegal or other manner characterized by an abuse of official discretion." Under subsection (c) the court's remedy is to find the UGB, planned growth areas invalid and to issue an order
vacating the same, in whole or in part, and remanding the same to the county and municipalities in order to identify and obtain adoption or approval of urban growth boundaries, planned growth areas and/or rural areas in conformance with the procedures set forth within ' 6-58-104.
It seems to me that the limited time for the judicial review of your county's growth plan having passed, there is now a head to head conflict over whether the City B ' s right to annex territory in its UGB, includes the city street that intercepts its UGB, or
territory in its UGB beyond your city ' s street, even though such annexations would not technically be contiguous with its boundaries under the case law on the issue of contiguity of annexations in Tennessee.
Arguably, once the time for the judicial review of the county growth plan has passed, a city cannot appeal the award of a UGB under the county's growth plan, and must wait three years until a new coordinating committee can be convened to consider a city's problems with it. That is the conclusion that Tennessee Attorney General's Opinion 00-135 draws, but in this case, City B's problem is not with its UGB, but with the facts that it is effectively unable to annex territory in its UGB due to the city street/s at issue. City B's remedy under a revised county growth plan may not be a very good one because no revision would remove the barriers to annexation the two streets create.
ANALYSIS OF QUESTIONS
Analysis of Question 1
Your first question poses two annexation scenarios by City B:
- Annexation of the string created by "A" Pike and the unnamed street.
- Annexation across the string, leaving the string untouched.
But before addressing those questions, it appears to me that the Declamatory Judgment Act found in Tennessee Code Annotated, ' 29-14-101 et seq., is broad enough for either City B or your city to sue for a declaration of the powers and duties of those parties with respect to the annexation dilemma that City B faces due to your city's offending streets. As I understand that Act, although there must be a real controversy in order to trigger its use, no legal action by either party need precede the invocation of that Act to settle the controversy. I suspect that the controversy over the streets in question, and the negative effect it has on the right of City B to annex territory in its UGB may be enough; no annexation suit need have been filed because the controversy would not involve an annexation, but City B's statutory right to annex in its UGB.
But with respect to either annexation scenario, I am not sure how the courts would handle either of them. It does appear to me that while your city can claim that neither of City B's annexations would be legal, the first one for annexing that city's street to resolve the contiguity problem, and the second one because of the contiguity problem created by the street.
But City B has an equally good argument that it was the intention of the General Assembly in Chapter 1101 to allow a municipality to annex in its UGB, even in the unusual situation reflected by City B's UGB.
The public policy purposes supporting the enactment of Chapter 1101 in 1989 were:
(1) Eliminates annexation or incorporation out of fear;
(2) Establishes incentives to annex or incorporate where appropriate;
(3) More closely matches the times of development and the provision of public services...... [Tennessee Code Annotated, ' 6-58-102]
Public Acts 2005, Chapter 246 amended Tennessee Code Annotated, ' 6-58-111 to provide that municipalities have the exclusive authority to annex within their UGBs, and prohibited municipalities to annex territory outside their UGBs, except in Planned Growth Areas and Rural Areas. It appears to me that statute confirmed what was already the law. There appears no doubt that the General Assembly meant that municipalities would have the authority to annex territory in their UGBs, and in 2005 made it clear that right was an exclusive one. But apparently, in assembling your County Growth Plan, the fact that your city streets bisected part of City B's UGB in a manner that would effectively stop City B from annexing territory in its UGB in that area escaped both cities.
A strong argument can already be made that your city could not challenge City B's annexation of the street at issue. It was held in State ex rel. Kessel v. Ash, 888 S.W.2d 430 (Tenn. 1994), that the county's ownership of road easements did not reflect a sufficient property ownership in the annexed territory to give it standing as "an aggrieved owner of property" who has the right to challenge an annexation under Tennessee Code Annotated, ' 6-51-103(a). That statute is the same today. But the county's ownership of what used to be the landfill and is now a baseball complex probably is a sufficient ownership of property to give it the standing to sue City B over an annexation of property that includes the street on the ground that such an annexation is not reasonable.
Apparently, one or more remedies might be possible under the equitable powers of courts in annexation cases, where a suit is brought under the Declaratory Judgement Act rather than a quo warranto suit under Tennessee Code Annotated, ' 6-51-103. Such a suit might have one of the following bases:
1. That your city's corridor annexation of "A" Pike and the unnamed road is illegal under Bristol v. Earhart. It took in property at the junction of the two roads, but the property it took in was used aa a city landfill. It may not have otherwise taken in people, private property or commercial activity. In Bristol v. Earhart, the court permitted property owners annexed in 1995 to challenge (on constitutional grounds by declamatory judgment) a corridor annexation done in 1995, to which the annexation done in 1989 was attached! There presently appears to be no statute of limitations on the right to challenge an annexation under the Declamatory Judgment Act. But in Bristol v. Earhart, the plaintiff lived in the area to be included in the 1995 annexation. In that respect the facts differ in City B's case, but not to the detriment of the city. The city has the statutory right to annex in its UGB, but is prohibited from doing so by the presence of your city streets.
2. Regardless of whether your city's corridor annexation was legal or illegal, City B still has the statutory right to annex territory in its UGB, and your city streets in question block City B from exercising that right. Exactly how a court would vindicate that right is apparently subject to equitable principles.
The courts have equity jurisdiction in annexation cases that are not brought under the quo warranto statute found in Tennessee Code Annotated, ' 6-51-103. 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, A 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 effect 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]
Town of Oakland v. Town of Somerville, 2003 WL 22309498 (Tenn. Ct. App. 2003) above, citing Earhart, said the same thing in allowing the Town of Oakland to sue the Town of Somerville in a declaratory judgment suit upon the allegation that Somerville's ordinance was void for having been enacted after Oakland ' s annexation of the same territory having been passed
on final reading but before the effective date of the Somerville's ordinance, and that Somerville had breached its agreement with Oakland regarding an annexation reserve agreement between them.
But in Highwoods Properties, Inc. v. City of Memphis, ____ S.W.3d ____, 2009 WL 2226091 (Tenn.) (July 27, 2009), above, the Tennessee Supreme Court does 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.]
That language seems good support for the proposition that City B has the statutory right to annex territory in its UGB, but the Court also drew a line around Declaratory Judgement Act suits in annexation cases, pointing to two conditions that it 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 A 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) ( "[[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.")) [(Emphasis added (by court]) [At 10]
Highwoods appears to bring Town of Oakland v. Town of Somerville, into question. It 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 judgements 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]
But 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]
City B may have a problem with the equitable considerations that would go into any remedy that a court would fashion in City B ' s case. It was at the table with your city and the whole County Coordinating Committee when its UGB was fashioned. There are several maxims of equity and other principles and rules of equity that probably apply to both cities in this case, and I do not know which would "win." Your experience in this area is undoubtedly much greater than is mine.
If the city decided to annex across the unnamed street it appears to me that under Tennessee Code Annotated, ' 6-51-103, only "aggrieved owners of property" that lies within the territory to be annexed would have the right to mount a quo warranto challenge the annexation ordinance on the grounds of unreasonableness. They would probably be restricted to a quo warranto suit because, under Highwoods, they would be able to be plaintiffs in a such a suit, and would be able allege that the annexation is unreasonable because it is not contiguous. Arguably, the same thing is true of your city as an aggrieved owner of property in the annexed territory. But frankly, Highwoods is confusing to me on the question of exactly what annexation complaints must be brought under a quo warranto suit, and which annexation complaints can be brought under the Declaratory Judgment Law, except for constitutional claims.
As to the question of whether annexation suits are void or voidable, Tennessee Code Annotated, ' 6-51-102(c) provides that if the court finds that the annexation was unreasonable or has been done by the exercise of powers not conferred by law, it "shall" issue an order vacating the ordinance, and the city shall be prohibited from annexing any part of the territory contained in the vacated ordinance for at least 24 months. It appears to me that under that statute, an illegal annexation ordinance is voidable not void. That statute also covers annexation ordinances that are found unreasonable, and those found to be ultra vires.
But annexation ordinances can be "abandoned and discontinued" before they are finally passed, and repealed by ordinance even after they have been finally passed and even appealed. [See Schaltenbrand v. City of Knoxville, 788 S.W.2d 812 (Tenn. Ct. App. 1989).] In the unreported case of Cathey v. City of Dickson, 2202 WL 970429 (Tenn. Ct. App.), it was held that the 24 month ban on annexation does not apply to annexation ordinances that have been repealed because the repeal does not constitute an admission by the city that the ordinance was unreasonable.
There is probably no reason that the city could not begin the process of annexation, even doing the first reading, although doing the first reading may be hazardous because the law is not clear on how much time can pass between the first and final readings of ordinances. As far as I can determine there is no Tennessee case on the question, but 5 McQuillin, Municipal Corporations, ' 16.33 points to several such cases from other jurisdictions, including three from Kentucky. McQuillin arguably contains at least two general rules. One rule applies to cases where the governing body has formally carried over an ordinance for consideration on a specific date. In those cases the ordinance dies on that date if no action is taken to maintain its vitality. The other rule applies to cases in which for one reason or another the governing body has taken no formal action to carry over the ordinance for consideration on a specific date, and considerable time simply passes between first and final reading. The rule in those cases is that the delay cannot exceed a "reasonable time."
The "reasonable time" rule is reflected in what I call the "first" and "second" City of Mathews v. Arterburn, 419 S.W.2d 73 (Ky. 1967) and 512 S.W.2d 505 (Ky. 1974), McClain v. City of Independence, 351 SW.2d 513 (Ky. 1961); and Roehrborn v. City of Ladysmith, 185 N.W. 170 (Wis. 1921). The dissent in "first" Arteburn is worth reading for its treatment of additional cases on the reasonable time rule in Kentucky and other states. A review of those cases shows the following delays were held to be reasonable or unreasonable:
- 5-1/2 years: unreasonable ( "second" Arterburn)
- 2 year: reasonable (McClain)
- 9 months: reasonable (Roehrborn)
It was also held in Morgan v. Banas, 122 N.E.2d 369 (Mass. 1954) that a hearing on an amendment to the zoning ordinance was not rendered invalid when the hearing and adoption on the amendment occurred three months apart during which an election replaced a majority of the board of mayor and aldermen.
As pointed out above, City B could abandon its annexation ordinance by resolution if it is not finally passed, and repealed by ordinance if it has been finally passed and even appealed. Such actions would, of course, require starting over on the annexation ordinance passage procedure.
I am not sure that cases on how long proposed ordinances can languish before they "die" help City B make a decision on whether to proceed with the first reading of an annexation ordinance. I am a firm believer in not taking any chances on annexation ordinances, particularly those involving procedures that a city can control, including those that simply involve looking at a calendar. Generally unless it is relatively certain that the city knows that the final reading is going to occur very shortly after the first reading, the calendar should be treated as an enemy. I would not recommend doing the first reading without relative certainty about the time the final reading will pass. While a city can abandon annexation proceedings, and repeal ones passed and even appealed, stopping and starting such ordinances, given the political fervor annexations generate does not seem to me wise either.
It may be that in this case, where, absent an agreement between your city and City B for the former to remove the latter's barrier to its UGB, some chances will need to be taken to determine if the courts will remove the barrier. You know as well as I how long it might take the courts to finally resolve that issue, and its resolution may not be beneficial to the city.
Sidney D. Hemsley
Senior Law Consultant