|Legal Opinion: |
Text of Document: September 21, 1992
Your question is, can the city amend an annexation ordinance between second and third readings to add territory to the ordinance?
The answer is, the law isn't clear. However, in anticipation of an almost inevitable challenge, an annexation ordinances should be done strictly by the book; therefore, it makes no sense to add territory between readings when it isn't clear that can be done.
Liberal amendment to ordinances between first and final reading is generally allowed when the amendment in question is germane to and within the scope of the subject of the ordinance. [See Metropolitan Government of Nashville and Davidson County v. Mitchell, 539 S.W.2d 20 (1976) and Wilgus v. City of Murfreesboro, 532 S.W.2d 50 (1975)]. It's logical that adding territory in an annexation ordinance is germane to and within the scope of the annexation ordinance. In addition, the amount of territory to be annexed apparently can be reduced between readings. [Senff v. Columbia, 208 Tenn. 59, 343 S.W.2d 888 (1961)]
But the problem with adding territory between readings is that the annexation statute requires the plan of services to be submitted to the planning commission, and a public hearing to be held on the plan. [Tennessee Code Annotated, section 6-51-102(b)] Where territory is added in the annexation ordinance between readings, the plan of services and the public hearing for the original territory to be annexed will not have included the additional territory.
Wilgus v. City of Murfreesboro, suggests that perhaps the failure to resubmit the plan of services to the planning commission wouldn't be fatal. There the Tennessee Court of Appeals rejected a challenge to a zoning ordinance made on the grounds that, among other things, it had been amended between second and third readings as required by both state law and the city code. The Court reasoned that the amendment didn't create so substantial a change that resubmission to the planning commission was required because it wasn't likely to have any effect on the commission's recommendation.
The problem with applying Wilgus to the addition of territory in an annexation ordinance is that both the city and the courts are left to guess if the addition of territory would have had any effect of the commission's recommendations.
It doesn't seem sensible to me to give plaintiffs another ground upon which to challenge an annexation ordinance. Why not do a clean, procedurally correct ordinance? As I understand it, the residents of the territory that is sought to be included in the present ordinance favor annexation. Why not simply complete the present annexation then add the additional territory in a separate ordinance? That way, if the first ordinance is successfully challenged, the second won't be. The city will have won at least a partial victory.
Sidney D. Hemsley
Senior Legal Consultant