|Legal Opinion: |
Text of Document: MEMORANDUM
TO: MTAS Management Consultant
FROM: Sid Hemsley, Senior Law Consultant
DATE: February 09, 2011
RE: Annexation notice
You have the following question about a certain annexation by ordinance that occurred in your City in 2008: What is the result of the failure of the city to give “notice” of the proposed annexation in the form of an annexation map?
Tennessee Code Annotated, § 6-51-102 (a)(1) provides for annexation by ordinance after “notice,” and further provides that the ordinance shall not become effective until thirty days after the annexation becomes final. Tennessee Code Annotated, § 6-51-101(3) defines “notice” as “shall be satisfied by inclusion of a map that includes a general delineation of the area or areas to be annexed by use of official road names or numbers, or both, names of lakes and waterways, or other identifiable landmarks, as appropriate.” Apparently no such map was included in that notice.”
The answer is that under Tennessee Code Annotated, § 6-51-102, a challenge to the notice procedural defect would had to have been made within thirty days after the annexation occurred, as a quo warranto action under Tennessee Code Annotated, § 6-51-103. The annexation in question occurred in 2008.
That answer to your question does not appear in the MTAS Annexation Handbook because the legal consequences of procedural defects in annexation cases were not entirely clear after the case of State ex rel. Earhart v. City of Bristol, 970 S.W.2d 948 (Tenn. 1998) allowed plaintiffs to challenge an annexation under the Declaratory Judgments Act years beyond the thirty day limit contained in Tennessee Code Annotated, § 6-51-102.
However, in Highwoods Property, Inc. v. City of Memphis, 297 S.W.3d 695 (2009), the Tennessee Supreme Court, perhaps understanding the confusion created by Earhart, drew what appears to be fairly sharp lines around Earhart, holding that challenges to annexations under the Declaratory Judgments Act were limited to very narrow circumstances, and generally must be brought as quo warranto actions within the thirty day limit prescribed by Tennessee Code Annotated, § 6-51-101, including annexation ordinances in which procedural defects are alleged:
Under the principles of our constitution, the General Assembly “could have delegated to the municipalities the authority to annex with no right of judicial review absent constitutional restraint.” Bastnagel, 457 S.W.2d at 534. The right to challenge an annexation is thus a “statutory right” that “in its very origin is limited.” Brent v. Town of Greeneville, 203 Tenn. 60, 309 S.W.2d 121, 123 (1957) . We have stated that “[w]ithin the four corners of [the quo warranto] statute lies the entire jurisdiction and authority of the Courts to review the actions of municipalities in enacting annexation ordinances.” City of Oak Ridge v. Roane County, 563 S.W.2d 895, 897 (Tenn.1978) . Thus, “the courts have no power to vacate an annexation ordinance for purely procedural defects,” because no such authority has been granted by statute. City of Watauga v. City of Johnson City, 589 S.W.2d 901, 906 (Tenn.1979) . Rather, the general rule is that defects in an annexation ordinance must be presented in the context of a challenge to its reasonableness or necessity by way of a timely quo warranto challenge. City of Oak Ridge, 563 S.W.2d at 898; see also City of Knoxville v. State ex rel. Graves, 207 Tenn. 558, 341 S.W.2d 718, 721 (1960) (holding that allegation that ordinance was passed without a public hearing “should be considered in connection with the question of the reasonableness of the ordinance”). [At 707-08]
Highwoods pointed to two conditions on Declaratory Judgment Act suits in annexation cases that it had imposed on such suits in 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) (“[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 emphasized that 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]
A challenge to the annexation contemplated in your question would meet neither condition: even though it may have been procedurally defective, it did not reflect an ultra vires act (beyond the authority of the city), and the subjects of the annexation could have filed a quo warranto action under Tennessee Code Annotated, § 6-51-101, alleging that it was procedurally defective for the failure of its notice to include a map of the proposed annexation.