December 10, 2015

Dear Sirs,

It was a pleasure meeting with you. During our meeting, you requested the following information:

1. What is the process for amending an urban growth boundary? T.C.A. § 6-58-104(d)(1) provides that the process for amending an urban growth boundary is “the same as the procedures in this section for establishing the original plan,” which is detailed below.

2. Who has standing to challenge the annexation of any parcels by the city? “Aggrieved owners of property,” which are the property owners within the territory to be annexed, have authority to challenge the annexation.

3. For parcels within the urban growth boundary, what are the options and steps for annexation of the parcel after the 2015 amendments to state law? Under the legislation passed in 2015, two methods remain for annexation within a city’s UGB: annexation by resolution and annexation by referendum.

Process for Amending the Urban Grown Boundary

First, you asked for the process of amending an urban growth boundary (“UGB”). David Connor, formerly of CTAS, and Dennis Huffer, formerly of MTAS, collaborated in 2005 to provide a detailed explanation of amending a UGB. Unlike most annexation processes from even last year, the content found in Amending Comprehensive Growth Plans, 2005, is still current. I have attached the full publication for your review. However, below is a short synopsis of the process.

1. Three year lapse since adoption. Three years after the original UGB was adopted by the local government planning advisory committee (“LGPAC”) and absent extraordinary circumstances, the growth plan may be amended as often as deemed necessary by the county and cities. T.C.A. § 6-58-104(d)(1). After the requisite three years, which has now passed for all cities, the process for amending the UGB is “the same as the procedures in this section for establishing the original plan.” T.C.A. § 6-58-104(d)(1).

2. Develop and research proposed amendments. The city (or county) seeking the amendment must research and examine several factors as outlined in T.C.A. § 6-58-106(a)(2):

Before formally proposing urban growth boundaries to the coordinating committee, the municipality shall develop and report population growth projections; such projections shall be developed in conjunction with the University of Tennessee. The municipality shall also determine and report the current costs and the projected costs of core infrastructure, urban services and public facilities necessary to facilitate full development of resources within the current boundaries of the municipality and to expand such infrastructure, services and facilities throughout the territory under consideration for inclusion within the urban growth boundaries. The municipality shall also determine and report on the need for additional land suitable for high density, industrial, commercial and residential development, after taking into account all areas within the municipality's current boundaries that can be used, reused or redeveloped to meet such needs. The municipality shall examine and report on agricultural lands, forests, recreational areas and wildlife management areas within the territory under consideration for inclusion within the urban growth boundaries and shall examine and report on the likely long-term effects of urban expansion on such agricultural lands, forests, recreational areas and wildlife management areas.

In addition, T.C.A. § 6-58-106(a)(3) requires the city to hold two public hearings prior to proposing the amendments:

Before a municipal legislative body may propose urban growth boundaries to the coordinating committee, the municipality shall conduct at least two (2) public hearings. Notice of the time, place and purpose of the public hearing shall be published in a newspaper of general circulation in the municipality not less than fifteen (15) days before the hearing.

According to a 2003 opinion of the attorney general, the city does not need to research or hold public hearings if no other city nor the county intends to respond formally to the proposed change or propose an alternative amendment to the growth plan of its own. Op. Tenn. Att’y Gen. 03-154 (Dec. 2, 2003).

3. Request consideration of amendment. To formally initiate the consideration of the amendment, the city must file notices with the mayor of all other cities within the county and with the county mayor. At that time, T.C.A. § 6-58-104(d)(1) requires the coordinating committee (see composition listed below) to reconvene within 60 days of the receipt of notice, and after using the same process for the original adoption as outlined in T.C.A. § 6-58-106, the coordinating committee must then submit the proposed amendment with its recommendation (either for or against) to each local government’s legislative/governing body:

Upon receipt of such notice, the county mayor or county executive shall take appropriate action to reconvene or reestablish the coordinating committee within sixty (60) days of the receipt of the notice. Except as provided for in this subdivision (d)(1), the procedures for amending the growth plan shall be the same as the procedures in this section for establishing the original plan. The burden of proving the reasonableness and necessity of the proposed amendment shall be upon the party proposing the change. It is the duty of the coordinating committee to submit the proposed amendment with its recommendation either for or against the amendment to the county legislative body and to the governing body of each municipality within the county for their approval or disapproval within six (6) months of the date of the coordinating committee's first meeting on the proposed amendment. After the proposed amendment is approved by the county legislative body and the governing body of each municipality and by the local government planning advisory committee, the amendment shall become part of the county's growth plan.

T.C.A. § 6-58-104.

4. Consideration and ratification. Each local legislative/governing body has 120 days to ratify or reject and proposed amendments. If the body fails to act within 120 days, the inaction is deemed as a ratification. If the county or any city rejects the recommendation of the coordinating committee, the city is required to submit its objections and reasons for the objections. The coordinating committee may then reconsider, recommend a revised amendment, and resubmit the revised amendment to the local governments for reconsideration. If the revised or recommended amendment is also rejected, the coordinating committee may request that the secretary of state provide an alternative method of dispute resolution.

5. Approval of LGPAC. If the amendment is ratified by all appropriate local governments, approval by LGPAC is automatic. In all other cases, LGPAC must examine the plan to ensure the plan meets the requirements of T.C.A. § 6-58-106.

6. Filing with county register’s office. After final approval by LGPAC, a copy is sent to the county mayor for filing with the county’s register’s office.

Tennessee Code Annotated § 6-58-104(a)(1) specifies the composition of the coordinating committee as the following:

(A) The county mayor or the county mayor's designee, to be confirmed by the county legislative body; provided, that a member of the county legislative body may serve as such designee subject to such confirmation;

(B) The mayor of each municipality or the mayor's designee, to be confirmed by the municipal governing body;

(C) One (1) member appointed by the governing board of the municipally owned utility system serving the largest number of customers in the county;

(D) One (1) member appointed by the governing board of the utility system, not municipally owned, serving the largest number of customers in the county;

(E) One (1) member appointed by the board of directors of the county's soil conservation district, who shall represent agricultural interests;

(F) One (1) member appointed by the board of the local education agency having the largest student enrollment in the county;

(G) One (1) member appointed by the largest chamber of commerce, to be appointed after consultation with any other chamber of commerce within the county; and

(H) Two (2) members appointed by the county mayor and two (2) members appointed by the mayor of the largest municipality, to assure broad representation of environmental, construction and homeowner interests.

As we previously discussed, T.C.A. § 6-58-118 allows the city to annex by referendum outside the UGB without reconvening the coordinating committee if three requirements are met. T.C.A. § 6-58-118 provides:

A municipality may expand its urban growth boundaries to annex a tract of land without reconvening the coordinating committee or approval from the county or any other municipality if:

(1) The tract is contiguous to a tract of land that has the same owner and has already been annexed by the municipality;

(2) The tract is being provided water and sewer services; and

(3) The owner of the tract, by notarized petition, consents to being included within the urban growth boundaries of the municipality.

Standing to Challenge Annexation

Next, you asked who has standing to challenge an annexation. “Aggrieved owners of property,” which are the property owners within the territory to be annexed, have authority to challenge the annexation. The following from the 2014 MTAS Annexation Handbook provides a still-current analysis:

“Aggrieved Owners of Property”

Under T.C.A. § 6-51-103(a)(1)(A) any “aggrieved owners of property” that borders on or lies within the territory annexed have 30 days to challenge an annexation. Notwithstanding the statutory language that gives abutting landowners the right to challenge an annexation, State ex. rel. Cordova Area Residents for the Environment v. City of Memphis, 862 S.W.2d 525 (Tenn. App.1992), held that part of the statute unconstitutional. For that reason, only the owners of property that lies within the territory proposed for annexation have standing to challenge the annexation.

An aggrieved owner of property challenging an annexation loses his cause of action upon his transfer of ownership of the property. McNamee v. City of Knoxville, 824 S.W.2d 550 (Tenn. Ct. App. 1991).

A county that owned a mere easement in county roads in the territory sought to be annexed was not an “aggrieved owner of property” within the meaning of T.C.A. § 6-51-103(a)(2)(A), held State ex rel. Kessel v. Ashe, 888 S.W.2d 430 (Tenn. 1994). In that case, the county admitted that it did not own the fee to its roads. The court distinguished Spoone v. Mayor of Morristown, 431 S.W.2d 827 (1968), in which the court had earlier held that a county that owned the roads and a school in the area proposed for annexation was an aggrieved owner of property. The county’s interest in the roads in that case was not clear, and the question was whether a legal person as well as a natural person could qualify as an “owner of property” under T.C.A. § 6-51-103(a)(2)(A).

However, I will caution the city regarding future annexations. If, in the future, the city attempts to annex a new parcel of property without the consent of the owner and the city uses property that was annexed improperly as the means of making the new property contiguous to the municipal border, the owner of the property that is being proposed for annexation could challenge the previous annexation.

Post-2015 Process for Annexation

Finally, you asked what process may be used for annexation after the 2015 amendment to annexation. Under the legislation passed in 2015, two methods exist for annexation within a city’s UGB: annexation by resolution and annexation by referendum.

Annexation by Resolution

After being petitioned by the property owner, the city may propose annexation of the property by resolution under T.C.A. § 6-51-104. Please note that property that is being primarily used for agricultural purposes may only be annexed by resolution with the owner’s consent. T.C.A. § 6-51-104(a). Below is a synopsis of the process:

1. The landowner will need to petition the city in writing for annexation of that portion of the land that he is seeking to have annexed.

2. The city’s governing body then must pass a resolution for proposed annexation in accordance with T.C.A. § 6-51-104. The resolution must include a proposed plan of services and the plan of services must meet the requirements set out in T.C.A. § 6-51-102.

3. The proposed plan of services and proposed resolution for annexation shall then be “promptly” sent to each landowner within the area proposed for annexation. Please refer to the language in T.C.A. § 6-51-104(b)(1)(A) related to the type of notice that must be provided regarding the proposed resolution for annexation.

4. After the resolution for proposed annexation that includes a proposed plan of services is sent to the effected landowners, the city must send the proposed plan of services to the planning commission for review, if there is a planning commission. T.C.A. § 6-51-102(b)(4). The planning commission has 90 days to study the proposed plan of services and issue a report on it.

5. Additionally, the city must have a public hearing on the proposed plan of services that is noticed in accordance with the language in T.C.A. § 6-51-102(b)(4) and T.C.A. § 6-51-101(3).

6. If the municipality does not maintain a separate school system, written notice of the proposed annexation must be sent to all affected school systems as soon as possible, but no later than thirty days prior to the public hearing referenced above.

7. Once the plan of services is finalized, the city’s governing body must approve a resolution of annexation that includes the finalized plan of services.

8. Upon adoption of the annexation resolution that includes the finalized plan of services, a copy of the resolution is to be sent to the county mayor in whose county the property being annexed is located. T.C.A. § 6-51-104(b)(1)(A).

9. The city then needs to have the resolution, which describes the property that was annexed, recorded with the county property assessor. A copy of the resolution is to be sent to the Comptroller of the Treasury and the county property assessor. See T.C.A. § 6-51-121 which only mentions annexation by referendum, but should also be done for annexation by consent.

Annexation by Referendum

The process for annexation by referendum is much like annexation by resolution except that ultimately the issue of whether to annex is decided by the voters who reside within the territory to be annexed. The process as set forth in T.C.A. §§ 6-51-104 – 6-51-105 is as follows:

1. The city’s governing body must pass a resolution for proposed annexation in accordance with T.C.A. § 6-51-104. The resolution must include a proposed plan of services and the plan of services must meet the requirements set out in T.C.A. § 6-51-102.

2. The proposed plan of services and proposed resolution for annexation shall then be “promptly” sent to each landowner within the area proposed for annexation. Please refer to the language in T.C.A. § 6-51-104(b)(1)(A) related to the type of notice that must be published regarding the proposed resolution for annexation.