State of Tennessee Ex Rel. Mark B. Garrett v. City of Norris, Tennessee ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 18, 2014 Session
STATE OF TENNESSEE EX REL. MARK B. GARRETT v. CITY OF
NORRIS, TENNESSEE
Appeal from the Chancery Court for Anderson County
No. 11CH3770 William Lantrip, Chancellor
No. E2013-02355-COA-R3-CV-FILED-AUGUST 28, 2014
This appeal arises from a challenge to an annexation ordinance. The City of Norris,
Tennessee (“Norris”) passed two annexation ordinances on the same day. The second
territory to be annexed was contiguous to the city only through bordering the territory
annexed earlier that same day. Mark B. Garrett (“Garrett”), a property owner in the second
annexed territory, sued Norris in the Chancery Court for Anderson County (“the Trial
Court”) in a bid to stop the annexation of this second territory (“the Territory”). The Trial
Court eventually voided the annexation of the Territory on the basis that the Territory was
not contiguous to the city. Norris appeals. We hold, inter alia, that the annexation ordinance
purporting to annex the Territory is void because at the time of the passage of the annexation
ordinance, the first annexation was not yet operative and the Territory, therefore, was not
contiguous to the city as required by law. We affirm the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.
P. Edward Pratt, Knoxville, Tennessee, for the appellant, City of Norris, Tennessee.
David S. Wigler and Houston S. Havasy, Knoxville, Tennessee, and David A. Stuart,
Clinton, Tennessee, for the appellee, Mark B. Garrett.
OPINION
Background
On November 17, 2011, the Norris City Council met to conduct city business.
The council considered Item No. 2, Ordinance 544, on second reading. Ordinance 544 would
annex 4,350 feet of Highway 61 right-of-way along the city’s southern boundary, along with
four parcels of private property on the other side of Highway 61 right-of-way. Ordinance
544 was adopted unanimously. The council conducted other business later that same day.
Garrett spoke out against the proposed annexation of the Territory and objected to a plan of
services for annexation of his property. Norris then proceeded to consider Item No. 5,
Ordinance 545. Ordinance 545 would annex two parcels adjoining the territory purportedly
annexed by Ordinance 544. In other words, the Territory is contiguous to the city only by
virtue of its adjoining the territory annexed by Ordinance 544 earlier the same day. Garrett
owned property in the Territory sought to be annexed in Ordinance 545, the subject of this
lawsuit. There is no dispute that the Territory falls within the urban growth boundary of
Norris. Ordinance 545 was adopted by a four to one vote.
On December 15, 2011, Garrett sued to challenge Ordinance 545 annexing the
Territory. No one challenged the adoption of Ordinance 544. Garrett’s complaint included
the following allegations:
7. Plaintiff alleges that the annexation is not reasonable and is not
reasonably necessary for the welfare of the municipality.
8. Plaintiff alleges, on information and belief, that the defendant
did not comply with all of the provisions and conditions of Tenn. Code Ann.
§§ 6-51-101, et seq., which prescribes the lawful method and minimum
requirements for the annexation of territory by a municipality, and plaintiff
alleges that the defendant should be required to provide strict proof of
compliance with each and ever [sic] provision and requirement contained
therein.
9. This action is authorized by Tenn. Code Ann. § 6-51-103, and
is in the nature of a quo warranto proceeding brought in accordance with Tenn.
Code Ann. §§ 29-35-101, et seq., to contest the proposed annexation on the
grounds previously set forth and on the ground that it may not be deemed
reasonably necessary for the welfare of the residents and property owners of
the affected territory and the municipality as a whole and so constitutes an
exercise of power not conferred by law.
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Garrett then sought leave to amend his complaint to include a constitutional challenge to
Tenn. Code Ann. § 6-58-111. Norris opposed the amendment, but the Trial Court allowed
it. Norris filed two motions to dismiss, challenging the complaint in that it lacked sufficient
factual allegations, that the applicable statute of limitations had expired, and that the Trial
Court lacked subject matter jurisdiction. Namely, Norris asserted that Garrett improperly
filed under the older, inapplicable statute for challenging annexations, Tenn. Code Ann. §
6-51-103, rather than the new statute at Tenn. Code Ann. § 6-58-111. After a hearing, the
Trial Court held that it lacked subject matter jurisdiction and dismissed Garrett’s complaint.
Garrett filed a motion to alter or amend, which the Trial Court granted in February 2013.
The Trial Court concluded that, notwithstanding the complaint’s citation to the wrong statute,
Garrett’s complaint was sufficient to state a cause of action and the Trial Court had subject
matter jurisdiction. The Trial Court also struck the amended complaint. In May 2013, as the
case was ready for trial, Garrett filed a motion for leave to file a motion challenging
Ordinance 545 on the theory that it could not be annexed sequentially with the as yet
inoperative Ordinance 544 in the same day. This, according to Garrett, was an unlawful
annexation of territory not contiguous to the city. Agreeing with Garrett’s position, the Trial
Court voided Ordinance 545.
The Trial Court recognized this ruling was premature, and so allowed Garrett
to file a motion for summary judgment. The Trial Court granted Garrett’s motion for
summary judgment, holding that Ordinance 545 purporting to annex the Territory was void
because it was adopted sequentially to Ordinance 544 in the same meeting, thus violating the
contiguity requirement for annexations. The Trial Court stated:
Well, the Court finds that there is undisputed facts in this matter that is
essentially stipulated, everybody agrees what happened. The Court is
convinced that the - - at the time of the annexation of the property before the
Court today, that it was not contiguous to the town of Norris and that the
statutory requirement that the property be contiguous - - and I believe it needs
to be contiguous at the time of the commencement of the annexation process,
and certainly needs to be - - there needs to be a - - that the property that it is
then contiguous to be annexed. And I find that doing it the same night,
breaking it up just by period of time with other considerations does not cure
the fact that this property was not contiguous to the town at the time of the
adoption of the ordinance which is being challenged before the Court.
And for that reason, the Court finds that the motion for summary
judgment by the defendant - - by, I guess it would be by the plaintiff in this
matter, should be granted.
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Norris filed a motion to alter or amend, which was denied by the Trial Court. Norris appeals
the Trial Court’s summary judgment voiding Ordinance 545.
Discussion
Both parties raise several issues on appeal. We restate and consolidate these
into two dispositive issues: 1) whether the Trial Court had subject matter jurisdiction to hear
this case; and, 2) whether the Trial Court erred in granting summary judgment voiding the
annexation ordinance. Garrett also filed a motion to dismiss this appeal. In his motion,
Garrett argues that the recent changes to annexation law signaling an end to annexation by
ordinance require that we dismiss this appeal as moot. We will address Garrett’s motion to
dismiss in the course of addressing the other issues.
This case was decided on summary judgment. With regard to summary
judgments, this Court explained in Estate of Boote v. Roberts:
The trial court’s resolution of a motion for summary judgment is a
conclusion of law, which we review de novo on appeal, according no
deference to the trial court’s decision. Martin v. Norfolk S. Ry. Co., 271
S.W.3d 76, 84 (Tenn. 2008). Summary judgment is appropriate only when the
moving party can demonstrate that there is no genuine issue of material fact,
and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04;
see Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd v. Hall,
847 S.W.2d 208, 214 (Tenn. 1993).
This action was filed [after July 1, 2011]. Therefore, the trial court was
required to apply the summary-judgment standard set forth in Tennessee Code
Annotated § 20-16-101.1 That statute provides:
In motions for summary judgment in any civil action in
Tennessee, the moving party who does not bear the burden of
proof at trial shall prevail on its motion for summary judgment
if it:
(1) Submits affirmative evidence that
negates an essential element of the nonmoving
party’s claim; or
1
Section 20-16-101 is applicable to all cases filed on or after July 1, 2011.
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(2) Demonstrates to the court that the
nonmoving party’s evidence is insufficient to
establish an essential element of the nonmoving
party’s claim.
Tenn. Code Ann. § 20-16-101 (Supp. 2012).2
Estate of Boote v. Roberts, No. M2012-00865-COA-R3-CV, 2013 WL 1304493, at **8-9
(Tenn. Ct. App. March 28, 2013), no appl. perm. appeal filed (footnotes in original but
renumbered). Here, however, the movant, Garrett, had the burden of proof at trial, and so
we apply the pre-statutory standard of review. Our Supreme Court reiterated the standard
of review in summary judgment cases as follows:
The scope of review of a grant of summary judgment is well
established. Because our inquiry involves a question of law, no presumption
of correctness attaches to the judgment, and our task is to review the record to
determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).
A summary judgment may be granted only when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
1993). The party seeking the summary judgment has the ultimate burden of
persuasion “that there are no disputed, material facts creating a genuine issue
for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.
If that motion is properly supported, the burden to establish a genuine issue of
material fact shifts to the non-moving party. In order to shift the burden, the
movant must either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party cannot establish
an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient
to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
2
Section 20-16-101 was enacted to abrogate the summary-judgment standard set forth in Hannan,
which permitted a trial court to grant summary judgment only if the moving party could either (1)
affirmatively negate an essential element of the nonmoving party’s claim or (2) show that the nonmoving
party cannot prove an essential element of the claim at trial. Hannan, 270 S.W.3d at 5. The statute is
intended “to return the summary judgment burden-shifting analytical framework to that which existed prior
to Hannan, reinstating the ‘put up or shut up’ standard.” Coleman v. S. Tenn. Oil Inc., No. M2011-01329-
COA-R3-CV, 2012 WL 2628617, at *5 n.3 (Tenn. Ct. App. July 5, 2012).
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Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
apply the federal standard for summary judgment. The standard established
in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
sets out, in the words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd
v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
175, 220 (2001).
Courts must view the evidence and all reasonable inferences therefrom
in the light most favorable to the non-moving party. Robinson v. Omer, 952
S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
only when the facts and the reasonable inferences from those facts would
permit a reasonable person to reach only one conclusion. Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).3
We first address whether the Trial Court had subject matter jurisdiction to hear
this case. Norris argues, among other things, that Garrett’s complaint was fatally defective
because it cited to the older, inapplicable statutory scheme for challenging annexations at
Tenn. Code Ann. § 6-51-103, rather than the newer statute Tenn. Code Ann. § 6-58-111,
which pertains to territories in the urban growth boundary as in the instant case, and thus it
failed to invoke subject matter jurisdiction. Our Supreme Court has stated:
A municipality may annex an area within its urban growth boundaries using
methods established by the 1955 Act, and a property owner challenging that
annexation via a quo warranto proceeding will bear the burden of showing that
the annexation “is unreasonable for the overall well-being of the communities
involved” or that “[t]he health, safety, and welfare of the citizens and property
owners of the municipality and territory will not be materially retarded in the
absence of such annexation.” Act of May 1, 1998, § 12(a) (codified as
amended at Tenn. Code Ann. § 6-58-111(a) (Supp. 2008)). Moreover, the case
will be heard without a jury. Tenn. Code Ann. § 6-58-111(b). If, however, the
municipality wishes to annex an area outside its growth boundaries, it must
either propose an amendment to the growth plan or rely on the referendum
3
We believe applying either standard of review for summary judgment would yield the same outcome
in this matter.
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annexation method. Act of May 1, 1998, § 12(c)-(d) (codified as amended at
Tenn. Code Ann. § 6-58-111(c)(d)(2008)). 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 power within
predicted boundaries. See Tipton, 205 S.W.3d at 460 (discussing “significant
differences” in quo warranto procedures under the 1998 Amendments and the
“older framework”).
***
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”).
In State ex rel. Earhart v. City of Bristol, however, we recognized an
exception (other than a constitutional challenge) to the rule and held that, in
certain situations where no quo warranto action is statutorily available, it is
permissible to challenge an ordinance's validity with a declaratory judgment
action. 970 S.W.2d at 953. In Earhart the validity of an ordinance enacted
several years earlier was challenged because the annexed area contained no
“people, private property, or commercial activity.” Id. at 954; see State ex rel.
Collier v. City of Pigeon Forge, 599 S.W.2d 545, 547 (Tenn. 1980) (“[L]ong
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and lean ... annexations, so long as they take in people, private property, or
commercial activities and rest on some reasonable and rational basis, are not
per se to be condemned.” (emphasis added)). Annexations containing no
people, private property, or commercial activities, by necessity, cannot be
challenged in a quo warranto action, because only an “aggrieved owner of
property that borders or lies within territory that is the subject of an annexation
ordinance prior to the operative date thereof” may file such a challenge. Tenn.
Code Ann. § 6-51-103(a)(1)(A) (emphasis added). We held, therefore, that the
action for declaratory judgment was permissible, but limited our holding in
two key ways. 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.W.2d at 954. Second,
we stated that it is only “ where the quo warranto proceeding 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).
Highwoods Properties, Inc. v. City of Memphis, 297 S.W.3d 695, 707-08 (Tenn. 2009).
It appears that the quo warranto challenge pursuant to Tenn. Code Ann. § 6-58-
111 was the appropriate vehicle to challenge the annexation in the instant case. Nevertheless,
the issue before us is whether the Trial Court lacked subject matter jurisdiction. We find no
support for Norris’s proposition that failing to cite to the specific statute, Tenn. Code Ann.
§ 6-58-111, intrinsically means that the Trial Court lacked subject matter jurisdiction. While
Garrett’s complaint was not a model of clarity, it articulated sufficient facts and cited relevant
law such that Norris was apprised of a challenge to the annexation of the Territory.
Critically, Garrett filed his complaint within 30 days as required by Tenn. Code Ann. § 6-51-
102. We, therefore, have here a timely filed quo warranto challenge to an annexation
ordinance that simply lacks a specific citation to the modern statute. In our judgment, and
lacking any controlling authority to the contrary, we do not believe that this was fatal to
Garrett’s case. We also note that this case ultimately was resolved on the issue of the
contiguity of the Territory to Norris, not an issue of reasonableness. We hold that the Trial
Court did, in fact, have subject matter jurisdiction to hear this case.
The annexation of the Territory has neither been operative or effective pending
judicial review. This Court has stated:
When a quo warranto action is timely filed to challenge an annexation,
the effective date of the challenged annexation ordinance is “held in abeyance”
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pending the litigation. Highwoods Properties, Inc. v. City of Memphis, No.
W2006-00732-COA-R3-CV, 2006 WL 3628102 at *7 (Tenn. Ct. App. Dec.14,
2006). Moreover, an annexation is not “effective” or “operative” until the
ordinance is upheld as valid by the presiding court. Piper v. City of Memphis,
861 S.W.2d 832, 833-34 (Tenn. Ct. App.1992) (citing Mayor & Aldermen of
Chattanooga v. Raulston, 117 Tenn. 569, 97 S.W. 456 (Tenn. 1906)).
City of Knoxville v. Knox County, No. M2006-00916-COA-R3-CV, 2008 WL 465265, at *3
(Tenn. Ct. App. Feb. 20, 2008), Rule 11 appl. perm. appeal denied August 25, 2008.
Having held that the Trial Court had subject matter jurisdiction to hear this
case, we now address Garrett’s motion to dismiss. In recent years, Tennessee law regarding
annexations has changed significantly. Annexation by ordinance is in its twilight. On April
15, 2014, Tenn. Code Ann. § 6-51-102 was amended by our General Assembly to provide:
“Subsection (a) of this section prohibits any annexation by ordinance that is not both
operative and effective prior to May 16, 2015.” 2014 Tennessee Laws Pub. Ch. 707 (S.B.
2464), § 2. Moratoriums have been enacted to prevent, with certain exemptions, forced
annexations in the interim. Tennessee law provides:
(a) Notwithstanding any provision of this part or any other law to the contrary:
(1)(A) From April 15, 2013, through April 15, 2014, no municipality shall
extend its corporate limits by means of annexation by ordinance upon the
municipality's own initiative, pursuant to § 6-51-102, in order to annex
territory being used primarily for residential or agricultural purposes; and no
such ordinance to annex such territory shall become operative during such
period, except as otherwise permitted pursuant to subdivision (a)(1)(B);
(B) If, prior to April 15, 2013, a municipality formally initiated an annexation
ordinance restricted by subdivision (a)(1)(A); and if the municipality would
suffer substantial and demonstrable financial injury if such ordinance does not
become operative prior to April 15, 2014; then, upon petition by the
municipality submitted prior to April 15, 2014, the county legislative body
may, by a majority vote of its membership, waive the restrictions imposed on
such ordinance by subdivision (a)(1)(A); and
(2)(A) From April 15, 2014 through May 15, 2015, no municipality shall
extend its corporate limits by means of annexation by ordinance, pursuant to
§ 6-51-102, or by resolution, pursuant to §§ 6-51-104 and 6-51-105; and no
annexation shall become operative during such period, unless otherwise
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permitted pursuant to subdivision (a)(1)(B), (a)(2)(B), or § 6-58-118, or unless
the owner or owners of the property give written consent for the annexation;
(B) If, prior to April 15, 2014, a municipality formally acted upon an
annexation ordinance or resolution restricted by subdivision (a)(2)(A); and if
the municipality would suffer substantial and demonstrable financial injury if
such ordinance or resolution does not become operative prior to May 15, 2015;
then, upon petition by the municipality submitted prior to May 15, 2015, the
county legislative body may, by a majority vote of its membership, waive the
restrictions imposed on such ordinance or resolution by subdivision (a)(2)(A);
....
Tenn. Code Ann. § 6-51-122 (Supp. 2014).
Garrett argues that Norris’s only avenue for finalizing the annexation in spite
of the moratorium is to petition the Anderson County Board of Commissioners for a waiver.
Norris, which from the record before us apparently has not undertaken any such step, argues
in response that the recent legislative enactments have no bearing on its annexation of the
Territory. Garrett contends that such a petition would be futile anyway, as the Anderson
County Board of Commissioners has gone on record to express its disapproval of forced
annexations.
Initially, we acknowledge that the General Assembly, through its recent
enactments, has demonstrated an intent to move away from and finally end “forced”
annexation by ordinance. However, the legislature also has left open a route for annexations
by ordinance still “in the pipeline,” so to speak. The law cited above reflects that
annexations by ordinance already underway may be finalized through certain waivers.
Garrett submits to us that, given that body’s stance on record, it would be futile for Norris
to pursue a waiver with the Anderson County Board of Commissioners. We, however,
believe this is an insufficient fact to preclude the possibility that a waiver could successfully
be obtained. Norris could, at least in theory, pursue a waiver under the law. This being the
case, we deny Garrett’s motion to dismiss.
Having determined that the Trial Court had subject matter jurisdiction to hear
this case and that Norris’s appeal is properly before us, the final issue we address is whether
the Trial Court erred in granting summary judgment voiding Ordinance 545 which purported
to annex the Territory. Garrett argues that the Territory could not have been lawfully
annexed because at the time of the passage of the annexation ordinance, the Territory was
not contiguous to the city.
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This Court recently addressed operative dates of annexations in the case of
Silliman v. City of Memphis, No. W2013-02858-COA-R3-CV, 2014 WL 3016659 (Tenn. Ct.
App. July 2, 2014), perm. app. pending. We stated:
The Tennessee Supreme Court has previously held that there is a distinction
between the operative date of an ordinance and the effective date of an
annexation. See Highwoods Properties, Inc. v. City of Memphis, 297 S.W.3d
695, 711-12 (Tenn. 2009).
***
Tennessee courts have consistently construed the term “operative,” when
modifying the term “ordinance,” in the annexation statutory scheme, as
referring to either thirty days from the final passage of the ordinance, when no
quo warranto action is filed, or thirty-one days from the date upon which an
order upholding the validity of the ordinance is entered, when a timely quo
warranto action has been filed. See Highwoods Properties, 297 S.W.3d 695,
711-12; Bastnagel, 457 S.W.2d at 535; Cochran 2013 WL 1122803, at *3;
Town of Huntsville, 269 S.W.3d at 61 & n. 5; City of Knoxville, 2008 WL
465265, at *3.
Silliman, 2014 WL 3016659, at **15, 18.
The full implications of an annexation ordinance are not necessarily triggered
immediately upon passage of the ordinance. There is a time period in which aggrieved
parties may file suit quo warranto to challenge the annexation. Here, the proverbial ink
barely had dried on Ordinance 544 when Ordinance 545 was passed annexing the Territory.
With Ordinance 544 not yet operative and open to court challenge, the Territory remained
an island apart from Norris.
This Court addressed attempts to annex territory not contiguous to a city in a
recent opinion almost squarely on point from which we now quote liberally. We stated:
The Plaintiffs assert first that the trial court erred in upholding the
annexation of the subareas that are not contiguous with the City's existing
boundary at the time of annexation. Based on the language in Tennessee Code
Annotated § 6-51-102(a), the Plaintiffs contend that the City may lawfully
annex only “territory adjoining its existing boundaries.” T.C.A. § 6-51-
102(a)(1) (2005 & 2009 Supp.). In support of their contention, the Plaintiffs
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cite to Town of Bartlett v. City of Memphis, 482 S.W.2d 782 (Tenn. Ct. App.
1972).
In response, the City points out that all of the subareas are contiguous
to one another, and that some of them adjoin the City's boundary as it existed
at the time of annexation. Because all of the subareas were annexed
simultaneously, the City contends that it has sufficiently complied with the
contiguity requirement of Section 6-51-102. Citing American Law Reports,
American Jurisprudence, and ten cases from other jurisdictions, the City
asserts that “[i]t is widely accepted that the annexation of multiple tracts is
sufficient to meet the requirements of contiguity as long as one of the tracts is
adjacent to the municipality and all of the tracts are adjacent to each other.”
In the case at bar, it is undisputed that the land to be annexed is within
the City's urban growth boundary. Consequently, Tennessee Code Annotated
§ 6-58-111 governs the instant quo warranto challenge to the annexation.
State ex rel. Tipton v. City of Knoxville, 205 S.W.3d 456, 461 (Tenn. Ct. App.
2006). Under Section 6-58-111(a), a municipality may annex territory within
its urban growth boundary by any manner prescribed in Tennessee Code
Annotated § 6-51-101 et seq. See T.C.A. § 6-58-111(a) (2005 & 2009 Supp.).
In this case, the land was annexed by ordinance, and thus the
annexation is governed by Tennessee Code Annotated § 6-51-102(a)(1), which
provides:
A municipality, ... upon its own initiative when it appears that
the prosperity of such municipality and territory will be
materially retarded and the safety and welfare of the inhabitants
and property endangered, after notice and public hearing, by
ordinance, may extend its corporate limits by annexation of such
territory adjoining its existing boundaries as may be deemed
necessary for the welfare of the residents and property owners
of the affected territory as well as the municipality as a whole;
provided, that the ordinance shall not become operative until
thirty (30) days after final passage thereof.
T. C. A. § 6-51-102(a)(1) (2005 & 2009 Supp.). Thus, a municipality may
annex land by ordinance, provided that the land to be annexed adjoins the
municipality's existing boundaries and conditions warranting annexation are
fulfilled.
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Here, the City decided to divide the Northwest territory into forty-nine
subareas and enact forty-nine annexation ordinances simultaneously. All of
the subareas are contiguous to one another; however, some of the subareas do
not immediately adjoin the City's boundary as it existed at the time the
ordinances were passed. The issue, then, is whether the City has the authority
under Section 6-51-102(a)(1) to annex subareas that do not immediately adjoin
the City's boundary.
***
More importantly, we find that this issue is not one of first impression.
In Town of Bartlett v. City of Memphis, 482 S.W.2d 782 (Tenn. Ct. App.1972),
this Court addressed a somewhat similar situation. In that case, the defendant
City of Memphis passed an ordinance in 1968 to annex an area known as
“Raleigh,” with an effective date in 1972. Town of Bartlett, 482 S.W.2d at
783. At the time the annexation ordinance was passed, Raleigh apparently
adjoined the existing Memphis City limit. Meanwhile, in the interim before the
effective date of the Raleigh annexation, the City of Memphis and the Town
of Bartlett engaged in an apparent “race” to annex an area known as “Elmore
Park.” Elmore Park adjoined the Raleigh area that was the subject of the
Memphis annexation ordinance, but did not adjoin the Memphis City limits as
they existed at the time, because the Raleigh annexation had not yet become
effective.
In April 1970, the Town of Bartlett enacted an ordinance annexing
Elmore Park. Id. at 782. In July of the same year, Memphis amended the 1968
ordinance that had annexed Raleigh to include the annexation of Elmore Park
as well. Id. at 783. Thereafter, Bartlett filed a lawsuit challenging Memphis's
annexation of Elmore Park. The trial court entered judgment for Bartlett, and
Memphis appealed.
On appeal, the appellate court reviewed the operative language of
Tennessee Code Annotated § 6-309, which has since been re-numbered as
Section 6-51-102(a)(1). The statute states that a municipality, by ordinance,
“may extend its corporate limits by annexation of such territory [a]djoining its
existing boundaries as may be deemed necessary....” Id. at 784. The Court in
Town of Bartlett, based on this language, concluded that the City of Memphis
lacked the authority to annex the Elmore Park area “because that territory
[Elmore Park] did not at the time of the procedures being reviewed, ..., adjoin
the existing boundaries of the City of Memphis.” Id. at 784. It found further
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that the attempt by Memphis to annex Elmore Park by amending the prior
ordinance that had annexed Raleigh amounted to a “circumvent [ion][of] the
clear legislative mandate” of contiguity. Id. Consequently, the appellate court
in Town of Bartlett determined that the attempted annexation of Elmore Park
by the City of Memphis was void, and upheld the trial court's ruling in favor
of the Town of Bartlett. Id.
Similar to the City of Memphis in Town of Bartlett, the City in this case
seeks to annex land that does not immediately adjoin its boundary as it existed
at the time of the annexation. The Town of Bartlett decision interpreted
Tennessee Code Annotated § 6-51-102(a)(1) as authorizing only the
annexation by ordinance of a territory that adjoins the municipality's boundary
at the time of the annexation. The City urges that the facts in the instant appeal
are distinguishable from those in Town of Bartlett because, in this case, all of
the subareas were annexed simultaneously. We cannot agree. In Town of
Bartlett, Memphis sought to annex land that did not adjoin its existing
boundary by amending the ordinance that had previously annexed adjoining
land, and the court in Town of Bartlett rejected this as an attempt to
“circumvent the clear legislative mandate” of contiguity under the statute. Id.
We find this controlling.
If we were interpreting Section 6-51-102(a)(1) on a blank slate, we
might agree with the City's proposed interpretation. We are not. For over
thirty years since the Court in Town of Bartlett interpreted the statute, the
statutory language has remained intact. “[T]he fact that the legislature has not
expressed disapproval of a judicial construction of a statute is persuasive
evidence of legislative adoption of the judicial construction,” because “[t]he
legislature is presumed to know the interpretation which courts make of its
enactments.” Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn.1977) (citing
Missouri v. Ross, 299 U.S. 72, 57 S. Ct. 60, 81 L. Ed. 46 (1936); Stern v. Miller,
348 So. 2d 303 (Fla. 1977); Walling v. Bown, 9 Idaho 740, 76 P. 318 (1904);
Bottomly v. Ford, 117 Mont. 160, 157 P.2d 108 (1945); Hargrove v. Newsome,
225 Tenn. 462, 470 S.W.2d 348 (1971); Krohn v. Richardson–Merrell, Inc.,
219 Tenn. 37, 406 S.W.2d 166 (1966); McKinney v. Hardwick Clothes, Inc.,
217 Tenn. 457, 398 S.W.2d 265 (1966); Cunningham v. Cunningham, 120
Tex. 491, 40 S.W.2d 46 (1931)); accord Freeman Indus., LLC v. Eastman
Chem. Co., 172 S.W.3d 512 (Tenn. 2005). Accordingly, we find the fact that
Section 6-51-102(a)(1) has not been altered in the decades since the Town of
Bartlett decision was rendered to be indicative of the Legislature's adoption of
the interpretation made by the Town of Bartlett Court.
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In light of the interpretation of Section 6-51-102(a)(1) in Town of
Bartlett, we must conclude that the trial court erred in finding that the City can
lawfully annex the subareas that do not immediately adjoin the City's boundary
as it existed at the time the City Council passed the annexation ordinances.
Southwest Tenn. Elec. Membership Corp. v. City of Jackson, 359 S.W.3d 590, 600-03 (Tenn.
Ct. App. 2010)(footnote omitted).
Norris argues that this case is critically distinct. Here, Ordinance 545 was
adopted after Ordinance 544, not simultaneously with it. Thus goes the argument, the
ordinance passed earlier in the same day rendered the Territory contiguous.
We find Norris’s argument unavailing. This strikes us as an ingenious if rather
unsubtle way to attempt to bypass the contiguity requirement. We see no relevant distinction
between the simultaneously adopted annexations in Southwest Tenn. Elec. Membership Corp.
v. City of Jackson and the annexations sequentially adopted the same day in this case. Our
review of annexation cases convinces us that mere passage of an annexation ordinance is not
the end of the annexation process but in some instances only the beginning. Until Ordinance
544 became operative, the Territory’s contiguity to Norris was only potential. It is no good
to say that since Ordinance 544 never was challenged, the Territory since has become
contiguous to Norris. At the time Ordinance 545 was passed, the Territory was not
contiguous to Norris. Therefore, we are constrained to conclude that the Trial Court was
correct in granting summary judgment voiding Ordinance 545. We affirm the judgment of
the Trial Court.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, City of Norris, Tennessee, and its surety, if any.
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D. MICHAEL SWINEY, JUDGE
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