Can the Tennessee legislature pass a law that changes annexation rules for just one county or one piece of land?

Subject

Opinion No. 12-12, Annexation in Shelby County, February 9, 2012

Plain-English summary

Article XI, Section 9 of the Tennessee Constitution, called the Municipal Boundaries Clause, requires the General Assembly to set the methods for creating, merging, dissolving, and altering municipalities "by general law." It was added in 1953 to stop the Legislature from picking annexation winners and losers one city or county at a time. Senator Norris asked the AG to review two pending Shelby County annexation bills against that clause.

SB 3703. Used a metes-and-bounds description to move a specific tract out of the City of Memphis's annexation reserve area (which under the growth plan was Memphis's urban growth boundary) and into the planned growth area of Shelby County. Because the tract moved from a reserve area to a planned growth area, Memphis lost its easier annexation path and could now annex only by amending the growth plan or by voter referendum. The AG concluded the bill was constitutionally suspect: it changed the method of altering Memphis's boundaries for one tract of land, not by general law. Even under the rational-basis gloss some Tennessee courts have read into the clause, the AG could conceive of no rational basis for treating that one tract differently.

SB 3702. Made two changes that applied only "in any county having a population of greater than nine hundred thousand (900,000) according to the 2010 federal census or any subsequent federal census." That bracket caught only Shelby County. The bill (1) made annexation ordinances in those counties subject to voter referendum, and (2) gave residents of any municipality in those counties the right to deannex by petition and three-fourths-vote referendum.

The AG said SB 3702 was also constitutionally suspect. Tennessee courts have never upheld an annexation law with a population classification under the Municipal Boundaries Clause. Frost v. City of Chattanooga (1972), Pirtle v. Jackson (1977), Vollmer v. Memphis (1987), and Hart v. City of Johnson City (1990) all struck down population-bracketed annexation rules. The AG noted that some courts add a "rational basis" overlay (e.g., City of Oakland v. McCraw, Tenn. Ct. App. 2003), but said no rational basis existed for applying different annexation and deannexation rules to "any municipality" in a densely populated county regardless of the municipality's own size. State ex rel. Tipton v. Knoxville (Tenn. Ct. App. 2006) provided the only counter-example, upholding a narrow statute that affected only quo-warranto jury rights within urban growth boundaries, but that statute was much more limited.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Tennessee Legislature passed substantial annexation reform after this opinion, including an annexation-by-referendum-only regime for residential annexations and a deannexation framework that drew on some of the SB 3702 concepts. Pull the current text of Tenn. Code Ann. ch. 6-51 and ch. 6-58 before relying on any specific procedural rule mentioned here.

Background and statutory framework

Municipal Boundaries Clause. Tenn. Const. Art. XI, § 9: "The General Assembly shall by general law provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered." Adopted in 1953 to end legislative pick-and-choose annexation rules.

Comprehensive growth plan law. Tenn. Code Ann. §§ 6-58-101 to -117. Each county and its municipalities develop a growth plan that delineates corporate limits, urban growth boundaries, planned growth areas, and rural areas. Tenn. Code Ann. § 6-58-107. Annexation by ordinance is straightforward within a city's urban growth boundary; outside that boundary the city must either get the growth plan amended or hold a referendum. Tenn. Code Ann. § 6-58-111.

Shelby County specifics. Shelby County's pre-1998 annexation reserve agreements were grandfathered into its growth plan by Tenn. Code Ann. § 6-58-104(a)(7). The reserve areas function as urban growth boundaries.

Pre-2012 annexation case law.

• Frost v. City of Chattanooga (1972): struck down a population-bracketed annexation rule under the Municipal Boundaries Clause.
• Pirtle v. Jackson (1977): struck down a population-bracketed annexation defense rule; no rational basis.
• Vollmer v. Memphis (1987): struck down random-classification annexation rules.
• Hart v. City of Johnson City (1990): struck down population-bracketed annexation procedure for property owners in 81 counties; no rational basis.
• City of Oakland v. McCraw (Tenn. Ct. App. 2003): struck down a special-class incorporation rule under the Clause; discussed but did not endorse rational-basis review.
• State ex rel. Tipton v. Knoxville (Tenn. Ct. App. 2006): upheld a narrow statute removing jury trial in quo warranto challenges to growth-plan annexations; the court emphasized the statute's narrow scope.

Rational-basis gloss (if applied). A classification has rational basis if it bears some natural and reasonable relation to the object sought, or if the challenged classifications have a reasonable relationship to a legitimate state interest. Gallaher v. Elam (Tenn. 2003); Huntsville v. Duncan (Tenn. Ct. App. 1999); Riggs v. Burson (Tenn. 1997).

Common questions

Q: What is the Municipal Boundaries Clause and why does it matter?
A: It is a 1953 amendment to the Tennessee Constitution that forces the Legislature to handle annexation through general statewide rules rather than one-off favors for individual cities or property owners. The drafters were reacting to a decades-long pattern of special legislative acts that effectively redrew specific municipal boundaries.

Q: Why was SB 3703 suspect even though the General Assembly was technically amending a general statute?
A: Because the bill's substance described a specific tract of land in Shelby County by metes and bounds and moved it from one growth-plan category to another. The form (an amendment to a general statute) did not save it; the effect was a one-tract carve-out, which is exactly what the Municipal Boundaries Clause forbids.

Q: Tennessee passes population-bracketed statutes all the time. Why does that not work for annexation?
A: Outside annexation, courts may uphold a population bracket on rational-basis grounds. Inside the Municipal Boundaries Clause's domain, the Tennessee Supreme Court has consistently rejected population brackets, viewing them as the very evil the Clause was added to prevent. Even if a court applies a rational-basis test to such classifications, the bracket has to have a real basis tied to annexation policy, and the AG saw none here.

Q: Is Memphis's growth plan still binding?
A: As of 2012 yes, including the urban growth boundaries derived from the pre-1998 annexation reserve agreements grandfathered by Tenn. Code Ann. § 6-58-104(a)(7). Statutory annexation reform in Tennessee has continued since 2012; check current law.

Q: Why is a deannexation right by petition a problem under the Clause?
A: Because SB 3702 limited the new petition right to municipalities in 900,000-plus counties. A general right to petition for deannexation would not have raised the same concern. The clause's evil is selective application, not the underlying policy.

Citations and references

Constitutional provision and statutes:

• Tenn. Const. Art. XI, § 9
• Tenn. Code Ann. §§ 6-58-101 to -117
• Tenn. Code Ann. §§ 6-51-101 et seq.

Cases:

• Highwoods Properties, Inc. v. City of Memphis, 297 S.W.3d 695 (Tenn. 2009)
• Frost v. City of Chattanooga, 488 S.W.2d 370 (Tenn. 1972)
• Pirtle v. Jackson, 560 S.W.2d 400 (Tenn. 1977)
• Vollmer v. Memphis, 730 S.W.2d 619 (Tenn. 1987)
• Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990)
• City of Oakland v. McCraw, 126 S.W.3d 29 (Tenn. Ct. App. 2003)
• State ex rel. Tipton v. Knoxville, 205 S.W.3d 456 (Tenn. Ct. App. 2006)
• County of Shelby v. McWherter, 936 S.W.2d 923 (Tenn. Ct. App. 1996)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-012.pdf

Original opinion text

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S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202
February 9, 2012
Opinion No. 12-12
Annexation in Shelby County
QUESTIONS

1. Senate Bill 3703/House Bill 3473 of the 107th
   General Assembly of Tennessee
   (hereinafter “SB3703”) removes territory from the reserve annexation area of the City of
   Memphis and places the territory in the planned growth area of Shelby County. Is SB3703
   constitutionally suspect?
2. Senate Bill 3702/House Bill 3392 of the 107th
   General Assembly of Tennessee
   (hereinafter “SB3702”) changes the process by which territory may be annexed to a municipality
   “in any county having a population of greater than nine hundred thousand (900,000) according to
   the 2010 federal census or any subsequent federal census.” SB3702 also changes the process by
   which a territory may be deannexed from a municipality in “any municipality in a county having
   a population in excess of nine hundred thousand (900,000) according to the 2010 federal census
   or any subsequent federal census.” Is SB 3702 constitutionally suspect?
   OPINIONS
3. Yes. Because SB3703 alters a specific tract of land‟s classification under Tennessee‟s
   annexation laws, SB3703 is constitutionally suspect under Article XI, § 9, of the Tennessee
   Constitution, which provides in relevant part that, “[t]he General Assembly shall by general law
   provide the exclusive methods by which municipalities may be created, merged, consolidated
   and dissolved and by which municipal boundaries may be altered.” (emphasis added)
   (hereinafter referred to as the “Municipal Boundaries Clause”).
4. Yes. SB3702 establishes a population classification that deviates from the general law
   defining how municipal boundaries may be altered. Tennessee courts have never found such a
   statute valid under the Municipal Boundaries Clause. While it conceivably can be argued that a
   statute with a classification supported by a rational basis is valid under the Municipal Boundaries
   Clause, this Office is not aware of any facts that would justify the provisions of SB3702 applying
   different rules of annexation to all municipalities located in a densely populated county.
   SB3702, therefore, is constitutionally suspect under the Municipal Boundaries Clause.
   Page 2
   ANALYSIS
5. SB3703
   SB3703 amends Tennessee‟s comprehensive growth plan law, codified at Tenn. Code
   Ann. §§ 6-58-101 to -117. Under Tenn. Code Ann. § 6-58-104, the county and municipal
   governments within a county must develop a “growth plan.” The growth plan must delineate
   municipal corporate limits as well as urban growth boundaries, planned growth areas, if any, and
   rural areas, if any. Tenn. Code Ann. § 6-58-107.
   Generally speaking, a municipality may more readily annex territory within its urban
   growth boundaries than territory within planned growth and rural areas. Under Tenn. Code Ann.
   § 6-58-111, a municipality may annex territory within its urban growth boundaries by ordinance
   or by referendum of voters within the territory. If a quo warranto action is filed to challenge the
   annexation, the party filing the action has the burden of proving that:
   (1) An annexation ordinance is unreasonable for the overall well-being of
   the communities involved; or
   (2) The 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.
   Tenn. Code Ann. § 6-58-111(a)(1) and (2). The action is tried without a jury. Tenn. Code Ann.
   § 6-58-111(b).
   By contrast, before a municipality may annex by ordinance territory within another
   municipality‟s urban growth boundary, county‟s planned growth area, or a rural area, the
   annexing municipality must successfully seek to amend the growth plan by the same process
   initially used to approve the original growth plan. See Tenn. Code Ann. § 6-58-111(c)(1). In the
   alternative, a municipality may annex territory in a county‟s planned growth area or rural area by
   a referendum among voters in the territory to be annexed. Tenn. Code Ann. § 6-58-111(c)(2).
   Tenn. Code Ann. § 6-58-104(a)(7) permits certain local governments to use annexation
   reserve agreements already in effect as the basis for their growth plan. That statute provides in
   relevant part:
   (A) Notwithstanding any provisions of this chapter or any other provision of law
   to the contrary, any annexation reserve agreement or any agreement of any kind
   either between municipalities or between municipalities and counties setting out
   areas reserved for future municipal annexation and in effect on May 19, 1998, are
   ratified and remain binding and in full force and effect. Any such agreement may
   be amended from time to time by mutual agreement of the parties. Any such
6. SB3703
   SB3703 amends Tennessee's comprehensive growth plan law, codified at Tenn. Code
   Ann. §§ 6-58-101 to -117. Under Tenn. Code Ann. § 6-58-104, the county and municipal
   governments within a county must develop a "growth plan." The growth plan must delineate
   municipal corporate limits as well as urban growth boundaries, planned growth areas, if any, and
   rural areas, if any. Tenn. Code Ann. § 6-58-107.
   Generally speaking, a municipality may more readily annex territory within its urban
   growth boundaries than territory within planned growth and rural areas. Under Tenn. Code Ann.
   § 6-58-111, a municipality may annex territory within its urban growth boundaries by ordinance
   or by referendum of voters within the territory. If a quo warranto action is filed to challenge the
   annexation, the party filing the action has the burden of proving that:
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   Tenn. Code Ann. § 6-58-111(a)(1) and (2). The action is tried without a jury. Tenn. Code Ann.
   § 6-58-111(b).
   By contrast, before a municipality may annex by ordinance territory within another
   municipality's urban growth boundary, county's planned growth area, or a rural area, the
   annexing municipality must successfully seek to amend the growth plan by the same process
   initially used to approve the original growth plan. See Tenn. Code Ann. § 6-58-111(c)(1). In the
   alternative, a municipality may annex territory in a county's planned growth area or rural area by
   a referendum among voters in the territory to be annexed. Tenn. Code Ann. § 6-58-111(c)(2).
   Tenn. Code Ann. § 6-58-104(a)(7) permits certain local governments to use annexation
   reserve agreements already in effect as the basis for their growth plan. That statute provides in
   relevant part:
   (A) Notwithstanding any provisions of this chapter or any other provision of law
   to the contrary, any annexation reserve agreement or any agreement of any kind
   either between municipalities or between municipalities and counties setting out
   areas reserved for future municipal annexation and in effect on May 19, 1998, are
   ratified and remain binding and in full force and effect. Any such agreement may
   be amended from time to time by mutual agreement of the parties. Any such
   Page 3
   agreement or amendment may not be construed to abrogate the application of any
   provision of this chapter to the area annexed pursuant to the agreement or
   amendment.
   (B) In any county with a charter form of government, the annexation reserve
   agreements in effect on January 1, 1998, are deemed to satisfy the requirement of
   a growth plan. The county shall file a plan based on such agreements with the
   committee.
   Tenn. Code Ann. § 6-58-104(a)(7).
   Shelby County had a series of annexation reserve agreements in effect on January 1,
   1998; thus, these agreements were continued under Tenn. Code Ann. § 6-58-104(a)(7). The
   Shelby County Growth Plan states that new agreements involving all the local governments
   within the county were completed in 1999. See http://shelbycountytn.gov. The annexation
   reserve area boundaries under these agreements are the urban growth boundaries of each city
   under the county growth plan. Id.
   Section 1 of SB3703 would amend Tenn. Code Ann. § 6-58-104(a)(7)(A) by deleting the
   word “Notwithstanding” and substituting the phrase, “Except as provided in subdivision
   (a)(7)(C), notwithstanding.” Section 2 would then add the following new subdivision (C):
   (C) Notwithstanding any provision of this part to the contrary or the annexation
   reserve agreement for areas reserved for future municipal annexation in effect on
   May 19, 1998, pursuant to subdivision(a)(7)(A) for the largest municipality
   located in any county to which such reserve agreements apply, all the area located
   within the following description shall be moved from the reserve agreement for
   the largest municipality to the planned growth area of the county:
   Beginning at Grays Creek at the northern most portion of
   the area at the county line to the point at where Grays Creek
   intersects with Pisgah on the west side of the area; then following
   Pisgah south to a point where it intersects with Macon and west on
   Macon to a point where Houston Levee intersects with Macon;
   then south on Houston Levee to a point where Houston Levee
   intersects with Raleigh LaGrange; then east on Raleigh LaGrange
   to a point where Monterey intersects with Raleigh LaGrange; then
   east on Monterey to the county line.
   agreement or amendment may not be construed to abrogate the application of any
   provision of this chapter to the area annexed pursuant to the agreement or
   (B) In any county with a charter form of government, the annexation reserve
   agreements in effect on January 1, 1998, are deemed to satisfy the requirement of
   a growth plan. The county shall file a plan based on such agreements with the
   Tenn. Code Ann. § 6-58-104(a)(7).
   Shelby County had a series of annexation reserve agreements in effect on January 1,
   1998; thus, these agreements were continued under Tenn. Code Ann. § 6-58-104(a)(7). The
   Shelby County Growth Plan states that new agreements involving all the local governments
   reserve area boundaries under these agreements are the urban growth boundaries of each city
   under the county growth plan. Id.
   Section 1 of SB3703 would amend Tenn. Code Ann. § 6-58-104(a)(7)(A) by deleting the
   word "Notwithstanding" and substituting the phrase, "Except as provided in subdivision
   (a)(7)(C), notwithstanding." Section 2 would then add the following new subdivision (C):
   (C) Notwithstanding any provision of this part to the contrary or the annexation
   reserve agreement for areas reserved for future municipal annexation in effect on
   May 19, 1998, pursuant to subdivision(a)(7)(A) for the largest municipality
   located in any county to which such reserve agreements apply, all the area located
   within the following description shall be moved from the reserve agreement for
   Beginning at Grays Creek at the northern most portion of
   the area at the county line to the point at where Grays Creek
   intersects with Pisgah on the west side of the area; then following
   Pisgah south to a point where it intersects with Macon and west on
   Macon to a point where Houston Levee intersects with Macon;
   then south on Houston Levee to a point where Houston Levee
   intersects with Raleigh LaGrange; then east on Raleigh LaGrange
   to a point where Monterey intersects with Raleigh LaGrange; then
   east on Monterey to the county line.
   2. SB3702
   SB3702 directly amends Tennessee's general annexation law. Under Tenn. Code Ann. §
   6-51-102(a)(1), a city may, by ordinance, annex 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." The statute requires no referendum by the
   residents of the territory to be annexed before the ordinance becomes effective. 1
   Under the proposed (a)(4) to be added by Section 1 of SB3702, a different provision
   would apply in "any county having a population of greater than nine hundred thousand (900,000)
   according to the 2010 federal census or any subsequent federal census." In counties within this
   bracket, an annexation ordinance would not become operative until approved in an election
   Section 3 of SB3702 amends Tennessee general law on deannexation. Under current
   deannexation law, an incorporated city or town may contract its limits upon the approval of three
   fourths of the qualified voters. Tenn. Code Ann. § 6-51-201(a). The city or town must provide
   for the election by ordinance. Tenn. Code Ann. § 6-51-202. An incorporated city or town may
   in the alternative, by ordinance, contract its territorial limits. Tenn. Code Ann. § 6-51-201(b)(1).
   That contraction may not occur if opposed by a majority of the voters residing within the area to
   be annexed. Tenn. Code Ann. § 6-51-201(b)(3). Thus, in either case, the city or town legislative
   body must pass an ordinance before deannexing territory within its limits.
   Section 3 of SB3702 adds a new section, styled 6-51-203. The new section would apply
   in "[a]ny municipality in a county having a population in excess of nine hundred thousand
   (900,000) according to the 2010 federal census or any subsequent federal census." Under this
   provision, voters in a territory may trigger a referendum to remove the territory from the
   municipality's limits. The referendum must be held if the voters file a petition signed by at least
   fifteen percent of the number of registered voters who voted in the last municipal election in the
   territory that wishes to be contracted. On approval by three-fourths of the qualified voters in the
   territory to be deannexed, the territory is deannexed effective six months after the county
   Section 2 of SB3702 also amends Tenn. Code Ann. § 6-58-111, part of the Tennessee law
   on annexation, to provide that any territory deannexed under SB3702 becomes part of the
   1 Tenn. Code Ann. § 6-51-102(a) (2) and (3) exempt particular territories in narrow population brackets from (a)(1).
   This opinion does not address the constitutionality of these exemptions.
   Page 4
7. SB3702
   SB3702 directly amends Tennessee‟s general annexation law. Under Tenn. Code Ann. §
   6-51-102(a)(1), a city may, by ordinance, annex 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.” The statute requires no referendum by the
   residents of the territory to be annexed before the ordinance becomes effective.1
   Under the proposed (a)(4) to be added by Section 1 of SB3702, a different provision
   would apply in “any county having a population of greater than nine hundred thousand (900,000)
   according to the 2010 federal census or any subsequent federal census.” In counties within this
   bracket, an annexation ordinance would not become operative until approved in an election
   among the voters residing in the territory to be annexed.
   Section 3 of SB3702 amends Tennessee general law on deannexation. Under current
   deannexation law, an incorporated city or town may contract its limits upon the approval of three
   fourths of the qualified voters. Tenn. Code Ann. § 6-51-201(a). The city or town must provide
   for the election by ordinance. Tenn. Code Ann. § 6-51-202. An incorporated city or town may
   in the alternative, by ordinance, contract its territorial limits. Tenn. Code Ann. § 6-51-201(b)(1).
   That contraction may not occur if opposed by a majority of the voters residing within the area to
   be annexed. Tenn. Code Ann. § 6-51-201(b)(3). Thus, in either case, the city or town legislative
   body must pass an ordinance before deannexing territory within its limits.
   Section 3 of SB3702 adds a new section, styled 6-51-203. The new section would apply
   in “[a]ny municipality in a county having a population in excess of nine hundred thousand
   (900,000) according to the 2010 federal census or any subsequent federal census.” Under this
   provision, voters in a territory may trigger a referendum to remove the territory from the
   municipality‟s limits. The referendum must be held if the voters file a petition signed by at least
   fifteen percent of the number of registered voters who voted in the last municipal election in the
   territory that wishes to be contracted. On approval by three-fourths of the qualified voters in the
   territory to be deannexed, the territory is deannexed effective six months after the county
   election commission certifies the returns.
   Section 2 of SB3702 also amends Tenn. Code Ann. § 6-58-111, part of the Tennessee law
   on annexation, to provide that any territory deannexed under SB3702 becomes part of the
   planned growth area of the county.
   1
   Tenn. Code Ann. § 6-51-102(a) (2) and (3) exempt particular territories in narrow population brackets from (a)(1).
   This opinion does not address the constitutionality of these exemptions.
   Turning to the questions presented, any analysis of the constitutional viability of an
   annexation bill or statute must begin with a review of the parameters established by the
   Tennessee Constitution for the creation and alteration of municipalities and their boundaries.
   The "Municipal Boundaries Clause" of the Tennessee Constitution provides in relevant part:
   The General Assembly shall by general law provide the exclusive methods by
   Tenn. Const. Art. XI, § 9 (emphasis added). See also Highwoods Properties, Inc. v. City of
   Memphis, 297 S.W.3d 695, 703-04 (Tenn. 2009) (discussing legislative history of the Municipal
   Boundaries Clause at the Limited Constitutional Convention of 1953). As the Tennessee
   Supreme Court observed in the Highwoods opinion, the Municipal Boundaries Clause was added
   to the Tennessee Constitution in 1953 to eliminate the problems "that had arisen in regard to the
   Legislature enacting legislation affecting only one county or municipality." Id. at 705 (quoting
   Tennessee courts and this Office have read the Municipal Boundaries Clause to prohibit
   "the Legislature from prescribing any method of altering municipal boundaries except by general
   law." Frost v. City of Chattanooga, 488 S.W.2d 370, 372 (Tenn. 1972) (holding unconstitutional
   a statute creating a population classification that would allow municipalities within the
   classification to annex any territory without levying any municipal ad valorem taxes except for
   actual municipal services rendered). See also Op. Tenn. Att'y Gen. U86-67 (April 7, 1986)
   (characterizing as constitutionally suspect a bill exempting certain counties by population from
   the general Tennessee annexation statutes). But see State ex rel. Tipton v. Knoxville, 205 S.W.3d
   456, 466 (Tenn. Ct. App. 2006.) (Court upheld as constitutional a statute removing a jury in only
   quo warranto cases that arose from annexations of territory within a municipality's approved
   urban growth plan, stating the statute is not an attempt to create a rule that applies only to one or
   a few chosen local governments and thus does not rise to the evil Article XI, Section 9 was
   intended to remedy).
   In short, no Tennessee case has upheld an annexation statute with population
   classifications against a challenge under the Municipal Boundaries Clause. However the
   Tennessee Supreme Court has implicitly suggested that the Municipal Boundaries Clause might
   not prohibit a statute with classifications supported by a rational basis. For example, in Pirtle v.
   Jackson, 560 S.W.2d 400 (Tenn. 1977), the Tennessee Supreme Court invalidated a statute that
   excluded some cities from the burden of proving that an annexation ordinance is reasonable for
   the overall well-being of the communities involved. The statue applied only to municipalities
   located in counties with a population of not less than 65,000 nor more than 66,000, and counties
   Page 5
8. Constitutional Review
   Turning to the questions presented, any analysis of the constitutional viability of an
   annexation bill or statute must begin with a review of the parameters established by the
   Tennessee Constitution for the creation and alteration of municipalities and their boundaries.
   The “Municipal Boundaries Clause” of the Tennessee Constitution provides in relevant part:
   The General Assembly shall by general law provide the exclusive methods by
   which municipalities may be created, merged, consolidated and dissolved and by
   which municipal boundaries may be altered.
   Tenn. Const. Art. XI, ' 9 (emphasis added). See also Highwoods Properties, Inc. v. City of
   Memphis, 297 S.W.3d 695, 703-04 (Tenn. 2009) (discussing legislative history of the Municipal
   Boundaries Clause at the Limited Constitutional Convention of 1953). As the Tennessee
   Supreme Court observed in the Highwoods opinion, the Municipal Boundaries Clause was added
   to the Tennessee Constitution in 1953 to eliminate the problems “„that had arisen in regard to the
   Legislature enacting legislation affecting only one county or municipality.‟” Id. at 705 (quoting
   Frost v. City of Chattanooga, 488 S.W.2d 370, 373 (Tenn. 1972)).
   Tennessee courts and this Office have read the Municipal Boundaries Clause to prohibit
   “the Legislature from prescribing any method of altering municipal boundaries except by general
   law.” Frost v. City of Chattanooga, 488 S.W.2d 370, 372 (Tenn. 1972) (holding unconstitutional
   a statute creating a population classification that would allow municipalities within the
   classification to annex any territory without levying any municipal ad valorem taxes except for
   actual municipal services rendered). See also Op. Tenn. Att‟y Gen. U86-67 (April 7, 1986)
   (characterizing as constitutionally suspect a bill exempting certain counties by population from
   the general Tennessee annexation statutes). But see State ex rel. Tipton v. Knoxville, 205 S.W.3d
   456, 466 (Tenn. Ct. App. 2006.) (Court upheld as constitutional a statute removing a jury in only
   quo warranto cases that arose from annexations of territory within a municipality‟s approved
   urban growth plan, stating the statute is not an attempt to create a rule that applies only to one or
   a few chosen local governments and thus does not rise to the evil Article XI, Section 9 was
   intended to remedy).
   In short, no Tennessee case has upheld an annexation statute with population
   classifications against a challenge under the Municipal Boundaries Clause. However the
   Tennessee Supreme Court has implicitly suggested that the Municipal Boundaries Clause might
   not prohibit a statute with classifications supported by a rational basis. For example, in Pirtle v.
   Jackson, 560 S.W.2d 400 (Tenn. 1977), the Tennessee Supreme Court invalidated a statute that
   excluded some cities from the burden of proving that an annexation ordinance is reasonable for
   the overall well-being of the communities involved. The statue applied only to municipalities
   located in counties with a population of not less than 65,000 nor more than 66,000, and counties
   with a population of 400,000 or more, according to the federal census of 1970 or any subsequent
   federal census, and in counties having a metropolitan form of government. The Court found the
   statute violated the Municipal Boundaries Clause but also observed that no rational basis could
   be found for the classification. Id at 402. In Vollmer v. Memphis, 730 S.W.2d 619 (Tenn.
   1987), the Court found an annexation act with apparently random classifications invalid under
   the Municipal Boundaries Clause and noted, "[s]uffice it to say the classifications as herein
   summarized are not reasonable and render the statute void." 730 S.W.2d at 621. Similarly, in
   Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990), the Tennessee Supreme Court found
   an act violated the Municipal Boundaries Clause because the act, by population bracket,
   effectively limited the rights of property owners to contest annexation in eighty-one counties.
   The Court went on to observe that no rational basis existed for the classification. Id. at 517.
   Thus, in all three of these cases, the Supreme Court invalidated population classifications under
   the Municipal Boundaries Clause but also buttressed its holding by finding the classifications
   lacked any rational basis.
   The Tennessee Court of Appeals recently discussed these findings in holding that an act
   was invalid under the Municipal Boundaries Clause because the act allowed a specific class of
   territories to incorporate despite the territories' failure to comply with the general law that newly
   incorporated territories must be three miles from existing municipalities. City of Oakland V.
   McCraw, 126 S.W.3d 29 (Tenn. Ct. App. 2003). The Court found that the classification at issue
   there is no Tennessee case law directly stating that a special law violating Section
   9 is valid if supported by a rational basis. Moreover, we do not hold that a court
   is required to conduct a rational basis analysis when considering the
   constitutionality of a statute under Article XI, Section 9
   Id. at 41. The Court noted the Supreme Court in Hart had applied a rational basis analysis in a
   If applicable to a challenge of a law under the Municipal Boundaries Clause, the rational
   basis test will uphold a classification that has "some basis which bears a natural and reasonable
   relation to the object sought to be accomplished." Id. at 42 (quoting Huntsville v. Duncan, 15
   S.W.3d 468, 472 (Tenn. Ct. App. 1999)). See also Gallaher v. Elam, 104 S.W.3d 455, 462
   (Tenn. 2003) (citing Riggs v. Burson, 941 S.W.2d 44, 53 (Tenn. 1997), cert. denied, 522 U.S.
   982 (1997)). The question is "whether the challenged classifications have a reasonable
   relationship to a legitimate state interest." Gallaher v. Elam, 104 S.W.3d at 462. State
   legislatures have the initial discretion to determine what is "different" and what is "the same,"
   and are given considerable latitude in making those determinations. Id.
   Page 6
   with a population of 400,000 or more, according to the federal census of 1970 or any subsequent
   federal census, and in counties having a metropolitan form of government. The Court found the
   statute violated the Municipal Boundaries Clause but also observed that no rational basis could
   be found for the classification. Id at 402. In Vollmer v. Memphis, 730 S.W.2d 619 (Tenn.
   1987), the Court found an annexation act with apparently random classifications invalid under
   the Municipal Boundaries Clause and noted, “[s]uffice it to say the classifications as herein
   summarized are not reasonable and render the statute void.” 730 S.W.2d at 621. Similarly, in
   Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990), the Tennessee Supreme Court found
   an act violated the Municipal Boundaries Clause because the act, by population bracket,
   effectively limited the rights of property owners to contest annexation in eighty-one counties.
   The Court went on to observe that no rational basis existed for the classification. Id. at 517.
   Thus, in all three of these cases, the Supreme Court invalidated population classifications under
   the Municipal Boundaries Clause but also buttressed its holding by finding the classifications
   lacked any rational basis.
   The Tennessee Court of Appeals recently discussed these findings in holding that an act
   was invalid under the Municipal Boundaries Clause because the act allowed a specific class of
   territories to incorporate despite the territories‟ failure to comply with the general law that newly
   incorporated territories must be three miles from existing municipalities. City of Oakland v.
   McCraw, 126 S.W.3d 29 (Tenn. Ct. App. 2003). The Court found that the classification at issue
   was not supported by a rational basis, even though it observed:
   there is no Tennessee case law directly stating that a special law violating Section
   9 is valid if supported by a rational basis. Moreover, we do not hold that a court
   is required to conduct a rational basis analysis when considering the
   constitutionality of a statute under Article XI, Section 9. . . .
   Id. at 41. The Court noted the Supreme Court in Hart had applied a rational basis analysis in a
   similar challenge and accordingly proceeded to review the act in question under the rational basis
   standard.
   If applicable to a challenge of a law under the Municipal Boundaries Clause, the rational
   basis test will uphold a classification that has “„some basis which bears a natural and reasonable
   relation to the object sought to be accomplished.‟” Id. at 42 (quoting Huntsville v. Duncan, 15
   S.W.3d 468, 472 (Tenn. Ct. App. 1999)). See also Gallaher v. Elam, 104 S.W.3d 455, 462
   (Tenn. 2003) (citing Riggs v. Burson, 941 S.W.2d 44, 53 (Tenn. 1997), cert. denied, 522 U.S.
   982 (1997)). The question is Awhether the challenged classifications have a reasonable
   relationship to a legitimate state interest.@ Gallaher v. Elam, 104 S.W.3d at 462. State
   legislatures have the initial discretion to determine what is “different” and what is “the same,”
   and are given considerable latitude in making those determinations. Id.
   Application of these principles to the bills in question leads to a conclusion that these
   bills are constitutionally suspect. SB3703 amends one county's growth plan by moving certain
   delineated territory from the reserve area/urban growth boundary of the City of Memphis to the
   planned growth area for Shelby County. As discussed above, a municipality cannot annex
   territory outside its urban growth boundaries by ordinance unless it first has the growth plan
   amended to include the territory in its urban growth boundaries. Absent such an amendment, the
   city may only annex such territory by referendum. Thus, SB3703 changes the method by which
   the municipal boundaries of Memphis may be altered; in so doing SB3703 is not a general law
   but instead addresses the annexation of one particular tract of land in a particular county. For
   this reason, SB3703 is constitutionally suspect under the Municipal Boundaries Clause, and, if
   relevant, this Office can conceive of no rational basis for this different treatment.
   Turning to SB3702, this bill changes the ability of county residents to avoid annexation
   by a municipality in any county having a population of greater than 900,000 according to the
   2010 federal census or any subsequent federal census. Similarly, the bill gives city residents the
   right to deannex territory without the consent of the city where the territory is located in any
   municipality in a county having a population in excess of 900,000, according to the 2010 federal
   census or any subsequent federal census. Thus, the bill creates a separate class of cities and
   citizens subject to different annexation and deannexation rules. 2 SB3702 in practice and effect
   applies different annexation rules from the general Tennessee law in a county with a population
   of 900,000 or more under the 2010 census or any subsequent census. This classification is
   therefore constitutionally suspect under the Municipal Boundaries Clause since it is not a general
   law and currently applies to only one county. Assuming that the rational basis test applies to a
   review of SB3702 under the Municipal Boundaries Clause, in many cases a rational basis does
   exist for different treatment of more populous counties. Here, however, this Office is unaware of
   any facts to justify applying different rules of annexation to variously different municipalities in
   a more densely populated county. By its terms, the rules apply to any municipality within the
   county, regardless of its population. Thus, the rules would apply to municipalities with a
   relatively small population or municipalities with a relatively large population, so long as they
   are located in a densely populated county. Again, this Office can perceive of no rational basis
   for treating municipalities of any size in a densely populated county differently from the
   treatment accorded municipalities of similar size in a less densely populated county under
   The Tennessee Court of Appeals has found that an act that applied only in counties with populations of 700,000
   or more, according to the 1990 federal census or any subsequent federal census, was not an act private or local in
   form or effect applicable to a particular county or municipality under a different provision of Article XI, § 9.
   County of Shelby V. McWherter, 936 S.W.2d 923, 935 (Tenn. Ct. App. 1996). The Court reasoned that the statute
   was "general in form and effect" and, therefore, did not require local approval. Id. at 936. Because this case does
   not interpret the Municipal Boundaries Clause, it is not applicable to this analysis.
   Page 7
   Application of these principles to the bills in question leads to a conclusion that these
   bills are constitutionally suspect. SB3703 amends one county‟s growth plan by moving certain
   delineated territory from the reserve area/urban growth boundary of the City of Memphis to the
   planned growth area for Shelby County. As discussed above, a municipality cannot annex
   territory outside its urban growth boundaries by ordinance unless it first has the growth plan
   amended to include the territory in its urban growth boundaries. Absent such an amendment, the
   city may only annex such territory by referendum. Thus, SB3703 changes the method by which
   the municipal boundaries of Memphis may be altered; in so doing SB3703 is not a general law
   but instead addresses the annexation of one particular tract of land in a particular county. For
   this reason, SB3703 is constitutionally suspect under the Municipal Boundaries Clause, and, if
   relevant, this Office can conceive of no rational basis for this different treatment.
   Turning to SB3702, this bill changes the ability of county residents to avoid annexation
   by a municipality in any county having a population of greater than 900,000 according to the
   2010 federal census or any subsequent federal census. Similarly, the bill gives city residents the
   right to deannex territory without the consent of the city where the territory is located in any
   municipality in a county having a population in excess of 900,000, according to the 2010 federal
   census or any subsequent federal census. Thus, the bill creates a separate class of cities and
   citizens subject to different annexation and deannexation rules.2
   SB3702 in practice and effect
   applies different annexation rules from the general Tennessee law in a county with a population
   of 900,000 or more under the 2010 census or any subsequent census. This classification is
   therefore constitutionally suspect under the Municipal Boundaries Clause since it is not a general
   law and currently applies to only one county. Assuming that the rational basis test applies to a
   review of SB3702 under the Municipal Boundaries Clause, in many cases a rational basis does
   exist for different treatment of more populous counties. Here, however, this Office is unaware of
   any facts to justify applying different rules of annexation to variously different municipalities in
   a more densely populated county. By its terms, the rules apply to any municipality within the
   county, regardless of its population. Thus, the rules would apply to municipalities with a
   relatively small population or municipalities with a relatively large population, so long as they
   are located in a densely populated county. Again, this Office can perceive of no rational basis
   for treating municipalities of any size in a densely populated county differently from the
   treatment accorded municipalities of similar size in a less densely populated county under
   2
   The Tennessee Court of Appeals has found that an act that applied only in counties with populations of 700,000
   or more, according to the 1990 federal census or any subsequent federal census, was not an act private or local in
   form or effect applicable to a particular county or municipality under a different provision of Article XI, § 9.
   County of Shelby v. McWherter, 936 S.W.2d 923, 935 (Tenn. Ct. App. 1996). The Court reasoned that the statute
   was “general in form and effect” and, therefore, did not require local approval. Id. at 936. Because this case does
   not interpret the Municipal Boundaries Clause, it is not applicable to this analysis.
   Tennessee's annexation law. For these reasons, SB3702 is constitutionally suspect under the
   Given these conclusions, this Office finds it unnecessary to review any other possible
   constitutional deficiencies with either SB3702 or SB3703.
   Attorney General and Reporter
   Page 8
   Tennessee‟s annexation law. For these reasons, SB3702 is constitutionally suspect under the
   Municipal Boundaries Clause.
   Given these conclusions, this Office finds it unnecessary to review any other possible
   constitutional deficiencies with either SB3702 or SB3703.
   ROBERT E. COOPER, JR.
   Attorney General and Reporter
   WILLIAM E. YOUNG
   Solicitor General
   ANN LOUISE VIX
   Senior Counsel
   Requested by:
   The Honorable Mark Norris
   State Senator
   9A Legislative Plaza
   Nashville, Tennessee 37243