Does Tennessee annexation by ordinance violate property owners' constitutional rights when they don't get to vote on being absorbed by the city?

Subject

Opinion No. 13-58, Constitutionality of Annexation by Ordinance, July 25, 2013

Plain-English summary

Tennessee municipalities can annex unincorporated territory adjacent to their boundaries by ordinance under Tenn. Code Ann. § 6-51-102, either by petition of a majority of residents and owners of the affected territory or on the municipality's 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." § 6-51-102(a)(1). The process requires notice and public hearing but does not generally require a referendum of the affected voters. An "aggrieved owner of property" within or bordering the annexed territory may contest the ordinance by quo warranto under § 6-51-103.

Rep. Tony Shipley asked whether annexation by ordinance, without consent of the affected residents, violates the U.S. or Tennessee Constitution.

The AG's answer: no, with two narrow caveats. Under Hunter v. Pittsburgh, 207 U.S. 161, 178-79 (1907), states have absolute discretion over the formation, alteration, and termination of municipal corporations. The U.S. Constitution does not give residents of an annexed territory a right to consent or to keep property in a specific unit of local government. The Tennessee Supreme Court applies the same rule under Tennessee law. State ex rel. Wood v. City of Memphis, 510 S.W.2d 889, 892 (Tenn. 1974); Williams v. City of Nashville, 89 Tenn. 487, 15 S.W. 364, 365 (1891) (annexation is "in no sense a taking" because the ownership doesn't change and the increased burden is presumed equaled by the increased advantages).

The two caveats are well-established federal limits on the Hunter rule:

• Invidious discrimination. States cannot draw boundaries that discriminate on an invidious basis (e.g., race, sex). Gomillion v. Lightfoot, 364 U.S. 339 (1960) (racial-gerrymander annexation).
• One person, one vote. States cannot draw boundaries to restrict or dilute votes in violation of Reynolds v. Sims, 377 U.S. 533 (1964), and Avery v. Midland County, 390 U.S. 474 (1968).

Absent these limits, Hunter's rule controls. City of Herriman v. Bell, 590 F.3d 1176, 1184-85 (10th Cir. 2010); Berry v. Bourne, 588 F.2d 422 (4th Cir. 1978); Deane Hill Country Club, Inc. v. Knoxville, 379 F.2d 321, 325 (6th Cir. 1967).

The AG also addressed the "no representation" argument: that an affected resident has no say in the annexation. Not quite. First, the General Assembly, accountable to all Tennessee voters, sets the annexation framework. Second, after annexation, the resident becomes a city voter and participates in city governance. Ratigan v. Davis, 122 N.W.2d 12, 15 (Neb. 1963), aff'd for want of substantial federal question, 375 U.S. 394 (1964).

Statutory pause. The opinion noted (in its footnote 1) that the General Assembly had recently enacted 2013 Tenn. Pub. Acts, ch. 441, which temporarily delayed most municipality-initiated annexation by ordinance from April 15, 2013, through May 15, 2014, for territory used primarily for residential or agricultural purposes, while TACIR studied the annexation process. Tenn. Code Ann. § 6-51-122. That moratorium was on policy grounds; it doesn't bear on the constitutional analysis but is important context for anyone applying the opinion in 2013-2014.

Currency note

This opinion was issued in 2013. 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.

Tennessee's annexation framework was substantially reformed in 2014 (Public Chapter 707), which fundamentally changed the annexation-by-ordinance default: many annexations now require an affected-voter referendum or a petition signed by a majority of property owners. The constitutional baseline (Hunter) is unchanged, but the statutory rules are very different from 2013. Anyone advising on a current annexation must consult the post-2014 framework, not this opinion.

Background and statutory framework

Constitutional source. Tenn. Const. art. XI, § 9 (Municipal Boundaries Clause): "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."

Statutory framework (as of 2013). Tenn. Code Ann. §§ 6-51-101 to -121, with § 6-51-102 (annexation by ordinance), § 6-51-103 (quo warranto contest), § 6-51-104, § 6-51-105, § 6-51-109 (referendum requirements in certain cases), and § 6-51-122 (2013 moratorium added by Pub. Acts ch. 441).

Purpose of annexation. State ex rel. Collier v. City of Pigeon Forge, 599 S.W.2d 545, 547 (Tenn. 1980), quoting City of Kingsport v. State ex rel. Crown Enterprises, Inc., 562 S.W.2d 808, 814 (Tenn. 1978):

The whole theory of annexation is that it is a device by which a municipal corporation may plan for its orderly growth and development. . . . The preservation of property values, the prevention of the development of incipient slum areas, adequate police protection within a metropolitan area, and the extension of city services to those who are already a part of the city as a practical proposition, are the legitimate concern of any progressive city.

Hunter v. Pittsburgh. 207 U.S. 161 (1907). Municipalities are political subdivisions of the state. The state may "modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest." Id. at 178-79.

Limits on Hunter. Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960) (annexation can't be racial gerrymander). Reynolds v. Sims, 377 U.S. 533 (1964); Avery v. Midland County, 390 U.S. 474 (1968) (one person, one vote applies to local government). City of Herriman v. Bell, 590 F.3d 1176, 1184-85 (10th Cir. 2010), synthesizes both limits.

Tennessee precedent. State ex rel. Wood v. City of Memphis, 510 S.W.2d 889, 892 (Tenn. 1974); State ex rel. Vicars v. Kingsport, 659 S.W.2d 367, 369-370 (Tenn. Ct. App. 1983); Williams v. City of Nashville, 89 Tenn. 487, 15 S.W. 364, 365 (1891); State ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803, 807 (1968) (annexation is not impairment of liberty or taking of private property).

Representation argument. Ratigan v. Davis, 122 N.W.2d 12, 15 (Neb. 1963), aff'd, 375 U.S. 394 (1964): if the persons paying a tax are represented in the body that enacted the law, they have the required representation.

Common questions

My city is annexing my property by ordinance and I don't want to be in the city. Do I have a constitutional right to stay out?

Under the 2013 framework, the AG concluded no. There's no constitutional right to keep land in a particular unit of local government. The General Assembly chose the annexation process, and you have political recourse through your state legislators and (once annexed) through participation in city governance.

Can I challenge the annexation in court?

Yes, by filing a quo warranto suit under Tenn. Code Ann. § 6-51-103. The grounds available are statutory (procedural defects, the city not meeting the statutory criteria) and constitutional (invidious discrimination, vote dilution). Pure "I didn't consent" arguments don't succeed under Hunter.

What if the annexation is racially motivated?

Gomillion v. Lightfoot establishes that a racial-gerrymander annexation violates the Fourteenth and Fifteenth Amendments. The challenge would need to show invidious racial purpose, which is a high evidentiary bar.

What does the 2013 moratorium do?

2013 Tenn. Pub. Acts, ch. 441, added Tenn. Code Ann. § 6-51-122, which suspended municipality-initiated annexation by ordinance for residential or agricultural territory between April 15, 2013, and May 15, 2014, while TACIR studied the framework. Existing ordinances with substantial financial harm could be exempted by the county legislative body's majority vote. Davidson County metro government was excluded from the moratorium. The moratorium was eventually overtaken by the 2014 reform.

I'm in the annexed area. Will I have to pay city property taxes immediately?

Generally yes, once the ordinance becomes operative. The specific timing depends on the ordinance and statutory framework. Pre-existing city bonded indebtedness may also reach annexed property. State ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803, 807 (1968).

Could the city just dissolve and pull out of my area?

That's deannexation, governed by §§ 6-51-201 to -204. Like annexation, it's a municipal-initiative process; residents cannot independently force a deannexation. See Op. 13-45 (June 11, 2013) for the AG's view on deannexation under the same framework.

Citations

Tenn. Code Ann. §§ 6-51-101 to -121 (annexation framework); § 6-51-102 with subsections; § 6-51-103 (quo warranto); § 6-51-104; § 6-51-105; § 6-51-109 (referendum-required cases); § 6-51-122 (2013 moratorium). Tenn. Const. art. XI, § 9. Cases: State ex rel. Collier v. City of Pigeon Forge, 599 S.W.2d 545 (Tenn. 1980); City of Kingsport v. State ex rel. Crown Enterprises, Inc., 562 S.W.2d 808 (Tenn. 1978); Hunter v. City of Pittsburgh, 207 U.S. 161 (1907); City of Herriman v. Bell, 590 F.3d 1176 (10th Cir. 2010); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Reynolds v. Sims, 377 U.S. 533 (1964); Avery v. Midland County, 390 U.S. 474 (1968); Berry v. Bourne, 588 F.2d 422 (4th Cir. 1978); Deane Hill Country Club, Inc. v. Knoxville, 379 F.2d 321 (6th Cir. 1967); State ex rel. Wood v. City of Memphis, 510 S.W.2d 889 (Tenn. 1974); State ex rel. Vicars v. Kingsport, 659 S.W.2d 367 (Tenn. Ct. App. 1983); Williams v. City of Nashville, 89 Tenn. 487, 15 S.W. 364 (Tenn. 1891); State ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803 (1968); Ratigan v. Davis, 122 N.W.2d 12 (Neb. 1963).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-058.pdf

Original opinion text

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

July 25, 2013

Opinion No. 13-58

Constitutionality of Annexation by Ordinance

QUESTION

Does annexation by municipal ordinance violate the rights of an affected real property owner under the federal or Tennessee Constitutions?

OPINION

Absent invidious discrimination or an intent to circumvent the "one person, one vote" principle, annexation by municipal ordinance is constitutional. Neither the United States Constitution nor the Tennessee Constitution recognizes a right for a person to retain his or her real property in a particular unit of local government.

ANALYSIS

The Tennessee Constitution grants the General Assembly the exclusive authority to develop the process for creating and altering municipal boundaries in Tennessee. The "Municipal Boundaries Clause" of the Tennessee Constitution states in pertinent 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).

The General Assembly, acting pursuant to the Tennessee Constitution, permits a municipality to annex territory in accordance with Tenn. Code Ann. §§ 6-51-101 to -121. The General Assembly recently amended the annexation statutes to delay temporarily most municipalities from, on their own initiative, proceeding to annex certain territory while the General Assembly conducts a review of the annexation process. 2013 Tenn. Pub. Acts, ch. 441. Specifically, Chapter 441 added the following new section to the annexation statutes:

(a)(1) Notwithstanding the provisions of this part or any other law to the contrary, from April 15, 2013, through May 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, except as otherwise permitted pursuant to subdivision (a)(2), no such ordinance to annex such territory shall become operative during such period. As used in this subsection, "municipality" does not include any county having a metropolitan form of government.

(2) If, prior to April 15, 2013, a municipality formally initiated an annexation ordinance delayed by subdivision (a)(1); and if the municipality would suffer substantial and demonstrable financial injury if such ordinance does not become operative prior to May 15, 2014; then, upon petition by the municipality, the county legislative body may, by a majority vote of its membership, waive the restrictions imposed on such ordinance by subdivision (a)(1).

(b) On or before January 14, 2014, the Tennessee advisory commission on intergovernmental relations (TACIR) shall complete a comprehensive review and evaluation of the efficacy of state policies set forth within title 6, chapters 51 and 58, and shall submit a written report of findings and recommendations, including any proposed legislation, to the speaker of the senate and the speaker of the house of representatives.

Tenn. Code Ann. § 6-51-122; 2013 Tenn. Pub. Acts, ch. 441, § 1.

Municipalities are authorized to annex territory adjacent to city boundaries either "when petitioned by a majority of the residents and property owners of the affected territory" or upon their 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." Tenn. Code Ann. § 6-51-102(a)(1). Such annexation occurs by the municipality enacting an ordinance after notice and public hearing, id., and meeting the other requirements of Tenn. Code Ann. § 6-51-102. An annexation process commenced under Tenn. Code Ann. § 6-51-102 generally does not require a municipality to hold a referendum to determine whether voters who reside in the territory to be annexed are in favor of the annexation. See Tenn. Code Ann. § 6-51-102. But see Tenn. Code Ann. §§ 6-51-102(a)(2), -104, -105, and -109 (requiring in certain cases that annexation petitions be approved by voters in a referendum or election). An "aggrieved owner of property" that borders or lies within territory that is the subject of an annexation ordinance may contest an annexation ordinance by filing a suit in the nature of a quo warranto proceeding in accordance with Tenn. Code Ann. § 6-51-103. See Tenn. Code Ann. § 6-51-103(a)(1)(A).

The Tennessee Supreme Court has succinctly explained the purpose of Tennessee's annexation statutes, stating:

The whole theory of annexation is that it is a device by which a municipal corporation may plan for its orderly growth and development. Heavily involved in this is control of fringe area developments and zoning measures to the end that areas of unsafe, unsanitary and substandard housing may not "ring" the City to the detriment of the City as a whole. In a word, annexation gives a city some control over its own destiny. The preservation of property values, the prevention of the development of incipient slum areas, adequate police protection within a metropolitan area, and the extension of city services to those who are already a part of the city as a practical proposition, are the legitimate concern of any progressive city.

State ex rel. Collier v. City of Pigeon Forge, 599 S.W.2d 545, 547 (Tenn. 1980) (quoting City of Kingsport v. State ex rel. Crown Enterprises, Inc., 562 S.W.2d 808, 814 (Tenn. 1978)).

The United States Supreme Court has recognized that the creation and alteration of municipal boundaries rests within the sound discretion of a state's legislative body and that a state's appropriate creation of an annexation process is "unrestrained by any provision of the Constitution of the United States." Hunter v. City of Pittsburgh, 207 U.S. 161, 179 (1907). In so finding, the Court rejected an annexed citizen's constitutional challenge that the annexation would subject citizens in the annexed territory to additional taxation resulting from the annexation without their consent, reasoning as follows:

Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property. The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. Neither their charters, nor any law conferring governmental powers, or vesting in them property to be used for governmental purposes, or authorizing them to hold or manage such property, or exempting them from taxation upon it, constitutes a contract with the state within the meaning of the Federal Constitution. The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from these injurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it.

Id. at 177-79 (emphasis added).

The ruling in Hunter "remains good law," with two caveats. City of Herriman v. Bell, 590 F.3d 1176, 1184-85 (10th Cir. 2010). States and their political subdivisions may not "draw boundaries that discriminate on an invidious basis, such as race or sex," id. at 1185 (citing Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960), and equal protection prohibits states from drawing boundaries to restrict or dilute votes "in violation of the 'one person, one vote' principle," id. (citing Reynolds v. Sims, 377 U.S. 533 (1964); Avery v. Midland County, 390 U.S. 474 (1968)). Absent the existence of either of these unconstitutional motives in annexing territory, "states are vested with largely unrestricted power to determine the boundaries and manner of formation of their political subdivisions and how they vote." Id. See Hunter v. Pittsburgh, 207 U.S. at 178-79; Berry v. Bourne, 588 F.2d 422, 423-25 (4th Cir. 1978); Deane Hill Country Club, Inc. v. Knoxville, 379 F.2d 321, 325 (6th Cir.), cert. denied, 389 U.S. 975 (1967).

The Tennessee Supreme Court has likewise recognized that in annexation cases "there is no equal protection or due process argument that can properly be made when the statute is properly followed." State ex rel. Wood v. City of Memphis, 510 S.W.2d 889, 892 (Tenn. 1974). See State ex rel. Vicars v. Kingsport, 659 S.W.2d 367, 369-370 (Tenn. Ct. App. 1983). See also Williams v. City of Nashville, 89 Tenn. 487, 15 S.W. 364, 365 (Tenn. 1891) (concluding that "[p]lacing property within the corporate limits of a given town or city, where it will be subjected to the additional burden of municipal taxation and supervision, is not a taking of the property at all" given the "ownership is in no degree changed, and the increased burden is presumed to be equaled by the increased advantages").

In sum, annexation by municipal ordinance, as set forth at Tenn. Code Ann. § 6-51-102 and enacted by the General Assembly pursuant to the Municipal Boundaries Clause of the Tennessee Constitution, does not violate the federal or Tennessee Constitution unless the annexation process is motivated by invidious discrimination or is intended to restrict or dilute votes in violation of the "one person, one vote" principle. Thus, neither the federal nor the Tennessee Constitution recognizes that a citizen has a "right" to keep his or her real property in a particular unit of local government. See Hunter v. City of Pittsburgh, 207 U.S. at 128-29; State ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 282, 435 S.W.2d 803, 807 (1968) (stating that the fact that residents of an area to be annexed would be subjected to preexisting bond indebtedness of annexing city did not invalidate annexation, since the "extension of corporate limits so as to include additional territory is in no sense an impairment of the owner's liberty, nor is it a taking of private property for public use," with the Court observing that, if this were the case, "then no municipal corporation could be established or enlarged, and none of these valuable instrumentalities of the State would have a lawful existence").

Moreover, an allegation that a citizen in a territory proposed to be annexed by a municipality lacks representation on the issue of annexation, or on the creation or alteration of the laws in the annexed territory that will become part of the municipality if annexation is successful, is inaccurate. First, the General Assembly, which has the exclusive authority to set annexation parameters under the Tennessee Constitution, is ultimately accountable to all Tennessee voters. See Hunter v. City of Pittsburgh, 207 U.S. at 179 (recognizing that "those who legislate for the state are alone responsible for any unjust or oppressive exercise" of the annexation power). Second, once a territory is annexed, every citizen in that territory is granted the right to participate in the future governance of the annexing municipality and to work to change or alter the laws of that municipality. See Ratigan v. Davis, 122 N.W.2d 12, 15 (Neb. 1963), appeal dismissed for want of a substantial federal question, 375 U.S. 394 (1964) (as long as the persons paying a tax are represented in the governmental body that enacted the law, they have the representation required by the maxim of no taxation without representation.)

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:

The Honorable Tony Shipley
State Representative
114 War Memorial Building
Nashville, Tennessee 37243