What's the right procedure to amend a Tennessee county comprehensive growth plan if the coordinating committee is gone, and did the 2015 annexation reform impliedly kill any growth-plan provisions?

Plain-English summary

Representative Harry Brooks asked four questions about Tennessee's 1998 Comprehensive Growth Plan framework and how the 2013-2015 annexation reforms interact with it.

Q1 (alternative to coordinating committee): Under § 6-58-104(a)(9)(B), the only way to substitute for a coordinating committee is by agreement of the county legislative body and the governing body of every municipality in the county. That agreement must name another entity to perform the coordinating committee's statutory duties.

Q2 (qualifications of the alternative entity): § 6-58-104(a)(9)(B) does not impose member qualifications. The entity's membership is governed by its enabling charter or agreement. But the entity is a creature of statute and can exercise only powers expressly conferred or necessarily implied. Tennessee Pub. Serv. Comm'n v. Southern Ry. Co. and Medicine Bird Black Bear White Eagle are standard cites.

Q3 (mandatory consistency of land-use decisions): § 6-58-107(a) says "all land use decisions made by the legislative body and the municipality's or county's planning commission shall be consistent with the growth plan." "Shall" means "must." Home Builders Ass'n v. Williamson Cnty. This rule applies even if the coordinating committee has not re-reviewed the plan every three years as required. To deviate, the growth plan must be amended through the proper process.

Q4 (interaction with annexation reform): The 2013-2015 annexation reforms (2013 Tenn. Pub. Acts ch. 441; 2014 ch. 707; 2015 ch. 512) abolished annexation by ordinance. 2015 ch. 512 expressly deleted § 6-58-108. § 6-58-111(c)(1), which authorizes annexation by ordinance outside the urban growth boundary after amending the boundary, is impliedly repealed because it directly conflicts with the legislature's "unequivocal intent to prohibit all annexations by ordinance." Referendum under § 6-58-111(c)(2) is now the only method for annexing territory outside the urban growth boundary. Metropolitan Gov't of Nashville v. Hillsboro Land Co., 222 Tenn. 431 (1968), supports the implied-repeal conclusion when two acts are manifestly repugnant.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have further changed the annexation and growth-plan framework. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

Comprehensive Growth Plan (1998). Tenn. Code Ann. §§ 6-58-101 to -118. Required nearly every county to adopt a growth plan describing urban growth boundaries for municipalities, planned growth areas, and rural areas. Coordinating committees comprising the county mayor, mayors of municipalities, utility-board appointees, soil conservation district representatives, school board appointees, chamber of commerce appointees, and mayoral appointees were the default drafting body.

Alternative entity under § 6-58-104(a)(9)(B). If the county legislative body and the governing body of every municipality agree, another entity can perform the coordinating committee's duties. The statute does not specify member qualifications.

Mandatory consistency under § 6-58-107(a). After a growth plan is approved, land-use decisions must be consistent with it. The AG read "shall" as mandatory, citing Home Builders Ass'n v. Williamson Cnty. and Bateman v. Smith. The three-year periodic-review requirement is for the coordinating committee, not a condition on the duty of consistency.

Annexation reform (2013-2015). Tennessee's annexation framework was substantially revised. 2013 ch. 441 created a temporary moratorium. 2014 ch. 707 amended § 6-51-102 to prohibit annexations by ordinance not operative and effective before May 16, 2015. 2015 ch. 512 was titled "relative to assisting the implementation of Chapter 707 . . . to abolish annexation by ordinance" and expressly deleted § 6-58-108.

Implied repeal of § 6-58-111(c)(1). § 6-58-111 governs annexation methods relative to the urban growth boundary. § 6-58-111(a) lets a municipality annex within its growth boundary using any method from Title 6 Chapter 51; since annexation by ordinance is no longer a Chapter 51 method, that pathway is closed. § 6-58-111(c)(1) authorizes annexation outside the growth boundary by ordinance following an amendment to the boundary. § 6-58-111(c)(2) authorizes annexation outside the boundary by referendum. The 2015 reform's "unequivocal intent to prohibit all annexations by ordinance" is irreconcilable with § 6-58-111(c)(1)'s ordinance-based mechanism. Under Metropolitan Gov't of Nashville v. Hillsboro Land Co., the later act impliedly repeals the earlier when the two are manifestly repugnant. Referendum is now the only method outside the urban growth boundary.

Common questions

Q: Can a Tennessee county amend its growth plan without using the coordinating committee?
A: According to this opinion, yes, but only if the county legislative body and every municipal governing body in the county agree to use an alternative entity under § 6-58-104(a)(9)(B).

Q: Does an alternative entity have to meet membership requirements?
A: § 6-58-104(a)(9)(B) does not impose any. The entity's membership is governed by the charter or agreement that creates it.

Q: What happens if the coordinating committee doesn't review the growth plan every three years?
A: Under this opinion, the duty of consistency in § 6-58-107(a) still applies. Land-use decisions must remain consistent with the existing growth plan even without periodic review.

Q: Can a Tennessee municipality still annex by ordinance?
A: According to this opinion, no. The 2014-2015 annexation reforms abolished annexation by ordinance. § 6-58-111(c)(1) is impliedly repealed.

Q: How can a municipality annex territory outside its urban growth boundary now?
A: By referendum under § 6-58-111(c)(2). That is the only remaining method.

Q: Is there any narrow exception?
A: § 6-58-118 (added by 2014 Tenn. Pub. Acts ch. 707) permits a municipality to expand its urban growth boundaries to annex a tract owned by the same owner as an already-annexed tract, that is being provided water and sewer, and where the owner consents by notarized petition. That narrow path bypasses the coordinating committee but requires owner consent.

Citations and references

Statutes:

• Tenn. Code Ann. §§ 6-58-101 to -118
• Tenn. Code Ann. § 6-58-104(a)(1), (a)(9)(B), (d)(1)
• Tenn. Code Ann. § 6-58-106(a)(1), (b)(1), (c)(1)
• Tenn. Code Ann. § 6-58-107(a)
• Tenn. Code Ann. § 6-58-111(a), (c)(1), (c)(2)
• Tenn. Code Ann. § 6-58-118
• Tenn. Code Ann. § 6-51-122
• 2014 Tenn. Pub. Acts ch. 707
• 2015 Tenn. Pub. Acts ch. 512

Cases:

• Home Builders Ass'n of Middle Tennessee v. Williamson Cnty., 304 S.W.3d 812 (Tenn. 2010)
• Bateman v. Smith, 183 Tenn. 541, 194 S.W.2d 336 (1946)
• Tennessee Pub. Serv. Comm'n v. Southern Ry. Co., 554 S.W.2d 612 (Tenn. 1977)
• State ex rel. Comm'r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001)
• Metropolitan Gov't of Nashville v. Hillsboro Land Co., 222 Tenn. 431, 436 S.W.2d 850 (1968)

Related AG opinion:

• Tenn. Att'y Gen. Op. 11-77 (Nov. 14, 2011)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-037.pdf

Original opinion text

Full opinion text unavailable from the official source. See the linked PDF or landing page above for the complete text.

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 31, 2017
Opinion No. 17-37
Annexation, Comprehensive Growth Plan and Coordinating Committees

Question 1
What procedures are available to a county and a municipality to amend an adopted comprehensive growth plan if its coordinating committee is unavailable or undesired?

Opinion 1
In accordance with Tennessee Code Annotated § 6-58-104(a)(9)(B), the county legislative body and the governing body of each municipality located therein must all agree that another entity shall perform the duties assigned to the coordinating committee by Chapter 58 of Title 6 of the Tennessee Code.

Question 2
If a county legislative body and the governing body of each municipality located therein enter an agreement to appoint another entity to perform the duties assigned to the coordinating committee, as permitted by Tennessee Code Annotated § 6-58-104(a)(9)(B), must the appointed entity meet any qualifications?

Opinion 2
Tennessee Code Annotated § 6-58-104(a)(9)(B) contains no requirements for the members of the alternative entity that is permitted to perform the duties of the coordinating committee; thus, the membership of the entity would be governed by the charter or agreement that creates it. The entity itself, though, would still be a creature of statute. Therefore, the entity could exercise only those powers that are expressly conferred or necessarily implied by statute.

Question 3
Does the requirement of Tennessee Code Annotated § 6-58-107 that "all land use decisions made by the legislative body and the municipality's or county's planning commission shall be consistent with the growth plan" apply if the county's coordinating committee has failed to review the plan every three years as required by the plan adopted by the coordinating committee?

Opinion 3
Yes.

Question 4
Do the recent amendments to Tennessee's annexation statutes abrogate any of the statutory provisions that govern comprehensive growth plans?

Opinion 4
For the reasons explained below, the recent amendments to Tennessee's annexation statutes impliedly repeal Tennessee Code Annotated § 6-58-111(c)(1), which provides that a municipality may annex territory outside its urban growth boundary by ordinance following an amendment to its growth plan.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Senior Counsel

Requested by:
The Honorable Harry Brooks
State Representative
117 War Memorial Building
Nashville, Tennessee 37243