Tennessee attorney general: Annexation by ordinance is constitutional

Matthew Lane • Aug 31, 2013 at 9:27 PM

KINGSPORT — Annexation by ordinance is constitutional, according to a recent opinion issued by State Attorney General Robert Cooper.

“Absent invidious discrimination or an intent to circumvent the ‘one person, one vote’ principle, annexation by municipal ordinance is constitutional,” Cooper wrote in his July 25 opinion. “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.”

This most recent opinion came in response to a request made by Rep. Tony Shipley (R-Kingsport), who asked Cooper if annexation by municipal ordinance violated the rights of an affected real property owner under the state or federal constitutions.

“It is clear from conversations amongst the membership of the General Assembly that there is a great deal of interest in the issue of annexation,” Shipley said. “As a consequence, I thought I ought to get a clear position of any constitutional concerns that the attorney general might advise.”

Although Cooper wrote he saw no constitutional conflicts, Shipley said there are those in the legal community who disagree.

“I am currently studying the various opinions at this time,” Shipley said.

Earlier this year the Tennessee General Assembly imposed a one-year moratorium on all city-initiated, or so-called “forced” annexations statewide to allow TACIR (Tennessee Advisory Commission on Intergovernmental Relations) time to complete a comprehensive review and evaluation of current state annexation laws and how the system has worked since the landmark “Smart Growth Law” was passed in 1999.

TACIR heard testimony from cities and counties last week. The commission is expected to receive the annexation report from staff in October and approve it in December in order to meet the general assembly’s deadline of Jan. 14, 2014.

Tennessee’s “Smart Growth Law” allows municipalities to annex within their urban growth boundaries by ordinance, rather than a referendum process. Before the law passed, cities had to prove an annexation was reasonable; today, the property owner must prove an annexation is unreasonable.

At the time, representatives from each county and its municipalities held planning meetings for more than a year to establish the boundaries of where the cities would be allow to annex. For example, the elected officials in Sullivan County, Kingsport, Bristol, Bluff City and Johnson City all voted to approve the urban growth boundaries in Sullivan County.

Fourteen years after its passage, the issue of annexation remains a hot topic across the state, balancing the cities’ need for reasonable growth against property owners having a voice in the matter.

Shipley said this week he has always supported the right of citizens to express themselves by voting.

“We must always provide our citizens with the right to choose,” Shipley said. “Americans do not take kindly to being told that they will do something, especially when it is with their own property and involves increasing taxes.”

Shipley hails from Colonial Heights, an area with a long history of annexation battles with the city of Kingsport. Colonial Heights had been under a 10-year annexation moratorium as per the Smart Growth Law, but it expired in 2010. Since then, Kingsport has moved to annex large sections of Colonial Heights, citing the need for sanitary sewers as one of the main reasons.

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