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Sullivan County attorney says county shouldn't file annexation lawsuit

February 26th, 2008 12:00 am by J. H. Osborne

Sullivan County attorney says county shouldn't file annexation lawsuit



BLOUNTVILLE — There’s no point of law that gives county government a better shot than individual county residents have at stopping a recent annexation by Kingsport, Sullivan County Attorney Dan Street said Tuesday.


A group of Sullivan County commissioners petitioned successfully last week to call a special meeting of the full County Commission later this week to vote on whether the county should go to court against Kingsport’s annexation of the proposed “Chase Meadows” development in Fall Creek.


Commissioners asked Street to research the topic in preparation for that called meeting, scheduled for 6:30 p.m. Thursday.


Supporters of the proposed court action have said the county is the only hope for a group of residents opposed to the annexation — because none of those residents own property in the area annexed.


There’s no need for Sullivan County to take legal action against Kingsport’s annexation, Street said.


County residents opposed to the annexation have as much standing to mount a court challenge, if not more, than Sullivan County, Street wrote in a memorandum sent to county commissioners.


In an interview with the Times-News, Street said if commissioners think he’s answered their legal questions about the issue, it’d be “appropriate” for them to cancel tomorrow’s called meeting.


If they do meet, does his memo outright say “don’t sue?”


“I tried to stay away from that because I believe that’s not my call,” Street said.


The resolution calling for the county to take court action against the annexation was like “just shooting with a shotgun,” Street said of the multiple issues that document lists as possible reasons to sue.


Street said he narrowed his research to a focus on legal standing. As for questions about the state’s “Smart Growth Law” — known by its legislative designation Public Chapter 1101 (PC1101) — Street said that train left the station several years ago.


“All that was decided seven years ago, and it’s just too late,” Street said of the boundaries and annexation guidelines adopted as part of PC1101.


That law required Sullivan County, like counties across Tennessee, to work with its cities on a 20-year growth plan — including drawing urban growth boundaries, into which growth by the cities could be expected. The Sullivan County Commission agreed to those boundaries in 2001.


Street said he sent the memo to commissioners Tuesday afternoon so people would have some time to consider his legal advice prior to the called meeting.


He said last week when 13 commissioners called for the special meeting, acting Commission Chairman Eddie Williams told him to render the legal advice as soon as he could and get it posthaste to Commissioners Michael Surgenor and Terry Harkleroad — sponsors of the resolution calling for the county to go to court over the matter.


From Street’s memo to county commissioners:


•“The argument has been made that the property owners in the area near the annexed area lack standing to contest the annexation and that lawyers have advised these property owners that their only hope to contest the annexation is to convince Sullivan County to file suit to contest the annexation.”


•State law provides two methods to legally contest the annexation: “quo warranto proceedings (under which Sullivan County has no standing is this case) and filing suit seeking a declaratory judgment.


“Assuming there is a valid argument that the annexation is somehow illegal, e.g., that the annexation is ‘an exercise of power not conferred by law’ as the resolution alleges, it does appear that Sullivan County would probably have standing to contest the legality of the annexation under the declaratory judgment statutes. However, if Sullivan County has standing in this regard, then the residents around the annexed area also have standing. It is not necessary that one own land in the annexed area in order to challenge the annexation under the declaratory judgment statutes.


“The argument advanced that Sullivan County is the residents’ only hope is therefore untrue. There is accordingly no need for Sullivan County to get involved as Sullivan County can offer the residents nothing the residents don’t already enjoy. (In fact, if there was a legal question as to standing under the declaratory judgment statute, it would seem clear that since the residents around the annexed area are affected by the annexation, such residents would have more direct interest in the annexation than would Sullivan ├é┬ĚCounty and therefore more facts to support standing.)”


•“In summary, I am of the opinion that Sullivan County has no standing to challenge the annexation under the normal quo warranto method of challenging annexation. I am also of the opinion that what standing Sullivan County may have under the declaratory judgment statutes to attack the annexation as illegal (regardless of its reasonableness) is standing that is also enjoyed by the residents. Therefore, Sullivan County can offer the residents nothing the residents do not also enjoy themselves.”


Commissioners who signed in favor of the called meeting are Surgenor, Harkleroad, Garth Blackburn, Linda Brittenham, Moe Brotherton, Darlene Calton, Clyde Groseclose, Jon Harr, Dennis Houser, Sam Jones, John McKamey, Randy Morrell, and Pat Patrick (appointed to the commission seat of her late husband Howard earlier in the day).


The move came Feb. 19 after a lengthy discussion of Surgenor and Harkleroad’s proposal to appropriate $25,000 and direct Street to mount a legal battle to stave off Kingsport’s entree into Fall Creek.


The Kingsport Board of Mayor and Aldermen approved the Chase Meadows annexation on Feb. 5. The annexation would become effective 30 days later, barring a successful challenge.


A county-led challenge of the annexation was sought by members of a group of Fall Creek residents who have petitioned against it.


If the issue comes for a vote Thursday it will be considered “old business” and as such require only 13 “yes” votes for approval.


If approved, it would authorize and direct Street “to institute prior to March 6, in any court of competent jurisdiction, any legal proceedings necessary and appropriate to challenge the legality of the (Chase) Meadows annexation, including without limitation, the constitutionality of Public Chapter 1101” and that in doing so Street be authorized “to join any action brought by any other county in the state” and be further authorized to hire other lawyers or experts to assist him in the work.



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