Non-Contiguous Annexation: Supporting Economic Development
Annexing areas not adjacent to the city limits will be more difficult under the new law because landowners and residents in between can stop them. In the past, cities could easily reach these non-contiguous properties by taking in roads and other rights-of-way. Although corridor annexation is still allowed, cities can no longer do this without consent where those who live along the roads and rights-of-way own the land under them. A 1994 decision by the Supreme Court of Tennessee on the validity of a referendum by which the City of Alcoa annexed the Topside area established that the owners of land subject to an easement or right-of-way are entitled to vote on whether that area can be annexed.29 Many city and county roads are mere rights-of-way that allow the public to travel what was originally a private road. While local governments are responsible for maintaining them and keeping them safe, and anyone can use them, the land under them still belongs to the adjoining property owners and now cannot be annexed without their permission. Where, however, the roads and the land under them are owned by governmental entities, which is generally the case for state and federal highways, strip or corridor annexations that take in only the right-of-way are still possible without the consent of those who own property along them.
Sixteen states prohibit corridor annexation by statute. Cities in Louisiana and Kansas, for example, cannot annex a roadway or right-of-way without also including the properties on at least one side. Louisiana does, however, explicitly permit cities to use a narrow strip of right-of-way, excluding the paved road and adjacent properties, to annex non-contiguous government-owned property. Delaware, Florida, North Carolina, and South Carolina statutes explicitly forbid using roads, rights-of-way, and other easements to reach property that is not adjacent to the city. Courts in the other ten states have ruled that the contiguity requirement in their statutes makes corridor annexations invalid.30 Often the nature of the land used for the corridor determines whether the annexation is valid.
To avoid the problems of corridor annexation, Georgia allows non-contiguous annexation, either by the state legislature or by agreement between the city and county. State legislative authority to annex is limited only by the state and federal constitutions, and the Georgia Supreme Court has ruled that the legislature’s annexation authority, something Tennessee’s General Assembly does not have, extends to non-contiguous property.31 Six other states allow cities to annex certain non-contiguous territory. California, Missouri, and Wisconsin allow non-contiguous annexation only of government-owned property. Indiana, Kansas, and North Carolina all permit cities to annex other non-contiguous property but only within a certain distance of the city limits and only with the owners’ consent. Indiana limits non-contiguous annexations to commercial or industrial development, which avoids problems associated with providing public services to patchwork residential development. Counties in Indiana need a legislative act to opt into the statute that permits non-contiguous annexation, and eleven have done so.32 Kansas requires the city to get county approval for the annexation. These states do not allow the non-contiguous territory to be used to establish contiguity for further annexations. While Tennessee explicitly allows annexation only of contiguous property, by one report, at least one city has effected a non-contiguous annexation by deannexing the corridor used to reach what is now a non-contiguous incorporated island.
The 110th General Assembly in 2017 enacted Public Chapter 399, which extended a provision allowing non-contiguous annexation only in certain counties to apply statewide.
29 Committee to Oppose the Annexation of Topside and Louisville Road, et al., v. The City Of Alcoa and The Blount County Election Commission, 881 S.W.2d 269, Tenn. LEXIS 222 (Tenn. 1994).
30 Arkansas, Idaho, Illinois, Kentucky, Ohio, Oklahoma, Oregon, South Dakota, Wisconsin, and Wyoming.
31 City of Fort Oglethorpe v. Boger, 267 Ga. 485 (1997).
32 Burns Indiana Statutes Annotated, Section 36-4-3-4(b).