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Annexation by Resolution

Not only did Public Chapter 707 repeal unilateral annexation by ordinance, it completely removed the ordinance method of annexation, even to effect annexation by willing landowners.  The law continues to allow interested persons—whether owners, residents, or otherwise—who wish to have an area annexed into a city to request it, and the governing body of the city still determines whether it will act upon that request.  All annexations must now be accomplished by resolution but must follow the ordinance process laid out in a city’s charter in order to have the force and effect of law.  Tennessee courts have held that a resolution passed with all the formalities required for passing ordinances may operate as an ordinance.  If the ordinance process is not followed, annexation resolutions may be vulnerable to legal challenge.

The terms resolution and ordinance have distinct meanings.  A resolution is “a mere expression of the opinion of the mind of the City Council concerning some matter of administration” and is temporary in nature.  An ordinance, on the other hand, is a permanent local law adopted by a city.2  Although they are similar, adopting a resolution instead of an ordinance may leave the action open to legal challenge.3

City charters generally govern procedures for adopting ordinances and resolutions.  Although aspects of the adoption process vary from charter to charter, all ordinances require one to three readings and the governing body’s majority approval.  Some cities also require the mayor’s approval or impose publication requirements before passing an ordinance.4  Resolutions are usually passed in much the same way but do not require more than one reading.

Annexation by Owner Consent

If all property owners consent in writing to a proposed annexation, the city can forgo the referendum process and easily annex any area adjacent to the existing city limits, including land used primarily for agricultural purposes, which now can be annexed only with written consent of the owner.  The city need only adopt a resolution using its process for adopting ordinances to annex the territory.  Written consent is also required to annex government-owned land, including public roads, except when a referendum is held.  And if there are no eligible voters residing in the area proposed for annexation, there can be no referendum and the territory can only be annexed with the consent of all owners.

Defining Agricultural Land for Annexation with Written Consent

Public Chapter 707 has given agricultural property a new level of protection from annexation.  The act states that “no [extension of a city’s corporate limits by] resolution shall propose annexation of any property being used primarily for agricultural purposes . . . [such property] shall be annexed only with the written consent of the property owner or owners.”  Property being used primarily for agricultural purposes cannot be annexed without consent as part of a larger annexation referendum.  While agriculture is clearly defined in Tennessee Code Annotated, Title 1, and in the state’s Greenbelt law, the phrase “used primarily for agricultural purposes” is not defined anywhere in the law, in Public Chapter 707 or elsewhere, and has raised questions about its meaning and application.  The concern is focused on the word primarily, which is not defined anywhere in Tennessee law, even in the statutes governing greenbelt classification for property taxation purposes.

Agriculture is defined in Title 1, which applies to every section of the Tennessee Code, as land and buildings “used in the commercial production of farm products and nursery stock.”  Farm products and nursery stock are further defined, and recreational, educational and entertainment activities are also included.5  Tennessee’s Greenbelt law, which protects certain agricultural, forest, and open lands from being appraised for property tax purposes at their highest and best use, adopts the definition in Title 1 and sets minimum acreage requirements.6  These lands, as well as lands that meet the following definition, are assessed at the same 25% of fair market value as residential property: “all real property that is used, or held for use, in agriculture, including, but not limited to, growing crops, pastures, orchards, nurseries, plants, trees, timber, raising livestock or poultry, or the production of raw dairy products, and acreage used for recreational purposes by clubs, including golf course playing hole improvements.”7  It seems clear that land used primarily for these purposes is protected from annexation without written consent.  Again, the interpretation of the word primarily is the issue.

Although the word primarily is not defined in the Tennessee Code, it is used frequently and would likely be interpreted based on its dictionary definition.  Courts often look to dictionaries to define words that aren’t defined in statutes. Webster’s defines primarily as “used to indicate the main purpose of something; for the most part.”9  It seems clear that land that is used more for purposes described in Title 1 or in the Greenbelt law than for any other purpose would require written consent for annexation.

Of the nine other states that limit the ability of cities to annex agricultural land,10 only North Carolina provides specific guidance for determining which agricultural land is protected.  North Carolina’s annexation law, adopted in 2011, referencing definitions of agriculture elsewhere in state law, requires written owner consent for cities to annex land used for “bona fide farm purposes”11 and specifies that any of the following constitutes evidence of being used for bona fide farm purposes:

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2Joe Cooper’s Cafe, Inc. v. Memphis, Tenn. App. LEXIS 180 (Tenn. Ct.App. 1993).
3City of Johnson City v. Campbell, Tenn. App. LEXIS 86 (Tenn. Ct. App. 2001).
4Lobertini 2007.
5Tennessee Code Annotated, Section 1-3-105(2)(A).
6Tennessee Code Annotated, Section 67-5-1004.  As an alternative to the definition of agriculture in Title 1, land that has been consistently lived on and farmed by the owner’s family for 25 years also qualifies for greenbelt status if it meets the minimum acreage requirements.
7Tennessee Code Annotated, Section 67-5-501.
8Norandal USA, Inc. v. Johnson, Tenn. App. LEXIS 539 (Tenn. Ct. App. 2004).
9Merriam-Webster Dictionary, (Online Dictionary),  s.v. “primarily.”
10Arkansas, Colorado, Florida, Kansas, Nebraska, North Carolina, Oregon, South Carolina, and Virginia.
11North Carolina General Statutes, Section 160A-58.54(c).
12North Carolina General Statutes, Section 153A-340(b).