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The Annexation Process Going Forward: Consent and Referendums

Public Chapter 707 established consent as the basis for all annexations in Tennessee.  While it left the existing referendum method unchanged, it added a more formal method for individual owner consent, one that requires consent in writing, something that was not necessary in the past.  With the written consent of all affected landowners, cities can easily annex any area adjacent to the existing city limits, including land used primarily for agricultural purposes, which now can be annexed only with the owner’s written consent.  Anything else requires a referendum.

With repeal of the annexation by ordinance method, Public Chapter 707 left resolution as the only method for effecting annexations.  The critical difference between the two is that ordinances have the force and effect of law while resolutions only express the opinion or will of legislative bodies.  Giving annexation resolutions the effect of laws and ensuring that they are not subject to legal challenge on a procedural basis will require that cities follow their ordinance processes.  Allowing cities to use ordinances for this narrow purpose—only for annexations with unanimous written consent—would be less confusing.

Defining Agricultural Land for Annexation Purposes May Pose Challenges

The larger issue for annexation with written consent, however, is the meaning of the phrase used primarily for agricultural purposes.  While agriculture is well defined in Tennessee Code Annotated, Title 1, the word primarily is not defined anywhere in Tennessee law.  It is, however, used frequently in statutes, and the standard dictionary definition of indicating the main purpose of something or for the most part would most likely be applied but would still be open to interpretation.  Greenbelt status, which protects certain agricultural lands from being appraised for property tax purposes at their highest and best use, has been discussed as a standard for requiring written consent but may not cover everything the legislature had in mind when it wrote “property being used primarily for agricultural purposes.”  One option would be to apply the Greenbelt criteria but include parcels that do not meet the acreage criteria for special tax treatment.

The Referendum Process Remains Unchanged but Excludes Non-resident Landowners

Public Chapter 707 did not change anything about the referendum process itself, which has been available to municipalities since 1955.  Because annexation by ordinance was simpler, timelier, and cheaper, cities rarely used the referendum process.  Referendums can be a cumbersome process unless aligned with a regular election and do not give non-resident landowners a voice.  Moreover, referendums require consent from only half of the voters plus one.  This simple majority vote requirement means that it is possible for a substantial number of residents and all non-resident property owners to be annexed without their consent and even despite their objection.  People who own land within the proposed annexation area but live within the existing city limits may be given the opportunity to participate in the annexation vote if the city chooses to hold a dual election, in which case the annexation must be approved by both groups, those who live in the city as well as those who live in the area proposed for annexation, or the annexation proposal fails.

One proposal to extend participation to non-resident landowners, including corporations, is to allow them to vote in annexation referendums.  Although some Tennessee cities’ charters allow non-resident landowners—no more than two per parcel—to register and vote in municipal elections, this privilege is granted only to natural persons who are otherwise qualified to vote in Tennessee elections, not to non-resident landowners organized as corporations.  Corporate landowners could be allowed to vote in annexation referendums—there is no constitutional impediment to doing so—but only a tiny handful of states extend that right to them (Colorado, Delaware, Maryland, and West Virginia).  Nearly all states that allow non-resident landowners to participate in annexation decisions do so through a petition process, although those petitions generally do not decide annexations but rather request them.

But allowing non-resident landowners to participate in annexation referendums may pose logistical problems for election officials and poll workers.  Identifying those eligible to vote as non-residents would be a novel process in most areas.  Safeguards would need to be developed to ensure that only those eligible by virtue of owning property in areas proposed for annexation were allowed to vote on those questions, and some process for determining who could vote—which owners of properties with multiple owners as well as which individual on behalf of corporations—on the basis of land ownership.  Ballots presented at polling places in areas proposed for annexation would have to be programmed to exclude non-residents from all but the annexation question.

Voters themselves might face logistical problems as well when they are eligible to vote in the regular election in one place based on residence and on annexation questions in other places based on land ownership.  The same individual might also be eligible to vote on behalf of a corporation at one or more polling places.  Getting to all of these places could be as difficult for voters as ensuring that only those who are qualified actually vote on each question would be for election officials and poll workers.  Separating annexation referendums that allow non-residents to participate from other elections would be much simpler, but cities may find holding them on different dates too costly.