Annexation Options

Tennessee Code Annotated, Title 6, Chapter 51, Part 1 sets forth two approaches to annex territory. Municipalities can annex territory using either a (1) “Resolution for Annexation by Referendum” or a (2) “Resolution for Annexation by Owner Consent.” Municipalities are no longer permitted to annex territory, with or without an owner’s consent, through the passage of an ordinance. With either of the two resolution options, two threshold requirements must be satisfied:

• The territory must be contiguous to the municipality’s corporate limits (an exception is made as discussed below in Non-contiguous Annexations); and
• The territory must be within the municipality’s urban growth boundaries, unless a referendum is held pursuant to T.C.A.§ 6-58-111(c)(2) or all three of the following are met: (1) the tract is contiguous to a tract of land that has the same owner and has already been annexed by the municipality; (2) the tract is being provided water and sewer services; and (3) the owner, by notarized petition, consents to being included in the municipality’s urban growth boundaries. T.C.A. § 6-58-118.

Non-contiguous Annexations

Municipalities are authorized to annex territory that is not contiguous to the corporate limits. In order to do so, consent of the owner is required and the territory to be annexed must be located entirely within the urban growth boundary of the municipality. Additionally, the territory must either have an intended use for industrial, commercial, or future residential development or be owned by a governmental entity. The ownership requirement can be any governmental entity and is not limited to the municipality proposing annexation. A plan of services must be prepared (as is required for every annexation), but for a non-contiguous annexation, the plan must be prepared by the municipality in cooperation with the county. An interlocal agreement is required to address the provision of emergency services to interceding properties (between the municipality and the territory to be annexed) and road and bridge maintenance from the municipality to the territory being annexed. T.C.A. § 6-51-104.

Public Notification Requirements Prior to Annexation

Three separate notification steps are required for any annexation:

1. U.S. Mail —- A resolution describing the territory proposed for annexation, including the plan of services, must be “promptly” sent by first class mail to the last known address listed in the office of the property assessor for each property owner of record within the territory proposed for annexation a minimum of twenty-one (21) calendar days before a public hearing on the proposed annexation.
2. Posting —– Three (3) copies of the resolution must be posted both in the territory that is proposed for annexation and in a like number of places within the municipality proposing the annexation.
3. Published Newspaper Notice —- Notice of the proposed annexation must be published “at about the same time” that it is posted in a newspaper of general circulation, if there is one, in such territory and municipality. In no event shall the notice be published less than seven (7) days in advance of the public hearing. The notice must include a map that includes a general delineation of the area to be annexed by use of official road names or numbers, or both, and other identifiable landmarks, as appropriate.
4. No later than twenty-one (21) calendar days prior to the scheduled date of the first hearing on such proposed annexation, the municipality shall post signage that informs viewers of the proposed annexation, the date, time, and location of the public hearing on the proposed annexation, and a website address for additional information.
   The signs used pursuant to subdivision (b)(3)(A) must be a minimum of three feet (3′) wide by two feet (2′) tall, be affixed to a sturdy base with the top of the sign no less than five feet (5′) from the ground, and be posted within the territory proposed for annexation and along any thoroughfare bordering the territory. The signs must remain until the territory is annexed or the annexation is abandoned. T.C.A. § 6-51-104.

In addition, a published notice is required in advance of a public hearing on the plan of services for the territory to be annexed:

Published Newspaper Notice for Plan of Services

A notice of a public hearing on the plan of services for the territory under consideration must be published in a newspaper of general circulation not less than twenty-one (21) days before the hearing date and time. The notice must indicate the time, place, and purpose of the hearing; as well as the location(s) where the proposed plan of services is available for public viewing (three copies must be available for public inspection during normal business hours). T.C.A. § 6-51-102.

The plan of services is also required to be sent to the county mayor upon adoption. T.C.A. § 6-51-102.

The newspaper publication requirements set forth above may be incorporated into a single notice provided the timing requirements of each are satisfied.

Property Used Primarily for Agricultural Purposes

Property used primarily for agricultural purposes can only be annexed by owner consent. T.C.A. § 6-51-104. However, there is no definition provided for agriculture in Tennessee Code Annotated, Title 6, Chapter 51, Part 1. T.C.A. § 1-3-105(2)(A) defines agriculture to mean:

(i) The land, buildings and machinery used in the commercial production of farm products and nursery stock;

(ii) The activity carried on in connection with the commercial production of farm products and nursery stock;

(iii) Recreational and educational activities on land used for the commercial production of farm products and nursery stock; and

(iv) Entertainment activities conducted in conjunction with, but secondary to, commercial production of farm products and nursery stock, when such activities occur on land used for the commercial production of farm products and nursery stock.

As used in this definition, "farm products" means forage and sod crops; grains and feed crops; dairy and dairy products; poultry and poultry products; livestock, including breeding and grazing; fruits; vegetables; flowers; seeds; grasses; forestry products; fish and other aquatic animals used for food; bees; equine; and all other plants and animals that produce food, feed, fiber or fur. ‘Nursery stock" means all trees, shrubs, or other plants, or parts of such trees, shrubs or other plants, grown or kept for, or capable of, propagation, distribution or sale on a commercial basis.

So while the definition above is a good starting point for land that could be considered as agricultural, a court could otherwise interpret the word going forward.

Additionally, the word primarily is not defined anywhere in the Tennessee Code. It is however, used in statutes, and the standard dictionary definition of indicating the main purpose of something or for the most part would likely be applied by a court, but that is not guaranteed. Property with greenbelt status would meet this requirement, but the definition most certainly goes further than that. When determining territory to be included in a referendum, the municipality must use its best judgment, on a parcel-by-parcel basis, as to whether a parcel is used primarily for agricultural purposes. If determined so, then that parcel can only be annexed by owner consent.

Actions Required Following Annexation

Following any annexation, several notifications are required of the municipality:

1. A revised map of the voting precincts must be sent to the Office of Local Government in the Comptroller's office. T.C.A. § 2-3-102.
2. The election certification must be sent to the county mayor. The certification should be sent irrespective of the outcome of the election. T.C.A. § 6-51-105.
3. The annexation resolution should be sent to the utility district or municipal utility board serving the area, if the municipality is desirous of purchasing the utility system in the annexed area. T.C.A. § 6-51-111.
4. The Tennessee Department of Revenue should be notified for the purpose of tax administration. T.C.A. § 6-51-115.
5. The annexation resolution, as well as the portion of the plan of services related to emergency services and a detailed map of the annexed territory must be sent to any affected emergency communication district. T.C.A. § 6-51-119.
6. The annexation resolution must be recorded with the register of deeds. T.C.A. § 6-51-121.
7. The annexation resolution must be sent to the Tennessee Comptroller of the Treasury, as well as to the property assessor in each county affected. T.C.A. § 6-51-121.

Contested Annexations

A property owner or municipality is authorized to file a complaint with the Tennessee Secretary of State’s office when there is a dispute whether property was annexed by the municipality, requesting the state to determine when the individual’s property was properly annexed. The burden is placed on the municipality, by a preponderance of the evidence, to show that the property was properly annexed. An administrative law judge is required to be appointed within ten days of the complaint being filed, with the case to be heard within 90 days thereafter. The state is authorized to issue a final order, following the issuance of the initial order by the administrative law judge, for purposes of appeal. The municipality must file all annexation ordinances/resolutions, as well as the results of annexation referendums, specific to the contested annexation within 20 days of the complaint being filed. The municipality is required to reimburse any property taxes paid, with interest, if the final order includes a finding that the property was not annexed. Tennessee Code Annotated, Title 8, Chapter 3, Part 1.

Annexation Option A: Resolution for Annexation by Referendum

A municipality may, upon its own initiative, pass a resolution proposing annexation via referendum. Since land used primarily for agricultural purposes cannot be annexed except with written consent of the owner, a referendum to consider annexing territory which includes land being used primarily for agricultural purposes is not an option.

This process calls for the adoption of a minimum of two resolutions by the governing body. The adoption of a third resolution is recommended as a best practice as discussed below.

The first resolution (which is optional, but the recommended best practice) indicates an intent of the governing body to seriously explore the annexation and to initiate the review and decision process. This resolution is referred to herein as ‘exploratory annexation by referendum’ resolution (Resolution A). The second resolution, which is referred to herein as ‘proposed annexation by referendum’ resolution (Resolution B), calls for a public hearing on the proposed annexation and plan of services. The adoption of such a resolution by the governing body is mandatory. The third resolution, referred to herein as 'annexation by referendum’ resolution (Resolution C), formally calls for a referendum election to be held, describing therein the territory to be annexed and the plan of services to support it. The adoption of such a resolution is also required of the governing body.

Election Process

Between 30 and 60 days after the ‘annexation by referendum’ resolution (Resolution C) describing the territory to be annexed, approving the plan of services, and calling for a referendum is posted and published, a referendum of the voters who live in the area proposed for annexation is held by the county election commission. Only qualified registered voters residing in the territory proposed for annexation are entitled to vote in the annexation referendum. The ballot questions are "for annexation" and "against annexation." A simple majority of votes decides the question. T.C.A. § 6-51-105.

At its own option, the municipality may also have the referendum include all voters within the existing municipality. If two elections are held, a majority of voters in both the area proposed for annexation and the municipality proposing it must vote to approve the annexation. If only one of the election votes passes, the measure fails and the annexation is unsuccessful. A successful annexation becomes effective thirty (30) days following certification of the election(s). Elections are held at the municipality's expense and the referendum process can be abandoned by the municipality at any time. T.C.A. § 6-51-105.

Resolution for Annexation by Referendum: Step-by-Step including Best Practices (BP)

The following procedural steps, including best practices, should be followed when proceeding with an annexation by referendum:

1. Identify the territory to be annexed (tax parcels, property legal descriptions, or both).
2. Prepare an annexation report and a proposed plan of services. While the statute does not require an annexation report be prepared, by doing a cost-benefit study, the municipality will better understand the impact of the annexation on existing city services and funding. This will assist the governing body in determining if the annexation is warranted. (BP).
3. Review the annexation report and proposed plan of services with the governing body.
4. Adopt an ‘exploratory annexation by referendum’ resolution (Resolution A) indicating governing body support to further investigate the annexation prospect, and directing the planning commission, if there is one, to review and make recommendation on the proposed plan of services. (BP). Alternatively, this can be accomplished by simple majority vote of the governing body without the formal use of a resolution.
5. Following return of a recommendation from the planning commission (which must be rendered within ninety days after submission unless by resolution a longer period is allowed), adopt a ‘proposed annexation by referendum’ resolution (Resolution B). This resolution sets forth the territory proposed to be annexed and includes the plan of services.
6. Following adoption of the ‘proposed annexation by referendum’ resolution, post it in three (3) public places in the territory proposed to be annexed and in three (3) public places within the municipality.
7. Publish a public hearing notice of the proposed annexation in a newspaper of general circulation, if there is one, in such territory and municipality “at about the same time” that the resolution is posted (see step 6), but in no event, less than seven (7) days in advance of the public hearing. The notice must include a map that includes a general delineation of the area to be annexed by use of official road names or numbers, or both, and other identifiable landmarks, as appropriate.
8. Publish a public hearing notice on the plan of services in a newspaper of general circulation a minimum of twenty-one (21) days prior to the hearing. The notice must indicate the time, place, and purpose of the hearing; as well as the location(s) where the proposed plan of services is available for public viewing. The publication requirements in step 7 and step 8 can be combined into a single notice provided both are published a minimum of twenty-one (21) days in advance of the public hearings.
9. Mail to property owners in the territory proposed for annexation a copy of the ‘proposed annexation by referendum’ resolution, including the plan of services, a minimum of twenty-one (21) calendar days prior to the public hearing on the proposed annexation.
10. Twenty-one (21) calendar days prior to the scheduled date of the first hearing on such proposed annexation, the municipality shall post signage that informs viewers of the proposed annexation, the date, time, and location of the public hearing on the proposed annexation, and a website address for additional information.
11. If the municipality does not maintain a separate municipal school system, provide written notice to the affected county school systems as soon as practicable, but in no event less than thirty (30) days before the public hearing. This is mandatory. If the municipality maintains a municipal school system, send notice as soon as practicable. (BP).
12. Conduct public hearings on the annexation and plan of services as advertised.
13. Adopt an ‘annexation by referendum’ resolution (Resolution C) describing the territory to be annexed, approving the plan of services, and calling for a referendum election. If the governing body decides to hold a second election for city voters, this should also be included in the same resolution.
14. Send the adopted ‘annexation by referendum’ resolution, as well as the plan of services, to the county mayor.
15. The county election commission conducts the election within 30 to 60 days.
16. With a successful referendum vote, the territory becomes annexed thirty (30) days following certification of the election.
17. Commence the ordinance process to zone the territory newly annexed into the corporate limits. (BP).
18. Commence the process to place the territory in the appropriate ‘districts’ (if any), as may be required (i.e. council wards, school district wards, package liquor store areas, etc.).
19. Send a welcome letter to annexed property owners with other general information about municipal services. Although not statutorily required, this is a best practice in reaching out to your new municipal residents. (BP).
20. Send the revised voting precinct maps to the Office of Local Government in the Comptroller's Office.
21. Send the election certification to the mayor of the county where the annexed territory lies. The certification should be sent irrespective of the outcome of the election.
22. Send the ‘annexation by referendum’ resolution, to the utility district or municipal utility board serving the area, if the municipality is desirous of purchasing the utility system in the annexed area.
23. Notify the Tennessee Department of Revenue for the purpose of tax administration.
24. Send the ‘annexation by referendum’ resolution, as well as the portion of the plan of services related to emergency services and a detailed map of the annexed territory, to any affected emergency communication district.
25. Record the ‘annexation by referendum’ resolution with the register of deeds.
26. Send the ‘annexation by referendum’ resolution to the Tennessee Comptroller of the Treasury, as well as to the property assessor in each county affected.
27. Commence the provision of day-to-day city services (police, fire, code enforcement, etc.) to the annexed area immediately following the 30th day following the election certification.
28. Commence the process of satisfying the plan of service requirements and commitments that will take longer to complete (sewer extension, street lighting, etc.).
29. As appropriate, complete census of annexed area.
30. The annexed property is placed on the municipality’s tax roll on January 1 after the effective date of the annexation.

Annexation Option B - Resolution for Annexation by Owner Consent

The annexation of property with owner consent follows a similar process as annexation requiring a referendum election, with the major exception, of course, that the question to annex is not placed on a ballot.

As indicated in its name, this process requires written consent of each property owner in the territory proposed to be annexed or written consent of 2/3 of the legal owners of record in the territory proposed to be annexed, when the property owned by those who consent totals more than ½ of the territory proposed for annexation, and 9 or fewer parcels are being proposed for annexation.

Two resolutions are adopted by the governing body using this process. The first calls for a public hearing on the proposed annexation and plan of services, referred to herein as ‘proposed annexation by owner consent’ resolution (Resolution D). The second resolution formally annexes the territory and adopts the plan of services, referred to herein as ‘annexation by owner consent’ resolution (Resolution E). The annexation becomes immediately effective with passage of the second resolution.

Resolution for Annexation by Owner Consent: Step-by-Step including Best Practices (BP)

The following procedural steps, including best practices, should be followed when proceeding with an annexation by owner consent:

1. Receive a written letter seeking annexation signed by all legal owners of record or 2/3 of the legal owners of record in the territory proposed to be annexed, when the property owned by those who consent totals more than ½ of the territory proposed for annexation, and 9 or fewer parcels are being proposed for annexation.
2. If the municipality is interested in pursuing annexation, prepare annexation report and plan of services. While the statute does not require an annexation report be prepared, by doing a cost-benefit study the municipality will better understand the impact of the annexation on existing municipal services and funding. This will assist the governing body in determining if the annexation is warranted (BP).
3. Review the annexation report and plan of services with governing body and attain approval to proceed.
4. If approval is received, submit plan of services to the planning commission, if there is one, for review and recommendation.
5. Following return of a recommendation from the planning commission (which must be rendered within ninety days after submission unless by resolution a longer period is allowed), adopt a ‘proposed annexation by owner consent’ resolution (Resolution D). This resolution sets forth the territory proposed to be annexed and includes the plan of services.
6. Following adoption, post the ‘proposed annexation by owner consent’ resolution in three (3) public places in the territory proposed to be annexed and in three (3) public places within the municipality.
7. Publish a public hearing notice on the plan of services in a newspaper of general circulation a minimum of twenty-one (21) days prior to the hearing. The notice must indicate the time, place, and purpose of the hearing; as well as the location(s) where the proposed plan of services is available for public viewing.
8. Publish a public hearing notice on the proposed annexation in a newspaper of general circulation, if there is one, in such territory and municipality “at about the same time” that the resolution is posted (see step 6), but in no event less than seven (7) days in advance of the public hearing. The notice must include a map that includes a general delineation of the area to be annexed by use of official road names or numbers, or both, and other identifiable landmarks, as appropriate. The publication requirements in step 7 and step 8 can be combined into a single notice provided both are published a minimum of twenty-one (21) days in advance of the public hearings.
9. If the municipality does not maintain a separate municipal school system, provide written notice to the affected county school systems as soon as practicable, but in no event less than thirty (30) days before the public hearing. This is mandatory. If the municipality maintains a municipal school system, send notice as soon as practicable (BP).
10. Mail to property owners in the area being proposed for annexation a copy of the ‘proposed annexation by owner consent’ resolution, including the plan of services, a minimum of twenty-one (21) calendar days prior to the public hearing on the proposed annexation.
11. Twenty-one (21) calendar days prior to the scheduled date of the first hearing on such proposed annexation, the municipality shall post signage that informs viewers of the proposed annexation, the date, time, and location of the public hearing on the proposed annexation, and a website address for additional information.
12. Conduct public hearings on the annexation and plan of services as advertised.
13. Following the public hearings, adopt an ‘annexation by owner consent’ resolution (Resolution E) approving the annexation and plan of services.
14. The territory is immediately annexed upon adoption of the ‘annexation by owner consent’ resolution.
15. Send the adopted ‘annexation by owner consent’ resolution, as well as the plan of services, to the county mayor.
16. Commence the ordinance process to zone the territory newly annexed into the corporate limits. (BP)
17. Commence the process to place the territory in the appropriate ‘districts’ as may be required by charter or code (i.e. council wards, school district wards, package liquor store areas, etc.).
18. Send a welcome letter to annexed property owners with other general information about municipal services. Although not statutorily required, this is a best practice in reaching out to your new municipal residents (BP).
19. Send the revised voting precinct maps to the Office of Local Government in the Comptroller's Office.
20. Send the ‘annexation by owner consent’ resolution to the utility district or municipal utility board serving the area, if the municipality is desirous of purchasing the utility system in the annexed area.
21. Notify the Tennessee Department of Revenue for the purpose of tax administration.
22. Send the ‘annexation by owner consent’ resolution, as well as the portion of the plan of services related to emergency services and a detailed map of the annexed territory, to any affected emergency communication district.
23. Record the ‘annexation by owner consent’ resolution with the register of deeds.
24. Send the ‘annexation by owner consent’ resolution to the Tennessee Comptroller of the Treasury, as well as to the property assessor in each county affected.
25. Commence the process of satisfying the plan of service requirements and commitments that will take longer to complete (sewer extension, street lighting, etc.).
26. As appropriate, complete census of annexed area.
27. The annexed property is placed on the municipality’s tax roll on January 1 after the effective date of the annexation.