by Joe Sullivan
Mayor Bill Haslam has pulled back from any further annexations on the city's part until, he says, "I have a policy we can defend and that I believe in." In arriving at such a policy he may need to look no further than the statute governing annexations that the state Legislature enacted in 1998.
That statute, known as the Growth Plan Law, seemingly encouraged annexation by providing for the creation in each county of Urban Growth Boundaries within which a city would be permitted to annex. After two years of wrangling, the city and Knox County agreed upon a boundary encompassing 46 square miles of territory outside the present city limits that was a fair field for the city to extend its borders.
Further favoring annexation, or so it seemed, the statute shifted the burden of proof in cases where a property owner subjected to annexation contested it in court. Previously, a municipality had the burden of proving, in such cases that, "an annexation ordinance is reasonable for the overall well-being of the communities involved" (with the annexed territory defined to be one of the communities).
Not once in more than a decade of aggressive annexation under former Mayor Victor Ashe did the city ever prevail in a lawsuit under this standard. Hence, the 23 square miles of mostly commercial property that Ashe managed to bring into the city was all annexed by consent, or at least went uncontested.
Under the 1998 statute, the burden of proof shifted to a property owner contesting an annexation. But in a way that apparently went unheeded by municipalities, the Legislature added a second standard to the test of an annexation's validity so that the law now reads as follows:
"The party [challenging an annexation] has the burden of proving that:
1.) An annexation ordinance is unreasonable for the overall well-being of the communities involved; or
2.) The health, safety, and welfare of the citizens and property owners of the municipality and [the annexed] territory will not be materially retarded in the absence of such annexation."
The wording of (2.) is so legalistic as to almost defy comprehension by a layman at first reading. But it's the heart of the matter. So read it again and then let me try to parse the sentence for you. Stripped to its essentials, the law says you can only be annexed if your health, safety, and welfare will be materially retarded if you aren't.
Faced with defending more than 200 suits contesting annexations since the new law took effect, the Ashe administration's law department has contended that the law doesn't mean what it says. The key word in its contention is the OR between the (1.) and the (2.).
When the 1998 legislation went through the House and the Senate, they were connected by an AND. Proving both (1.) and (2.) would indeed be difficult in challenging an annexation. However, a House-Senate conference committee saw fit, for whatever reason, to change the AND to OR, and that's the way the legislation got enacted.
In the one suit that has gone to trial under the new law, a city law department post-trial memorandum asserts that, "the 'or' clearly appears to be a drafting error." The memorandum goes on to argue that, "in order to effectuate the legislative intent... the word 'or'...should be construed as 'and.' Under such construction, the statute is sensible in that it does not lead to an absurd result as hypothesized where the annexation of a property that is totally surrounded by the city limits is clearly reasonable but material retardation may perhaps be questionable due to the fact that the property in question already benefits directly and/or indirectly from municipal services."
However, a key figure in effecting the change in the conference committee, Rep. Harry Tindell says, "It would be ludicrous to think it was a drafting error." Nor has there been any attempt to change it in the five years since the law went into effect.
In any event, it's a well-established principle of law that legislative history is relevant in construing a statute only if the statute is ambiguous. Since there is no ambiguity in the meaning of the word "or," the city law department's attempt to contest it is irrelevant.
The suit in question involves the city's attempted annexation of the property on which the Disc Exchange is located at 8420 Kingston Pike. The Disc Exchange's owner, Alan Miller, insists he's well satisfied with the services he's receiving outside the city, including law enforcement by the Knox County Sheriff, fire protection by Rural Metro, and water and sewer services by First Utilities District. It's true that Miller and his landlord benefit from city streetlights, traffic signals and the like on Kingston Pike. But these were put in place to serve the long list of commercial properties along the pike that Ashe managed to annex voluntarily. So the Disc Exchange property is just an incidental beneficiary of services being provided to the properties that surround it.
The suit was tried last fall in Chancery Court, but Chancellor Daryl Fansler has yet to render a decision. As I'm not exactly sure what "materially retarded" means, and I'm not a lawyer, let alone a judge, perhaps I ought to refrain from rendering an opinion on the merits of the suit. But it's totally implausible to me that the health, safety and welfare of the Disc Exchange property owners is being materially retarded in the absence of annexation.
Fansler's decision in the matter (also allowing for any appeal thereof) should go a long way toward setting what annexation policy Bill Haslam can defend. If the decision goes against the city, the only policy that's defensible is to stick to voluntary annexations—and there are good reasons why some commercial properties and even some homeowners may welcome being incorporated into the city and subjected to its taxes.
This policy may not serve the city's interests as well as a more expansive one; but unless and until the law is changed, the city must abide by it.
January 29, 2003 * Vol. 14, No. 5
© 2004 Metro Pulse
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