“[0]ur Courts have consistently held that the statutory right to challenge an annexation is very limited.”
How later courts described this case
- “[0]ur Courts have consistently held that the statutory right to challenge an annexation is very limited.”
- “[O]ur Courts have consistently held that the statutory right to challenge an annexation is very limited.”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 15, 2010 Session
SOUTHWEST TENNESSEE ELECTRIC MEMBERSHIP CORPORATION,
ET AL.
v.
CITY OF JACKSON, TENNESSEE and THE CITY OF JACKSON,
TENNESSEE CITY COUNCIL
Appeal from the Chancery Court for Madison County
No. 64244 James F. Butler, Chancellor
No. W2009-00913-COA-R3-CV - Filed September 7, 2010
This is an annexation case. The defendant city decided to annex twelve square miles of land
to its northwest. The territory to be annexed was divided into forty-nine subareas. Some of
the subareas immediately adjoin the city’s existing boundary; all are contiguous to one
another. The city prepared a plan to provide services for each of the subareas. The plans of
service stated that, upon annexation, the city would deliver services immediately with
existing resources. The city simultaneously enacted forty-nine ordinances annexing each of
the subareas. Afterward, the plaintiff residents filed the instant quo warranto lawsuit
challenging the annexation, arguing inter alia that the city could not annex land that did not
adjoin its existing boundary and that the plans of service were fatally deficient under the
annexation statutes. After a trial, the lower court concluded that the city could annex all of
the subareas and had complied with the statutory requirements for annexation. The residents
appeal. We reverse the trial court’s decision that the city could annex the subareas that did
not immediately adjoin the city’s existing boundary, affirm the decision that the city
complied with the statutory requirements for annexation with respect to the remaining
subareas, and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in
Part, Reversed in Part and Remanded
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.
Richard L. Winchester, Jr., Memphis, Tennessee, for the appellants, Southwest Tennessee
Electric Membership Corporation, et al.
Lewis L. Cobb and Teresa A. Luna, Jackson, Tennessee, for the appellees, City of Jackson,
Tennessee and The City of Jackson, Tennessee City Council
OPINION
F ACTS AND P ROCEEDINGS B ELOW
This appeal is the latest installment in the ongoing expansion of Defendant/Appellee the City
of Jackson, Tennessee (“City”).1 Over the years, the City’s northwestern boundary became
irregularly shaped due to the incremental annexation of various parcels of land at the request
of real estate developers. Meanwhile, the area immediately outside of the City, along that
irregular boundary, developed to an urban density. As early as 1989, the City’s Planning
Department began studying the area to determine the suitability of annexing the land to
address the jigsaw boundary and to bring the development within the City.
At some point, the Director of the City Planning Department, Stan Pilant (“Director Pilant”),
concluded that an area of roughly twelve square miles of land to the northwest of the City
(“Northwest territory” or “the territory”) was suitable for annexation. The territory included
land in various stages of development, from undeveloped to urban density. To make the
annexation process more manageable, the Planning Department divided the Northwest
territory into forty-nine subareas. Some, but not all, of the subareas immediately adjoin the
City’s boundary.2 All of the subareas are contiguous to one another.
Director Pilant discussed the potential annexation of this land with the City’s mayor, Charles
Farmer. Once Mayor Farmer concurred in the Director Pilant’s recommendation to pursue
annexation, the Planning Department prepared a report analyzing the financial feasability of
annexation. In preparing the analysis for the Planning Department’s report, Director Pilant
contacted various City departments to obtain the estimated cost of delivering services to the
1
The City of Jackson was founded in 1822. At its inception, the City was comprised of about four square
blocks. After the Civil War, the City’s boundaries were expanded in 1871 and thereafter remained
unchanged for the next sixty years. In the 1930s, the City expanded in all directions. From the 1950s
through the 1990s, the City expanded by annexation every decade, due to industrial and residential growth
in the suburban areas. Many of these annexations resulted in litigation, including appeals to this Court and
to our Supreme Court. See, e.g., Saylors v. City of Jackson, 575 S.W.2d 264 (Tenn. 1978); Pirtle v. City
of Jackson, 560 S.W.2d 400 (Tenn. 1970); Cox v. City of Jackson, No. 02A01-9701-CH-00002, 1997 WL
777078 (Tenn. Ct. App. Dec. 18, 1997), perm. app. denied June 22, 1998.
2
This Opinion will refer to the subareas that do not immediately adjoin the City’s boundary as “the non-
adjoining subareas” and will refer to the subareas that immediately adjoin the City’s existing boundary as
the “adjoining subareas.”
-2-
Northwest Territory; these included the City Police Department, Fire Department,
Engineering Department, and Recreation and Parks Department, as well as the Jackson
Energy Authority. Along with the report, the Planning Department prepared a plan of service
for each of the forty-nine subareas; these described the manner in which the City would begin
providing services to the Northwest territory upon annexation.
Other than the provision of utilities, the proposed plan of service for each of the forty-nine
subareas were identical in most ways. Each provided in pertinent part:
A. Police
1. Patrolling, radio response to calls, and other routine police services
using present personnel and equipment will be provided on the
effective date of annexation.
2. As the area described above begins to develop and population
increases, additional police personnel and patrol cars will be added, if
needed, to maintain the present level of police service throughout the
city, including the newly annexed area.
B. Fire
1. Fire protection will be provided by the Jackson Fire Department
supported by the Madison County Volunteer Fire Department under an
existing mutual aid agreement between said departments.
2. Fire protection for the area will be accomplished using present
personnel and equipment on the effective date of annexation.
****
I. Streets
1. Once developed, routine maintenance on the same basis as in the
present city will begin in the annexed area, if applicable, when funds
from the state gasoline tax, based on the annexed population, are
received by the city (usually July 1 following the effective date of
annexation).
-3-
2. If needed reconstruction and resurfacing of streets, reconstruction
of curb and gutter, and other such major improvements will be
accomplished under current city policy.
3. Appropriate street name signs will be installed as needed.
****
L. Street Lights
1. Street lights will be installed in the area as it develops to a level
determined to warrant such installation.
M. Recreation
1. The same standards and policies now used in the present city will be
followed in expanding the recreational program and facilities in the
enlarged city.
In August 2006, the Planning Department’s report was completed, and Director Pilant
presented the information to the City Planning Commission at the Commission’s regular
session. The meeting was open to the public and appropriate notice was given. The Planning
Commission reviewed the information and recommended approval of the annexation and the
plans of service for the territory to be annexed. Thereafter, the Planning Department
prepared a written memorandum, informing Mayor Farmer and Defendant/Appellee the City
of Jackson, Tennessee City Council (“City Council”) of the decision of the Planning
Commission. The memorandum included the minutes of the meeting and the documents
reviewed by the Commission.
In September 2006, the City Council met to consider annexation of the Northwest territory.
Because the Planning Department had divided the territory to be annexed into forty-nine
subareas, the annexation was presented as forty-nine ordinances with a corresponding plan
of service for each subarea. The City Council meeting was open to the public. After the City
Council heard comments by members of the public in attendance, it approved the plans of
service and passed the annexation ordinances on first reading.
On October 3, 2006, the City Council met to consider the annexation ordinances on second
reading.3 The City Council again voted in favor of annexing the Northwest territory and the
3
Under the City’s Charter, in order to be adopted, a City ordinance must be passed at two City Council
(continued...)
-4-
forty-nine ordinances were adopted with an effective date of November 2, 2006. By
resolution, the City Council adopted the corresponding plans of service.4
On November 1, 2006, Plaintiff/Appellant Southwest Tennessee Electric Membership
Corporation and roughly ninety-seven other persons who own property in the area to be
annexed (collectively, “Plaintiffs”) filed a quo warranto lawsuit challenging the annexation
of forty-seven subareas,5 on numerous grounds. First, the Plaintiffs argued that annexation
of the subareas that are not contiguous to the existing City boundary was illegal because
Tennessee Code Annotated § 6-51-102(a)6 permits the City to annex only land that adjoins
its existing boundaries. Next, the Plaintiffs alleged that the City did not comply with the
statutory procedural requirements for annexation “in regard to the content, submission, and
approval of the respective plans of service.” In particular, they asserted that the plans of
service were fatally deficient for lack of a “projected timing of the services,” as required
under Tennessee Code Annotated § 6-51-102(b)(1).7 Finally, in reference to Tennessee Code
3
(...continued)
meetings.
4
The record is not clear as to whether the resolutions for the plans of service were adopted at the September
or October 2006 City Council meetings.
5
Initially, the Plaintiffs challenged the annexation of forty-seven subareas, but only thirty-three remain at
issue on appeal. The owners of property in two of the subareas voluntarily dismissed their claims. Consent
orders of dismissal were entered as to the owners of property in two other subareas. During the pendency
of the case, the City repealed the ordinances that annexed five of the subareas. Finally, the trial court granted
the City partial summary judgment as to five additional subareas, based on its finding that none of the
Plaintiffs in these subareas had standing to contest the annexation in a quo warranto proceeding. The trial
court certified the order as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. After the
trial court denied the Plaintiffs’ motion to alter or amend the order, the Plaintiffs filed a notice of appeal,
appealing the grant of partial summary judgment to the City on standing grounds.
In the complaint, the Plaintiffs asserted claims for declaratory judgment and violation of the Open
Meetings Act, Tennessee Code Annotated § 8-44-101, et seq. The trial court found that the relief available
to the Plaintiffs was limited to a quo warranto proceeding and that the Open Meetings Act claim was without
merit, and so granted the City summary judgment on both claims. On appeal, the Plaintiffs do not raise any
issues pertaining to the grant of summary judgment on their declaratory judgment and Open Meetings Act
claims.
6
Tennessee Code Annotated § 6-51-102(a) provides: “A municipality, . . . may extend its corporate limits by
annexation of such territory adjoining its existing boundaries . . ..” T.C.A. § 6-51-102(a)(1) (2005 & 2009
Supp.).
7
Tennessee Code Annotated § 6-51-102(b) provides: “Before any territory may be annexed under this section,
(continued...)
-5-
Annotated § 6-58-111(a),8 they also claimed that annexation was illegal because it did not
reasonably appear that the prosperity of the communities involved would be materially
retarded in the absence of annexation, or that the safety or property of the inhabitants of the
annexed areas was endangered. They asserted that the annexation was unreasonable
considering the overall well-being of the involved communities. On these grounds, the
Plaintiffs requested that the ordinances be declared null and void and that the City be
prohibited from annexing the Northwest territory for two years.
The City answered the complaint and denied that it had violated any statutes in annexing the
Northwest territory. The City contended that, under Tennessee Code Annotated § 6-58-111,
the annexation was presumed reasonable because the territory to be annexed was within the
7
(...continued)
the governing body of the municipality shall adopt a plan of services establishing at least the services to be
delivered and the projected timing of the services.” T.C.A. § 6-51-102(b)(1) (2005 & 2009 Supp.).
8
Tennessee Code Annotated § 6-58-111(a) provides:
(a) Notwithstanding any provision of this title or any other law to the contrary, a
municipality possesses exclusive authority to annex territory located within its approved
urban growth boundaries; therefore, no municipality may annex by ordinance or by
referendum any territory located within another municipality's approved urban growth
boundaries. Within a municipality's approved urban growth boundaries, a municipality may
use any of the methods in chapter 51 of this title to annex territory; provided, that if a quo
warranto action is filed to challenge the annexation, the party filing the action 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 territory will not be materially retarded in the absence of such annexation.
T.C.A. § 6-58-111(a) (2005 & 2009 Supp.).
-6-
City’s urban growth boundary.9 Accordingly, the City sought dismissal of the Plaintiffs’
complaint.10 Discovery ensued.
In September 2008, the Plaintiffs filed a motion for judgment on the pleadings with respect
to the subareas that do not adjoin the existing City boundaries. After a hearing, the trial court
concluded that annexation of the non-adjoining subareas did not violate the pertinent statutes
because the non-adjoining subareas are contiguous to the subareas that do adjoin the City’s
boundary, and all of the subareas were annexed simultaneously. Accordingly, the trial court
denied the Plaintiff’s motion.
In April 2009, the trial court held a two-day bench trial on the Plaintiffs’ complaint. Twelve
witnesses testified, including three individual Plaintiffs, a municipal planning expert, and
various City officials. Sixteen exhibits were entered into evidence, including several maps
and the Planning Department’s report on the annexation.
Plaintiffs Mona Miller, Hoyt Hayes, and Norville Edwards, II, testified on their own behalf.
Each live in one of the subareas to be annexed and testified that they believe that the services
provided by the County are superior to the services provided by the City. Mr. Edwards
summed up the Plaintiffs’ opinion that the Northwest territory annexation was unreasonable:
“All they’re going to do is tax us, take our money, and provide us no additional services than
we have now.”
Municipal planner Judson Te Paske testified as an expert witness for the Plaintiffs. Mr. Te
Paske commented overall that, while cities should expand via annexation, the annexation
must be done responsibly by providing services to aid the transition from rural to urban.
After reviewing the City’s proposed plans of service for the territory to be annexed, he
concluded that the subject annexation was not reasonable due to a “lack of commitment for
providing necessary services.” He explained that the plans of service for the subareas to be
annexed did not obligate the City to spend any additional monies to provide services to the
Northwest territory, other than for garbage collection, for which the costs could ultimately
9
Enacted in 1998, Tennessee’s “Comprehensive Growth Plan,” Tennessee Code Annotated § 6-58-101 et
seq., “requires the local governments in each county to develop a county growth plan through a coordinating
committee.” State ex rel. Tipton v. City of Knoxville, 205 S.W.3d 456, 459 (Tenn. Ct. App. 2006). Under
these statutes, the coordinating committee devises a plan that allocates the county’s unincorporated land;
once a local government planning advisory committee approves the plan, in general, a municipality within
the county may annex only territory within its agreed-upon urban growth boundary. Id. at 460.
10
The City asserted a counterclaim against four of the Plaintiffs for breach of contract and inducement of
breach of contract. The parties ultimately settled these claims and an agreed order of dismissal was entered
on the counterclaim. No issues on appeal have been raised with respect to the City’s counterclaim.
-7-
be recouped by charging garbage fees to the residents in the annexed areas. Mr. Te Paske
pointed out that servicing the Northwest territory, as well as the City, with existing personnel
and equipment would dilute the City’s capacity to serve both communities.
To prepare for his testimony, Mr. Te Paske viewed the subareas in the Northwest territory
to be annexed. He described the territory as “quite diverse” with some fully developed
residential areas and some essentially vacant areas, characterizing the territory “[i]n general,
[to be] a very thriving, . . . prosperous and nice place to live.” Mr. Te Peske said that he had
not observed anything indicating that the prosperity of the territory would be materially
retarded in the absence of annexation. He admitted, however, that “not only was [it] time to
annex but probably past the time” in his opinion. He conceded that, in preparation for his
testimony, he did not review either the Planning Department’s complete annexation plan or
the minutes of the Planning Commission meeting. This testimony concluded the Plaintiffs’
case in chief.
The City called as a witness the Chief of its Police Department, Richard Staples (“Chief
Staples”). At Director Pilant’s request, Chief Staples assessed the resources that would be
required to provide the Police Department’s services to the Northwest territory if it were
annexed. To do so, he reviewed the territory’s size, roadways, population base, demographic
information, and current crime rate. Based on the data gathered, Chief Staples initially
determined that, in addition to his current resources, the Police Department would need
twelve officers, three patrol cars, two investigators, and two investigative cars, at a cost of
about $739,000. This initial assessment was later revised downward in light of a decrease
in the size of the area to be annexed; the later assessment was that only nine additional
officers and one additional investigator would be required. After the City Council passed the
annexation ordinances, Chief Staples said, he hired twenty-two officers, and he testified that
he had authorization to hire nine more. Based on all of these facts, Chief Staples testified
that the Police Department could provide adequate police protection to the Northwest
territory and to the City twenty-four hours per day with its current resources
In his testimony, Chief Staples compared the City’s Police Department with the Madison
County Sheriff’s Department, which was providing the police protection for the area to be
annexed at the time of trial. He said that the City had “[a] lot more” officers on patrol than
did the Sheriff’s Department, in an area one-tenth of the County’s size. In addition, the City
Police Department has resources that the County Sheriff’s Department presumably does not
have, such as a forty-member special operations division to address narcotics and street
crimes, a six-member tactical team, over twenty investigators, and officers who work night
shifts. Based on the statistical data, Chief Staples said, the City Police Department responds
to calls “about two-thirds quicker” than does the County Sheriff’s Department. Chief Staples
-8-
noted that, because of the irregular City boundary abutting the area to be annexed, the City
Police Department was already patrolling parts of the Northwest territory.
Chief Staples acknowledged that he had not reviewed the City’s proposed plans of service
for the areas to be annexed. He clarified that the twenty-two officers hired after the
annexation ordinances passed were not hired for the express purpose of providing services
to the Northwest territory, but said that the City Mayor was aware and had agreed to provide
the additional resources once the annexation became effective.
The City next proffered the testimony of representatives of the Jackson Energy Authority
(“JEA”). They testified that JEA was already providing services to portions of the Northwest
territory, and that JEA’s rates for electricity and natural gas were significantly less than the
energy provider for Madison County outside of the City.
The Chief of the City Fire Department, James Pearson (“Chief Pearson”), testified as well.
At the outset, Chief Pearson said that, when the Planning Department decided to annex the
territory, he was not the Chief of the Fire Department. To service the Northwest territory, his
predecessor had recommended that the City build a new fire station, purchase a new fire
engine, and hire fifteen additional firefighters at an estimated cost of one million dollars.
Chief Pearson testified that the City could serve the territory to be annexed by using
resources from two preexisting fire stations. Once the annexation became effective, Chief
Pearson said, the Fire Department had been authorized to buy new equipment, build a new
fire station, and hire additional firefighters.
In his testimony, Chief Pearson compared the City Fire Department to the Madison County
Fire Department. The County relies on volunteer firefighters who must assemble at the fire
station before leaving to fight a fire, while the City has a dedicated firefighting force on call
at the fire stations. The City firefighters enter structure fires to extinguish blazes from the
interior while the county firefighters do not. Chief Pearson noted that the City Fire
Department provides services presumably not provided by the County such as fire
inspections, public fire education, first responder medical services, vehicle extrication, and
technical rescue services. Chief Pearson acknowledged that he had not seen the City’s
proposed plans of service for the territory to be annexed, and conceded that serving both the
City and the annexed territory with existing resources would temporarily dilute the fire
coverage until the City Fire Department acquired the additional resources that had been
authorized.
The City then called the Director of the City Recreation and Parks Department, Anthony
Black (“Director Black”), to testify. Director Black described the parks and recreation
activities that the Department provides, noting that persons residing outside the City limits
-9-
are charged a higher fee for some activities such as the softball league. Director Black said
that the City Recreation and Parks Department was not contacted by the Planning Department
as part of the preparation of the City’s proposed plans of service, and, at the time of trial,
there were no plans for adding a park or recreation center.
The Director of the City Planning Department, Director Pilant, testified next. At the outset,
Director Pilant said that the Northwest territory lay almost entirely within the City’s urban
growth boundary. He explained that the northwestern municipal boundary had grown to be
irregularly shaped over the years as the City granted real estate developers’ annexation
requests. As early as 1989, the Planning Department had studied the territory for annexation,
and the ultimate decision to annex was based in part on the City’s desire to “fix the
geography” to enable the City to more easily provide services within the City limits. To
make the annexation process more manageable, the Planning Department divided the
Northwest territory into forty-nine subareas. Director Pilant admitted that subareas 2, 3, 4,
5, 7, 11, 17, 31, 32, 35, 36, 37, 39, and 40 do not immediately adjoin the City’s existing
boundary, but he pointed out that these subareas are contiguous to the subareas that do
immediately adjoin the City’s existing boundary.
Once the City decided that annexation was desirable, the Planning Department began
analyzing the territory, with particular focus on the revenues and expenses associated with
annexation. Director Pilant asked the head of each City department11 to furnish him with the
estimated cost of providing services to the territory to be annexed. Utilizing this information,
Director Pilant developed a ten-year plan for the annexation that showed the annexation
would initially produce deficits for the City, but would become profitable after a decade. In
general, the plan called for the City to provide services with existing resources immediately
after the annexation, and gradually add resources to each department over a ten-year period.
Director Pilant explained:
The nature of annexation and the nature of the effective dates, it’s difficult to
have personnel and equipment as torpedoes ready to go. So there was
provisions made [sic] for the effective date of annexation. There was also
divisions [sic] for pursuing the new construction . . . and hiring additional
personnel, . . ..
Director Pilant conceded that the City’s proposed plans of service did not contain the level
of detail that was found in the Planning Department’s ten-year annexation plan. Although
the specific recommendations of the various department heads were not included in the text
11
Director Pilant conceded that he did not initially contact the head of the Parks and Recreation Department,
but said that he consulted with that Department in developing the City’s overall annexation plan.
-10-
of the plans of service, Director Pilant insisted that the recommendations were “a part of the
[overall annexation] plan.” He emphasized that the details of the Planning Department’s
analysis were made public throughout the annexation process.
Director Pilant admitted that all forty-nine plans of service used the same wording for the
provision of certain services, and that the plans of service did not obligate the City to expend
additional funds to provide services to the annexed territory. He insisted, however, that the
additional expenditures are “part of [the City’s] plan.” Director Pilant maintained that
annexation of the Northwest territory would benefit the residents of both the annexed
territory and the City.
The City’s final witness was Mayor Jerry Gist. Mayor Gist was not the City’s mayor when
the City Council passed the annexation ordinances, but he agreed that the annexation was
reasonable and necessary for both communities. Mayor Gist noted that the Northwest
territory lay within the City’s urban growth boundary, and pointed out that the residents of
the Northwest territory already use the City’s services in that they visit the City’s parks.
At the close of the testimony, the trial court took the case under advisement. On April 7,
2009, the trial court informed the parties of its ruling in a letter addressed to counsel.
In the letter, the trial court first noted that a plaintiff challenging a municipality’s annexation
within its urban growth boundary bears the burden of proving either (1) that the annexation
“is unreasonable for the overall well-being of the communities involved;” or (2) that the
“health, safety, and welfare of the citizens and property owners of the municipality and
territory will not be materially retarded in the absence of such annexation.” After
considering all of the evidence in light of these standards, the trial court concluded that the
Plaintiffs had not carried their burden of proof. First, the trial court found that the Northwest
territory residents have a need for, or actually use, the City’s services. As to the City’s ability
and intent to provide services to the area, the trial court noted that the annexation statutes
require a plan of service with “a projected timing of the services and that it be reasonable.”
The trial court concluded that the City’s proposed plans of service satisfy the statutory
requirements. Lastly, the trial court found that the City has numerous reasons for the
annexation beyond simply increasing tax revenues, including:
(1) enhanced fire and police protection; (2) less expensive access to
recreational facilities; (3) street maintenance and street lights; (4) desirability
of annexing territory adjacent to the City similar in density and use; (5)
enhanced ability to provide utility services as properties continue to develop;
(6) implementation of the growth plan; (7) the fact that the area is already a de
facto part of the City; (8) necessity to control development in the City’s fringe
-11-
areas; (9) to enhance the probability of the orderly growth of the City; (10)
helping to guarantee consistent land use in the area; and (11) the City’s
responsibility.
Based on all of this evidence, the trial court found “abundant evidence” that the Northwest
territory would benefit from annexation, and that annexation would be “a benefit to both
[communities] and a detriment to neither.” Accordingly, the trial court found that the
Plaintiffs had not carried their burden of proof and dismissed the complaint.
On April 20, 2009, the trial court entered an order consistent with its letter ruling. The
Plaintiffs now appeal.
ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, the Plaintiffs raise the following issues:
1. Whether the trial court erred in determining that the City can legally annex
non-adjoining areas;
2. Whether the trial court erred in determining that the City properly passed
the subject annexation ordinances;
3. Whether the trial court erred in determining that the City properly passed
a reasonable plan of service containing a reasonable implementation schedule;
4. Whether the trial court erred in determining that the City has authority to
annex pursuant to Tennessee Code Annotated § 6-51-102(a)(1);
5. Whether the trial court erred in determining that the annexations are
reasonable; and
6. Whether the trial court erred in determining that the health, safety and
welfare of the citizens and property owners of both the municipality and
annexation areas would be materially retarded in the absence of annexation.
As this case was tried in a bench trial, we review the trial court’s findings of fact de novo
with a presumption of correctness unless the evidence preponderates otherwise. T ENN. R.
A PP. P. 13(d); Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). The trial
court’s conclusions of law are reviewed de novo without a presumption of correctness.
-12-
Campbell, 919 S.W.2d at 35 (citing Hillsboro Plaza Enters. v. Moon, 860 S.W.2d 45, 47
(Tenn. Ct. App. 1993)).
A NALYSIS
Non-Adjoining Subareas
The Plaintiffs assert first that the trial court erred in upholding the annexation of the subareas
that are not contiguous with the City’s existing boundary at the time of annexation. Based
on the language in Tennessee Code Annotated § 6-51-102(a), the Plaintiffs contend that the
City may lawfully annex only “territory adjoining its existing boundaries.” T.C.A. § 6-51-
102(a)(1) (2005 & 2009 Supp.). In support of their contention, the Plaintiffs cite to Town
of Bartlett v. City of Memphis, 482 S.W.2d 782 (Tenn. Ct. App. 1972).
In response, the City points out that all of the subareas are contiguous to one another, and that
some of them adjoin the City’s boundary as it existed at the time of annexation. Because all
of the subareas were annexed simultaneously, the City contends that it has sufficiently
complied with the contiguity requirement of Section 6-51-102. Citing American Law
Reports, American Jurisprudence, and ten cases from other jurisdictions, the City asserts that
“[i]t is widely accepted that the annexation of multiple tracts is sufficient to meet the
requirements of contiguity as long as one of the tracts is adjacent to the municipality and all
of the tracts are adjacent to each other.”
In the case at bar, it is undisputed that the land to be annexed is within the City’s urban
growth boundary. Consequently, Tennessee Code Annotated § 6-58-111 governs the instant
quo warranto challenge to the annexation. State ex rel. Tipton v. City of Knoxville, 205
S.W.3d 456, 461 (Tenn. Ct. App. 2006). Under Section 6-58-111(a), a municipality may
annex territory within its urban growth boundary by any manner prescribed in Tennessee
Code Annotated § 6-51-101 et seq. See T.C.A. § 6-58-111(a) (2005 & 2009 Supp.).
In this case, the land was annexed by ordinance, and thus the annexation is governed by
Tennessee Code Annotated § 6-51-102(a)(1), which provides:
A municipality, . . . upon its own initiative when it appears that the prosperity
of such municipality and territory will be materially retarded and the safety and
welfare of the inhabitants and property endangered, after notice and public
hearing, by ordinance, may extend its corporate limits by annexation of such
territory adjoining its existing boundaries as may be deemed necessary for the
welfare of the residents and property owners of the affected territory as well
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as the municipality as a whole; provided, that the ordinance shall not become
operative until thirty (30) days after final passage thereof.
T.C.A. § 6-51-102(a)(1) (2005 & 2009 Supp.). Thus, a municipality may annex land by
ordinance, provided that the land to be annexed adjoins the municipality’s existing
boundaries and conditions warranting annexation are fulfilled.
Here, the City decided to divide the Northwest territory into forty-nine subareas and enact
forty-nine annexation ordinances simultaneously. All of the subareas are contiguous to one
another; however, some of the subareas do not immediately adjoin the City’s boundary as it
existed at the time the ordinances were passed. The issue, then, is whether the City has the
authority under Section 6-51-102(a)(1) to annex subareas that do not immediately adjoin the
City’s boundary.
The City insists that this is an issue of first impression in Tennessee and directs our attention
to the “widely accepted” position of our sister jurisdictions. We have reviewed the
authorities cited by the City, and the underlying caselaw. Certainly the reasoning utilized has
merit, from a policy standpoint. We note, however, that most of the cases that adopt the
City’s position turn on particular language in the state statute being interpreted. See, e.g.,
City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa 1999) (“We agree . . . that the
plain language of the first sentence in section 368.7(1) does not require that each parcel of
property within the annexation area adjoin the city to which annexation is sought. . . . As
mentioned, section 368.1(1) defines ‘adjoining’ to mean ‘having a common boundary for not
less than fifty feet,’ and section 368.1(14) defines ‘territory’ to mean ‘the land areas proposed
to be ... annexed ... whether or not contiguous to all other areas to be ... annexed.’ ”); City of
Elkhorn v. City of Omaha, 725 N.W.2d 792, 809 (Neb. 2007) (“The question remains,
however, whether the ‘adjoining city’ language in § 14-117 required Omaha to have a
common border with Elkhorn before annexing it. . . . [T]he terms ‘contiguous’ and
‘adjoining’ in § 14-117 are synonymous.”).
More importantly, we find that this issue is not one of first impression. In Town of Bartlett
v. City of Memphis, 482 S.W.2d 782 (Tenn. Ct. App. 1972), this Court addressed a
somewhat similar situation. In that case, the defendant City of Memphis passed an ordinance
in 1968 to annex an area known as “Raleigh,” with an effective date in 1972. Town of
Bartlett, 482 S.W.2d at 783. At the time the annexation ordinance was passed, Raleigh
apparently adjoined the existing Memphis City limit. Meanwhile, in the interim before the
effective date of the Raleigh annexation, the City of Memphis and the Town of Bartlett
engaged in an apparent “race” to annex an area known as “Elmore Park.” Elmore Park
adjoined the Raleigh area that was the subject of the Memphis annexation ordinance, but did
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not adjoin the Memphis City limits as they existed at the time, because the Raleigh
annexation had not yet become effective.
In April 1970, the Town of Bartlett enacted an ordinance annexing Elmore Park. Id. at 782.
In July of the same year, Memphis amended the 1968 ordinance that had annexed Raleigh
to include the annexation of Elmore Park as well. Id. at 783. Thereafter, Bartlett filed a
lawsuit challenging Memphis’s annexation of Elmore Park. The trial court entered judgment
for Bartlett, and Memphis appealed.
On appeal, the appellate court reviewed the operative language of Tennessee Code Annotated
§ 6-309, which has since been re-numbered as Section 6-51-102(a)(1).12 The statute states
that a municipality, by ordinance, “may extend its corporate limits by annexation of such
territory [a]djoining its existing boundaries as may be deemed necessary. . ..” Id. at 784. The
Court in Town of Bartlett, based on this language, concluded that the City of Memphis
lacked the authority to annex the Elmore Park area “because that territory [Elmore Park] did
not at the time of the procedures being reviewed, . . . , adjoin the existing boundaries of the
City of Memphis.” Id. at 784. It found further that the attempt by Memphis to annex Elmore
Park by amending the prior ordinance that had annexed Raleigh amounted to a
“circumvent[ion] [of] the clear legislative mandate” of contiguity. Id. Consequently, the
appellate court in Town of Bartlett determined that the attempted annexation of Elmore Park
by the City of Memphis was void, and upheld the trial court’s ruling in favor of the Town of
Bartlett. Id.
Similar to the City of Memphis in Town of Bartlett, the City in this case seeks to annex land
that does not immediately adjoin its boundary as it existed at the time of the annexation. The
Town of Bartlett decision interpreted Tennessee Code Annotated § 6-51-102(a)(1) as
authorizing only the annexation by ordinance of a territory that adjoins the municipality’s
boundary at the time of the annexation. The City urges that the facts in the instant appeal are
distinguishable from those in Town of Bartlett because, in this case, all of the subareas were
annexed simultaneously. We cannot agree. In Town of Bartlett, Memphis sought to annex
land that did not adjoin its existing boundary by amending the ordinance that had previously
annexed adjoining land, and the court in Town of Bartlett rejected this as an attempt to
12
Section 6-309, as quoted in Town of Bartlett, is identical in pertinent part to now-Section 6-51-102(a)(1),
with one exception. The Town of Bartlett opinion quotes Section 6-309 as providing that the municipality
may annex when it appears that “the safety and welfare of the inhabitants and property thereof endangered.
. ..” Town of Bartlett, 482 S.W.2d at 784. The Tennessee Code Annotated does not indicate an amendment
to the statute in this respect, so this may be an error in the opinion. At any rate, it does not affect our
reasoning.
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“circumvent the clear legislative mandate” of contiguity under the statute. Id. We find this
controlling.
If we were interpreting Section 6-51-102(a)(1) on a blank slate, we might agree with the
City’s proposed interpretation. We are not. For over thirty years since the Court in Town
of Bartlett interpreted the statute, the statutory language has remained intact. “[T]he fact that
the legislature has not expressed disapproval of a judicial construction of a statute is
persuasive evidence of legislative adoption of the judicial construction,” because “[t]he
legislature is presumed to know the interpretation which courts make of its enactments.”
Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn. 1977) (citing Missouri v. Ross, 299 U.S.
72 (1936); Stern v. Miller, 348 So.2d 303 (Fla.1977); Walling v. Brown, 76 P. 318 (Idaho
1904); Bottomly v. Ford, 157 P.2d 108 (Mont. 1945); Hargrove v. Newsome, 470 S.W.2d
348 (Tenn. 1971); Krohn v. Richardson-Merrell, Inc., 406 S.W.2d 166 (Tenn. 1966);
McKinney v. Hardwick Clothes, Inc., 398 S.W.2d 265 (Tenn. 1966); Cunningham v.
Cunningham, 40 S.W.2d 46 (Tex. 1931)); accord Freeman Indus., LLC v. Eastman Chem.
Co., 172 S.W.3d 512 (Tenn. 2005). Accordingly, we find the fact that Section 6-51-
102(a)(1) has not been altered in the decades since the Town of Bartlett decision was
rendered to be indicative of the Legislature’s adoption of the interpretation made by the
Town of Bartlett Court.
In light of the interpretation of Section 6-51-102(a)(1) in Town of Bartlett, we must conclude
that the trial court erred in finding that the City can lawfully annex the subareas that do not
immediately adjoin the City’s boundary as it existed at the time the City Council passed the
annexation ordinances.
Adjoining Subareas
With respect to the subareas that adjoin the City’s existing boundary, the Plaintiffs argue that
the City failed to comply with the statutory requirements for annexation because the proposed
plans of service do not include timetables or specific dates for “installing street lights,
building a fire station, purchasing park land, etc.,” and thus do not contain a “reasonable
implementation schedule” as required by Tennessee Code Annotated § 6-51-102(b)(3). The
Plaintiffs further assert that the annexation is invalid because the Planning Commission did
not prepare a written report on the plans of service prior to enactment of the annexation
ordinances, in accordance with Tennessee Code Annotated § 6-51-102(b)(4).
Beyond the City’s purported failure to adhere to the statutory requirements, the Plaintiffs
argue that the trial court erred in upholding the annexation because the evidence shows the
annexation was unreasonable. The Plaintiffs contend that the evidence shows that the health,
safety, and welfare of the communities involved will not be materially retarded in the
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absence of annexation. They insist that the annexation was not part of a comprehensive
planning process. They contend that the omission of any financial commitment to provide
services in the plans of service indicates that the City does not intend to render needed
services. The Plaintiffs emphasize that the fact that the City’s plans of service do not include
City department recommendations involving additional costs shows that the City’s
motivation for the annexation was solely a desire to increase the City’s tax revenues. For
these reasons, the Plaintiffs ask this Court to hold that the annexation ordinances are invalid.
In response, the City argues that the Plaintiffs cannot predicate their quo warranto challenge
on procedural defects in the annexation process. However, in the event that this Court finds
it necessary to address the adequacy of the plans of service, the City contends that we may
consider pertinent trial testimony in conjunction with the documents themselves, citing State
ex rel. Sexton v. Town of Huntsville, No. 03A01-9112-CV-00438, 1992 WL 109423 (Tenn.
Ct. App. May 26, 1992). Under Tennessee Code Annotated § 6-58-111(a), because the
Northwest territory lies within the City’s urban growth boundary, the City contends that the
Plaintiffs have the burden of proving either (1) that the annexation is “unreasonable for the
overall well-being” of both the City and the subareas, or (2) that “[t]he health, safety, and
welfare of the citizens and property owners” of both communities “will not be materially
retarded in the absence of such annexation.” T.C.A. § 6-58-111(a) (1)-(2) (2005 & 2009
Supp.). The City contends that the Plaintiffs have failed to prove either statutory ground, and
in fact the evidence shows that the annexation is reasonable and a benefit to both
communities involved.
As background, we briefly recap the evolution of annexation in Tennessee. Prior to 1955,
Tennessee’s Legislature had the exclusive authority to alter municipal boundaries within the
State. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 703 (Tenn. 2009)
(citing Willett v. Bellville Corp., 79 Tenn. 1, 5 (1883)). The Legislature’s power in this
regard was so broad that “an individual subject to a validly-enacted annexation had no legal
avenue through which to oppose it.” Id. (citing McCallie v. Mayor & Aldermen of
Chattanooga, 40 Tenn. (3 Head) 317, 321 (1859)).
In 1955, the Legislature enacted chapter 113 of the public acts of 1955, now codified at
Tennessee Code Annotated § 6-51-101, et seq., granting to municipalities the authority to
alter their own boundaries through annexation by ordinance. Id. at 704. In connection with
this grant of authority to municipalities, the Legislature provided property owners with an
avenue for challenging a municipality’s annexation of land by timely filing a quo warranto
action alleging that the annexation was not reasonably necessary for the welfare of the
communities involved. Id. at 705 (quoting Act of Mar. 1, 1955, § 2(b)). Noting that the
Legislature “could have delegated to the municipalities the authority to annex with no right
of judicial review absent constitutional restraint,” our Courts have consistently held that the
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statutory right to challenge an annexation is very limited. Id. at 707-08 (citing State ex rel.
Bastnagel v. City of Memphis, 457 S.W.2d 532, 534 (Tenn. 1970); Brent v. Town of
Greeneville, 309 S.W.2d 121, 123 (Tenn. 1957)).
The Courts’ “entire jurisdiction and authority” to review annexations is contained within the
four corners of the statute. Id. at 708 (quoting City of Oak Ridge v. Roane County, 563
S.W.2d 895, 897 (Tenn. 1978)). The scope of judicial review of annexation has consistently
been narrowly construed; because the statute does not grant the authority to vacate an
annexation for procedural defects, the Courts have no power to do so. Id. (citing City of
Watauga v. City of Johnson City, 589 S.W.2d 901, 906 (Tenn. 1979)). In the past, our
Supreme Court has determined that errors in notice, public hearings and plans of service fall
within the ambit of “procedural defects.” City of Watauga, 589 S.W.2d at 905. In view of
the limited scope of judicial review, “the general rule is that defects in an annexation
ordinance must be presented in the context of a challenge to its reasonableness or necessity
by way of a timely quo warranto challenge.” Highwoods Props., Inc., 297 S.W.3d at 708
(citing City of Oak Ridge, 563 S.W.2d at 898; City of Knoxville v. State ex rel. Graves, 341
S.W.2d 718, 721 (Tenn. 1960)).
We consider the issues in this appeal in light of these parameters. The Plaintiffs challenge
the City’s annexation of the immediately adjoining subareas by asserting defects in the plans
of service and the planning commission’s failure to prepare a written report. The
Highwoods Properties, Inc. and City of Watauga decisions make it clear that we are not to
consider such alleged procedural defects in isolation; rather, they are viewed in the context
of the statutory grounds for challenging an annexation. Because the Northwest territory lies
within the City’s urban growth boundary, Tennessee Code Annotated § 6-58-111(a) governs
the Plaintiffs’ quo warranto challenge to the annexation. State ex rel. Tipton v. City of
Knoxville, 205 S.W.3d 456, 461 (Tenn. Ct. App. 2006). Thus, the allegations of procedural
defects are considered under the grounds for challenging an annexation set forth in Section
6-58-111(a).
Tennessee Code Annotated § 6-58-111(a) provides:
[I]f a quo warranto action is filed to challenge the annexation, the party filing
the action 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 territory will not be materially retarded in the absence of such
annexation.
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T.C.A. § 6-58-111(a) (2005 & 2009 Supp.). Thus, a party asserting a quo warranto
challenge to an annexation within a municipality’s urban growth boundary must show either
that the annexation is unreasonable for the well-being of the communities involved or that
the health, safety, and welfare of the communities involved will not be materially retarded
in the absence of annexation. The Plaintiffs contend that they have established both grounds.
We consider each in turn.
“While other factors may be considered, the primary test of the reasonableness of an
annexation ordinance must be the planned and orderly growth and development of the city,
taking into consideration the characteristics of the existing city and those of the area
proposed for annexation.” State ex rel. Collier v. City of Pigeon Forge, 599 S.W.2d 545,
548 (Tenn. 1980); accord Cox v. City of Jackson, No. 02A01-9701-CH-00002, 1997 WL
777078, at *4 (Tenn. Ct. App. Dec. 18, 1997), perm. app. denied June 22, 1998. Factors to
be considered in assessing the reasonableness of an annexation include:
a. the necessity for, or use of, municipal services;
b. the present ability and intent of the municipality to render municipal services
when and as needed; [and]
c. whether the annexation is for the sole purpose of increasing municipal
revenue without the ability and intent to benefit the annexed area by rendering
municipal services.
Town of Oakland v. Town of Somerville, No. W2002-02301-COA-R3-CV, 2003 WL
22309498, at *5 (Tenn. Ct. App. Oct. 7, 2003), perm. app. denied Mar. 22, 2004 (citing City
of Kingsport v. State ex rel. Crown Enters., Inc., 562 S.W.2d 808, 812 (Tenn. 1978);
Saylors v. City of Jackson, 575 S.W.2d 264, 266 (Tenn. 1978)).
We apply these factors to the case at bar and begin with the necessity for, or use of,
municipal services. The evidence shows that the territory to be annexed currently uses some
of the City’s services. The witnesses testified that parts of the annexed area already receive
utilities from the City’s utility provider, and that residents of the territory have access to the
City’s parks and recreational activities. Additionally, the City Police Department already
patrols parts of the annexed territory.
The second factor is the municipality’s intent to render services to the annexed area. The
Plaintiffs contend that the lack of specificity and commitment to spend funds to provide
services in the City’s proposed plans of service shows clearly that the City does not intend
to deliver services to the annexed territory. We agree that the plans of service are spare.
However, we consider the testimony presented at trial as well as the written plans of service.
See State ex rel. Sexton v. Town of Huntsville, No. 03A01-9112-CV-00438, 1992 WL
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109423, at *2 (Tenn. Ct. App. May 26, 1992). Director Pilant’s lengthy testimony directly
addressed the City’s ten-year plan for annexation. His testimony was corroborated by that
of Police Chief Staples, Fire Chief Pearson, and Mayor Gist; each indicated that the City has
budgeted additional resources to provide services to the annexed territory once the
annexation is effective.
The Plaintiffs contend that they established the third factor, that is, that the City’s plans of
service show that the City’s sole intent is to increase its tax revenues. We must respectfully
disagree. Director Pilant testified clearly that the City sought to annex the territory to correct
its irregular boundary and to bring developed areas into the City. Importantly, he noted that
he had calculated that the cost of annexation would exceed any tax revenues gained for
nearly a decade. In addition, Mayor Gist testified that the annexation was effected to ensure
that the City would continue to thrive for the benefit of the entire region.
On the whole, the evidence presented at trial shows that the annexation is part of the City’s
plan for orderly growth. The Plaintiffs’ own expert witness conceded that it “was time” to
annex the Northwest territory and probably “past the time” for some of the areas, given their
stage of development. Director Pilant detailed an annexation planning process that spanned
decades. Against this backdrop, we cannot say that any failure by the Planning Commission
to prepare a written report on the eve of enactment renders the annexation unreasonable.
Under the circumstances, we must conclude that the trial court correctly determined that the
City’s annexation of the Northwest territory is not “unreasonable for the overall well-being
of the communities involved.” T.C.A. § 6-58-111(a)(1) (2005 & 2009 Supp.).
The Plaintiffs also contend that the evidence supports their challenge under subsection (2)
of the statute, which requires proof that “[t]he health, safety, and welfare” of both
communities “will not be materially retarded in the absence of such annexation.” T.C.A. §
6-58-111(a)(2) (2005 & 2009 Supp.). “[P]roving lack of material retardation necessarily
requires proof that annexation will not materially benefit the municipality and territory.”
State ex rel. Tipton v. City of Knoxville, 205 S.W.3d 456, 462 (Tenn. Ct. App. 2006).
Therefore, a party challenging an annexation under subsection (2) must “prove that
annexation would not materially benefit the health, safety, and welfare of the citizens and
property owners of the City and the affected territory.” Id.
From our review of the record, we must conclude that the Plaintiffs have not carried their
burden of showing that the annexation would not materially benefit both communities
involved. To the contrary, once the annexation becomes effective, the evidence shows that
the residents of the annexed areas will begin receiving superior police and fire protection,
lower utility rates, and less expensive access to the City’s recreational activities. It
establishes that annexation will allow the City to continue to thrive as the economic center
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of the surrounding region, to control the orderly growth of developing areas on the outskirts
of the City, and to provide a more uniform, workable boundary for providing services to
residents. Under these circumstances, the trial court did not err in determining that the
Plaintiffs failed to carry the burden of proof.
C ONCLUSION
In sum, we reverse the trial court’s decision upholding the annexation of the subareas that
do not immediately adjoin the boundary of the City as it existed at the time the annexation
ordinances were enacted. As to the subareas that immediately adjoin the City’s boundary as
it existed at the time the annexation ordinances were enacted, we affirm the trial court’s
finding that the annexation comports with the requirements of the applicable statutes and is
reasonable.
The decision of the trial court is affirmed in part and reversed in part as set forth above, and
the cause is remanded for proceedings consistent with this Opinion. The costs of this appeal
are taxed one-half to the Appellants, Southwest Tennessee Electric Membership Corporation,
et al., and their surety, and one-half to the Appellees, City of Jackson, Tennessee and the City
of Jackson, Tennessee City Council, for which execution may issue if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
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IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
SOUTHWEST TENNESSEE ELECTRIC MEMBERSHIP CORPORATION,
ET AL.
v.
CITY OF JACKSON, TENNESSEE and THE CITY OF JACKSON,
TENNESSEE CITY COUNCIL
Appeal from the Chancery Court for Madison County
No. 64244
No. W2009-00913-COA-R3-CV - Filed October 28, 2010
ORDER ON PETITIONS TO REHEAR
_________________________________
After issuance of the Court’s Opinion in this appeal, both the City and the Plaintiffs
filed petitions to rehear. We address herein the issues raised by the parties.
In its petition to rehear, the City notes that Tennessee Code Annotated § 6-58-
106(a)(1)(B) defines the entire urban growth area as territory contiguous to the existing
boundaries of the subject municipality. Asserting that the word “contiguous” in T.C.A. § 6-
58-106(a)(1)(B) is synonymous with the word “adjoining” in T.C.A. § 6-51-102(a)(1), the
City now argues that the City’s entire urban growth boundary area should be considered to
be “adjoining” the municipality’s existing boundaries within the meaning of T.C.A. § 6-51-
102(a)(1).
From the Court’s review of the City’s brief, it appears that the City makes this
argument for the first time in its petition to rehear. Nevertheless, we exercise our discretion
to consider it. We respectfully decline to adopt the City’s argument. The City of Bartlett
case was decided in 1972, interpreting the very language at issue in this appeal. When
Tennessee Code Annotated § 6-58-106 was enacted by the Legislature in 1998, the
Legislature chose to leave intact the language in Section 6-51-1092(a)(1), with full
knowledge of the Court’s construction of this language in City of Bartlett. Moreover, the
language in Section 6-58-106(a)(1)(B) does not indicate legislative intent to address and
legislatively “reverse” the Court’s decision in City of Bartlett. For these reasons, the City’s
argument must be rejected.
In the Plaintiffs’ petition to rehear, they contend that the statutory requirements for
the plans of service were not met. We find that the Plaintiffs’ arguments on this issue were
fully considered in the Court’s Opinion, and decline to reconsider them.
The City further contends in its petition to rehear that subareas 4 and 5 are not at issue
because the trial court found that the Plaintiffs lacked standing to challenge the annexation
of these areas, and this holding was not appealed by the Plaintiffs. The City also contends
in its petition to rehear that subarea 17 actually adjoins the City’s existing boundaries.
In its Opinion, this Court held that the City cannot lawfully annex the subareas that
do not immediately adjoin the City’s boundary as it existed at the time the annexation
ordinances were passed. This Court did not specify (a) which subareas are no longer at issue,
by virtue of the trial court’s unappealed rulings or otherwise, or (b) which subareas in fact
immediately adjoin the City’s boundary. To clarify, on remand, these issues may be
considered by the trial court, in its discretion, and therefore will not be determined by this
Court in response to the petitions to rehear.
We respectfully decline to adopt the remaining arguments set forth in the parties’
petitions to rehear.
For the reasons set forth above, both parties’ petitions to rehear are hereby DENIED.
It is SO ORDERED.
_______________________________________
HOLLY M. KIRBY, J.
_______________________________________
ALAN E. HIGHERS, P.J., W.S.
_______________________________________
J. STEVEN STAFFORD, J.
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