ATTORNEY GENERAL OPINIONS RELATED TO PC 1101

There have been a significant number of Attorney General's opinions related to PC 1101 released by the State Attorney General. Most of the opinions released to date have been in response to specific questions raised by particular individual county or city concerns in their attempts to implement the Act.

As part of its monitoring efforts, TACIR staff has complied a listing of these opinions. Below is a listing along with brief summaries of each of these Attorney General opinions. The opinions are arranged by the year and order in which they were released, starting in the year 1998 and now current through the end of year 2003.

It should be noted that these summaries are offered for information purposes and should not be relied upon as legal interpretations. In each case we have identified the key issues or questions and summarized the opinions and findings in the Attorney General’s Opinion. Interested readers can find the complete text of these and other Attorney General Opinions via the Attorney General’s web page at http://www.attorneygeneral.state.tn.us. Local government officials are also urged to consult with their city and county attorneys about the possible implications of these legal opinions on any course of action they may be considering.

Attorney General Opinion No. 98-149: Municipal Utilities

This opinion addressed several issues relating to utility system representation on the coordinating committee. Public Chapter 1101 provides that one member shall be from a municipally-owned utility system serving the largest number of customers in the county, and one member shall be from a non-municipally owned utility system serving the largest number of customers in the county.

QUESTIONS
a) Does the phrase "governing board of the municipally-owned utility system serving the largest number of customers in the county" only refer to a system owned by a municipality located within the county, or to any municipally owned system that provides utility service in that county?

b) How should the phrase the "largest number of customers” be determined?

c) What is the definition of a "utility system, not municipally owned"? Does it include:

• A telephone company;
• A cable television company;
• An electric cooperative;
• A private gas company;
• A company providing garbage removal services?

OPINIONS
a) The Attorney General opined that it was the legislature's intent that the phrase in question referred to any municipally owned system that provides such service in that county. There was no requirement that the municipality that owns the utility service be located in that county.

b) The Attorney General states that the legislature intended that the number of utility customers be determined by the number of all persons listed on the utility bills. Therefore, each person listed on a joint account would be listed as a separate customer.

c) It was the Attorney General's opinion that the General Assembly intended that the phrase include privately owned companies that were included within the definition of T.C.A. § 65-4-101.

QUESTIONS
a) Is it constitutional to place the burden of proof on the party challenging the growth plan?

b) Is it constitutional to place the burden of proof on the party challenging an annexation?

c) Does a growth plan, by designating different areas as urban growth, planned growth or rural areas, constitute an illegal "taking" of landowners' property?

d) Is withholding funds or grants under this statute unconstitutional?

OPINIONS
a) According to the Attorney General, it is constitutional to place the burden of proof on the party challenging the plan because these are "matters regarding the creation and expansion of municipal corporations and are, within the broad constitutional authority vested in the General Assembly in these matters."

b) In the opinion, it was concluded that it is constitutional to place the burden of proof on the party challenging an annexation since federal and state courts have held no equal protection or due process argument can be made if the annexation statute is properly followed, unless there is some proof of invidious discrimination.

c) Inclusion in the urban growth area, planned growth area or rural area of a growth plan does not constitute an illegal taking of a landowners' property under the federal or state constitution according to the opinion.

d) The Attorney General noted in the opinion that it was not aware of any federal or state constitutional provisions that prohibited the withholding of grants and loans under Public Chapter 1101.

Attorney General Opinion No. 99-076: Inclusion of Federally Owned Lands in a County Growth Plan

QUESTIONS
Do any of the following have the right to contest an annexation ordinance adopted after May 19, 1998:

a) Individuals who own property bordering the annexed territory;
b) The county where the territory is located;
c) The State.

OPINIONS
a) The Attorney General opined that property owners are not authorized to challenge an annexation by ordinance by filing a quo warranto action. It was noted in the opinion that in State ex rel Earhart v. Bristol the Tennessee Supreme Court held that “the Declaratory Judgment Act permits property owners to challenge an earlier annexation of adjoining property as part of their challenge to the subsequent annexation of their property,” but the opinion further noted that the reasoning in the case was probably limited to its facts.

Attorney General Opinion No. 99-092: Chair of Coordinating Committee

QUESTION
Could the coordinating committee select a non-member to serve as its chair?

OPINION
It was the opinion of the Attorney General that a growth plan that was adopted by a coordinating committee with a chairperson that was not a member of the coordinating committee would not be overturned by a court.

QUESTION
Does 1998 Public Chapter 1101 regarding development of a county growth plan apply to property owned by the United States Army or the Department of Defense, and may Hawkins County or municipalities bordering the property include it within their urban growth or planned growth areas?

OPINION
It appears that this property may be included within the urban growth boundaries of a city or a planned growth area because such inclusion does not appear to interfere with the federal government’s use of the property.

QUESTIONS
a) What is the meaning of the term "land use decisions" in T.C.A. § 6-58-107?

b) Would approvals by planning commissions, or elected bodies, where required or subdivision plats, site plans and "uses on review" or "specific use permits" be considered a "land use decision" under T.C.A.§ 6-58-107 and therefore subject to the requirement that these approvals be consistent with the growth plan?

c) Does T.C.A. § 6-58-107 require that actions on rezoning applications by a planning commission, city council or county commission be consistent with the growth plan?

d) May a property owner in a county that approves a growth plan use his or her land for lawful purposes permitted by zoning designations that were in existence prior to the adoption of the growth plan, regardless of whether those zoning designations are consistent with the classification of such property as a PGA, RA or UGB under the growth plan?

e) Does T.C.A. § 6-58-107 bar a property owner from rezoning his or her property to an otherwise lawful zoning designation, if such zoning designation would conflict with the landtype classification under the growth plan?

f) Are lawful administrative approvals by municipality or county administrations or planning commission staffs subject to T.C.A. § 6-58-107?

g) In the event of a legislative body or a municipality's or county's planning commission makes a land use decision that is not consistent with the growth plan, what is the legal consequence of such action - what remedies are available to an aggrieved party, and who would have standing to enforce the remedies?

OPINION
a) The term "land use decision" in T.C.A. §6-58-107 includes any decision regarding the use of land within the jurisdiction of the legislative body or the planning commission. This includes approvals by planning commissions or elected bodies of subdivision plats, site plans and "uses on review," "specific use permits," and actions on rezoning applications. A property owner may continue to use his or her property in a manner consistent with zoning provisions in effect before the plan was adopted, even if those zoning provisions are inconsistent with the designation of the area under the growth plan.

b) T.C.A. §6-58-107 prohibits any change in zoning designation that conflicts with land classification under the growth plan.

c) If a legislative body or a municipality's or county's planning commission makes a land use decision inconsistent with the growth plan, the legal consequences of that action can be determined only by a court of competent jurisdiction based on all the relevant facts and circumstances.

QUESTION
May the City of Mt. Juliet, whose planning commission has been designated a regional planning commission with respect to territory outside the city limits, constitutionally adopt zoning ordinances applying to territory outside the city limits?

OPINION
Such zoning authority is constitutional. Once a growth plan is adopted, this authority will be limited to territory within the region and within the city’s urban growth boundaries.

QUESTION
Under T.C.A. § 6-58-111, after a county growth plan has been adopted, a city may annex territory outside its urban growth boundaries either by proposing an amendment to the growth plan, or by annexing the territory by referendum. Could a municipality annex territory outside its urban growth boundaries and within the urban growth boundaries of another municipality by referendum?

OPINION
a) A municipality cannot annex territory outside its UGBs and within the UGBs of another municipality by referendum if it violates an annexation reserve agreement or an agreement between a municipality and a property owner.

b) If the annexation did not violate any agreements, it could be argued that the action is not authorized under T.C.A. §6-58-101 et seq., because it is inconsistent with the purposes of a growth plan.

c) A court could conclude that if an annexation is authorized, the annexation by a smaller municipality within the UGBs of a larger municipality is subject to the priority provisions of T.C.A. §6-51-110.

QUESTIONS
a) What options are available to residents of a county who are dissatisfied with inclusion of their property within urban growth boundaries under a growth plan ratified by all the cities and the county?

b) What is the process for amending a growth plan in a charter county?

OPINIONS
a) The Tennessee Local Government Planning Advisory Committee has no authority to change such a plan. Residents of a county or owners of property within the county may challenge the growth plan in an action under Tenn. Code Ann. § 6-58-105. Under that statute, petitioners have the burden of proving, by a preponderance of the evidence, that the urban growth boundaries, planned growth areas and/or rural areas are invalid because the adoption or approval thereof was granted in an arbitrary, capricious, illegal or other manner characterized by abuse of official discretion. Absent a showing of extraordinary circumstances, the growth plan shall remain in effect for three years, after which a county or city may propose an amendment to the growth plan. The amendment procedure is the same as the procedure for establishing the original plan.

b) Once a growth plan applicable to a charter county has been adopted through the adoption process in Tenn. Code Ann. § 6-58-104, the plan must remain in effect for at least three years, absent a showing of extraordinary circumstances, before it can be amended.

QUESTIONS
Under Tenn. Code Ann. §§ 6-58-101, et seq. (the “Growth Law”), is Fayette County required to designate a planned growth area for the county?

a) May Tenn. Code Ann. §§ 6-58-101, et seq., be used in any manner to nullify any part of a county’s zoning ordinances?

b) May 1998 Tenn. Pub. Acts Ch. 1101 be used in any manner to nullify a county’s zoning ordinances?

c) May a comprehensive growth plan under Tenn. Code Ann. §§ 6-58-101, et seq., include only municipal boundaries, urban growth boundaries, and rural boundaries?

d) Is it permissible to define the terms “low density” and/or “high density” in a county growth plan?

OPINIONS
a) A county government is not required to designate a planned growth area for the county.

b) PC1101 requires that "all land use decisions made by the legislative body and the municipality's or county's planning commission shall be consistent with the growth plan." This provision does not apply to a zoning ordinance in place before the growth plan is adopted.

c) A growth plan may include only municipal boundaries, UGBs and RAs.

d) A growth plan can define the terms "low-density" and/or "high-density."

QUESTIONS
A Metropolitan Charter Commission has been established in Coffee County to develop a charter for a metropolitan government.

a) The establishment of a metropolitan government entails combining the largest city, in this case, the City of Tullahoma, and the remaining parts of Coffee County. Tullahoma extends into Franklin County. Can a metropolitan government be created combining Coffee County and Tullahoma even though Tullahoma extends into Franklin County?

b) The metropolitan government would include the City of Manchester and the City of Tullahoma. Under a metropolitan government, could these territories comprise two separate urban services districts subject to different property tax levies to accommodate the outstanding debt and assets of each city prior to the establishment of the metropolitan government?

c) 3. There are three existing school districts in the territory that would be combined under the proposed metropolitan charter: Tullahoma City Schools, Manchester City Schools, and Coffee County Schools. Can three existing school districts be combined under a metropolitan form of government?

d) 4. The consolidated government would include students who reside outside Coffee County but within the city limits of Tullahoma. These students would be eligible to attend the combined school system. Can general services district taxes be levied on parcels located within the largest city but outside the county?

OPINIONS
a) Assuming that the majority of the territory of Tullahoma is in Coffee County, this consolidation appears to be authorized under Tenn. Code Ann. § 7-1-112, subject to the conditions in that statute. Neither Coffee County nor Franklin County is excluded from the operation of this statute under Tenn. Code Ann. § 7-1-112(d).

b) The statutory scheme does not appear to authorize this arrangement (separate urban services districts subject to different property tax levies).

c) Under Tenn. Code Ann. § 7-2-108(a)(18), a metropolitan charter is required to provide for the consolidation of the existing school systems with the county and city or cities, including the creation of a metropolitan board of education. Under Tenn. Code Ann. § 7-3-302(1), a metropolitan government may take over the functions and liabilities of any school district whose services are performed within the geographical jurisdiction of the government.

d) Under Tenn. Code Ann. § 7-1-112(c), the metropolitan government may levy the urban services tax, but not the general services tax, on such parcels.

QUESTION
Under Tenn. Code Ann. §§ 6-58-101, et seq., the constituent local governments within a county are authorized to create a growth plan for county territory including urban growth boundaries for the cities. Under Tenn. Code Ann. § 13-3-102, some cities exercise regional planning authority over areas outside the city limits. 1998 Tenn. Pub. Acts Ch. 1101, which included the authorization for a growth plan, also amended Tenn. Code Ann. § 13-3-102 to provide that no part of such territory should be outside the municipality’s urban growth boundary if one exists.

Was it the intent of the General Assembly in enacting 1998 Tenn. Pub. Acts Ch. 1101 to authorize the Local Government Planning Advisory Committee (the “Committee”) automatically to expand the planning region of a municipal planning commission to encompass the entire area of that city’s urban growth boundary?

OPINION
This request concerns the effect of passage of a county growth plan under Tenn. Code Ann. §§ 6-58-101, et seq., on the regional planning authority of a municipal planning commission that has been designated as a regional planning commission with respect to property outside its city limits. The act does not require the Local Government Planning Advisory Committee (LGPAC) to approve the expansion of region planning areas to the limits of designated UGBs in all cases. If, however, the Committee determines that such expansion, as a policy matter, is appropriate in all cases, the Committee may approve it, subject to the requirements in Tenn. Code Ann. § 13-3-102, including the city’s acceptance of the expansion.

This Office addressed this issue in more detail in Op. Tenn. Atty. Gen. 99-218 (November 4, 1999) and Op. Tenn. Atty. Gen. 99-227 (December 6, 1999). The specific question in this opinion is the scope of the authority given the Local Government Planning Advisory Committee (the “Committee”) with regard to approval of designation of a municipal planning commission as a regional planning commission under Tenn. Code Ann. § 13-3-102.

QUESTION
The Water and Sewer Board of the City of Murfreesboro recently decided to extend the city’s sewer service to an unincorporated portion of Rutherford County. The territory is outside the urban growth boundary of the City of Murfreesboro in an area designated as a rural area under the county’s growth plan. What is the impact of the adoption of a growth plan on a decision to extend sewer service for development of an area designated as part of a rural area under a county growth plan adopted under Tenn. Code Ann. §§ 6-58-101, et seq. (the “Growth Law”)?

OPINION
The Growth Law provides that “all land use decisions made by the legislative body and the municipality’s or county’s planning commission shall be consistent with the growth plan.” Tenn. Code Ann. § 6-58-107. To date, we are unaware of any court opinion that has addressed the scope and enforceability of this statute. Its impact on a decision to extend sewer lines to a rural growth area would depend, first, on whether such decision is a land use decision made by the legislative body; second, whether this decision is inconsistent with the county growth plan; and third, whether there are parties and remedies available to enforce this provision. A definitive answer to all these issues could only be given by a court of competent jurisdiction after considering all the relevant facts and circumstances.

QUESTION
Under Tenn. Code Ann. §§ 6-58-101, et seq., once a comprehensive growth plan has been adopted within a county, does Memphis have the authority to zone or control development in an area outside its urban growth boundaries and within the urban growth boundaries of another city?

OPINION
The adoption of a comprehensive growth plan under this statute does not affect the private act regulatory authority of Memphis and Shelby County, acting through a joint planning commission, to zone and regulate land use in territory within five miles of the Memphis city limits. The joint planning commission may exercise this authority with regard to all land within five miles of the city limits, regardless whether it falls within the urban growth boundaries of another city.

QUESTION
The Tennessee Local Government Planning Advisory Committee has determined that the
Economic Development Board of Unicoi County satisfies the requirements of a joint economic and community development board, required under Tenn. Code Ann. § 6-58-114. Are meetings of the Board subject to the Open Meetings Act, Tenn. Code Ann. §§ 8-44-101, et seq.?

OPINION
Meetings of the Board during which it carries out its function as a joint economic and
community development board under Tenn. Code Ann. § 6-58-114 are subject to the Open Meetings Act (TCA §§ 8-44-101, et seq.).

QUESTIONS
a) May any part of the amendment process begin before the end of the initial three-year period?

b) Assuming the plan is amended, must the amended plan remain in effect for three years before it may be amended again?

c) What is the definition of “extraordinary circumstances” as used in the statute?

d) If a city proposes an amendment to its urban growth boundaries, is the county required to hold public hearings that identify changes in the rural areas or planned growth areas in the plan that would be caused by the proposed change in urban growth boundaries?

b) An amended plan need not remain in effect for three years from the time the amendment is approved by the Local Government Planning Advisory Committee before it may be amended again.

c) The statute does not define the term “extraordinary circumstances” as used in Tenn. Code Ann. § 6-58-104(d)(1). In the context of the statute, a court would probably conclude that “extraordinary circumstances” mean unusual events or developments that could not have been foreseen when the growth plan was being developed. Whether extraordinary circumstances are present would depend on particular facts and circumstances.

d) If the county wishes to respond formally to the city’s proposed change or to submit its own alternative amendment to planned growth areas and rural areas, then it must conduct the research and hold the public hearings required under Tenn. Code Ann. § 6-58-106(b) and (c). It need not meet these requirements, however, if it does not wish to respond to the proposed change or submit an alternative amendment.

QUESTION
After the adoption of a countywide growth plan under Tenn. Code Ann. §§ 6-58-101, et seq., is a city authorized to annex properties within its urban growth area that are not contiguous to existing or annexed parcels other than by the highway connecting them?

OPINION
Tennessee courts have concluded that an ordinance annexing parcels of land connected to the city limits only by a strip of land such as a highway is not per se invalid under the annexation statutes. In State ex rel. Earhart v. Bristol, 970 S.W.2d 948 (Tenn. 1998), however, the state Supreme Court suggested, in dicta, that such an ordinance may be invalid under Tenn. Code Ann. § 6-51-102 because the annexed territory does not adjoin the existing city limits, or is unreasonable under the same statute or Tenn. Code Ann. § 6-51-103 because it does not further orderly city development, the purpose of the annexation statutes.