Annexation by Resolution

The General Assembly has the exclusive power to determine, by general law, the “methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered.”²   By exercising that power through Public Chapter 707, not only did the General Assembly repeal unilateral annexation by ordinance, it completely removed the ordinance method of annexation, even to effect annexation by willing landowners. The law continues to allow interested persons—whether owners, residents, or otherwise—who wish to have an area annexed into a city to request it, and the governing body of the city still determines whether it will act upon that request, but annexations can now only be accomplished by resolution.

State law ordinarily requires any action by a municipal governing body that “levies a tax, makes a special assessment, is permanent in nature, or has a regulatory or penal effect”—all qualities that describe an annexation—to be done exclusively by ordinance.³  However, this statute makes an exception when actions are “otherwise allowed by general law to be done by resolution,” as is now the case for annexations after Public Chapter 707. City charters generally govern procedures for adopting ordinances and resolutions, and the two terms have distinct meanings. A resolution is considered “a mere expression of the opinion of the mind of the City Council concerning some matter of administration” and is temporary in nature, while an ordinance is a permanent local law adopted by a city.⁴  Although aspects of the adoption process vary from charter to charter, all ordinances require one to three readings and the governing body’s majority approval. Some cities also require the mayor’s approval or impose publication requirements before passing an ordinance.⁵   Resolutions are usually passed in much the same way but do not require more than one reading. Tennessee courts have held that a resolution passed with all the formalities required for passing ordinances may operate as an ordinance and doing so could help protect annexations by resolution from legal challenge.⁶

Annexation by Owner Consent

If all property owners consent in writing to a proposed annexation, the city can forgo the referendum process and easily adopt a resolution to annex any area adjacent to the existing city limits, including land used primarily for agricultural purposes, which now can be annexed only with written consent of the owner.  Written consent is also required to annex government-owned land, including public roads, except when a referendum is held.  And if there are no eligible voters residing in the area proposed for annexation, there can be no referendum and the territory can only be annexed with the consent of all owners.

Defining Agricultural Land for Annexation with Written Consent

Public Chapter 707 has given agricultural property a new level of protection from annexation.  The act states that “no [extension of a city’s corporate limits by] resolution shall propose annexation of any property being used primarily for agricultural purposes . . . [such property] shall be annexed only with the written consent of the property owner or owners.”  Property being used primarily for agricultural purposes cannot be annexed without consent as part of a larger annexation referendum.  While agriculture is clearly defined in Tennessee Code Annotated, Title 1, and in the state’s Greenbelt law, the phrase “used primarily for agricultural purposes” is not defined anywhere in the law, in Public Chapter 707 or elsewhere, and has raised questions about its meaning and application.  The concern is focused on the word primarily, which is not defined anywhere in Tennessee law, even in the statutes governing greenbelt classification for property taxation purposes.

Agriculture is defined in Title 1, which applies to every section of the Tennessee Code, as land and buildings “used in the commercial production of farm products and nursery stock.”  Farm products and nursery stock are further defined, and recreational, educational and entertainment activities are also included.⁷  Tennessee’s Greenbelt law, which protects certain agricultural, forest, and open lands from being appraised for property tax purposes at their highest and best use, adopts the definition in Title 1 and sets minimum acreage requirements.⁸  These lands, as well as lands that meet the following definition, are assessed at the same 25% of fair market value as residential property: “all real property that is used, or held for use, in agriculture, including, but not limited to, growing crops, pastures, orchards, nurseries, plants, trees, timber, raising livestock or poultry, or the production of raw dairy products, and acreage used for recreational purposes by clubs, including golf course playing hole improvements.”⁹  It seems clear that land used primarily for these purposes is protected from annexation without written consent.  Again, the interpretation of the word primarily is the issue.

Although the word primarily is not defined in the Tennessee Code, it is used frequently and would likely be interpreted based on its dictionary definition.  Courts often look to dictionaries to define words that aren’t defined in statutes.¹⁰  Webster’s defines primarily as “used to indicate the main purpose of something; for the most part.”¹¹  It seems clear that land that is used more for purposes described in Title 1 or in the Greenbelt law than for any other purpose would require written consent for annexation.

Of the nine other states that limit the ability of cities to annex agricultural land,¹² only North Carolina provides specific guidance for determining which agricultural land is protected.  North Carolina’s annexation law, adopted in 2011, referencing definitions of agriculture elsewhere in state law, requires written owner consent for cities to annex land used for “bona fide farm purposes”¹³ and specifies that any of the following constitutes evidence of being used for bona fide farm purposes:

• a farm sales tax exemption certificate issued by the Department of Revenue
• a copy of the property tax listing showing that the property is eligible for participation in the present use value program (similar to Tennessee’s Greenbelt program)
• a copy of the farm owner’s or operator’s Schedule F from the owner’s or operator’s most recent federal income tax return
• a forest management plan
• a Farm Identification Number issued by the United States Department of Agriculture Farm Service Agency¹⁴

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²Constitution of the State of Tennessee, Article XI, Section 9.
³Tennessee Code Annotated, Section 6-54-512.
⁴Joe Cooper’s Cafe, Inc. v. Memphis, Tenn. App. LEXIS 180 (Tenn. Ct.App. 1993).
⁵Lobertini 2007.
⁶Clapp v. Knox County, 1954 Tenn. LEXIS 504 (197 Tenn. 422).
⁷Tennessee Code Annotated, Section 1-3-105(2)(A).
⁸Tennessee Code Annotated, Section 67-5-1004.  As an alternative to the definition of agriculture in Title 1, land that has been consistently lived on and farmed by the owner’s family for 25 years also qualifies for greenbelt status if it meets the minimum acreage requirements.
⁹Tennessee Code Annotated, Section 67-5-501.
¹⁰Norandal USA, Inc. v. Johnson, Tenn. App. LEXIS 539 (Tenn. Ct. App. 2004).
¹¹Merriam-Webster Dictionary, (Online Dictionary),  s.v. “primarily.”
¹²Arkansas, Colorado, Florida, Kansas, Nebraska, North Carolina, Oregon, South Carolina, and Virginia.
¹³North Carolina General Statutes, Section 160A-58.54(c).
¹⁴North Carolina General Statutes, Section 153A-340(b).