Can a Tennessee metropolitan government charter say that the urban services district can grow only when the area to be annexed votes yes by referendum?

Plain-English summary

State Representative Mark White asked whether a Tennessee metropolitan-government charter could restrict the expansion of the metro's urban services district to one method only: a majority referendum vote in the area to be annexed. Tennessee's general annexation laws allow two methods: annexation by ordinance (no referendum required in the area annexed) or annexation by referendum. The question was whether a charter could pick the referendum-only path and bar the ordinance path.

The AG concluded yes.

The reasoning ran through Tenn. Code Ann. § 7-2-108(a)(6), the provision that controls how a metropolitan charter handles the growth of the urban services district. That subsection allows USD expansion "by annexation whenever particular areas of the general services district come to need urban services and the metropolitan government becomes able to provide such service within a reasonable period," subject to "provisions and limitations specified in the charter, consistent with those provided by §§ 6-51-101 – 6-51-106."

The key phrase was "consistent with." The AG read that phrase, drawing on the Virginia Court of Appeals decision in Roanoke Memorial Hospitals v. Kenley, to mean "in harmony with," "compatible with," "holding to the same principles," or "in general agreement with." It did not mean "exactly alike" or "the same in every detail." Picking one of the two general-law methods (referendum) and applying it as the charter's exclusive route satisfied the consistency standard. The charter would not contradict the general law; it would simply choose the more restrictive of two paths that the general law already authorized.

The AG noted that the existing three consolidated metropolitan governments at the time (Nashville/Davidson County, Hartsville/Trousdale County, and Lynchburg/Moore County) used charter language that simply incorporated general annexation law without narrowing it. A charter that took the narrower path described in the question would be a departure from existing practice, but a permissible one. The AG also pointed to Tenn. Code Ann. § 7-1-102(b), which says the metropolitan-government chapters are to be "liberally construed" because they implement Amendment No. 8 to Article XI, § 9 of the Tennessee Constitution (the 1953 consolidation amendment).

The practical effect of such a referendum-only charter would be to prevent the consolidated government from extending urban services into a territory where the residents voted against annexation. The AG flagged but did not resolve the policy concerns, observing that this result might be characterized as "inconsistent" with the general annexation laws in spirit, but concluding that the statute's reference to "consistent with" was broad enough to cover the limitation.

Currency note

This opinion was issued in 2010. Tennessee's annexation laws have undergone significant changes since then, most notably the 2014 reforms that ended most annexation by ordinance in favor of referendum-based annexation for residential property. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tennessee's metropolitan-government chapter, Tenn. Code Ann. §§ 7-1-101 et seq., implements the consolidation power granted by Article XI, § 9 of the state constitution. Section 7-2-108(a) lists the required and permissible contents of any metropolitan charter. Two service districts are mandatory under (a)(5): a general services district covering the entire county, and an urban services district consisting initially of the principal city's footprint at charter adoption.

The USD is meant to be the area that receives a higher level of city-type services and is funded with a higher property tax to match. Subsection (a)(6) anticipates that the USD will need to grow over time and authorizes annexation as the mechanism. The annexation must be carried out under "provisions and limitations specified in the charter, consistent with those provided by §§ 6-51-101 – 6-51-106."

The general law referenced there (§§ 6-51-101 to 6-51-106 as it stood in 2010) gave cities two annexation routes: ordinance and referendum. Ordinance annexation did not require a vote in the area to be annexed; referendum annexation did. Either route could be challenged in a quo warranto proceeding.

§ 7-1-102(b) is the liberal-construction instruction: the chapters are remedial and to be liberally construed as a utilization of the 1953 consolidation amendment.

Common questions

Q: Could a metro charter make annexation impossible without resident consent?
A: The AG read § 7-2-108(a)(6) to allow exactly that, by restricting USD expansion to the referendum route. The result would be that the consolidated government could not pull a territory into the USD over the wishes of the territory's voters.

Q: Why did the AG not see this as inconsistent with general law?
A: Because the referendum route was already one of the two methods authorized by the general law. The charter would not invent a new method or remove an option that the law required; it would just decline to use the ordinance option.

Q: What if the residents needed urban services but voted no?
A: The AG flagged this as a real consequence: the consolidated government could not provide and finance urban services in areas where residents refused to approve enlargement of the USD. The AG treated that as a policy choice that the charter drafters could make, not a legal bar.

Q: Did any existing Tennessee metropolitan charter have this restriction in 2010?
A: No. The AG noted that Nashville/Davidson, Hartsville/Trousdale, and Lynchburg/Moore all simply referred to general annexation law without imposing additional restrictions. The question contemplated a future charter or charter amendment that would impose the referendum-only restriction.

Q: What about consistency with the constitutional consolidation amendment?
A: The opinion did not see a constitutional problem. The consolidation amendment did not specify how the USD must grow; it required a one-time vote to create the consolidated government, after which the legislature was free to set the rules. § 7-2-108(a)(6) is one such legislative rule.

Citations and references

Tennessee statutes and constitution:

• Tenn. Code Ann. §§ 7-1-101 et seq. (metropolitan governments)
• Tenn. Code Ann. § 7-1-102(b) (liberal construction)
• Tenn. Code Ann. § 7-2-108(a)(2), (a)(5), (a)(6) (required charter contents)
• Tenn. Code Ann. § 7-2-107 (charter ratification appendix for smaller cities)
• Tenn. Code Ann. §§ 6-51-101 to 6-51-106 (general annexation laws)
• Tenn. Code Ann. §§ 6-51-104, -105 (referendum annexation provisions)
• Tenn. Const. art. XI, § 9 (consolidation amendment)

Cases:

• Roanoke Memorial Hospitals v. Kenley, 3 Va. App. 599, 352 S.E.2d 525 (Va. Ct. App. 1987) (meaning of "consistent with")

Metropolitan charters cited as context:

• Nashville/Davidson County Charter § 1.04
• Hartsville/Trousdale County Charter § 7.04
• Lynchburg/Moore County Charter § 7.04

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-104.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

October 12, 2010

Opinion No. 10-104

Metropolitan Government Charter: Expansion of Urban Services District

QUESTION

Is it legally permissibly under Tenn. Code Ann. §§ 7-1-101, et seq., for a metropolitan government charter to provide that the area of the metropolitan government's urban services district may be expanded only if a majority of the voters in the area to be annexed approve the annexation by a referendum vote?

OPINION

It is the opinion of this Office that a metropolitan charter provision limiting annexation to one of the methods set out by the general law (referendum) is permissible and complies with Tenn. Code Ann. § 7-2-108(a)(6).

ANALYSIS

This question concerns whether a metropolitan government may legally provide that the area of the metropolitan government's urban services district may be expanded only if a majority of the voters in the area to be annexed approve the annexation by a referendum vote.

Tenn. Code Ann. § 7-1-102(b) provides:

Chapters 1-3 of this title are hereby declared to be remedial legislation to be liberally construed as a utilization of the constitutional power granted by Amendment No. 8 to article XI, § 9 of the Constitution of Tennessee approved at an election on November 3, 1953.

Article XI, Section 9, of the Tennessee Constitution provides in relevant part:

The General Assembly may provide for the consolidation of any or all of the governmental and corporate functions now or hereafter vested in municipal corporations with the governmental and corporate functions now or hereafter vested in the counties in which such municipal corporations are located; provided, such consolidations shall not become effective until submitted to the qualified voters residing within the municipal corporation and in the county outside thereof, and approved by a majority of those voting within the municipal corporation and by a majority of those voting in the county outside the municipal corporation.

This provision was one of several amendments to Article XI, Section 9, adopted in 1953. Tenn. Code Ann. § 7-2-108 sets forth the required contents of a proposed metropolitan charter. This statute provides in relevant part:

(a) The proposed metropolitan charter shall provide:

(2) That the territory embraced in the metropolitan government shall be the total area of the county;

(5) For two (2) service districts within the geographical limits of the metropolitan government, a general services district and an urban services district, as to both of which districts the metropolitan government shall have jurisdiction and authority. The general services district shall consist of the total area of the county. The urban services district shall consist originally of the total area of the principal city at the time of the filing of the proposed charter with the county election commission, together with such area of any smaller cities as may be specified in an appendix duly ratified and adopted under § 7-2-107.

(6) That the area of the urban services district may be expanded and its territorial limits extended by annexation whenever particular areas of the general services district come to need urban services and the metropolitan government becomes able to provide such service within a reasonable period. The annexation shall be under provisions and limitations specified in the charter, consistent with those provided by §§ 6-51-101 – 6-51-106.

(emphasis added). Tenn. Code Ann. §§ 6-51-101 – 6-51-106 generally authorize a city to annex territory in unincorporated parts of the county, either by ordinance or by referendum. Generally, annexation by ordinance does not require a referendum in the territory to be annexed.

The request inquires whether a metropolitan government charter can authorize the metropolitan government to annex territory from the general services district into the urban services district only with the approval by the majority of the qualified voters residing in the territory to be annexed. Thus, effectively, the charter would limit annexation to one of the two methods authorized by general law.

Charters governing the three consolidated metropolitan governments in Tennessee simply refer to general annexation law and do not contain a restriction on annexation authority similar to that presented here. Nashville/Davidson County, § 1.04; Hartsville/Trousdale County, § 7.04; Lynchburg/Moore County, § 7.04. But the last sentence of Tenn. Code Ann. § 7-2-108(a)(6) authorizes a metropolitan charter to adopt limitations "consistent with those" in the general annexation laws. The phrase "consistent with" as used in a statute does not mean "exactly alike" or "the same in every detail," but instead means "in harmony with," "compatible with," "holding to the same principles," or "in general agreement with." Roanoke Memorial Hospitals v. Kenley, 3 Va. App. 599, 352 S.E.2d 525 (Va. Ct. App. 1987). Thus, Tenn. Code Ann. § 7-2-108(a)(6) does not necessarily prohibit a charter from adding further limitations on annexing property into the urban services district. Further, under Tenn. Code Ann. § 7-1-102(b), the statutes authorizing consolidated governments are to be liberally construed. The charter provision described in the question would contain no requirements that are contrary to the provisions in Tenn. Code Ann. §§ 6-51-101--6-51-106; it would simply require a majority of the voters in a territory to vote in favor of their area's annexation into the urban services district. This method of annexation is expressly set forth in Tenn. Code Ann. §§ 6-51-104 and -105. The charter limitation would prevent the consolidated government from providing and financing urban services in areas where the residents refuse to approve enlargement of the urban services district to include their territory. While it could be argued that this result is inconsistent with the general annexation laws, the designation of only one, rather than both, of the annexation methods set out in the general law would appear to be the sort of limitation to which Tenn. Code Ann. § 7-2-108(a)(6) alludes. For these reasons, we think this provision is legally permissible.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

ANN LOUISE VIX
Senior Counsel

Requested by:
Honorable Mark White
State Representative
110 War Memorial Building
Nashville, Tennessee 37243