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Attorney General Opinions on 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. 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. 98-148: Annexation

QUESTION
Under T.C.A. § 6-51-110, where two municipalities in the same county seek to annex the same property, the annexation proceedings by the larger municipality take precedence over those by the smaller municipality. Does Public Chapter 1101, particularly Section 12 (T.C.A. § 6-58-111) repeal this provision where the smaller municipality is attempting to annex property by referendum under T.C.A. § 6-51-104 and § 6-51-105?

OPINION
Before the growth plan is approved by LGPAC, the larger municipality would have preference over the smaller municipality when both are attempting to annex the same property and both municipalities are located in the same county. After the growth plan is approved, if the annexation was not barred by any annexation reserve agreement or other agreement, it was the Attorney General’s opinion that a municipality could argue in court that the general law still applied and the larger municipality had priority over the smaller municipality.


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.


Attorney General Opinion No. 98-239: Constitutionality of Certain Provisions

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

QUESTION
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.

b) According to the opinion, the county may file a quo warranto action to challenge an annexation ordinance if it owns property that is to be annexed under T.C.A. § 6-51-103. Also, a county may also contest the validity of an annexation ordinance by filing a quo warranto action if the conditions of T.C.A. § 6-58-108 are met.

c) The Attorney General could find “no statute that authorizes an officer of the state to challenge an annexation ordinance.


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.


Attorney General Opinion No. 99-218: Extraterritorial Zoning Authority

QUESTIONS
a) May the county growth plan provide for municipal extraterritorial zoning and subdivision regulation within the urban growth boundaries surrounding the two municipalities?

b) If the answer to question 1 is yes:
May the growth plan provide for such zoning and subdivision regulation without the consent of the county legislative body?
May the growth plan provide for such zoning and subdivision regulation by the dispute resolution panel established under T.C.A. § 6-58-104 (b)(3)?

c) Would the adoption of the growth plan provide for such zoning and subdivision regulation constitute the approval of the county legislative body required under T.C.A. § 6-58-106(d)?

d) Once the growth plan is adopted, does T.C.A. § 6-58-106(d) require the county’s approval of extraterritorial zoning of two municipalities within their urban growth boundaries even if the county did not adopt county zoning under T.C.A. § 13-7-306?

e) Once the growth plan is adopted, would two municipalities have jurisdiction for subdivision regulation within the urban growth boundary if the county adopts zoning, but does not approve extraterritorial zoning and subdivision regulation under T.C.A. § 6-58-106(d)?

f) Notwithstanding the Growth Plan Law, could the county and two municipalities in the county use existing provisions of Tennessee Code Annotated with regard to interlocal agreements to develop a set of customized conditions for the urban growth areas for those two municipalities?

OPINIONS
a) The Attorney General could find nothing in the law that would prohibit a plan from including provisions for extraterritorial zoning by each municipality. However, the Attorney General noted that the designation of an urban growth boundary would affect extraterritorial zoning and subdivision regulation, and that any express provision in the plan must be consistent with the legal effect of the designation of the urban growth boundaries.

b) The designation of the UGBs would affect the power of each municipality to exercise planning, subdivision regulation and zoning outside its municipality boundaries. The plan would have this effect whether it was approved by all local governments or adopted through a dispute resolution process. The Attorney General noted that express consent by the county government to extraterritorial zoning was not necessary, but that county zoning would supersede municipality zoning under T.C.A. § 13-7-306 even after the municipal planning commission has been designated a regional planning commission to all unincorporated territory in the municipality’s urban growth boundary.

c) According to the Attorney General, the answer to this question is no. A municipality may continue to zone territory with respect to which the municipal planning commission has been designated as the regional planning commission, so long as it falls within the UGB. Since the municipality’s zoning authority is based on that designation, its authority to zone this area is similarly limited. Thus, the municipal planning commission designated as a regional planning commission will not have planning, subdivision or zoning authority in any area outside the municipality’s UGB, even if the commission had had authority in that area before the adoption of the growth plan. For the territory outside the area which the municipal planning commission has been designated a regional planning commission but within the municipality’s UGB, the Department of Economic and Community Development will have to designate the municipal planning commission as a regional planning commission for all of the area within the municipality’s UGB before the municipality and commission will have planning, subdivision and zoning authority in the area. In either case, the county’s approval is not required.

d) The Attorney General opined that for those areas that are within the UGB and for which the municipal planning commission has been designated a regional planning commission, then subdivision regulations adopted by each municipality’s planning commission would continue to apply once the plan is adopted. The county’s adoption of zoning would not affect this authority.

e) It was the Attorney General’s opinion that nothing in the law would prohibit such an agreement, but the agreement must be consistent with the growth plan and growth law. Any such agreement, however, should be consistent with the county growth plan and with other provisions of the growth plan law. The legality and enforceability of any particular arrangement would depend on its terms and the authorizing statutes.


Attorney General Opinion No. 00-018: Federally Owned Lands

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.


Attorney General Opinion No. 00-022: Effect and Enforcement of Growth Plans

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?

OPINIONS
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.


Attorney General Opinion No. 00-032: Extraterritorial City Zoning

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.


Attorney General Opinion No. 00-036: Annexation After the Growth Plan is Adopted

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.


Attorney General Opinion No. 00-135: Challenge to a Growth Plan

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.


Attorney General Opinion No. 00-184: Zoning and PGAs under Growth Law

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."


Attorney General Opinion No. 01-017: Metropolitan Form of Government

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.


Attorney General Opinion No. 01-092: Regional Planning and Urban Growth Boundaries

QUESTIONS
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?

OPINIONS
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.


Attorney General Opinion No. 01-096: Impact of Growth Plan on Extension of Sewer Service

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.


Attorney General Opinion No. 03-023: Extraterritorial Zoning by Memphis and Shelby County under Growth Law

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.


Attorney General Opinion No. 03-091: JECDBs and Open Meetings Act

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.).


Attorney General Opinion No. 03-154: Amending Growth Plan

QUESTIONS
Under Tenn. Code Ann. §§ 6-58-101, et seq., the local governments within a county are authorized to adopt a countywide growth plan. Under Tenn. Code Ann. § 6-58-104(d)(1), after a growth plan has been finally approved, “the plan shall stay in effect for not less than three (3) years absent a showing of extraordinary circumstances. After the expiration of the three-year period, a municipality or county may propose an amendment to the growth plan by filing notice with the county mayor and with the mayor of each municipality in the county. Upon receipt of such notice, such officials shall take appropriate action to promptly reconvene or re-establish the coordinating committee. . . . The procedures for amending the growth plan shall be the same as the procedures in this section for establishing the original plan.” Hamblen County’s plan was finally approved January 24, 2001.

1. May any part of the amendment process begin before the end of the initial three-year period?

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

3. What is the definition of “extraordinary circumstances” as used in the statute?

4. 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?

OPINIONS
1. A local government may not file a proposed change until the full three-year period
has expired. A city may begin conducting the required research and holding the hearings required
under Tenn. Code Ann. § 6-58-106(a)(2) and (3) to develop a proposal before the end of the initial three-year period. But the new coordinating committee may not be formed or begin considering the proposed change until the initial three-year period has expired.

2. 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.

3. 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.

4. 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.


Attorney General Opinion No. 03-158: Annexation of Parcels Along Highways

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.


Attorney General Opinion No. 04-110: Extending Sewer Service to Rural Area

QUESTION
Must residents of Rutherford County who are located within an area designated as a rural area under the county growth plan ask for annexation and build to City of Murfreesboro standards if they wish to obtain municipal sewer service?

OPINION
Since the city is not required by law to provide sewer service outside its boundaries, no statute or legal principle would prohibit it from specifying requirements that an area outside its boundaries must request annexation and build to city specifications as a condition to extending sewer service to that area. Unless the growth plan is amended to include the area within the city’s urban growth area, however, the territory must be annexed by referendum.


Attorney General Opinion No. 04-137: Extraterritorial “Spot Zoning” under Growth Plan

QUESTIONS
1. Do cities have the authority to implement “spot zoning” outside the city’s municipal boundaries but within the city’s urban growth boundary?
2. If the answer to Question 1 is yes, is the county required to give its consent?

OPINIONS
1. and 2. As a general matter, courts have concluded that ordinances that adopt “spot zoning,” as courts interpret that term, are invalid because they do not bear a substantial relationship to the public health, safety, morals, and general welfare and are out of harmony and in conflict with the comprehensive zoning ordinance of the particular municipality. No city, therefore, may implement spot zoning as Tennessee courts define that term, whether inside or outside its boundaries. Assuming the ordinance in question is not invalid “spot zoning,” a city may zone outside its corporate boundaries and within its urban growth boundaries with respect to territory for which it has been designated a “regional planning commission” by the Tennessee Department of Economic and Community Development, if the territory has not been zoned by the county. In that case, the county’s approval is not necessary, but if the county later adopts zoning ordinances with respect to the territory, county ordinances will supersede the city ordinances. Where a city has not been designated a regional planning commission with respect to property within its urban growth boundaries, a city may provide zoning for that area only with respect to territory that the county has not zoned and, then, only with the approval of the county commission.

 


Attorney General Opinion No. 05-122: Holding Court Outside County Seat

QUESTIONS
1. Does the Tennessee Constitution, state statute, or case law prohibit a county from building a justice center outside the city limits of the county seat to hold general sessions, circuit, or criminal court sessions?

2. Would the response be different if the new justice center is not located within the county seat, but is within the county seat’s urban growth boundaries?

OPINIONS
1. Chancery and circuit courts may continue to meet at the places specified in Tenn. Code Ann. §§ 16-2-106 through 16-2-402. In addition, an applicable private act may authorize a particular chancery, circuit, or general sessions court to meet outside the limits of the county seat. Absent such private act authority, however, neither a general sessions nor a circuit court may regularly hold its sessions outside the city limits of the county seat.

2. No.


Attorney General Opinion No. 05-176: Joint Economic Development Board of Weakley County

QUESTIONS
1. The Joint Economic Development Board of Weakley County (the “Board”) was
created by the governing bodies of Weakley County and several cities within the county under Tenn. Code Ann. §§ 6-58-114 and 5-1-113. Does the Board have the authority to construct a manufacturing building, which it will offer for sale or lease to businesses considering locating or expanding operations in Weakley County?

2. Does the Board have the authority to lend or grant funds contributed to the Board by the participating local governments to an industrial development corporation created under Tenn. Code Ann. §§ 7-53-101, et seq.? The industrial development corporation would use the funds to construct a manufacturing building to be offered for sale or lease to businesses.

OPINIONS
1. Neither the agreement creating the Board nor Tenn. Code Ann. § 6-58-114 explicitly grants this power to the Board. An organization formed under Tenn. Code Ann. § 5-1-113 or Tenn. Code Ann. §§ 12-9-101, et seq., may be authorized to exercise on behalf of its constituent members any authority that each member may exercise separately. Under Tenn. Code Ann. §§ 7-37-101, et seq., cities and counties may build or acquire industrial buildings and lease them to private businesses. If a city or county issues bonds to finance the purchase or construction of industrial buildings under this statute, the bond issue must be approved by a three-fourths majority vote of the registered voters under Tenn. Code Ann. § 7-37-110. But, in the absence of any express provision in the agreement, the Board is not authorized to exercise the power to acquire an industrial building and lease it to a private business on behalf of all of its constituent members. Further, this Office is unaware of any statutory authority under which the agreement could be amended to authorize the Board to issue bonds on behalf of all its members.

2. a. Neither the agreement nor Tenn. Code Ann. § 6-58-114 authorizes the Board to exercise this power. But we think it can be argued that, under Tenn. Code Ann. § 6-54-118, both the cities and counties may lend funds at reasonable interest to an industrial development corporation in the county. For this reason, the agreement could be amended to grant this authority to the Board.
b. Neither the agreement nor Tenn. Code Ann. § 6-58-114 explicitly authorizes the Board to exercise this power. Neither the City of Martin nor the City of Sharon is clearly authorized to donate city funds to any industrial corporation except to one that it has created. For this reason, it does not appear that the agreement could be amended to authorize the Board to donate funds it has received from its constituent local governments to an industrial development corporation except one created by both cities. But the county and the other cities may do so independently.


Attorney General Opinion No. 07-041: Largest Chamber of Commerce under the Growth Law

QUESTIONS
Tenn. Code Ann. § 6-58-104(a)(1) establishes a coordinating committee within each county.
The committee is authorized to develop a countywide growth plan. Under Tenn. Code Ann. § 6-58-
104(a)(1)(G), one member of the committee is to be selected by the “largest chamber of commerce,
to be appointed after consultation with any other chamber of commerce within the county.”
1. Where more than one chamber of commerce is located in a county, and one chamber has businesses as members, with the businesses located throughout the county, and another chamber is located within one of the cities within the county, and has both individual and business members, is the largest chamber determined by total membership, total area served, or diversity of business and industrial interests?

2. If the chambers of commerce within a county cannot agree on which is the “largest chamber,” may the county coordinating committee determine which chamber will appoint the member and resolve seating disputes through by-laws or rules of order?

3. If the chambers of commerce within a county cannot agree as to which is the largest, and are unable to agree upon a member to serve on the coordinating committee, will that seat on the coordinating committee remain vacant?

4 Assuming the member to be appointed by the largest chamber of commerce is never selected, may the coordinating committee still be established and fulfill its duties with its remaining authorized membership?

OPINIONS
1. In the context of the statute, we think the term “largest” refers to the chamber of commerce having the largest number of members in the county, regardless of their status as individuals or businesses.

2. A coordinating committee is not given the authority to interpret the statutes governing its membership, nor may it pass any by-laws that are inconsistent with those statutes.

3. As discussed above, we think the statute authorizes the chamber of commerce with the largest number of members in the county, regardless of their status, to appoint a member after consulting with the other chambers of commerce in the county. The statute does not require the chambers to agree. If, however, the largest chamber of commerce does not appoint a member, then that seat will remain vacant.

4. Yes. The statute does not require every position on the committee to be filled before the committee may act, as long as the committee has a quorum.


Attorney General Opinion No. 08-050: Annexation under Tenn. Code Ann. § 6-58-111(d)(2) (2005) after agreement not to annex

QUESTIONS
1. A municipality and a county mediated a settlement of the boundaries of a comprehensive growth plan, pursuant to Tenn. Code Ann. § 6-58-104, and they entered into a separate agreement wherein the municipality agreed to extend its boundaries only as provided in the agreement. Four years after the agreement was entered, Tenn. Code Ann. § 6-58-111(d)(2) was amended in 2005. May the municipality utilize Tenn. Code Ann. § 6-58-111(d)(2)(2005) to extend its boundaries by annexation referendum without violating its previous agreement with the county?

2. Whether Tenn. Code Ann. § 6-58-111(d)(2) (2005) is unconstitutional under Article I, Section 20, of the Tennessee Constitution, as applied to existing comprehensive growth plan agreements?

OPINIONS
1. Even assuming that the specific terms of the agreement between the municipality and the county show that the municipality did agree to refrain from exercising its authority to annex, Tenn. Code Ann. § 6-58-104(a)(6)(C) permits such an agreement to be terminated after it has been in effect for five years. Based on the question posed, it appears that the agreement has been in effect for five years. Accordingly, it is the opinion of this Office that the municipality could utilize Tenn. Code Ann. § 6-58-111(d)(2) (2005) to extend its boundaries by annexation referendum once it terminated its agreement with the county in the manner provided in Tenn. Code Ann. § 6-58- 104(a)(6)(C).

2. No.


Attorney General Opinion No. 08-111: Funding Budget of Joint Economic and Community Development Board

QUESTIONS
1. Under Tenn. Code Ann. § 6-58-114(h), the Joint Economic and Community Development Board (the “Joint Board”) is to set an annual budget that is to be funded by participating governments as set forth by the funding formula in the statute. Is it unconstitutional or otherwise contrary to law for the Joint Board, which includes unelected members, to mandate expenditures for a participating county without the approval of the county legislative body?

2. Are there any limits to the budget that may be set by a Joint Board?

3. Is a local government member of a Joint Board ineligible for state grants if it has fully funded its portion of the Joint Board’s budget for the prior year but declines to fund its portion of a mandated budget increase from one budget year to the next?

4. Subsection (h) of Tenn. Code Ann. § 6-58-114 provides: “In the event a participating government does not fully fund its contribution, the board may establish and impose such sanctions or conditions as it deems proper.” What sanctions or conditions may a Joint Board impose under this provision?

OPINIONS
1. The statute does not give the Joint Board any power to mandate expenditures by a participating local government without the approval of its legislative body. Under the statute, the local legislative body retains full authority to approve or disapprove its contribution to the Joint Board’s budget.

2. The statute does not contain any limits to the budget that may be set by a Joint Board.

3. If a participating government member has not funded its full share of the Joint Board’s budget, including any increase over the prior year’s budget, the participating government is rendered ineligible for state grants from the beginning of the fiscal year for which that budget was adopted and may be sanctioned by the Joint Board.

4. A Joint Board may prevent a local government that has failed to fund its portion of the joint budget from voting at meetings. A Joint Board may also prevent representatives of a local government that has failed to fund its portion of the budget from serving as Joint Board officers.


Attorney General Opinion No. 10-012: Ability of Municipalities to Charge a Fee for Building Permits for Agricultural Land

QUESTION
Does Tenn. Code Ann. § 6-54-126 prohibit a municipality from charging for a building permit for land being used for agricultural purposes?

OPINION
No. Tenn. Code Ann. § 6-54-126 is concerned only with a municipality’s power to regulate the use of land and not with that municipality’s ability to require building permits. Accordingly, a municipality has the power to charge a fee for a building permit on agricultural land. Furthermore, the definition of “agriculture” in Tenn. Code Ann. § 1-3-105(2) does not broaden Tenn. Code Ann. § 6-54-126 so that a municipality is prohibited from charging a fee for a building permit on agricultural land.