                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 November 4, 2009 Session

  CITY OF HARRIMAN, TENNESSEE v. ROANE COUNTY ELECTION
                    COMMISSION, ET AL.

                     Appeal from the Chancery Court for Roane County
                      No. 16010    Frank V. Williams, III, Chancellor



               No. E2008-02316-COA-R3-CV - FILED DECEMBER 28, 2009


This is a contest between two neighboring towns in Roane County over common territory that both
have purported to annex. The defendant, Kingston, sought to add the territory through a successful
referendum election conducted on February 5, 2008. The plaintiff, Harriman, sought to add the
territory through its annexation ordinance No. 200801-1 adopted on first reading January 28, 2008.
The disputed territory is outside the “[u]rban growth boundary” of both municipalities; it is within
the “[r]ural area” of Roane County as those terms are respectively defined in Tenn. Code Ann. § 6-
58-101 (7) and (6) (2005). Harriman’s complaint to void the Kingston referendum asserts that
Harriman’s ordinance takes priority because Harriman, as a larger municipality, is granted statutory
priority. Kingston argues that the Harriman ordinance was of no effect because Harriman did not
first secure an amendment to its urban growth boundary before passing the ordinance. Harriman
responded that it did in fact “propose” an amendment and that a proposal was all that was required
under Tenn. Code Ann. § 6-58-111(d)(1) (Supp. 2009). The parties tried the case on stipulated facts.
The trial court agreed with Kingston and dismissed Harriman’s complaint without reaching the issue
of priority. Harriman appeals, asking us to reverse and remand for a determination of the
pretermitted issues. We vacate the judgment of the trial court and remand for further proceedings.


          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Vacated; Case Remanded

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and JOHN W. MCCLARTY , J., joined.

Harold D. Balcom, Jr., Kingston, Tennessee, for the appellant, City of Harriman.

Thomas M. Hale, Knoxville, Tennessee, and Jack H. McPherson, Jr., Kingston, Tennessee, for the
appellee, City of Kingston.

No appearance on behalf of Roane County Election Commission.
                                            OPINION

                                                 I.

        The territory in dispute is part of what was once known as “Midtown.” Midtown was
incorporated as a municipality in 1998 under an exception to the general law of municipal
incorporation, which exception was enacted to benefit a limited number of small communities. We
declared the exception unconstitutional in Town of Huntsville v. Duncan, 15 S.W.3d 468 (Tenn.
Ct. App. 1999), and, as a consequence of our ruling, Midtown ceased to exist. The area known as
Midtown was accounted for in Roane County’s initial growth plan and map, a copy of which became
trial exhibit 1. When Midtown ceased to exist, its territory became part of the rural area of Roane
County and a target for expansion by neighboring municipalities.

       As previously noted, the parties provided a detailed stipulation of facts upon which the case
was tried. The stipulations pertinent to this appeal are as follows, with the original numbering
omitted:

               Public Chapter 1101 of the Act of 1998 (the “Act”), generally
               codified within Tenn. Code Ann. §§ 6-58-101, et seq., established a
               growth policy for the State of Tennessee which included procedures
               for the development in each county of a countywide growth plan that
               would guide and direct new development in each county. The Act
               included provisions requiring the appointment in each county of a
               coordinating committee whose members were required to develop the
               county growth plan.

               The procedures for the development of a growth plan were carried out
               by officials within Roane County. The Growth Plan was adopted and
               later approved in 2001 as required by the Act. The Act prohibits the
               Growth Plan from being amended for three years.

               In calendar year 2005, Harriman and Rockwood requested that the
               coordinating committee for Roane County be reconvened for the
               purpose of reviewing the Growth Plan for the stated purpose of
               considering amending the Growth Plan by modifying the urban
               growth boundaries of those municipalities.

               The coordinating committee met several times during 2005 and 2006.
               Although the coordinating committee discussed a number of
               proposed urban growth boundaries, as of October 25, 2006 Harriman,
               Kingston and Oliver Springs had not yet settled upon what
               amendments to request in their urban growth boundaries.

               On September 12, 2007, County Mayor Mike Farmer informed the
               members of the coordinating committee that it would reconvene at

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some point within the next six weeks and requesting that any
municipality within Roane County planning to propose an
amendment to its Urban Growth Boundary to forward information
about the proposal.

No amendments to the Growth Plan have been officially adopted and
the coordinating committee has not met since the Harriman’s City
Council adopted Resolution R1007-1.

After several meetings and public hearings, Harriman, through its
City Council acting in special session on October 17, 2007, adopted
Resolution Number R1007-1 approving the September 14, 2007 City
of Harriman Urban Growth Boundary Report and related map as its
proposed amendment to its urban growth boundary, and directing its
designated members of the coordinating committee to propose such
amendment to the coordinating committee.

On December 27, 2007, Kingston, acting through its City Council,
adopted Resolution Number 7-12-27 resolving among other things to
hold a referendum pursuant to Tenn. Code Ann. § 6-51-105 to annex
territory that was outside of its urban growth boundary as it existed
in the approved Growth Plan.

                              *   *     *

The area Kingston proposed for annexation by referendum included
the area that Harriman Resolution Number R1007-1 authorized its
coordinating committee members to propose to the coordinating
committee as Harriman’s amended urban growth boundary.

Throughout January 2008, Harriman took steps preparatory to the
consideration of an annexation ordinance to annex areas of Roane
County that are outside of Harriman’s approved urban growth
boundary, but which are within the area that Kingston was seeking to
annex by referendum.

On January 28, 2008, Harriman acting through its City Council
adopted on first reading ordinance 200801-1, an ordinance annexing
a portion of the Midtown area adjoining the present corporate limits
of the City of Harriman, and to incorporate same within the corporate
boundaries of the City of Harriman, Tennessee.

On February 5, 2008, the Roane County Election Commission held
the referendum of those residing within the area that Kingston


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               proposed for annexation pursuant to Resolution Number 7-12-27 and
               the annexation was unanimously approved. . . .

               Harriman Ordinance 200801-1 has not been considered on second
               reading.

               On May 21, 2008, Harriman Regional Planning Commission
               approved a plan of services relating to Harriman Ordinance Number
               200801-1.

               With the exception of the finalization of Ordinance Number 200801-
               1, both Harriman and Kingston in the adoption of the motions,
               resolutions and ordinances complied with all formal requirements
               such as publications, notice and hearings.

       In addition to the above stipulations, the proof included stipulated exhibits which mostly
corroborated or illuminated the stipulations. The parties treated the question of whether Harriman
could annex territory outside its urban growth boundary by ordinance as a threshold question,
beyond which the trial court did not need to proceed if it ruled adversely to Harriman. As previously
noted, the trial court did rule against Harriman on this issue, and pretermitted any further
determinations. We think it helpful to quote the following passages from the trial court’s judgment:

               The Complaint seeks to set aside the annexation referendum
               successfully conducted by Kingston that incorporated within its
               municipal limits certain territory that was outside of its approved
               urban growth boundary as defined by the Comprehensive Growth
               Plan Legislation, codified at Tenn. Code Ann.§ 6-58-101, et seq. (The
               “Act”). The basis for the relief requested by Harriman was that it had
               proposed and commenced the process to amend its urban growth
               boundary to include the same territory that was the subject of the
               Kingston referendum, and thus, contended that it had complied with
               the provisions of the Act that allow a municipality to annex by
               ordinance such territory, and that as a result it was legally permissible
               for it to annex such territory before the amendment process was
               completed. The territory that Harriman sought to annex by ordinance
               was, in fact, also outside of its approved urban growth boundary, but
               was within Roane County’s rural area as defined by the Act. The
               City of Kingston defended on the basis that the actions of Harriman
               in attempting to annex by ordinance territory outside of its approved
               urban growth boundary exceeded its authority as granted by the Act,
               specifically by Tenn. Code Ann. § 6-58-111, and therefore, that
               Harriman’s ordinance of annexation was void and of no effect.

               Having considered all of the referenced pleadings, evidence,
               arguments and parts of the record, this Court finds and concludes . . .

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               that Harriman’s ordinance of annexation, being Ordinance 200801-1,
               is void and of no effect because Harriman’s urban growth boundary
               was not amended to include the area it sought to annex by way of the
               procedures described in and required by Tenn. Code Ann. § 6-58-
               111(c) and (d).

The trial court therefore found “that the City of Harriman’s ordinance of annexation, being void and
of no effect, creates no conflict with the successful annexation by referendum of the same territory
conducted by Defendant City of Kingston” and dismissed the complaint.

                                                  II.

         The parties each identify two separate issues, but we believe there is one dispositive issue
that is best focused as stated by Kingston:

               Was the trial court correct in concluding that Tenn. Code Ann. § 6-
               58-111(d)(1) requires that a municipality seeking to annex by
               ordinance territory laying outside of its approved urban growth
               boundary must amend its urban growth boundary following the
               procedure in Tenn. Code Ann. 6-58-104?

                                                  III.

       The interpretation of a statute and its application to undisputed facts involve questions of law.
U.S. Bank, N.A. v. Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381, 386 (Tenn. 2009); Waldschmidt
v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 175 (Tenn. 2008). A trial court’s conclusions of
law are reviewed de novo upon the record with no presumption of correctness. Perrin v. Gaylord
Entm't Co., 120 S.W.3d 823, 826 (Tenn. 2003); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.
1997).

        Recently, in Waldschmidt, the Supreme Court provided the following guidance for issues
of statutory construction:

               When called upon to construe a statute, the courts must first ascertain
               and then give full effect to the General Assembly’s intent and
               purpose. Auto Credit of Nashville v. Wimmer, 231 S.W.3d 896, 900
               (Tenn. 2007); State ex rel. Pope v. U.S. Fire Ins. Co., 145 S.W.3d
               529, 534-35 (Tenn. 2004). We must construe statutes as we find
               them, Jackson v. Jackson, 186 Tenn. 337, 342, 210 S.W.2d 332, 334
               (1948), and therefore, our search for a statute’s meaning and purpose
               must begin with the words of the statute. Blankenship v. Estate of
               Bain, 5 S.W.3d 647, 651 (Tenn. 1999). We must (1) give these words
               their natural and ordinary meaning, (2) consider them in the context
               of the entire statute, and (3) presume that the General Assembly

                                                  -5-
               intended that each word be given full effect. Lanier v. Rains, 229
               S.W.3d 656, 661 (Tenn. 2007); State v. Flemming, 19 S.W.3d 195,
               197 (Tenn. 2000). When a statute’s language is clear and
               unambiguous, we need not look beyond the statute itself, State v.
               Strode, 232 S.W.3d 1, 9-10 (Tenn. 2007); Corum v. Holston Health
               & Rehab. Ctr., 104 S.W.3d 451, 454 (Tenn. 2003), but rather, we
               must simply enforce it as written. Wausau Ins. Co. v. Dorsett, 172
               S.W.3d 538, 543 (Tenn. 2005); Miller v. Childress, 21 Tenn. (2
               Hum.) 320, 321-22 (1841).

271 S.W.3d at 176 .


                                                IV.


       In Tenn. Code Ann. § 6-58-111, the General Assembly has clearly provided an exception to
the general rule that a municipality must confine its growth to the territory within its urban growth
boundary. That “exception” language is the focus of this appeal. It provides as follows:


               (c) A municipality may not annex territory by ordinance beyond its
               urban growth boundary without following the procedure in subsection
               (d).


               (d)(1) If a municipality desires to annex territory beyond its urban
               growth boundary, the municipality shall first propose an amendment
               to its urban growth boundary with the coordinating committee under
               the procedure in § 6-58-104.


               (2) As an alternative to proposing a change in the urban growth
               boundary to the coordinating committee, the municipality may annex
               a territory located in the county’s planned growth area or rural area
               by referendum as provided in §§ 6-51-104 and 6-51-105.


The General Assembly clearly intends that by “following the procedure in subsection (d)” a
“municipality may . . . annex territory by ordinance beyond its urban growth boundary.”


        Kingston is in no position to argue that there is absolutely no exception to the general rule
that a municipality may not annex outside its urban growth boundary, because Kingston itself has



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admittedly reached beyond its urban growth boundary to conduct its own annexation by referendum.1
As we see it, this puts Kingston in the position of arguing inconsistently that while subsections (c)
and (d)(2) combined mean exactly what they say in allowing an annexation by referendum outside
the city’s growth boundary, subsections (c) and (d)(1) combined have only illusory meaning, i.e.,
that an annexation by ordinance can only occur within a fully amended growth area. Kingston’s
position is illuminated by its statement of the issue which suggests that the only way a city may
annex by ordinance “outside of its approved urban growth boundary” is to first “amend its urban
growth boundary.” If this is true, then we fail to see how a city would be annexing outside its
growth boundary. Kingston’s reading of the pertinent language in Tenn. Code Ann. § 6-58-111
would completely eliminate the possibility of a municipality annexing “by ordinance beyond its
urban growth boundary.” Since this interpretation would negate the meaning of words and phrases
in such a way as to effectively eliminate the exception, we proceed with skepticism.


        Notwithstanding our skepticism, we will turn our full attention to the key question of what
is meant by the language in subsections (c) and (d) of Tenn. Code Ann. § 6-58-111. We naturally
begin with subsection (c) under which a municipality comes within the exception to the general rule
by “following the procedure in subsection (d).” Kingston argues that the only procedure in
subsection (d) is “the procedure in § 6-58-104” of amending the urban growth boundary, therefore
a city has not followed the procedure unless and until it has achieved an amendment of its growth
boundary. Kingston’s argument is contrary to the express language of the statute. What a
municipality must follow, according to subsection (c), is “the procedure in subsection (d).” The
procedure that is provided for a municipality in subsection (d), which we will later examine in more
detail, is to either, under (d)(2), ignore the urban growth boundary completely and annex by
referendum or, under (d)(1), “first propose an amendment to its urban growth boundary.”
        Before examining the key language in detail, we will first address Kingston’s assertion that
“proposing an amendment to an urban growth boundary is not a ‘procedure,’ but is merely what
triggers the procedure.” Again, we find Kingston’s argument to be in defiance of the statutory
language. First, it was the legislature that described subsection (d) as containing a procedure and we
do not think it fitting that one municipality or even this court should ignore that description. More
importantly, there clearly is a “procedure” that a municipality must follow before it may “propose
an amendment to its urban growth boundary” and there is a “procedure,” found in Tenn. Code Ann.


         1
          Kingston quotes a lengthy section of Tipton v. City of Knoxville, 205 S.W.3d 456, 459-60 (Tenn. Ct. App.
2006), including the following: “Once a county and its municipalities adopt a growth plan and it is approved by the
local government planning advisory committee, all land use decisions in the county must conform to the growth plan.
Tenn. Code Ann. § 6-58-107. Municipal governments in such counties are still permitted to annex territory upon their
own initiative . . . but they may only do so within their urban growth boundary.” Id. at 460 (emphasis added). As
noted, Kingston cannot seriously contend that the language quoted from Tipton prevents all annexations outside a
municipality’s urban growth boundary because Kingston has acted on its own initiative to annex outside its urban
growth boundary. We read the statement in Tipton as general background material put down with a broad brush to help
the reader understand the general import of the Comprehensive Growth Plan rather than a general statement of binding
law provided on an issue that was not before the court in Tipton. We should also note that even if a municipality may
annex outside its growth area, it is abundantly clear that one municipality may not annex territory that lies within another
municipality’s urban growth boundary. Tenn. Code Ann. § 6-58-111(a).

                                                            -7-
§ 6-58-104, by which that proposal must be submitted. The latter provides that after expiration of
the three-year initial moratorium period on amending the original county growth plan, “any
municipality . . . or the 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.” Tenn. Code Ann.
§ 6-58-104(d)(1)(emphasis added). “Before a municipal legislative body may propose urban growth
boundaries to the coordinating committee, the municipality shall conduct at least two (2) public
hearings.” Tenn. Code Ann. § 6-58-106 (a)(3) (2005). Also, “[b]efore formally proposing urban
growth boundaries to the coordinating committee, the municipality shall”: (1) develop population
growth projections; (2) determine and report the costs of infrastructure, services and facilities for the
current and projected municipal boundaries; (3) determine and report the need for additional land
suitable for high density, industrial, commercial and residential use; (4) determine and report the
existence of and impact on agricultural, forestry and recreational lands. Id. § 106(a)(2). Thus, we
reject the argument that “proposing an amendment to an urban growth boundary is not a
‘procedure.’” To propose an amendment to its urban growth boundary, a municipality must first
follow the preliminary procedures set out in 6-58-106, and then follow the procedure of “filing notice
with the county mayor . . . and with the mayor of each municipality of the county” set out in 6-58-
111(d)(1). It is true that to achieve the amendment, the municipality must push, pull or pray its
proposal through the remaining “procedures” in 6-58-104 for “establishing the original plan” but
those “procedures” go beyond the “procedure” of proposing an amendment.


        This leads us back to the key language of subsection (d)(1) which we have characterized as
an exception. To qualify for the exception, “the municipality shall first propose an amendment to
its urban growth boundary with the coordinating committee under the procedure in § 6-58-104.” The
specific question is whether a fully approved amendment is necessary as argued by Kingston, or
whether it is enough for the annexing city to simply commence the process of amending by
providing notice to the key players that it is submitting an amended plan for consideration. The key
word of the key phrase is the word “propose.” The term “propose” is not defined in the Act. It is
appropriate, therefore, to look to the dictionary as “the usual and accepted source” for the “natural
and ordinary meaning” of the term. English Mountain Spring Water v. Chumley, 196 S.W.3d 144,
148 (Tenn. Ct. App. 2005). The principal definition of “propose” is “to form or declare a plan or
intention” and all dictionary definitions that we have found define the word as something intended
rather than something accomplished. Webster’s Third New International Dictionary at 1819
(Merriam Webster 1991).


         We must, however, go beyond looking at the dictionary definition of one word, to look at the
context in which the words are used. Waldschmidt, 271 S.W.3d at 176 n.1. The context also
supports Harriman’s interpretation and works against Kingston’s interpretation adopted by the trial
court. The terminology is contained within an explicit exception to a general rule, i.e., that a city
may only annex inside its urban growth boundary. It is only logical therefore, that the area being
annexed as an exception is something that has not yet been accepted as being within the city’s urban
growth boundary. The other statutory provisions we have already discussed support the conclusion
that to “propose an amendment” to a growth boundary is to submit an amendment for consideration

                                                  -8-
by the full committee as opposed to achieving acceptance of the amendment as the approved growth
boundary. Tenn. Code Ann. § 6-58-104 (d)(1)( “may propose an amendment to the growth plan by
filing notice”); Tenn. Code Ann. § 6-58-106 (a)(3)(two public hearings mandatory before a
municipal body “may propose urban growth boundaries to the coordinating committee”); and Tenn.
Code Ann. § 6-58-106 (a)(2)(imposes numerous requirements on a city “before proposing urban
growth boundaries to the coordinating committee”). “The different parts of a statute reflect light
upon each other, and statutory provisions are regarded as in pari materia where they are parts of the
same act.” Faust v. Metropolitan Government of Nashville, 206 S.W.3d 475, 490 (Tenn. Ct. App.
2006) (quoting 73 Am.Jur.2d Statutes § 105 (2005)). Therefore, unless we are provided a
compelling reason to do otherwise, we will attribute the same meaning to “propose” as used in 6-58-
111(d)(1) that it carries in 6-58-104 and 6-58-106.


        Frankly, the only argument advanced by Kingston that gives us any pause is the argument
that allowing a city to annex without securing an amendment to its growth boundary defeats the
policies behind the Act. The General Assembly explicitly stated the intent underlying the Act as
follows:
                With this chapter, the general assembly intends to establish a
                comprehensive growth policy for this state that:
                (1) Eliminates annexation or incorporation out of fear;
                (2) Establishes incentives to annex or incorporate where appropriate;
                (3) More closely matches the timing of development and the
                provision of public services;
                (4) Stabilizes each county’s education funding base and establishes
                an incentive for each county legislative body to be more interested in
                education matters; and
                (5) Minimizes urban sprawl.


Tenn. Code Ann. § 6-58-102 (2005). It is true enough that allowing a city to annex on its own
initiative outside the area that is agreed upon or adjudicated to be its “growth boundary” would seem
to contravene the stated intent of the Act. Were there some acceptable alternative to the meaning
of “propose an amendment” that would preserve an exception and make better sense under the Act,
we would give it serious consideration, but there is none. There are only three alternative meanings
we can conceive. One is as proposed by Kingston that a municipality must follow the procedure to
the point of securing an amendment of its growth boundary before it can qualify for the exception.
However, as we have made abundantly clear, that alternative eliminates the exception altogether.
Another alternative is that to qualify for the exception the municipality must follow the procedure
until it has exhausted all possible avenues for relief and lost. It makes no sense to this court that the
General Assembly would enact the exception to allow a city to annex territory after its neighboring
communities and a mediator and an arbitrator and the courts have determined that the city should
not expand into that territory. See Tenn. Code Ann. §§ 6-58-104 and 105 (providing the

                                                  -9-
administrative and judicial “procedures” for achieving a growth plan). The third alternative is that
a municipality qualifies for the exception by reaching some unidentified point of doing something
more than proposing an amendment and something less than achieving the amendment. Surely if
the legislature had intended the third alternative, it would have given some hint as to where the point
of qualification lays, and surely it would not have explicitly defined the point of qualification in
terms that it used elsewhere in the Act consistent with merely giving notice of the proposed plan.
Thus, we can conceive of no alternative that is sensible and acceptable.


         In summary, we hold that, in Tenn. Code Ann. § 6-58-111 (c), the General Assembly
intended and did provide an exception to the general rule against expanding outside a growth plan
that allows a municipality to annex outside its urban growth boundary. A municipality qualifies for
that exception by “following the procedure in [Tenn. Code Ann. § 6-58-111] subsection (d).” We
further hold that to follow the procedure of Tenn. Code Ann. § 6-58-111 (d) the municipality must
either (1) “first propose an amendment to its urban growth boundary” or (2) conduct its annexation
by referendum. Finally, we hold that a municipality has qualified under § 6-58-111(d)(1) if it has
acted under Tenn. Code Ann. § 6-58-104(d)(1) to “propose an amendment to the growth plan by
filing notice with the county mayor . . . and . . . the mayor of each municipality in the county.” We
have reached these holdings by looking for the legislative intent, in light of the natural and ordinary
meaning of the statutory language, in context, and giving each word and phrase effect with the goal
of rendering no language ineffective. We believe there is no sensible or acceptable alternative
interpretation consistent with these directives. Since the parties have stipulated that Harriman’s
notice and other such preliminaries complied with all formal requirements, we hold that Harriman
qualified under Tenn. Code Ann. § 6-58-111(d)(1) to annex by ordinance.


                                                 V.


        The judgment of the trial court is vacated. Costs on appeal are taxed to the appellee, City
of Kingston, Tennessee. This case is remanded, pursuant to applicable law, for consideration of the
issues that were pretermitted and such other proceedings as are necessary and consistent with this
opinion.

                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




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