City free to annex within urban growth boundary, including Gray

Gary B. Gray • Jan 10, 2013 at 9:29 PM

A U.S. district judge on Wednesday dismissed a suit in which Gray residents, upset with Johnson City’s recent and possible future annexations, challenged state statute as being unconstitutionally vague and that the action did not serve the health, safety and welfare of those being annexed.

“Oral argument is unnecessary, and the motions are ripe for the court’s determination,” Judge Leon Jordan wrote in his opinion for the U.S. District Court for the Eastern District of Tennessee in Greeneville.

In sum, Jordan cited case law that explained that factual allegations must do more than create speculation or suspicion and that the complaint did not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

He also wrote that the plaintiffs had not identified a constitutional right that had been violated and that they were not entitled to any relief; that the annexation was not unreasonable, because it was within the city’s urban growth boundaries; and that a right to a jury trial is moot since the first two claims failed.

The decision means Johnson City is no longer under the cloud of litigation and can proceed, if it wishes, to annex legally within its urban growth boundary, including Gray.

“We currently have no city-initiated annexations before the Planning Commission or the City Commission,” City Manager Pete Peterson said late Thursday. “As with all cities, we will continue to grow, and we will continue to consider various areas for annexation, as we have always done.”

Prior court decisions have made it clear that annexation is a local matter for states and municipalities, Jordan wrote, and that “without sufficient justification, it would not be in the public interest to interfere with the state’s annexation procedures or Johnson City’s annexation proceedings.”

Jordan wrote that the plaintiffs had not demonstrated that a lawsuit against the state could be sustained, that the state has certain immunities from suit in federal court and that no exceptions to this immunity had been demonstrated.

“There is no requirement that the city annex only at the request of a property owner,” said Erick Herrin, the lead attorney for Johnson City in this case. “We have not come across a property owner yet that likes paying taxes, but we’ve also not come across property owners that do not appreciate the benefits of services, such as police and fire. I think the (judge’s) opinion is very well written.”

On July 1, attorney Alan Woodruff filed suit against both the state and city on behalf of Gray residents involved in both the Suncrest Annexation, which the Johnson City Commission already had approved, and the 180-acre Bobby Hicks Highway/Airport Road Annexation, also in Gray and on its way through a second hearing before it unexpectedly died in a 2-2 vote with one commissioner abstaining.

Mayor Jeff Banyas and Commissioner Jane Myron voted to move forward. Commissioners Ralph Van Brocklin and Clayton Stout voted no. Vice Mayor Carriger abstained, pointing out that he had family in that area who owned property.

The suit challenging Johnson City’s right of annexation remained alive until its dismissal Wednesday, but officials did not plan or move forward on any annexations in that area during that time.

Woodruff, counsel for the plaintiffs, said his clients were seeking a legal declaration that the Suncrest Annexation was null and void as well as attorney fees and costs. He said Thursday that while the suit may have been dismissed, he and others involved in the issue actually gained some ground.

“Technically, this ruling is a precedent for similar suits within the Eastern District of Tennessee,” he said. “He ruled that the allegations couldn’t be proven, which is really a summary judgment. The judge narrowed the definition of annexation, because we now have a new standard to go by. He basically said the only justification the city has is that the benefit (of the annexation) be justified as a government function.”

Woodruff said he has no immediate plans to file another suit, but he has not ruled out that option.

“They can now go back to annexing, but I’ve kept a couple theories in reserve,” he said.

Mark Larkey, Mike Ford and Roger Nave, the three Washington County commissioners whose district includes Gray, attended all City Commission meetings during the various phases of annexations. They also spoke at public hearings, workshops and community meetings.

These three, as well as the bulk of the county’s 25 commissioners, were opposed to the Gray annexations from the start. In particular, they fought for the right of county residents to have the choice of being annexed or not. They also claimed Johnson City was being too aggressive in its approach.

“Commissioners Ford, Nave and I have received the judge’s ruling, and our position remains unchanged: annexation should only occur when property owners and cities agree that annexation makes sense for the property owners affected,” Larkey said Thursday. “We will work with the city for a fair annexation plan that meets the needs of the city but respects property owners who desire to remain outside the city.”

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