Tennessee § 6-1-201 - Right to adopt charter — Incorporation within specified distances from existing cities.

§ 6-1-201. Right to adopt charter — Incorporation within specified distances from existing cities.

The residents of any incorporated municipality or of any territory wanting to incorporate under this charter may adopt chapters 1-4 of this title in the manner provided in this chapter. Thereupon, the municipality or territory shall be and become incorporated and be governed as set forth in this chapter. No unincorporated territory shall be incorporated under this charter unless such territory contains not fewer than one thousand five hundred (1,500) persons, who shall be actual residents of the territory. No unincorporated territory shall be allowed to hold a referendum on the question of whether or not to incorporate under this charter until a plan of services is documented, setting forth the identification and projected timing of municipal services proposed to be provided and the revenue from purely local sources to be payable annually. The plan of services shall be attached to the petition to incorporate when such petition is filed with the county election commission. The plan of services shall include, but not be limited to, police protection, fire protection, water service, sanitary sewage system, solid waste disposal, road and street construction and repair, recreational facilities, a proposed five-year operational budget, including projected revenues and expenditures, and the revenue from purely local sources to be payable annually. Municipalities that are first incorporated on or after July 1, 1993, and that produce no local own-source revenues in any fiscal year, shall not receive any state-shared revenues during the next fiscal year. Prior to filing the petition with the county election commission, a public hearing on the referendum on the question of whether or not to incorporate under this charter and plan of services shall be conducted. The public hearing shall be advertised in a newspaper of general circulation for two (2) consecutive weeks. Except as provided in subdivision (b)(2), no unincorporated territory shall be incorporated within three (3) miles of an existing municipality or within five (5) miles of an existing municipality of one hundred thousand (100,000) or more in population according to the latest census certified by the department of economic and community development. “Existing municipality” and “existing municipality of one hundred thousand (100,000) or more in population” do not include any county with a metropolitan form of government with a population of one hundred thousand (100,000) or more, according to the 1990 federal census or any subsequent census. If any part of the unincorporated territory proposed for incorporation is within five (5) miles of an existing municipality of one hundred thousand (100,000) or more, according to the most recent federal census, and if the governing body of such municipality adopts a resolution by a two-thirds (2/3) vote indicating that the municipality has no desire to annex the territory, such territory may be included in a proposed new municipality. A petition for incorporation shall include a certified copy of such resolution from the affected municipality. In any county having a population of more than eighteen thousand two hundred (18,200) and less than eighteen thousand five hundred (18,500), according to the latest census certified by the department of economic and community development, if any part of the unincorporated territory proposed for incorporation is within five (5) miles of an existing municipality of one hundred thousand (100,000) or more in population or within two (2) miles of an existing municipality of more than one thousand (1,000) and fewer than one hundred thousand (100,000) in population, according to the 1990 federal census or any subsequent census, then action on the petition as provided in §§ 6-1-202 and 6-1-204 shall be held in abeyance for fifteen (15) months from the date of filing the petition. If, within this period, the existing municipality does not annex at least twenty percent (20%) of the land area or twenty percent (20%) of the population of the territory proposed for incorporation, then proceedings shall be continued as provided in §§ 6-1-202 and 6-1-204 as though the petition had been filed at the conclusion of the fifteen-month period. If the existing municipality annexes at least that part of the territory within this period, then the petition shall be null and void. Notwithstanding subsection (a) or (b) to the contrary, a territory may be incorporated if the following conditions are fulfilled: The territory contains two hundred twenty-five (225) residents or more; The territory is composed of property that is one thousand six hundred feet (1,600') or more above sea level on the western border of the territory and contiguous with a county boundary on the eastern border of the territory; The territory is located within an area that is bordered on the west, north and east by the Tennessee River and on the south by the border between Tennessee and another state; and The territory is located within a metropolitan statistical area. Notwithstanding subsections (a)-(c) to the contrary, a territory may be incorporated that meets the following conditions: The territory contains three hundred (300) residents or more; The territory's western boundary is contiguous with the western boundary of the county in which it is located; The territory is located within an area bordered on the north by the Loosahatchie River and on the south by the Wolf River; The territory's eastern boundary is approximately parallel with the western boundary, but in no place is more than eight (8) miles from the western boundary; and The territory is located within a metropolitan statistical area. Notwithstanding the requirements of this section, or §§ 6-1-202, 6-1-203, and 6-1-209, or any other law to the contrary, the petition for incorporation of the territory described in this subsection (e) may consist of a letter from a resident of the territory desiring to incorporate to the county election commission requesting that the question of incorporating the territory be placed on the ballot. The letter shall describe the exact boundaries of the proposed municipality, indicate the name of the proposed municipality, and indicate under which charter the territory desires to incorporate. The letter shall be treated as a petition meeting all the requirements of law. Notwithstanding any law to the contrary, whenever the governing body of any existing city affected by this section, by a resolution adopted by a majority vote of its governing body, indicates that it has no interest in annexing the property to be incorporated, and when a certified copy of such resolution and a petition requesting that an incorporation election be held are filed with the county election commission, then the proceedings shall continue as provided in this chapter as though the proposed new incorporation was not within the specified distance of such existing city as provided in this section. Subdivision (f)(1) applies in counties having a population of not less than eighty thousand (80,000) nor more than eighty-three thousand (83,000), according to the 1990 federal census or any subsequent federal census, and in counties having a population of not less than twenty-four thousand six hundred seventy-six (24,676) nor more than twenty-four thousand seven hundred (24,700), according to the 2010 federal census or any subsequent federal census. An existing municipality located in an adjoining county may adopt a resolution in accordance with subdivision (f)(1) for purposes of authorizing incorporation under this subsection (f). Nothing in this part affects an existing municipality's authority to annex unincorporated areas within the existing municipality's urban growth boundary. Acts 1991, ch. 154, § 1; 1993, ch. 320, §§ 1, 2; 1995, ch. 13, § 1; 1995, ch. 202, § 1; 1996, ch. 666, §§ 1, 4; 1996, ch. 708, §§ 1, 3; 1997, ch. 98, §§ 7-10; 1998, ch. 1101, § 27; 2018, ch. 760, §§ 1, 2. Code Commission Notes. The 1997 amendments to this section (enacted pursuant to Acts 1997, ch. 98, §§ 7-11) were found unconstitutional by the Tennessee Supreme Court in Tennessee Municipal League v. Thompson, 958 S.W.2d 333 (Tenn. 1997). The provisions as set out above reflect the section as it appeared prior to the 1997 amendments and as amended by subsequent legislation. Former § 6-1-201(d)(2) , concerning the incorporation of the territory described in the present provisions of subsection (d) notwithstanding the provisions and restrictions in subsections (a) and (b), was deleted by the code commission in 2005. Compiler's Notes. Former part 2, §§ 6-1-201 — 6-1-218 (Code 1858, §§ 1349, 1353, 4562; Acts 1875, ch. 92, §§ 1-7, 17; 1877, ch. 121, §§ 1, 3-9; 1899, ch. 307, § 2; Shan., §§ 1855, 1881-1896, 1900-1902, 6400; mod. Code 1932, §§ 3292-3307, 3311-3313, 10704; Acts 1951, ch. 166, § 1; modified; 1955, ch. 295, §§ 1, 2; 1957, ch. 346, § 1; 1959, ch. 295, §§ 1-6; 1970, ch. 426, §§ 1-6; 1971, ch. 260, § 1; 1974, ch. 776, § 1; T.C.A. (orig. ed.), §§ 6-101 — 6-116, 6-120, 6-121; Acts 1980, ch. 500, § 1; 1980, ch. 515, §§ 1-3; 1983, ch. 33, §§ 1, 2; 1984, ch. 743, § 1), concerning areas not already within municipalities, was repealed and replaced by Acts 1991, ch. 154, § 1, effective July 1, 1991. Acts 1993, ch. 320, § 9 provided that the amendments by that act shall have no effect on a petition for incorporation filed with the county election commissioner before July 1, 1993. It further provided that if litigation concerning the validity of a municipal charter is pending in either a trial or appellate court on July 1, 1993, then neither the amendments by that act nor title 6, chapter 51 shall be construed or applied in any manner that would prevent or restrict the territory described within such charter from once again incorporating as a municipality, should the court rule against the validity of the charter. Acts 1995, ch. 13, § 15 provided: “The change effected by Acts 1995, ch. 13, § 1, shall not apply to any locality for which a petition for incorporation was filed before March 17, 1995, for the purpose of allowing the incorporation election to go forward.” For tables of population of Tennessee municipalities, and for U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement. Amendments. The 2018 amendment rewrote (f)(2) which read: “Subdivision (f)(1) shall only apply in counties having a population of not less than eighty thousand (80,000) nor more than eighty-three thousand (83,000), according to the 1990 federal census or any subsequent federal census; provided, that in an adjoining county an existing municipality that is within the specified distance may also use the procedure authorized by subdivision (f)(1).”; and added (g). Effective Dates. Acts 2018, ch. 760, § 3. April 19, 2018. Law Reviews. Two Claims, Two Keys—Overcoming Tennessee's Dual-Majority Voting Mechanism to Facilitate Consolidation Between Memphis City and Shelby County (D. Eric Setterlund), 41 U. Mem. L. Rev. 933 (2011). Attorney General Opinions. Restrictions on municipal incorporation: constitutionality, OAG 95-114, 1995 Tenn. AG LEXIS 127 (11/21/95).