By Clay Bailey, Richard Locker, Commercial Appeal
October 29, 2010

Two weeks ago, consolidation backers were delighted with a state Attorney General’s opinion affirming the proposed charter could allow unincorporated residents to vote on whether they are annexed.

Now, supporters are dealing with a setback from a separate legal opinion.

Atty. Gen. Robert E. Cooper Jr. issued an opinion Thursday that the proposed Metropolitan Government charter would eliminate reserve annexation agreements, meaning suburbs would have no room to expand under consolidation.

“It’s only the opinion of one attorney,” said Julie Ellis, chairwoman of the Metropolitan Government Charter Commission. “I think the opinion was accurate two weeks ago. I don’t believe (Cooper) has gone into the two laws … sufficiently to opine on the matter.”

The question was a major sticking point for the Charter Commission as it drafted the document to merge Memphis and Shelby County government, which people will vote on Tuesday. Suburban leaders, who already oppose consolidation, have long expressed concern about losing the agreements adopted about 10 years ago, outlining the future boundaries for all of Shelby County’s municipalities.

The suburbs remain autonomous under the current charter proposal.

During the Charter Commission discussions, then-County Atty. Brian Kuhn told commissioners the annexation reserve agreements would be eliminated if consolidation was approved.

But the Charter Commission sought an outside opinion from attorneys Lori Patterson and Jonathan Hancock of Baker Donelson, who told Charter Commissioners they believed the provision to leave the urban growth boundaries in place was appropriate.

Opponents had their doubts, and state Sen. Mark Norris, R-Collierville, sought Cooper’s opinion.

“The reason for this provision,” Cooper wrote, “is that the (smaller) municipality may not annex any territory within the metropolitan government. In light of this language, it is the opinion of this Office that the General Assembly did not intend for annexation reserve area agreements to survive in a county where a metropolitan form of government is adopted.”

Ellis stood by the commission’s decision to include the annexation reserve areas in the document, and discounted Cooper’s opinion. “I believe his opinion is wrong, and the Charter Commission’s opinion from Baker Donelson is correct,” she said.

Germantown Mayor Sharon Goldsworthy said discussions about the county’s future must keep the reserve areas intact. She said suburbs have made infrastructure plans based on the accords.

“The AG’s latest opinion is an absolute reversal of what reserve area residents were told they could expect under a metro government,” Goldsworthy said. “Although it’s too late for those who early voted, it is critical information for those who will be voting Tuesday.”

City Councilman Jim Strickland, chairman of the Charter Commission’s legislative task force, saw a benefit to the attorney general’s rulings. He noted that with the previous opinion that unincorporated residents are allowed to vote and the elimination of the suburban reserve areas, none of those outside of a city could be annexed without their vote.

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