Thursday, October 11, 2012

Intergovernmental Immunity

In a recent case from Missouri, the Missouri Court of Appeals concluded that a County choosing to construct a new government building within a small city was subject to the city’s building code requirements. Warren County v City of Warrenton, 2012 WL 4077370 (Mo. Ct. App. 2012). The ultimate result is based on a detailed reading of the enabling legislation in Missouri.

Such a detailed reading is probably not necessary here in Tennessee. Generally speaking, all local governments are exempt (or immune) from the building and zoning regulations of all other local governments. In fact so to is the state government, and also the federal government. There are differences for the final results, but the conclusion is clear: one local government cannot regulate the construction of a public building or other project, even within its jurisdiction, because the second local government is most often totally immune.

Probably the most significant case and certainly the most recent case is the Harpeth Valley Utilities District v Metro Nashville, 1998 Tenn. App. LEXIS 384 (Tenn App 1998). Judge Koch said there:
The Harpeth Valley Utility District has been operating since 1959 under the aegis of the Utilities Law of 1937, Tenn. Code Ann. §§ 7-82-101, -804,  providing water and sewerage disposal services to areas of Davidson, Williamson, and Cheatham Counties. As such, it is a governmental entity. See Tenn. Code Ann. § 7-82-301(a)(1) Unless specifically provided otherwise, a city's zoning power does not extend to state government instrumentalities located within its borders.
In the Harpeth Valley case, the utility district desired to expand its wastewater treatment plant located within the geographical jurisdiction of Metro Nashville. The city believed that the district had to comply with its zoning provisions and unfortunately for the district, the zoning precluded that particular use. As quoted above, the Tennessee Court of Appeals have little trouble finding in favor of the utility district.

The same is true with regard to building code regulations.

This is probably not the best way to resolve these difficulties. It seems to me that some type of a balancing test is warranted on those occasions where we have contests between different governmental entities regarding their right to use or construct a particular property within another government’s geographical jurisdiction. There are several different formulations which attempt to balance the equities under those circumstances I won’t get into a detailed review of those. But the law here in Tennessee remains as it has been for the last 50 years or so, that there is what amounts to an automatic exemption. At some point, the General Assembly needs to address this issue and allow some balancing depending on the particular circumstances of each case.

No comments:

Post a Comment