# FILED
June 12, 1998 Cecil W. Crowson Appellate Cou rt Clerk HARPETH VALLEY UTILI TIES ) DISTRICT OF DAVIDSON AND ) WILLIAMSON COUNTIES, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 97-2895-III ) VS. ) ) THE METROPOLITAN G OVERNMENT) Appeal No. OF NASHVILLE & DAVIDSON ) 01A01-9711-CH-00686 COUNTY, ) ) Defendant/Appellee. ) ) RAY BELL, GLENDA BELL, WILLIAM ) COBLE, DR. ROY PARKER, JIMMY ) JONES, WESLEY BARNES, FANNIE C. ) BUCHANAN, KEITH VA UGHN, JOEL ) CHEEK, DANNY GR

AVES, EDDIE ) GRAVES, JERRY GRAVES, ANNIE K. ) GRAVES, MACK AND WANDA ) LOVELL, JOE COLLIER, JIM ) FESMIRA, MAC K

ELL, THOMAS ) ROGERS, GENE ROGERS, AND ) GEORGE ROGERS, ) ) Intervenors-Defendants/Appellees )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE ELLEN HOBBS LYLE, C HANCELLOR Val Stanford, #3316 GULLETT , SANF ORD, R OBINSO N & MAR TIN, PLLC 230 Fourth Avenue North, 3rd Floor P.O. Box 198888 Nashville, Tennessee 37219-8888 Robert E. Parker, #2756 George A. Dean, #6737 PARKER, LAWRENCE, CANTRELL & DEAN Fifth Floor, 200 F

ourth Avenue, Nor

th Nashville, Tennessee 37219 ATTORNEYS FOR PLAINTIFF /APPELLANT George E. Barrett, #2672 Phillip A. Purcell, #14453 J. Bryan Lewis, #15116 BARRETT, JOHNSTON & PARSLEY 217 Second Avenue

North Nashville, Tennessee 37201 Stephen O. Nunn, #9069 ATTORNEYS FOR INTERVENOR-DEFENDANTS/APPELL EES-2- Wesley G. Weeks, #18267 204 Metro Courthous

e Nashville, Tennessee 37201 ATTORNEYS FOR DEFENDANT/APPELLEE

REVERSED AND REMAN DED

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCURS IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE JERRY SMITH, SPECIAL JUDGE-3-

HARPETH VALLEY UTILI TIES ) DISTRICT OF DAVIDSON AND ) WILLIAMSON COUNTIES, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 97-2895-III ) VS. ) ) THE METROPOLITAN G OVERNMENT) Appeal No. OF NASHVILLE & DAVIDSON ) 01A01-9711-CH-00686 COUNTY, ) ) Defendant/Appellee. ) ) RAY BELL, GLENDA BELL, WILLIAM ) COBLE, DR. ROY PARKER, JIMMY ) JONES, WESLEY BARNES, FANNIE C. ) BUCHANAN, KEITH VA UGHN, JOEL ) CHEEK, DANNY GR

AVES, EDDIE ) GRAVES, JERRY GRAVES, ANNIE K. ) GRAVES, MACK AND WANDA ) LOVELL, JOE COLLIER, JIM ) FESMIRA, MAC K

ELL, THOMAS ) ROGERS, GENE ROGERS, AND ) GEORGE ROGERS, ) ) Intervenors-Defendants/Appellees )



## O P I N I O N

The origin of the present

controversy

is the plan of the Ha

rpeth Valley

Utility District to
construct and operate a wa

stewater disposa

l facil ity i n an area of Davidson County known as “Bell’s Bend.” The basic question on appeal is whether the planning and zoning authorities of Metropolitan Government of Nashville and D

avidson County

have jurisdiction to regulate the proposedfacility. The Trial Court rendered sum mary judgmen

t that the local authorities had such jurisdiction.

The utility a

ppealed to this Cour

t.

Twenty -one residents of Bell’s Bend were permitted to intervene in the Trial Court proceedings, a

nd they have

participated in th

is appeal.

The utility pr

esents the followi

ng issues: 1. Whether

under the decisions of theTennesseeCourts andthe statutes empow erin g METRO to adopt zoning-4- regulations,

such zoning regulations are applicable to HVUD, as an agency

or instrumentality of

the State of Tenne

ssee, in carrying out its basic

statutory powers to locate, construct and operate a wastewater treatment facility; and 2. Whether

under a proper c

onstruction of the Utility District Law of 1937, T.C.A. §§ 7-82-101 et seq ., METRO is preempted

and preclu

ded from app lyi ng its zoning regulations to the location, constr

uction and operation of a wastewater treatment facility by HVUD. The Metropolitan G

overnment prese

nts the following i

ssues: Whether, as a matter of law, the Chancery Court was

correct in holding the HVUD

must comply with the local zoning ordinance of the Metropolitan Government of Nashville and Davidson County in

its effort to build a wastewater treatment faci lit y in D avi dso n Co unt y. Whether the application of generally accepted ru le s of statutory construction demonstrates that the Chancery Court properly held that HV UD is subject to the Metropolitan Government’s zoning ordinance. Whether this Court should adoptthe “Balancing of Interests

” test to decide issues of

intergovernme

nt sovereign immu

nity in Tennessee, if th

is Co urt det ermines that the Chancery Court erred in its rul ing. Whether HVUD’s new p reemption argu men t is properly before this Court,

and if so, whether the relevant statutes are sufficient to pr ee mpt the zoning laws of Metropolitan Gov ernm ent of N ash vil le a nd D avi dso n Co unt y. Whether, HVUD has waived its immunity, if

any, to th

e Metropolitan Gove

rnment’s zoning r

egulations.

The Interve

nors present the i

ssues in the followi

ng form: The Bell Interve

no r Defendants, appellees herein, adopt the first issue presented for review by the Harpeth Valley Utilities District of Davidson and Williamson Counties (“HVUD”). HVUD’s states its second issue presented for review as “[w]hether

under a proper construction of the Utility District Law of 1937, T.C.A. §§ 7 -82

- 1 01 et seq ., METRO is preempted and precluded from apply

ing its zoning regulations to the location, construction andoperation of a wastewater treatment facility by HVUD.” The Bell Interv

enor Defendan

ts submit that HVUD has waivedthat argument not having pre sent ed it to the Trial-5- Courtand therefore objects to this Court considering that issue on appeal. Title 7, Chapter 81 of Tennessee Code Annotated is entitled “Sanitary Districts.” It was originally enacted as Chapte r 64 of the Public Acts of 1901.

Section 13 of the a

ct, T.C.A. § 7-81-1 09 provides: Incorporation - Designation as sanitary districts . - (a) Upon the registration of the certificate, the petitioners and their successors and all other vote rs of the town shall be incorporated

and b e ve sted with the righ t conferred by

this chapter, and none other, it being the intenti

on not t h e right conferred by this chapt

er, and none othe

r, it b eing t he intention not to confer upon the corpo rat ion the powers of incorporated towns in this state.

Section 27 of the sa

me act, T.C.A. § 7- 81-110 provides: General municipal laws preserved . - Nothing in this chapter shall be construe

d to alter, repea

l, or amendthe general laws for organizing municipal corporations or taxingdistricts in this state. [Acts 1901, ch. 64, § 27; Shan., § 2023a52; Code 1932, § 368 3; T.C.A. (

orig. ed.), § 6-25 33.] Section 25 of the sa

me act, T.C.A. § 7- 81-309 provides: Sanitary inspector . - It is the duty of the sanitary inspector to thoroughly

and carefully inspect the premises of eachresident of the town, and t o remov e and abate all nuisances at such times as the assembly ma y prescrib e, and to perform such other duties as the assembly may impose. The sanitary inspector shall, dur ing such inspector’s term of office, be vested with

the powe rs and duties of a c onstable within the corporate l im its of the town, but shall not serve civilprocess. The sanitary inspector’s compensation and the manner of paying the same shall be fixed b ythe ass emb ly. The san ita ry i nspector

shall not be requir

ed to reside within the corporate limits o

f the town. [Acts 1901, ch. 64, § 25; Shan., § 2023a50; Code 1932, § 3681, T.C.A. (orig. ed.), § 6- 2530.] Title 7, Chapter 82 of

Tennessee Code Annotated is entitled “Utility Districts.” It was originally enacted as Chapter 248 of the Public Acts of 1937. Section 9 of the act, T.C.A. § 7- 82-103, containe

d the following pr

ovisions:-6- (a) the provisions of §§ 7-82-102 and 7-82-4 02( b) shallnot apply

to those water

utility districts having less than one thousand (1,000) subscribers to its service.

Section 17 of the sa

me act, T.C.A. § 7- 82-107 provides: Chapterunaffected by

other law - Construction . - This chapter is comp

lete in itself a nd shall be controlli ng. The provisions of a ny other law, general, spe cial or local, except as providedin this chapter, sh all not apply

to a district incorporated

hereunder; provided, that nothing in this chapter shallbe construed as impairing the powers and duties of the department

of environment and c

onservation. [Acts

1937, ch. 248, § 17; C. Supp. 1950, § 36 95 .43 (Williams, § 3695.42); T.C.A. (orig. ed.), § 6-2627.] Section 16 of the same act, T.C.A. § 7-82-104, contained the following provision:

Exemption from state regulat ion - Rules of construction

. (a) Neither the public service commission nor any other board or co mmissi on of like character hereafter created sha ll have jurisdiction over the district in the management

and control of any system, including the regulationof its rates, fees, tolls or charges, except to the e xtent p rovided by this chapter and by the Wastewa ter Facilities Act of 1987, compiledin title 68, chapter 221, part 10.

Section 3 of the sam

e act, T.C.A. § 7-8

2-301 provides: District as municipality - Powers- Failure to act - Name change . (a)(1) From a nd after the date

of the making andfiling of such

order of incorporation

, the district so incorporated

shall be a “mun ici pality” or public corporation in perpetuity

under itscorporate name, and the same shall in th at name be a body politic and corporate with power o f perpetual succession, but without any power to levy or collect taxes. Charges for services authorized herein shall not be construed as taxes

.
Section 5 of the sam

e act, T.C.A. § 7-8

2-302 provides: Power to o pera te utilities . (a)(1) Any district heretoforeor hereafter created under authority of this chapter is empowered to

conduct , operate and maintain a system or systems for t

he furnishing of

water, sewer, s

ewage disposa

l.

Section 18 of the sa

me act, T.C.A. § 7- 82-305 provides: Emine nt domain. Any district has the power t o condemn either the fee o

r such rig

ht, t itle interest, or-7- easement in the property asthe board may deem necessary for any of the purposes mention ed i n this chapter, and such property or i nte res t in suc h pr ope rty m ay b e so acquired whethe ror not the same is owned or held for public use by corporations,

associations or persons having the power of eminent domain, or oth erwise held or us ed for public purposes; pr ovided, that such prior public use will not be interfered with by this use. Title 68, Chapter

221 of Tennessee Code Annotated is entitled “Water and Sewerage.” It was enacted by Chapter 52 of the Public Acts of 1945.

Section 1 of said ac

t, T.C.A. § 68-221- 101(a)(11) pro vides: (11) “Sewage ” means all water-carried human and household

wastes from residences, buildings, institution s or industrial establishments, together with such ground, surface, or storm water as

may be pres

ent.
Section 2, T.C.A. § 68-221-102, provid es: Supervision overconstruction of water supply and sewerage systems -

Certification of local standards . (a)(1) The department shall exercise general supervision over the construction of public water su pplies and publi

c sewerage systems throughout the state. (2) Such general s

upe rvision shall include all of the features o f c onstruction of waterworks systems which do or may affect the san i tary quality of the water supp

ly and all features of construction of sewerage systems which do or may affect the proper collection, treatment or disposal of sewage. (3) No new c ons truction shall be done, nor shall any change be made in any public water supp

ly or public sewerage system, until the plans for such new construction or change have been submitted to and approved by the department.

Title68, Chapter 221, Section 6 of Tennessee Code Annotated, enacted by Chapter 605, Public Acts of 1974, is entitled “Water and Wastewater Authorities.”

Section 2 of said ac

t, T.C.A. § 68-221- 602, provides: (a) It is hereb y decl ared that water and wastewater treatment authorities crea

ted pursuant to this

partshall be-8- public and governmental bodies acting as agencies and instrumenta

lities of the creating a nd participatin

g governmentalentities; and that the acquisition, operation and finance of water and wa stewater treat

ment w orks b y such aut horities is hereby declared to be for a public a n d gove rnm ent al p urp ose and a ma tte r ofpub lic nece ssi ty.
(b) The property of revenues of the authority, or any interest therein, are exempt from al l state, county and municipal taxati on. [Acts 1974, ch. 605, § 2, T.C.A. §§ 53- 6002, 68-13-602.]

Section 7 of the sam

e act, T.C.A. § 68-

221-607 provides: An authority ha

s all powers nece

ssary to ac

complish the purposes of this part (excludi n g the power to levy and collect tax es) includ ing, but no t limited to, the fol lowing: (1) Have perpetual

succession, sue and

be sued, and adopt a corpora

te seal; (2) Plan , es tablish, acquire, construct, improve and operate one (1) or more treatment works within or without the creating and partic ipating gover nmental entities a

nd within this state and within any adjoining state.

Section 10 of the sa

me act, T.C.A. § 68-

221-610 provides: Power to c o ndemn property . (a) An authority has th e pow er to condemn either the fee or such right, title, interest or easement in the property as the board may deem necessary for any of the purposes mentioned in this part, and such property or

interest in such pr

operty may be so acquired whether or not t he same i s owned or held for public use by corporations,

associations or persons having the power of eminent domain, or otherwise held or used for public purposes; provided, th

at such prior public use will not be interfered with by this use.

MUNICIPAL ZONING Title13, Chapter 4 of Te

nnessee Code Anno

tated is entitled “

Munic ip al Pl annin g.” It was enacted by Chapter 34 of the Public Acts of 1935.

Section 13-4-101 p

rovides in part: (a) The chief legislative bo dy of any municipa lity (whether designated boa

rd of ald

erme n, board of-9- commissioners or

byother title) may create and establish a municipal planning commission. Section 13-4-104 p

rovides in part: Submission o f proposed cons truction to commission

- approval - Failur

e to approve, over

ruling . - Whenever

the commission shall have adopted the plan of the municipality

or any part

ther eof, then and thenceforth no street, park or other public way, ground, place or spac e, no public building or structure, or no public utility, whether publicly or priva tely owned, shall be constructed or authorized in t he municipality until and unless the location andextent thereof sha

ll have been submitted to and approved by the planning commission ; provided, that in case of disa p proval, the commission shall communicate its re

asons to the chief legislative bodyof the municipality, and such legis lative body, by a vote of a majority of its membership, shall have the pow

er to overrule

such disapproval and, upon such overruling, suc

h legislative bod

y shall have the power to proceed. Section 13-4-201 p

rovides in part: General plan for physic al development . - It is the function and duty of the com missi on to make and adopt an official general plan f

or the physic

al develo pment o f the muni cipa lit y, including any area outside of its boundaries which, i n the commission’s judgment, bears relation to the pla nni ng of the mun ici pal ity.

MUNICIPAL ZONING Title13, Chapter 7 of Te

nnessee Code Anno

tated is entitled “zoning.” Part 2 of said title is entitled “Municipal Zoning.” It was enacted by chapter 44 of the Public Acts of 1935.

Section 13-7-201 p

rovides in part:

Grant of power

. - (a)(1) For the purpose of promoting the public health, safety, morals, convenience, order, prosperity and general welfare, the boa rd of aldermen, boardof commissioners or other chief legislative body of any municipality

by whatever title designated (and h erein after designated

as “chief legi sla tive body”) , is empowered, in accordance

with the conditions and the procedurespecified in this p art and part 3 of t

his chapter, to re

gulate the loca

ti on , height, bulk, number of stories and size of buildings and other structures,

the percentage of the lot which may be occupied,-10- the sizes of yards, courts and other open spaces, the density of population, and the uses of buildings, structures and land for trade, industry, re

sidence, recre

ation, public activities and other purposes. Specia

l districtsor zones may

be established in those areas dee

med subject to sea

sonal or periodic flooding, andsuch regulations may be applied therein as will minimize danger to life and property, and as will secure to the citizens of Tennessee the eligibility for flood insurance under Public Law 1016, 8 4th Co ngress or subsequent related laws or regulations promulgated thereunder. Protec tion and encouragement

of access to sunlight for solar

energy s ystems may be considered in promulgating zoning regulat ion s pursuant to this section. Section 13-7-202 p

rovides in part: Zo ning pla n . - Whenever the planning commission of the municipality makes and certifies to the c hief l egislative bodya zoning plan, including both the full text of a zoni n g ordinance and the maps, re presenting the recommendations of the planning commission for the regulation b y districts or zones of the location, height, bulk, number of stories and size of buildings and other structures, the percentage of the log which may be occ

upied, the size of y

ards, courts a

nd oth er o pen sp aces, the density of population, and the uses of buildings, structures and land for trade, indu str y, residence, recreation, public activities and other purposes, then the chief legislative body may exercise the powers g ranted and for the purposes men tio ned in § 13- 7-2 01, and may div ide the municipality

into districts or zones of such number, shape and areas it may determine, and, for such purpose s, may regu

late the erection, construction, reconstruction, alteration and uses of buildings and structures and the uses of land. [Acts 1935, ch. 44, § 2; C. Supp. 1950, § 3407.2; T.C.A. (orig. ed.), § 13- 702.] Section 13-7-204 p

rovides in part: Amendmentsto zoni n g ordinances . - The zoning ordinances including the maps, may from time to time be amended; butno amendment shall become effective unless it is first sub mitted to and approved by the planning commission or, if disapproved, receives the favorable vote of a majority of the entire membershi

p of the chief leg

islative body . [Acts 1935, ch. 44, § 4; C. Supp. 1950, § 3407.4; T.C.A. (orig. ed.), § 13-704.] Section 13-7-205 p

rovides in part: (a ) The ch ief legislative body may cr eate a board of zoning appeals of

three (3) or fiv

e (5) members.-11- Section 13-7-206 p

rovides in part: Jurisdiction of board - Parties to appeals

. - (a) The zoning ordinance may provide that the board of ap peal s ma y, in appropriate ca

ses and subject to t

he principles, st

an dards, rules, conditions and safeguards set forth in the ordinance, make special exceptions to the terms of the zoning regulations in harmony with their general purpose and intent. The chief legislative bod y m ay also authorize the board of appeal

s to interpret the zoning maps and pass upon disputed questions of lot lines or distri ct bou ndary lines or similar questions as they arise in the administratio

n of the zoning re

gulations. ( b) Appeals to the board of appeals may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any grant or refusal of a building permit or other act or deci sion of the building commissioner

of the mun icipality or other administrative official based in whole orpart upon the prov isions of this ordinance enacted under this part and par t 3 of this chapter. [Acts 1935, ch. 44, § 5; C. Supp. 1950, § 3 407.5; T.C.A. (orig. ed.), § 13-706.] Section 13-7-207 p

rovides in part: Powers of board of appea ls

. - The board of

appeals has the power to:

- - - - (2) Hear

and decide, in accordance with the provisions of any such ordinance, req

uests f or s pecial exceptions or for interpretation of the map or for decisions upon other special q

ues tions upon which suc h board is authorized by any such ordinance to pass; and

- - - - withoutsubstantial detriment to the public good and without subst an tially

impairing the intent and purpose of the zone plan andzoning ordinance. (Acts 193 5 , ch. 44, § 5; C. Supp. 1950, § 3407.5; T.C.A. (orig. ed.), § 13-707.]

Sections 13-7-302, 304 and 305 provid e in part: 13-7-302. Establishment of zo n es or districts outside municipality . - Power is hereby granted to thechief legislative body of any

municipality

to establish by ordinance zone s or districts in territory adjoining but outside of such municipality

and lying w i thin planning regions in which the municipal planning commission has been designa ted a s the regionalplanning commis sion under § 13- 3-102, and in which territory the county h

as no zoning alre

ady in force; provided, that pri or to fi nal enactment of such ordinance, six (6) months’ notice of intent sh all have been fil

ed with the county executive of the cou n ty or counties within which the municipality

and./o r region lies. Within such zones or districtsthe municipality may by ordinance regulate the-12- location, height, bulk, num ber of stori es and size of buildin gs an d otherstructures, the percentage of lot occupancy , the required open spaces, the density of population and the uses of land, buildings, a

nd structures. [Ac

ts 19 59, ch. 217, § 1; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A., § 130611,] 13-7-304. Board of appeals - Cre ation - Member

s, appointment

- Terms . - In adop tin g the regional zoning ordinance, the chief

legislative body of

the municipality

shall create a board of zoning appeals consisting of three (3) or five (5) members, a majority of whom shall be residents of the territory subjec t to the regional zoning provisions, and who shallbe appointed for terms of such length and so arranged that the term of one (1) member shall expire each

year. [Acts 1959, ch. 217, § 3; T.C.A., § 13-713.] 13-7-305. Application of part 2 of this chapter. - The terms of the municipal zoning regulations as appearing in part 2 of this ch a pter shall apply accept as spec

ifically oth

erwise provided in this

part. [Acts 1959, ch. 217, § 4; T.C.A., § 13- 714.]

METROPOLITAN GOVERNMENT Title 7, Chapter 2 of Tennessee Code Annotated authorizes the creation of a combined government

for cities and counties. It was enacted by chapter 120 of the Public Act

of 1957 and subsequent

amendments. The de f

endant, Metropolitan Government was created under the authority of this legislation. In general, it was granted the mun

icipal powers of i

ts predecessors, the City of Nashville and County of Davidson.

The plaintiff, Harpeth Valley Utility Di strict, as created on August 18, 1959, by registrationof its charter with the Secretary of State under the provisions of T.C.A. §§ 7-82-101
et. seq. , the “Utility Law of 1937.” It provides water and sewerage disposal to areas of Davidson, Williamson and Cheatham. Its present disposal facilities are inadequate f or the pres ent and anticipated volume of wastewater.

On February

20, 1996, the Metro

politan Counse

l of d efendant, Metropolitan Government,

adopted Resolution R96-167 approving an agreement between Metropolitan Government and the plaintiff utility including the following provision:

The parties agree that if HVUD determines that construction of an additional wastewater facility, to be sited downs tream-13- from the Whites C reek Facility, is in the best interests of HVUD custom ers and ratepay ers, METRO will coo

perate wi th and use its best efforts to assist HVUD in its ef

forts to locate and const

ruct s uch an ad dit ion al t reat men t fa cil ity. METRO wi ll incu r no financial obl igation by v

irtue of this assistance or cooperation. HVUD agrees t

o discuss with METRO possible service to or treatment of

METRO wastewater

at HVUD’s downstream

plant. If HVUD hasnot begunconstruction of its ow n wastewater treatment facility by December

31, 1998, HVUD agrees to enter into a new truck andtreatment agr

eement with METRO, witht erms substantially

similar to the e xis ting Trunk and Treatment Agreement

and providing fo

r rates and prices adjusted for increases or de

creases in METRO ’s actual costs.

Plaintiff engaged the services of a competent engineering firm which provided a plan for

a wastewater

disposal facility. Plaintiff has acquired approximately 297 acres in “Bell’s Bend” which satisfies the cri

teria of its planning engineers. The Tennessee Department of Environment and Con ser vat ion has app rov ed t he l ocat ion and pla n of the faci lit y.

Potential bidders for construction of the facility

are unwilling to

contract to perform the construction without a building permit from the Metropolitan Department of Codes Administration or a

court decision re

lieving plaintiff

of the duty to

obtain such a per

mit.

Application was made to the Metropolitan Zoning Administrator for such a permit, but the application was denied because “a wastewater treatment facility is not a permitted use at the location indicated in your plans”.

Metropolitan Government has no jurisdiction to

interfe re with the construction of plaintiff’s planned wastewater disposal facility after approval by the St ate Department of Environment and Con

servation for a n

umber of reasons :

1. The Legislature provided for sanitary districts in 1901, ther eby pre-empting control of

suc h act ivi ty.-14-

2. Municipal Planning and Zoning was legislated i n 1935, but the legislation granted no powers over othe

r governmenta

l bodies.

3. In 1937, the L

egislative prov

ided that utility

districts were g

overnmental bodie

s.

4. The Metropolitan Counse l, which planning powers over the actions of its planning and

zon ing a genc ies , ha s le gisl ati vel y app rov ed t he co nst ruct ion of p lai nti ff’s pla nne d fac ili ty.

The intervenors argue that the plaintiff m ay not rely upon the doctrine of preemption because it was notpresented to the Trial Court. The record contains a memorandum filed in the Trial Court on August 28, 1997, presenting this issue.

Metropolitan Government arg ues that municipal regu lation of water ut ilities is permissible. However, no authority is cited or found that waste water facil ities are subject

to

mun ici pal regu lat ion con tra ry to the exp res s act ion of t he m uni cip al l egis lat ive aut hor ity.

In Davidson County v. Harmon , 200 Tenn. 575, 292 S.W.2d 777 (1956), th

e State o f Tennessee planned a structu re adjacent to a

municipal airport

. The Supreme

Courtheld that the Statewas not subject to county zoning regulation despite the fact that the State had sought approval of county zon

ing authorities.

The Court also

he ld that a private act creating local zoning aut hor ity d id no t waive governm ental immunity

of the State or its in

strumentalities un

less the intention to do so

was clearly

expressed in the ac

t.

The legislative act

under whichplaintiff was created clearly qualifies it for gove rnmental imm uni ty, and sub seq uen t le gisl ati on a s to sew age d isp osa l ac tiv iti es ac cent uat es t his imm uni ty. Campbell v. City of Kn

oxville , Tenn. 1974, 505 S.W.2d 710.-15- Local governments have no power to forbid what the general law of the State authorizes. State ex. rel

. Polin v. Hill , Tenn. 1977, 547 S.W.2d 916.

The power

of eminent domain includes the power to locate the public improvement for which private propert

y istaken. City of Maryville v. Edmondson , Tenn. App. 1996, 931 S.W.2d 932.

The plaintiff

and any persons

or firms acting f

or plaintiffs are

authorized to proc

eed with the c onstruction of its proposed wastewater disposal facility as approved by the State Departmen t of Environment and Conservation without any permit or license from any division of the local Metropolitan Gove

rnment.

The question of

what if any rights, if any, the intervenors or others to recover damages is outside the scope of this appeal.

For the reasons discussed above, the judgment of the Trial Court is reversed and vacated. One-half of the costs of this appeal is taxedagainst the Metr opolitan Governme

nt of Nashville andDavidson County and one-half of said costs is taxed agains t the captioned int ervenors, j ointly and severally . The cause is re manded to the Tria

l Court for entry

of judgment in conformity

withthis opinion, includi

ng an equitable

assignment of lia

bility against Metropolitan Government and th

e intervenors fo

r costs accrued

in that court.

REVERSED AND REMANDED.

_________________________________ HENRY F. TODD PRESIDING JUDGE, MI

DDLE S ECTIO N

CONCURS IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE JERRY SMITH, SPECIAL JUDGE