Can a Tennessee city require a special school district to get permits and follow zoning rules when building a school inside city limits?

Plain-English summary

Representative Glen Casada asked the AG two questions about the relationship between Tennessee cities and special school districts (which are creatures of state private acts). First: can a city require a special school district to pay building permit and plan review fees for school construction within city limits? Second: does a special school district have to follow the city's planning and zoning rules?

AG Cooper's answer for both questions: it depends. The same analysis governs both. The questions narrow themselves: they assume the city is not trying to ban school construction outright, they do not ask about state or local building codes (which apply separately), and they do not allege arbitrary or unreasonable application of zoning. The pure question is whether the city's general zoning ordinance applies to a special school district as such.

Tennessee has not directly legislated this. Tennessee Code § 49-2-106 lets the General Assembly create special school districts by private act. Each district's powers are defined by its specific private act. Tennessee Code § 13-7-201 et seq. gives cities general zoning authority. Tennessee case law (Davidson County v. Harmon, 1956) confirms cities cannot regulate state property within city limits, but does not address whether a state-private-act creature like a special school district counts as state property for this purpose.

Out-of-state courts have answered the question both ways. Generally, cities can apply their zoning to special school districts (as an exercise of police power) unless one of two exceptions applies: (1) the city is trying to bar the district from locating a school in the city at all (Texas Supreme Court in Austin v. City of Sunset Valley, 1973), or (2) the private act creating the district specifically addresses the area the city wants to regulate (Texas Supreme Court in Port Arthur v. City of Groves, 1964). Three cases illustrate the spectrum: Port Arthur and School District of Philadelphia upheld the city's zoning over the school district; Hall v. City of Taft (Cal. 1956) and Bd. of Ed. of St. Louis (Mo. 1916) found preemption by state law.

The takeaway for Tennessee: lawyers must read both the private act creating the specific special school district and the specific city ordinance to determine the answer. There is no single state-law rule.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What's a "special school district" in Tennessee?
A: A school district created by a specific private act of the General Assembly, separate from the standard county or municipal school district structures. Tennessee Code § 49-2-106 authorizes their creation. Each special school district has its own powers, taxing authority, and governance defined by its private act.

Q: Why does the answer depend on the private act?
A: Because the private act sets the powers of the special school district. If the act says nothing about construction or building permits, the district is subject to general law (which arguably means city zoning under the police-power approach). If the act gives the district plenary authority over its facilities, the district may be exempt from city zoning by preemption.

Q: Can a city outright prevent a special school district from building a school in the city?
A: No, under the line of cases the AG cites. The Texas Supreme Court held in Austin Independent School District v. City of Sunset Valley (1973) that a city cannot use its zoning power to bar a school district from locating in the city. The general police power supports zoning regulation but not prohibition.

Q: Does this opinion answer whether the city can charge fees specifically?
A: Not directly. The fee question turns on the same analysis as the regulation question. If the city's zoning ordinance applies to the special school district, the city's fee schedule for building permits and plan review under that ordinance also applies. If the district is exempt from the ordinance, it is also exempt from the fees.

Q: What about state building codes?
A: The opinion expressly excludes those from the scope. State and local building codes (the codes themselves, not the local zoning ordinance) operate under separate authority and are not the subject of the AG's analysis. A school district is generally subject to state building codes regardless of the zoning question.

Q: How would a court actually decide this?
A: By reading the private act first to determine whether the legislature gave the special school district authority to make decisions about school construction free from local interference. Then reading the city's zoning ordinance to see what it requires. Then asking whether the ordinance interferes with the district's statutory authority. If yes, the ordinance is preempted. If no, the ordinance applies.

Q: Why does Davidson County v. Harmon matter?
A: It established that Tennessee cities cannot regulate state property within their boundaries. The principle does not directly answer the special-school-district question because special districts are not the state in the strict sense, but the case marks the outer boundary of city regulatory authority over governmental actors.

Q: What would the safest course be for a special school district planning to build?
A: Engage early with the city. Even if the legal question is uncertain, a cooperative approach that complies with reasonable city requirements (and challenges only those that interfere with the district's statutory authority) avoids litigation and delay. Districts that simply ignore city zoning risk an injunction action; cities that insist on their full ordinance risk a preemption challenge.

Background and statutory framework

Tennessee's local-government law is layered. Cities derive their zoning authority from Tenn. Code Ann. § 13-7-201 et seq., which gives them broad police power to regulate land use within their borders. Counties have parallel authority. Special school districts, in contrast, are creatures of legislative private act under Tenn. Code Ann. § 49-2-106. Each district has the powers its particular private act gives it, plus implied powers necessary to carry out its statutory purpose.

Two structural principles bracket the question. First, Tennessee state law (and the doctrine of intergovernmental immunity) holds that cities cannot regulate state property within city limits. Davidson County v. Harmon (Tenn. 1956). The principle reflects the constitutional supremacy of state authority over its own instrumentalities. Second, special school districts are not pure state property; they are localized legislative creations. The opinion notes that no Tennessee case directly resolves whether a special school district falls inside or outside the Davidson County principle.

Cooper turns to out-of-state authority because Tennessee precedent is silent. The pattern there: cities generally can apply zoning to special school districts as a valid exercise of police power, but two exceptions apply. The first exception is when the city is using its zoning to bar the district from locating in the city at all. The Texas Supreme Court rejected such a use of zoning in Austin Independent School District v. City of Sunset Valley (1973), reasoning that a city cannot use zoning to defeat the district's statutory purpose. The second exception is when the private act creating the district specifically addresses the area the city wants to regulate (the Port Arthur exception). If the act covers the topic comprehensively, the city's general zoning is preempted as to that topic.

The cases on the spectrum:

• Port Arthur Independent School District v. City of Groves (Tex. 1964): the city sought to apply building ordinances and require permits for school construction. No state legislation gave the school board comprehensive authority over construction safety. The court held the city's police power applied; the school district had to comply.

• Kansas City v. School District of Kansas City (Mo. 1947): cited approvingly in Port Arthur. Where the state has not occupied the field and the city has police power, the school district must comply.

• School District of Philadelphia v. Zoning Bd. of Adjustment (Pa. 1965): the city applied an off-street zoning ordinance to a school. The court upheld application: the state legislature had given the district authority over location and size of real estate but not "complete and plenary power over its physical plants." The city's ordinance protected health, safety, and welfare without interfering with the district's responsibilities.

• Hall v. City of Taft (Cal. 1956): California had adopted an "elaborate system of regulation and control of the construction of school buildings, including architectural inspections." The state regime preempted the city's zoning. Different result, driven by comprehensive state regulation.

• Bd. of Ed. of St. Louis v. City of St. Louis (Mo. 1916): state building commission required a particular type of vent that conflicted with the city's building ordinance. The court held the state's specific regulation governed over the city's general ordinance.

The AG's pulled lesson is straightforward: there is no single answer. The Tennessee result will depend on (1) the private act's specificity about school construction and facilities, (2) the city ordinance's scope and how it would apply to the school project, and (3) whether the city is acting within its general police power or is functionally trying to bar the school. Reading both the private act and the local ordinance is the only way to answer the specific question for any specific case.

Citations and references

Statutes:

• Tenn. Code Ann. § 49-2-106 (special school districts created by private act)
• Tenn. Code Ann. § 13-7-201 et seq. (municipal zoning authority)

Cases:

• Davidson County v. Harmon, 292 S.W.2d 777 (Tenn. 1956), Tennessee Supreme Court (cities cannot regulate state property)
• Austin Independent School Dist. v. City of Sunset Valley, 502 S.W.2d 670 (Tex. 1973), Texas Supreme Court (city cannot bar district through zoning)
• Port Arthur Independent School District v. City of Groves, 376 S.W.2d 330 (Tex. 1964), Texas Supreme Court (police power applies absent comprehensive state regulation)
• Kansas City v. School District of Kansas City, 201 S.W.2d 930 (Mo. 1947), Missouri Supreme Court
• School District of Philadelphia v. Zoning Bd. of Adjustment, City of Philadelphia, 207 A.2d 864 (Pa. 1965), Pennsylvania Supreme Court
• Hall v. City of Taft, 302 P.2d 574 (Cal. 1956), California Supreme Court (state preemption)
• Bd. of Ed. of St. Louis v. City of St. Louis, 184 S.W. 975 (Mo. 1916), Missouri Supreme Court (state-specific regulation preempts city)

Prior AG opinion:

• Op. Tenn. Att'y Gen. No. 86-157

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-027.pdf

Original opinion text

March 8, 2010

Opinion No. 10-27

Fees and regulations for construction of schools in special school districts

QUESTIONS

1. Can a city require a special school district to pay building permit and plan review fees for construction and/or renovation of a school located within the city limits?

2. Does a special school district have to conform to planning and zoning regulations of the city for school district-owned property located within the city limits?

OPINIONS

1. The answer to the question depends on the provisions of the private act creating the special school district and the local planning and zoning regulations. However, see analysis below for additional information.

2. The answer to the question depends on the provisions of the private act creating the special school district and the local planning and zoning regulations.

ANALYSIS

The same analysis applies to Questions 1 & 2. First, it is important to understand the parameters of the questions asked. The questions relate to the applicability of general zoning ordinances to special school districts. The questions do not address a municipality's authority to prohibit a special school district from constructing a school within its geographical confines. The questions do not address the applicability of state and/or local building codes to the construction of a public school. Nor do the questions suggest that the municipality's zoning ordinance is being arbitrarily and unreasonably applied.

The questions concern the interaction of governmental powers. Special school districts are created by private act of the Tennessee General Assembly. See Tenn. Code Ann. § 49-2-106. They are empowered to tax and operate a school district. Id. Municipalities are empowered with the ability to control land use within their geographical confines through zoning ordinances. See Tenn. Code Ann. § 13-7-201 et seq. Tennessee state law is clear that municipalities do not have the power to regulate property of the State that is located within the confines of a city. Davidson County v. Harmon, 292 S.W.2d 777 (Tenn. 1956) and see Tenn. Op. Att'y Gen. No. 86-157.

Tennessee law does not address whether an entity that is created by private act, such as a special school district, would be subject to local zoning regulation. However, courts in other states have reviewed this question. The case law is consistent that it is within the general police power of a municipality to subject a special school district created by legislative private act to zoning ordinances with two exceptions: (1) where the municipality is attempting to prohibit the special school district from locating a school within the city limits, see Austin Independent School Dist. v. City of Sunset Valley, 502 S.W.2d 670 (Tex. 1973), and (2) where the private act creating the special school district specifically addresses the area sought to be regulated by the municipality, see Port Arthur Independent School District v. City of Groves, 376 S.W.2d 330 (Tex. 1964). The first exception, a municipality attempting to prohibit the special school district from locating a school within the city limits, is not applicable to the questions asked herein. It is the second exception which must be addressed.

The following are two cases in which the courts held that the general police power of the municipality was applicable to a special (or independent) school district and two cases in which the courts held that the local ordinance was preempted by the state law. In Port Arthur Independent School District v. City of Groves, 376 S.W.2d 330 (Tex. 1964), the city sought to make the independent school district conform to certain building ordinances, obtain building permits, and submit to inspections by city officials in regard to the construction of an elementary school. As there was no legislation as to the independent school board's power to regulate the manner of construction and/or provide for the safety of others during the construction process, the Texas Supreme Court held that the independent school district was subject to the municipal zoning ordinances. The Texas Supreme Court adopted the logic of Missouri's Supreme Court as stated in Kansas City v. School District of Kansas City, 201 S.W.2d 930, 934 (Mo. 1947):

Since the State itself had taken no precautionary measures, and the City has been vested with the regulatory and supervisory responsibilities of the exercise of the police power, and School District (having no police power) has not been expressly and specifically given full duty to attend to these responsibilities, we think the Legislature is content in the thought the measures to be taken are within the police power vested in the City.

Similarly in School District of Philadelphia v. Zoning Bd. of Adjustment, City of Philadelphia, 207 A.2d 864, 866 (Pa. 1965), the issue was whether the City could require the School District to comply with an off-street zoning ordinance. The Pennsylvania Supreme Court held that the state legislature had not given the school district "complete and plenary power over its physical plants" and while the School District was empowered to determine the location and size of real estate necessary to accomplish its educational purpose, the imposition of the City's zoning ordinance did not interfere with the School District's responsibilities or preclude the City from imposing such regulation as was necessary for the protection of the health, safety, and welfare of the community. Id. at 868-69.

By contrast, in Hall v. City of Taft, 302 P.2d 574, 579 (Cal. 1956), the State of California had adopted an elaborate system of regulation and control of the construction of school buildings, including architectural inspections, thereby preempting the City's zoning ordinances. In Bd. of Ed. of St. Louis v. City of St. Louis, 184 S.W. 975 (Mo. 1916), there was a conflict between the type of vents required by the state building commission and the city building ordinance in regard to the construction of a school. The Missouri Supreme Court held that the general powers of the city must yield to provisions of state law having special application to particular matters. Id. at 976-977.

Thus in Tennessee, the applicability of a city's zoning laws to the construction of a special school district's school building located within a city's geographical limits will depend on the terms of the private act creating the special school district in question and the local ordinances in question.

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

MELISSA A. MOREAU
Assistant Attorney General

Requested by:
The Honorable Glen Casada
State Representative
112 War Memorial Building
Nashville, TN 37243-0163