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 whether a Tennessee city could charge a special school district building permit and plan review fees for school construction within the city and whether the district had to follow city planning and zoning rules. The AG gave the same answer to both questions: it depends on the private act creating the particular district and the local regulations.

The opinion said Tennessee law had not addressed whether a special school district created by private act is subject to municipal zoning. It noted that municipalities may not regulate state property within city limits, but did not equate a special school district with state property. It reviewed decisions from other states in which local rules applied when state law had not displaced municipal authority, and decisions in which specific state regulation prevailed.

The AG expressly limited the questions. It did not decide whether a city could prohibit construction of a school within its limits, whether state or local building codes applied, or what would happen if zoning rules were applied arbitrarily or unreasonably. The answer to the fees question was likewise conditional; the opinion did not make fee liability turn automatically on whether a zoning ordinance applied.

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: Did Tennessee cities have authority to charge special school districts building permit fees?
A: The AG did not give a general yes or no. It said the answer depends on the provisions of the private act creating the district and the local planning and zoning regulations.

Q: Could a city apply its zoning ordinance to a special school district?
A: The AG again said the answer depends on the district's private act and the local ordinance. The opinion reported no Tennessee law resolving that question for all special school districts.

Q: Could a city prevent a special school district from building any school inside city limits?
A: This opinion did not decide that question. It cited a Texas decision concerning a city's attempt to prohibit a school location, but said that exception was outside the questions asked.

Q: Did the opinion decide whether building codes applied to public schools?
A: No. The AG expressly excluded the applicability of state and local building codes from the analysis.

Q: Why did the private act matter?
A: The AG said special school districts are created by private acts. In reviewing decisions from other states, it identified a distinction between areas left to municipal regulation and areas specifically addressed by the act creating a district or by other state law.

Background and statutory framework

The opinion cited Tenn. Code Ann. § 49-2-106 for the creation of special school districts by private act and Tenn. Code Ann. § 13-7-201 et seq. for municipal zoning authority. It cited Davidson County v. Harmon for the rule that cities cannot regulate state property within their limits, while stating that Tennessee law had not answered the separate question concerning a special school district.

The out-of-state cases supplied examples, not a Tennessee-wide rule. In Port Arthur Independent School District v. City of Groves, a Texas court allowed city construction requirements where legislation had not given the district authority over the construction matters at issue. In School District of Philadelphia v. Zoning Bd. of Adjustment, a Pennsylvania court allowed an off-street ordinance because the district lacked complete control over its physical plants and the ordinance did not interfere with its responsibilities.

By contrast, Hall v. City of Taft found that California's detailed regulation of school construction preempted a city's ordinance. Bd. of Ed. of St. Louis v. City of St. Louis involved a specific state building requirement conflicting with a city rule; the state requirement prevailed. The AG concluded that the private act and local ordinance must be read for the district and city actually involved.

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