Can a Tennessee city like Lakeland charge mandatory monthly fees to fund fire protection, and could the legislature single one city out to do so?

Plain-English summary

Lakeland is a small city in Shelby County. It contracts with Shelby County's Fire Department for fire protection. Shelby County funds its fire department through the "urban type public facility" statutory scheme (Tenn. Code Ann. §§ 5-16-101 and -109), which allows the county to charge fees, rates, and charges. Lakeland residents pay those fees through their utility bills (collected by MLGW under contract with the county). According to the city, Lakeland is the only Tennessee municipality whose residents pay mandatory fees for fire service.

Rep. Ron Lollar asked two questions:

1. Can Lakeland itself impose mandatory fees on its residents to fund fire protection? AG Slatery: No. Tennessee follows the Dillon rule, meaning municipalities have only the powers expressly granted by the General Assembly or fairly implied. Lakeland is organized under a city manager-commission charter (Title 6, chapters 18-22). Sections 6-21-701 to -704 let it establish a fire department but do not give it authority to charge fees for fire protection services. The county's urban-type-public-facility fee authority is for counties, not municipalities. Mutual-aid statutes (§§ 6-54-601 to -603) allow fees only for service provided outside the city's limits to a county that has separately agreed. None of that helps Lakeland charge inside its own borders.

2. Could the legislature pass a one-city law authorizing Lakeland (only) to impose those fees? AG Slatery: It would be constitutionally suspect. Article XI, section 8 of the Tennessee Constitution forbids the legislature from suspending general law for any individual, county, or municipality without a rational basis. The opinion finds no rational basis: other counties could choose the urban-type-public-facility scheme in the future, the unique fee burden Lakeland residents bear results from Lakeland's own contract choice, and Lakeland could solve the problem by terminating that contract and operating its own fire department.

The opinion is essentially a Dillon-rule and equal-application reminder. Where to source the money is a policy question for Lakeland, but it has to come from authorized sources, like property taxes (§ 6-19-101(1)) or, possibly, special assessments for local improvements (§ 6-19-101(3)).

Currency note

This opinion was issued in 2017. 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.

The municipal-power statutes in Title 6 of the Tennessee Code and the urban-type-public-facility statutes in chapter 5 may have been amended since. Anyone evaluating Lakeland's, or another city's, current funding options for fire protection should pull the present version of those statutes and any later AG or judicial guidance.

Common questions

Q: Why doesn't Lakeland already have authority to fund fire services through fees?
A: Tennessee municipalities work under what is sometimes called the Dillon rule: they have only the powers granted to them, expressly or by necessary implication, by the General Assembly. Lakeland's charter framework (city manager-commission, chapters 18-22 of Title 6) does not include a fee for fire protection in its list of general powers. Police power passes to municipalities only through legislation (Holdredge v. City of Cleveland), and statutes prescribing how delegated police power may be exercised are mandatory and exclusive (Brooks v. Garner; Draper v. Haynes).

Q: Doesn't operating a fire department imply the power to fund it?
A: Establishing a fire department is one thing; charging individual residents a recurring fee for the service is another. The fire-department statutes (§§ 6-21-701 to -704) describe the chief's duties and the department's emergency powers but do not address funding. Sections 6-19-101(1) and (3) point to property taxes or special assessments as the authorized funding mechanisms.

Q: Why does Shelby County, but not Lakeland, get to charge fire fees?
A: Shelby County uses the "urban type public facility" scheme in Tenn. Code Ann. § 5-16-101. That statute applies expressly to counties, not municipalities. Section 5-16-109 lets a county set "fees, rates and charges" calibrated to ensure fiscal solvency. The same authority does not flow back to a municipality that contracts with the county.

Q: What about service to non-residents outside city limits?
A: Section 6-54-601(c) lets a city extend fire protection to citizens outside its limits on a contractual basis (after agreement with the county) and may charge for that service. That statute speaks only to extra-territorial service, not to fees inside the city's own boundaries.

Q: Could Lakeland use a special assessment instead?
A: A city manager-commission city has the power to "make special assessments for local improvements" (§ 6-19-101(3)). Tennessee courts have not directly addressed whether fire protection can be funded by special assessment, but other states have approved that mechanism in particular circumstances (Lake County v. Water Oak Management Corp.; McCoy v. City of Sisterville). The opinion notes the option without deciding it.

Q: Why couldn't a one-city law fix this?
A: Article XI, section 8 of the Tennessee Constitution bars a law that suspends general law for one community without a rational basis (Hart v. City of Johnson City; Riggs v. Burson). The opinion concludes there is no rational basis to single out Lakeland, since the underlying issue is Lakeland's own contract with Shelby County, not a unique characteristic of the city. If Lakeland prefers a different funding model, it can terminate the county contract and stand up its own fire department.

Q: What about the financed-equipment exception in § 9-21-107(8)?
A: That exception lets a municipality charge fees associated with the use of fire equipment and buildings it has financed under the Local Government Public Obligations Act. The opinion treats "fire protection services" in the question as referring to operations rather than equipment, so this exception does not authorize the kind of recurring service fee Lakeland would need.

Background and statutory framework

Tennessee gives counties two ways to fund their fire services. The first is a "county-wide fire department" (§§ 5-17-101 to -108) funded by tax districts or general fund revenue, with situs-based-tax conditions in § 5-17-101(d)(2). The second is the "urban type public facility" (§ 5-16-101 et seq.), under which counties can charge fees, rates, and charges to ensure fiscal solvency (§ 5-16-109). Both schemes contemplate counties contracting with municipalities (§§ 5-16-107; 5-17-105(c), -108).

Cities organized under city manager-commission charters (Title 6, chapters 18-22) get a defined list of general powers in § 6-19-101 and a separate fire-department-establishment authority in §§ 6-21-701 to -704. None of those provisions authorizes imposing fees for fire protection on city residents. The mutual-aid framework (§§ 6-54-601 to -603) is narrowly about extra-territorial service.

Tennessee's separation of fee authority between county and municipality is consistent with the Dillon-rule line of cases: Allmand v. Pavletic; City of Lebanon v. Baird; Barnes v. City of Dayton; Holdredge v. City of Cleveland; Brooks v. Garner; Draper v. Haynes. Each underlines that a municipality's exercise of police power is bounded by statute.

The constitutional question (Question 2) turns on article XI, section 8. The provision forbids the legislature from passing a law that suspends general law for the benefit of one individual or municipality unless there is a rational basis for the classification. The Tennessee Supreme Court applies this in cases like Hart v. City of Johnson City; Brentwood Liquors Corp. v. Fox; Riggs v. Burson. Rational-basis review is deferential, but not infinitely so: the AG concluded no reasonable basis could be conceived for granting Lakeland alone the fee power, especially when Lakeland's own contracting choice is the source of its uniqueness.

Citations

• Tenn. Code Ann. §§ 5-16-101, -107, -109 (urban type public facility)
• Tenn. Code Ann. §§ 5-17-101, -105(c), -108 (county-wide fire department)
• Tenn. Code Ann. § 6-19-101 (general powers, city manager-commission)
• Tenn. Code Ann. §§ 6-21-701, -702, -703(a), -704 (fire department; chief; emergency powers; fire marshal)
• Tenn. Code Ann. §§ 6-54-601(c), -602, -603 (extra-territorial fire protection; mutual aid)
• Tenn. Code Ann. § 9-21-105(21)(A); § 9-21-107(8) (Local Government Public Obligations Act)
• Tenn. Const. art. XI, § 8
• Allmand v. Pavletic, 292 S.W.3d 618 (Tenn. 2009)
• City of Lebanon v. Baird, 756 S.W.2d 236 (Tenn. 1998)
• Barnes v. City of Dayton, 216 Tenn. 400, 392 S.W.2d 813 (1965)
• Holdredge v. City of Cleveland, 218 Tenn. 239, 402 S.W.2d 709 (1966)
• Brooks v. Garner, 566 S.W.2d 531 (Tenn. 1978)
• Draper v. Haynes, 567 S.W.2d 462 (Tenn. 1978)
• Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990)
• Brentwood Liquors Corp. v. Fox, 496 S.W.2d 454 (Tenn. 1973)
• Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997)
• Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978)
• Lake County v. Water Oak Management Corp., 695 So. 2d 667 (Fla. 1997)
• McCoy v. City of Sisterville, 120 W. Va. 471, 199 S.E. 260 (1938)
• Tenn. Att'y Gen. Ops. 93-53 (Aug. 9, 1993); 10-03 (Jan. 19, 2010); 83-446 (1983)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-006.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
January 30, 2017

Opinion No. 17-06

Mandatory Fees for Fire Protection Services

Question 1
Does the city of Lakeland, a municipality organized under a city manager-commission charter, have the authority to impose mandatory fees upon its residents to fund fire protection services?

Opinion 1
No.

Question 2
If not, would a general law of local application survive a constitutional challenge if it authorized the city of Lakeland, but not other municipalities, to impose mandatory fees upon its residents for fire protection services?

Opinion 2
For the reasons explained herein, such a law would be constitutionally suspect under article XI, section 8 of the Tennessee Constitution.

ANALYSIS

The city of Lakeland, an incorporated municipality in Shelby County, receives fire protection services from the Shelby County Fire Department. The city has contracted with Shelby County for the provision of these services for several years.

Counties in Tennessee are authorized to directly provide and fund fire protection services through two statutory schemes. A county may create a "county-wide fire department" that is funded by fire tax districts or by revenue from the county's general fund. Tenn. Code Ann. § 5-17-101. Alternatively, a county may establish an "urban type public facility" to provide fire protection services. Tenn. Code Ann. § 5-16-101. Under this second scheme, a county is authorized to "charge fees, rates and charges" for the facility; the charges are set on "a basis that is calculated to ensure the fiscal solvency of the operation at all times." Id.; Tenn. Code Ann. § 5-16-109. Both statutory schemes allow a county to contract with incorporated municipalities located within its boundaries for the provision of fire protection services. See Tenn. Code Ann. § 5-16-107; Tenn. Code Ann. §§ 5-17-105(c), -108.

Shelby County provides fire protection services under the "urban type public facility" statutory scheme. Based on a recent state study which you enclosed with your request for this opinion, Shelby County is apparently the only county in Tennessee that utilizes this method to provide fire protection services. Under this scheme, the Shelby County Fire Department provides fire protection to all unincorporated areas of Shelby County and to one incorporated city within its boundaries: Lakeland. According to the city's website, Lakeland households and businesses pay monthly fees in their utility bills for these services. Shelby County contracts with Memphis Light, Gas and Water to collect the fees, which are assessed annually and billed monthly.

Based on the foregoing, you conclude that Lakeland residents are the only municipal residents in Tennessee that pay mandatory fees to fund their fire protection services. You further observe that Lakeland is organized under a city manager-commission charter as provided in Chapters 18-22 of Title 6 of the Tennessee Code. Accordingly, Lakeland has express statutory authority to establish a fire department. See Tenn. Code Ann. §§ 6-21-701 to -704. You ask whether this authority allows Lakeland to pass an ordinance to impose mandatory fees upon its residents to fund fire protection services. For the reasons explained below, it does not.

It is well established that municipalities may exercise only those express or necessarily implied powers delegated to them by the General Assembly in their charters or under statutes. Allmand v. Pavletic, 292 S.W.3d 618, 625-26 (Tenn. 2009); City of Lebanon v. Baird, 756 S.W.2d 236, 241 (Tenn. 1998); Barnes v. City of Dayton, 216 Tenn. 400, 410, 392 S.W.2d 813, 817 (1965). Thus, in order for Lakeland to impose mandatory fees upon its residents for fire protection services, there must be a positive grant of authority in its charter provisions or other general statutes.

As discussed above, general law expressly authorizes any county that desires to provide fire protection services through an "urban type public facility" to "charge fees, rates and charges" to support the facility. Tenn. Code Ann. §§ 5-16-101, -109. Municipalities, however, are not given the authority to establish such a facility and charge fees under this statutory scheme. See Tenn. Code Ann. § 5-16-101(a) (authorizing the "various counties of this state"). Under general statutes, the General Assembly has given municipalities the authority to impose fees for fire protection services only on a limited basis pursuant to contracts and "mutual aid agreements" for "firefighting service." See Tenn. Code Ann. §§ 6-54-601 to -603; Tenn. Att'y Gen. Op. 93-53 (Aug. 9, 1993).

Any incorporated city or town may provide fire protection to citizens outside the territorial limits of the municipality on an individual contractual basis whenever an agreement has been made for the extension of that service by the legislative body of the municipality and the legislative body of the county in which the fire protection is to be provided. . . .

Tenn. Code Ann. § 6-54-601(c) (emphasis added). Clearly, this statute provides no authority for a municipality to impose fees for fire protection services within its territorial limits.

Consequently, Lakeland is not authorized to impose fees upon its residents for fire protection services unless its charter provisions permit it to do so. A review of the "general powers" of a municipality organized under a city manager-commission charter reveals no explicit authority for such a municipality to impose fees upon its residents for the provision of fire protection services. See Tenn. Code Ann. § 6-19-101. The "general powers," though, do include a grant of police power. See Tenn. Code Ann. § 6-19-101(22). A municipality is generally authorized, as an exercise of its police powers, to provide fire protection services within its boundaries. See Tenn. Att'y Gen. Op. 10-03 (Jan. 19, 2010). But "police power belongs to the state, and passes to municipalities only when and as conveyed by legislative enactment." Holdredge v. City of Cleveland, 218 Tenn. 239, 247-48, 402 S.W.2d 709, 712 (1966). Consequently, "it is elementary that statutes prescribing how delegated police power may be exercised by municipalities are mandatory and exclusive." Brooks v. Garner, 566 S.W.2d 531, 532 (Tenn. 1978). See Draper v. Haynes, 567 S.W.2d 462, 465 (Tenn. 1978) (municipalities may only exercise police power within authority expressly or impliedly granted to them by general law or charter provisions).

Here, the General Assembly has authorized a municipality organized under a city manager-commission charter to establish a fire department as set forth in Tennessee Code Annotated §§ 6-21-701 to -704. This grant of the authority provides that the city manager "shall appoint a chief of the fire department and such other members of the department as may be provided by ordinance." Tenn. Code Ann. § 6-21-701. The "duty" of the chief and department members is "to take all proper steps for fire prevention and suppression." Tenn. Code Ann. § 6-21-702. In aid of that duty, the General Assembly has bestowed certain "emergency powers" upon the chief and the department when "responding to, operating at, or returning from" an emergency. Tenn. Code Ann. § 6-21-703(a). Finally, the chief has the authority to appoint a fire marshal "to investigate the cause, origin, and circumstances of fires and the loss occasioned thereby, and assist in the prevention of arson." Tenn. Code Ann. § 6-21-704.

These provisions do not expressly authorize the imposition of fees for any fire protection services that the fire department might provide. Moreover, there is no provision that would implicitly allow the fire department to impose fees upon its residents for these services. While the chief and the department members have a duty "to take all proper steps for fire prevention and suppression," there is no attendant provision that permits a municipality to charge fees to defray the cost of carrying out the duty. Consequently, Lakeland lacks authority to pass an ordinance to impose fees upon its residents for fire protection services. Funding for these services must come from an authorized source, property taxes, for example. See Tenn. Code Ann. § 6-19-101(1) (power to levy taxes for municipal purpose).

You next ask whether a general law of local application would survive a constitutional challenge if it authorized the city of Lakeland, but not other municipalities, to impose mandatory fees upon its residents for fire protection services. For the reasons explained below, such a law would be constitutionally suspect.

Article XI, section 8 of the Tennessee Constitution provides in pertinent part:

The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.

In short, this constitutional provision states that the legislature has no power to suspend any general law for the benefit of a particular individual that is inconsistent with the general laws of the land. Through judicial interpretation, this provision applies to counties and cities, as well as individuals. Hart v. City of Johnson City, 801 S.W.2d 512, 515 (Tenn. 1990) (citations omitted); Brentwood Liquors Corp. v. Fox, 496 S.W.2d 454, 456-57 (Tenn. 1973).

In order to trigger application of article XI, section 8, a statute must contravene some general law with mandatory statewide application. Riggs v. Burson, 941 S.W.2d 44, 53 (Tenn. 1997) (citations omitted). If a statute contravenes general law for the benefit of an individual, municipality, or county, the statute violates this constitutional provision unless there is a rational basis for the classification. See id.; Hart, 801 S.W.2d at 515. Under rational basis scrutiny, a statutory classification will be upheld if some reasonable basis can be found for the classification or if any state of facts may reasonably be conceived to justify it. Riggs, 941 S.W.2d at 53.

As explained above, neither general statutory provisions nor the statutes governing municipalities organized under a city manager-commission charter authorize the city of Lakeland to impose mandatory fees upon its residents for fire protection services. Therefore, the proposed law would contravene general law. Accordingly, there must be a rational basis for allowing only Lakeland to impose mandatory fees upon its residents for fire protection services. While you indicate that Lakeland is unique in that it is apparently the only municipality in Tennessee whose residents pay mandatory fees because Shelby County is currently the only county that provides these fire protection services through the "urban type public facility" scheme, this fact does not provide a justification for the proposed law. Other counties could elect to utilize the "urban type public facility" scheme in the future, which would likely result in the imposition of mandatory fees upon any municipality that chooses to contract with such a county for fire protection services. But more importantly, Lakeland residents incur their current fees because Lakeland has chosen to contract with Shelby County for these services. If Lakeland wishes to provide fire protection services to its residents through its own fire department, it may take the proper steps to terminate its contract with Shelby County. Accordingly, we are unable to conceive a rational basis for granting only the city of Lakeland the authority to impose mandatory fees upon its residents for fire protection services.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Senior Counsel

Requested by:
The Honorable Ron Lollar
State Representative
214 War Memorial Building
Nashville, Tennessee 37243