Knowledgebase-Prohibiting Development of Private Property


Information Product

Title:Prohibiting Development of Private Property
Summary:MTAS was asked whether the city may restrict development of private property until a new school site is chosen.
Original Author:Ashburn, Melissa
Co-Author:
Product Create Date:04/01/2004
Last Reviewed on::12/19/2016
Subject:Land use; Land use--Laws and regulations; Schools
Type:Legal Opinion
Legal Opinion: Prohibiting Development of Private Property public.doc

Reference Documents:

Text of Document: April 1, 2004


Re: prohibiting development of private property

Dear Mayor,

You have asked if the City may prohibit the development of lands in the city limits, until such time as a new school building site is chosen. It is my understanding that the school system is run by the county, and there is a significant overcrowding problem in the schools. Citizens have asked the City to “reserve” certain undeveloped lands inside the city boundaries for future construction of new schools, by prohibiting development on such lands. In my opinion, the City does not have the power to forbid or delay development of privately owned property.

The Tennessee Constitution contains the following provision:

That no man’s particular services shall be demanded or property taken, or applied to public use, without the consent of his representatives, or without just compensation being made therefore.

Tenn. Const. Art. I, 21. A “taking” of property does not require that the government actually take possession of a person’s property, but includes restrictions that prevent a property owner from developing or using his or her land. The Fifth Amendment to the United States Constitution also prohibits the taking of one’s property without just compensation. These constitutional provisions form the basis of our eminent domain laws.

Both the State and federal constitutions protect property owners’ rights, and prohibit governments from placing restrictions on a person’s private property which prevent the owner from developing or otherwise using the property for the purpose intended at the time of purchase. Zoning powers granted to local governments form the one exception to this rule, and is the only manner through which a city may regulate the development and use of private property. Draper v. Haynes, 567 S.W.2d 462 (Tenn. 1978).

The Tennessee Courts have stated:

Local governments lack inherent power to control the use of private property within their boundaries. Their power derives from the State through specific delegation by the General Assembly. [zoning statutes]... Thus, local governments must exercise their delegated power consistently with the delegation statutes from which they derive.

421 Corporation v. Metropolitan Government of Nashville and Davidson County, 36 S.W.2d 469, 475 (Tenn. App. 2000). The statute which permits Tennessee cities to place restrictions on private property by enacting zoning ordinances, T.C.A. 13-7-201 through 306, allows city governments to restrict development by regulating many aspects including the height, location, bulk and size of buildings, as well as the purposes for which such structures may be used. It does not, however, permit cities to prohibit development of land out right, unless there is a public health reason such as flooding. Cities simply do not have the power to prohibit all development of land under the statutes for reasons that the site may be desired for the construction of a public building or public works in the future.

Based on constitutional rights of property owners, and cases interpreting those rights, the City does not have the power to prohibit the development of private property, so as to reserve such property for the future construction of a school building.

I hope this information is helpful. Please contact me if you need further assistance in this matter.

Thank you for consulting with MTAS.

Sincerely,

Melissa A. Ashburn
Legal Consultant

Please remember that these legal opinions were written based on the facts of a given city at a certain time. The laws referenced in any opinion may have changed or may not be applicable to your city or circumstances.

Always consult with your city attorney or an MTAS consultant before taking any action based on information contained in this database.