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Reviewed Date: May 17, 2017
County's Authority to Condemn Territory Within a Municipality's Corporate Boundaries Without Its Consent
MTAS was asked whether a county may condemn property within an incorporated territory, for the purpose of building a road without the city's consent.
Knowledgebase-County's Authority to Condemn Territory Within a Municipality's Corporate Boundaries Without Its ConsentQuestion Presented:May a county condemn property within an incorporated territory, for the purpose of building a road without the city’s consent?Response: Generally no, as will be explained later in this memorandum. However, in the particular factual scenario presented in your question, the county may have such power under the specific statutes governing controlled-access and industrial highways. It is our opinion though, that the best option would be for the city and county to enter into an agreement to construct the proposed highway; and for each governmental entity to be responsible for condemnation proceedings within their territorial boundaries.Analysis The general rule of law appears to be that a county has no authority to construct roads within a municipality without the city’s permission, unless the roads are being constructed at the direction of the state. See e.g., Macon County v. City of Oglethorpe, 194 S.E.2d 97 (Ga.). The Tennessee Attorney General discussed this issue, at least tangentially, in Op. Tenn. Atty. Gen. No. 84-224. The opinion quotes the following language in T.C.A. § 54-7-202(d): [T]he county governing body shall have the authority to authorize the county road department to perform work for other governmental entities; provided however, that the cost of the projects is reimbursed to the county road department.The Attorney General then said: This section clearly authorizes a county to perform work on roads of other governmental entities, provided that the cost of such work is reimbursed to the county road department performing the work. This statute does not, however, imply that a county may takeover the roads of another governmental entity. It merely authorizes a county to perform work on such roads. A county takeover of property would presumably be governed by the imminent [sic] domain statutes....Those statutes empower counties to condemn and take property of individuals and private corporations for county purposes. A road of another governmental entity would not amount to such property. (emphasis added) This opinion is supported by reading and construing other Tennessee statutes that address the same and relevant subjects. Several statutes describe when and where a county can condemn property, yet there are none that discuss a county’s general power to condemn property within municipal territory. For example, the following statute sets forth a county’s basic power of eminent domain:T.C.A. § 29-17-201. AuthorityCounties are empowered to condemn and take the property, buildings, privileges, rights, and easements of individuals and private corporations for any county purpose. (Emphasis supplied) This law specifies 'private" corporations, meaning the property of private(non-governmental) enterprises, businesses and individuals. The Legislature left out any reference to territory located within a municipality’s boundaries. It is a basic rule of statutory construction that the legislative intent or purpose of a statute is to be ascertained primarily from the natural and ordinary meaning of the language used, when read in context of the entire statute, without any forced or subtle construction to limit or extend the import of the language. Worrall v. Kroger Company, 545 S.W.2d 736, 738 (Tenn.1977). Presumably, if the Legislature had meant to include incorporated territories within T.C.A. § 29-17-201, it would have done so. However, it did not. The following statute makes it clear that in the case of city attempting to acquire county property, the city must have the approval of the county in order to condemn county property. It provides in part as follows: T.C.A. § 6-54-122.Condemnation of unincorporated territory; notification; approval or disapproval; trial; application(a) Notwithstanding any other provision of law to the contrary, a municipality, in exercising its powers of eminent domain pursuant to title 29, chapters 16 and 17, or in any other manner provided by law, to condemn unincorporated territory which is located in any county where any part of the municipality was not located prior to May 1, 1995, shall first notify, in writing, the county clerk of the county where the territory proposed to be taken for public use is located. The county clerk shall immediately send a copy of the notice to the county executive and to the members of the county legislative body. The county legislative body shall approve or disapprove the municipality's proposed action no later than its next regularly scheduled meeting and may hold a special meeting for this purpose. If the county legislative body takes no action or approves the municipality's action, the municipality may proceed with its proposed action. If the county legislative body disapproves the municipality's action, the municipality may not proceed except as provided in this section. The provisions of this section shall not apply to any condemnation proceedings for territories that lie within the corporate boundaries of the municipality, nor to any condemnation proceedings in a county where any part of the municipality was located prior to May 1, 1995. (Emphasis added) We think it is logical to conclude that absent specific authority, the county cannot do what the city is prohibited by statute from doing. If there is statutory authority allowing a political subdivision to construct a road in another governmental territory without its consent, it is most likely found in instances involving controlled-access or industrial highways. The following statute refers to controlled-access facilities and access roads, and as we discussed, is probably the type of road that the county is proposing to build:T.C.A. § 54-16-104. Acquisition of property(a) For the purpose of this chapter, the highway authorities of the state, counties, cities, and towns may acquire private or public property and property rights for controlled-access facilities and service roads, including rights of access, air, view, and light, by gift, devise, purchase, or condemnationin the same manner as such authorities are now or hereafter may be authorized by law to acquire such property or property rights in connection with highways and streets within their respective jurisdictions. (b) All property rights acquired under the provisions of this chapter shall be in fee simple.(C ) In connection with the acquisition of property or property rights for any controlled-access facility or portion thereof, or service road in connection therewith, the state, county, city, or town highway authority may, in its discretion, acquire an entire lot, block, or tract of land, if by so doing, the interests of the public will be best served...... T.C.A. § 54-16-104 appears to give a county (or the state or cities) specific and broad authority to condemn private or public property for controlled-access facilities. The statute does not preclude extraterritorial condemnation. "Controlled-access facilities" are defined in T.C.A. 54-16-101 as follows:(a) For the purposes of this chapter, a "controlled-access facility" means a highway or street especially designed for through traffic, and over, from or to which owners or occupants of abutting land or other persons have no right or easement of access from abutting properties.(b) Such highways or streets may be parkways, from which trucks, buses, and other commercial vehicles shall be excluded; or they may be freeways open to use by all customary forms of street and highway traffic. T.C.A. § 54-16-101. T.C.A. § 54-5-403 addresses controlled-access highways, also designated "limited access" highways, and authorizes the construction and maintenance of such roads, either by the state or by local governments, when necessary to secure the development of an industrial site or park, as in the present case:T.C.A. § 54-5-403(a) To facilitate the development and expansion of industry and to provide access to industrial areas, the department is authorized to use any powers granted to it under current law and this part to develop and construct industrial highways when there is a finding made jointly by the department and the department of economic and community development that the industrial highways are an appropriate and cost-effective means to secure the development of an industrial site or park.(b) Municipalities are authorized to use any powers granted to them under current law and this part to participate in the construction and maintenance of the industrial highways.(c) Each municipality shall be responsible for the maintenance of any industrial highway within the area of its ownership or control.(d) Any industrial highway constructed under this part may be designated as a controlled-access highway under chapter 16 of this title. To summarize, if the proposed highway fits the definition of an "industrial highway" pursuant to T.C.A. § 54-5-403, there appears to be sufficient statutory authority under T.C.A. § 54-16-104 for the county to condemn municipal property to build a controlled-access highway. However, the better option would be for the two political subdivisions to each condemn the necessary properties in their own jurisdictions. Under the general law, agreements for the repair and maintenance of roads may be made between the county and the city, if the city does not want to be responsible for the maintenance of the portion of the highway road within its boundaries. T.C.A. § 54-7-202(a)(2). Seealso 40 C.J.S. Highways §179(d). Finally, it should be noted that the facts in this particular circumstance appear to fall into an exception to the general rule that a county may not condemn municipal property without its express consent.