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Original Author: Moore, Todd
Date of Material: 03/28/1996

Utilities--Compelling connections
Parks and recreation--Laws and regulations
Parks and recreation

Requiring a State Park to Hook Onto the Town's Sewer Line If the Park Territory Was Annexed Into the Town

Reviewed Date: 04/23/2021
MTAS was asked whether a town could require a nearby state park to hook onto the town's sewer line if the park territory was annexed into the town.

March 28, 1996

This letter is in response to your question regarding whether your city could require a nearby state park to hook onto the town's sewer line if the park territory was annexed into the town. I will admit from the outset that there is not a clear answer to this question under current law. However, I will attempt to outline the competing arguments.

There are two separate statutes that support the argument that the town can require the park to connect to the sewer. The first, T.C.A. § 68-221-209 and T.C.A. § 7-35-201, both of which relate to the municipalities right to require connection to a sewer to assure the payment of bonds issued for sewage. The second, T.C.A. § 6-51-111, relates to the town's exclusive right to provide municipal services to the annexed territory.

The Tennessee Department of Environment and Conservation has taken the position that as a department of the sovereign government of Tennessee it is not subject to these statutes, but is only subject to those statutes that specifically name the state. The basic rule as set forth by the Tennessee Supreme Court in Keeble v. City of Alcoa, 204 Tenn. 286, 289, 319 S.W.2d 249, 250 (1958) is as follows:

Tennessee has long been committed to the rule that a state, or political subdivision thereof, is not subject to a statute unless specifically mentioned therein or unless application thereto is necessarily implied.

The courts have gone on to hold that there is a "legally imposed inference of the non-inclusion of the sovereign" in a general statute, "unless the language impels ... the clear conclusion that the Legislature intended to bind the sovereign." Harrison Const. Co. v. Gibson Cty. Bd. of Ed., 642 S.W.2d 148, 151 (Tenn.Ct.App. 1982). Therefore, the ultimate answer to this question will depend on whether a court will find that the General Assembly intended any of the potentially applicable statutes to bind the sovereign.

Despite this general rule, there are instances where the state is subject to its general laws. For example, the Tennessee Attorney General has opined that the fee provisions of the Solid Waste Management Act of 1991 apply to state entities. See Tennessee Attorney General's Opinion No. 91-88 (a copy of which is enclosed). Following a similar analysis that the court used in Keeble, the AG determined that the language of the statute and the State's public policy would impel the conclusion that the State was subject to the Act. The same argument can be made in this instance with regard to requiring connection to sewer lines.

The clearly stated purpose of both T.C.A. § 68-221-209 and 7-35-201 is twofold (1) to protect the public health; and (2) in order to assure the payment of bonds issued for sewage treatment works. To this end, T.C.A. § 68-221-209(1)(A) provides that the municipality is authorized by appropriate resolution to:

Require the owner, tenant, or occupant of each lot or parcel of land which abuts upon a street or other public way containing a sanitary sewer and upon which lot or parcel a building exists for residential, commercial or industrial use, to connect such building with such sanitary sewer and to cease to use any other means for the disposal of sewage, sewage waste or other polluting matter.

Considering the public purposes of the statutes and the language that infers that all buildings of all uses shall be connected to the municipality's sanitary sewer, I think a strong argument can be made that the legislature intended the statute to apply universally.

In addition, the state annexation law provides the city with the exclusive right to provide sewer service within any annexed territory. T.C.A. § 6-51-111 provides in part:

The annexing municipality, if and to the extent that it may choose, shall have the exclusive right to perform or to provide municipal and utility functions and other services in any territory which it annexes, notwithstanding § 7-82-301 or any other statute, subject, however, to the provisions of this section with respect to electric cooperatives.

Although the public policy argument is much less clear as it applies to this statute, the same argument could be made as with the sewer connection requirement statutes above.

There is one other statute that does not directly relate to the city's right to require connection to the city's sewer, but may affect the park's ability to connect to another system. T.C.A. § 7-34-105 states:

No municipality shall construct public works wholly or partly within the corporate limits of another municipality except with the consent of the governing body of such other municipality.

This statute should prevent any other city from constructing sewer lines within any area annexed by your city without its permission.

I hope this infomation is helpful to the city's cause. I apologize for not being more definitive, but as you know it is difficult to anticipate how a court will come down on cases that turn on the legislative intent and public policy arguments. I will be happy to discuss this matter with you in more detail at your convenience. If I can be of any further assistance do not hesitate to contact me.


Todd Moore
MTAS Legal Consultant