HARPETH VALLEY UTILITIES              )
DISTRICT OF DAVIDSON AND              )
WILLIAMSON COUNTIES,                  )
                                      )   Davidson Chancery
     Plaintiff/Appellant,             )   No. 97-2895-III
                                      )
VS.                                   )
                                      )
THE METROPOLITAN GOVERNMENT)              Appeal No.
OF NASHVILLE & DAVIDSON               )   01A01-9711-CH-00686
COUNTY,                               )
                                      )
     Defendant/Appellee.              )

RAY BELL, GLENDA BELL, WILLIAM )
COBLE, DR. ROY PARKER, JIMMY
                                      )

                                      )
                                              FILED
JONES, WESLEY BARNES, FANNIE C. )
                                                June 12, 1998
BUCHANAN, KEITH VAUGHN, JOEL )
CHEEK, DANNY GRAVES, EDDIE            )
                                             Cecil W. Crowson
GRAVES, JERRY GRAVES, ANNIE K. )
                                            Appellate Court Clerk
GRAVES, MACK AND WANDA                )
LOVELL, JOE COLLIER, JIM              )
FESMIRA, MAC KELL, THOMAS             )
ROGERS, GENE ROGERS, AND              )
GEORGE ROGERS,                        )
                                      )
     Intervenors-Defendants/Appellees )

                IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE

      APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

             HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

      Val Stanford, #3316
      GULLETT, SANFORD, ROBINSON & MARTIN, PLLC
      230 Fourth Avenue North, 3rd Floor
      P.O. Box 198888
      Nashville, Tennessee 37219-8888

      Robert E. Parker, #2756
      George A. Dean, #6737
      PARKER, LAWRENCE, CANTRELL & DEAN
      Fifth Floor, 200 Fourth Avenue, North
      Nashville, Tennessee 37219
      ATTORNEYS FOR PLAINTIFF/APPELLANT

      George E. Barrett, #2672
      Phillip A. Purcell, #14453
      J. Bryan Lewis, #15116
      BARRETT, JOHNSTON & PARSLEY
      217 Second Avenue North
      Nashville, Tennessee 37201
      Stephen O. Nunn, #9069
      ATTORNEYS FOR INTERVENOR-DEFENDANTS/APPELLEES
     Wesley G. Weeks, #18267
     204 Metro Courthouse
     Nashville, Tennessee 37201
     ATTORNEYS FOR DEFENDANT/APPELLEE



                    REVERSED AND REMANDED



                               HENRY F. TODD
                               PRESIDING JUDGE, MIDDLE SECTION




CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
JERRY SMITH, SPECIAL JUDGE




                               -2-
HARPETH VALLEY UTILITIES              )
DISTRICT OF DAVIDSON AND              )
WILLIAMSON COUNTIES,                  )
                                      )                  Davidson Chancery
     Plaintiff/Appellant,             )                  No. 97-2895-III
                                      )
VS.                                   )
                                      )
THE METROPOLITAN GOVERNMENT)                             Appeal No.
OF NASHVILLE & DAVIDSON               )                  01A01-9711-CH-00686
COUNTY,                               )
                                      )
     Defendant/Appellee.              )
                                      )
RAY BELL, GLENDA BELL, WILLIAM )
COBLE, DR. ROY PARKER, JIMMY          )
JONES, WESLEY BARNES, FANNIE C. )
BUCHANAN, KEITH VAUGHN, JOEL )
CHEEK, DANNY GRAVES, EDDIE            )
GRAVES, JERRY GRAVES, ANNIE K. )
GRAVES, MACK AND WANDA                )
LOVELL, JOE COLLIER, JIM              )
FESMIRA, MAC KELL, THOMAS             )
ROGERS, GENE ROGERS, AND              )
GEORGE ROGERS,                        )
                                      )
     Intervenors-Defendants/Appellees )



                                     OPINION

       The origin of the present controversy is the plan of the Harpeth Valley Utility District to

construct and operate a wastewater disposal facility in an area of Davidson County known as

“Bell’s Bend.” The basic question on appeal is whether the planning and zoning authorities of

Metropolitan Government of Nashville and Davidson County have jurisdiction to regulate the

proposed facility. The Trial Court rendered summary judgment that the local authorities had

such jurisdiction. The utility appealed to this Court.



       Twenty-one residents of Bell’s Bend were permitted to intervene in the Trial Court

proceedings, and they have participated in this appeal.



       The utility presents the following issues:

               1.    Whether under the decisions of the Tennessee Courts
               and the statutes empowering METRO to adopt zoning

                                             -3-
              regulations, such zoning regulations are applicable to HVUD,
              as an agency or instrumentality of the State of Tennessee, in
              carrying out its basic statutory powers to locate, construct and
              operate a wastewater treatment facility; and

              2.      Whether under a proper construction of the Utility
              District Law of 1937, T.C.A. §§ 7-82-101 et seq., METRO is
              preempted and precluded from applying its zoning regulations
              to the location, construction and operation of a wastewater
              treatment facility by HVUD.


The Metropolitan Government presents the following issues:

              Whether, as a matter of law, the Chancery Court was correct
              in holding the HVUD must comply with the local zoning
              ordinance of the Metropolitan Government of Nashville and
              Davidson County in its effort to build a wastewater treatment
              facility in Davidson County.

               Whether the application of generally accepted rules of
               statutory construction demonstrates that the Chancery Court
               properly held that HVUD is subject to the Metropolitan
               Government’s zoning ordinance.

               Whether this Court should adopt the “Balancing of Interests”
               test to decide issues of intergovernment sovereign immunity
               in Tennessee, if this Court determines that the Chancery
               Court erred in its ruling.

               Whether HVUD’s new preemption argument is properly
               before this Court, and if so, whether the relevant statutes are
               sufficient to preempt the zoning laws of Metropolitan
               Government of Nashville and Davidson County.

               Whether, HVUD has waived its immunity, if any, to the
               Metropolitan Government’s zoning regulations.


The Intervenors present the issues in the following form:

               The Bell Intervenor Defendants, appellees herein, adopt the
               first issue presented for review by the Harpeth Valley Utilities
               District of Davidson and Williamson Counties (“HVUD”).

               HVUD’s states its second issue presented for review as

                      “[w]hether under a proper construction of the
                      Utility District Law of 1937, T.C.A. §§ 7-82-
                      101 et seq., METRO is preempted and
                      precluded from applying its zoning regulations
                      to the location, construction and operation of
                      a wastewater treatment facility by HVUD.”

               The Bell Intervenor Defendants submit that HVUD has
               waived that argument not having presented it to the Trial


                                             -4-
               Court and therefore objects to this Court considering that
               issue on appeal.


       Title 7, Chapter 81 of Tennessee Code Annotated is entitled “Sanitary Districts.”

It was originally enacted as Chapter 64 of the Public Acts of 1901.



       Section 13 of the act, T.C.A. § 7-81-109 provides:

                       Incorporation - Designation as sanitary districts. -
               (a) Upon the registration of the certificate, the petitioners and
               their successors and all other voters of the town shall be
               incorporated and be vested with the right conferred by this
               chapter, and none other, it being the intention not the right
               conferred by this chapter, and none other, it being the
               intention not to confer upon the corporation the powers of
               incorporated towns in this state.


       Section 27 of the same act, T.C.A. § 7-81-110 provides:

                        General municipal laws preserved. - Nothing in this
               chapter shall be construed to alter, repeal, or amend the general
               laws for organizing municipal corporations or taxing districts
               in this state. [Acts 1901, ch. 64, § 27; Shan., § 2023a52; Code
               1932, § 3683; T.C.A. (orig. ed.), § 6-2533.]

       Section 25 of the same act, T.C.A. § 7-81-309 provides:

                       Sanitary inspector. - It is the duty of the sanitary
               inspector to thoroughly and carefully inspect the premises of
               each resident of the town, and to remove and abate all
               nuisances at such times as the assembly may prescribe, and to
               perform such other duties as the assembly may impose. The
               sanitary inspector shall, during such inspector’s term of
               office, be vested with the powers and duties of a constable
               within the corporate limits of the town, but shall not serve
               civil process. The sanitary inspector’s compensation and the
               manner of paying the same shall be fixed by the assembly.
               The sanitary inspector shall not be required to reside within
               the corporate limits of the town. [Acts 1901, ch. 64, § 25;
               Shan., § 2023a50; Code 1932, § 3681, T.C.A. (orig. ed.), § 6-
               2530.]


       Title 7, Chapter 82 of Tennessee Code Annotated is entitled “Utility Districts.” It was

originally enacted as Chapter 248 of the Public Acts of 1937. Section 9 of the act, T.C.A. § 7-

82-103, contained the following provisions:




                                               -5-
               (a) the provisions of §§ 7-82-102 and 7-82-402(b)
       shall not apply to those water utility districts having less than
       one thousand (1,000) subscribers to its service.


Section 17 of the same act, T.C.A. § 7-82-107 provides:

               Chapter unaffected by other law - Construction. -
       This chapter is complete in itself and shall be controlling.
       The provisions of any other law, general, special or local,
       except as provided in this chapter, shall not apply to a district
       incorporated hereunder; provided, that nothing in this chapter
       shall be construed as impairing the powers and duties of the
       department of environment and conservation. [Acts 1937, ch.
       248, § 17; C. Supp. 1950, § 3695.43 (Williams, § 3695.42);
       T.C.A. (orig. ed.), § 6-2627.]


Section 16 of the same act, T.C.A. § 7-82-104, contained the following provision:

               Exemption from state regulation - Rules of
       construction. (a) Neither the public service commission nor
       any other board or commission of like character hereafter
       created shall have jurisdiction over the district in the
       management and control of any system, including the
       regulation of its rates, fees, tolls or charges, except to the
       extent provided by this chapter and by the Wastewater
       Facilities Act of 1987, compiled in title 68, chapter 221, part
       10.


Section 3 of the same act, T.C.A. § 7-82-301 provides:

               District as municipality - Powers - Failure to act -
       Name change. (a)(1) From and after the date of the making
       and filing of such order of incorporation, the district so
       incorporated shall be a “municipality” or public corporation
       in perpetuity under its corporate name, and the same shall in
       that name be a body politic and corporate with power of
       perpetual succession, but without any power to levy or collect
       taxes. Charges for services authorized herein shall not be
       construed as taxes.


Section 5 of the same act, T.C.A. § 7-82-302 provides:

              Power to operate utilities. (a)(1) Any district
       heretofore or hereafter created under authority of this chapter
       is empowered to conduct, operate and maintain a system or
       systems for the furnishing of water, sewer, sewage disposal.


Section 18 of the same act, T.C.A. § 7-82-305 provides:

             Eminent domain. Any district has the power to
       condemn either the fee or such right, title interest, or

                                     -6-
              easement in the property as the board may deem necessary for
              any of the purposes mentioned in this chapter, and such
              property or interest in such property may be so acquired
              whether or not the same is owned or held for public use by
              corporations, associations or persons having the power of
              eminent domain, or otherwise held or used for public
              purposes; provided, that such prior public use will not be
              interfered with by this use.


       Title 68, Chapter 221 of Tennessee Code Annotated is entitled “Water and Sewerage.”

It was enacted by Chapter 52 of the Public Acts of 1945.



       Section 1 of said act, T.C.A. § 68-221-101(a)(11) provides:

                      (11) “Sewage” means all water-carried human and
              household wastes from residences, buildings, institutions or
              industrial establishments, together with such ground, surface,
              or storm water as may be present.


       Section 2, T.C.A. § 68-221-102, provides:

                     Supervision over construction of water supply and
              sewerage systems - Certification of local standards. (a)(1)
              The department shall exercise general supervision over the
              construction of public water supplies and public sewerage
              systems throughout the state.

                      (2) Such general supervision shall include all of the
              features of construction of waterworks systems which do or
              may affect the sanitary quality of the water supply and all
              features of construction of sewerage systems which do or may
              affect the proper collection, treatment or disposal of sewage.

                     (3) No new construction shall be done, nor shall any
              change be made in any public water supply or public
              sewerage system, until the plans for such new construction or
              change have been submitted to and approved by the
              department.



       Title 68, Chapter 221, Section 6 of Tennessee Code Annotated, enacted by Chapter 605,

Public Acts of 1974, is entitled “Water and Wastewater Authorities.”



       Section 2 of said act, T.C.A. § 68-221-602, provides:

                     (a) It is hereby declared that water and wastewater
              treatment authorities created pursuant to this part shall be

                                           -7-
              public and governmental bodies acting as agencies and
              instrumentalities of the creating and participating
              governmental entities; and that the acquisition, operation and
              finance of water and wastewater treatment works by such
              authorities is hereby declared to be for a public and
              governmental purpose and a matter of public necessity.


                      (b) The property of revenues of the authority, or any
              interest therein, are exempt from all state, county and
              municipal taxation. [Acts 1974, ch. 605, § 2, T.C.A. §§ 53-
              6002, 68-13-602.]


       Section 7 of the same act, T.C.A. § 68-221-607 provides:

                       An authority has all powers necessary to accomplish
              the purposes of this part (excluding the power to levy and
              collect taxes) including, but not limited to, the following:

                     (1) Have perpetual succession, sue and be sued, and
              adopt a corporate seal;

                       (2) Plan, establish, acquire, construct, improve and
              operate one (1) or more treatment works within or without the
              creating and participating governmental entities and within
              this state and within any adjoining state.


       Section 10 of the same act, T.C.A. § 68-221-610 provides:

                      Power to condemn property. (a) An authority has
              the power to condemn either the fee or such right, title,
              interest or easement in the property as the board may deem
              necessary for any of the purposes mentioned in this part, and
              such property or interest in such property may be so acquired
              whether or not the same is owned or held for public use by
              corporations, associations or persons having the power of
              eminent domain, or otherwise held or used for public
              purposes; provided, that such prior public use will not be
              interfered with by this use.


                                 MUNICIPAL ZONING

       Title 13, Chapter 4 of Tennessee Code Annotated is entitled “Municipal Planning.” It

was enacted by Chapter 34 of the Public Acts of 1935.



       Section 13-4-101 provides in part:

                     (a) The chief legislative body of any municipality
              (whether designated board of aldermen, board of



                                            -8-
              commissioners or by other title) may create and establish a
              municipal planning commission.


       Section 13-4-104 provides in part:

                       Submission of proposed construction to
              commission - approval - Failure to approve, overruling. -
              Whenever the commission shall have adopted the plan of the
              municipality or any part thereof, then and thenceforth no
              street, park or other public way, ground, place or space, no
              public building or structure, or no public utility, whether
              publicly or privately owned, shall be constructed or
              authorized in the municipality until and unless the location
              and extent thereof shall have been submitted to and approved
              by the planning commission; provided, that in case of
              disapproval, the commission shall communicate its reasons to
              the chief legislative body of the municipality, and such
              legislative body, by a vote of a majority of its membership,
              shall have the power to overrule such disapproval and, upon
              such overruling, such legislative body shall have the power to
              proceed.


       Section 13-4-201 provides in part:

                      General plan for physical development. - It is the
              function and duty of the commission to make and adopt an
              official general plan for the physical development of the
              municipality, including any area outside of its boundaries
              which, in the commission’s judgment, bears relation to the
              planning of the municipality.



                                  MUNICIPAL ZONING

       Title 13, Chapter 7 of Tennessee Code Annotated is entitled “zoning.” Part 2 of said title

is entitled “Municipal Zoning.”   It was enacted by chapter 44 of the Public Acts of 1935.



       Section 13-7-201 provides in part:


                      Grant of power. - (a)(1) For the purpose of
              promoting the public health, safety, morals, convenience,
              order, prosperity and general welfare, the board of aldermen,
              board of commissioners or other chief legislative body of any
              municipality by whatever title designated (and hereinafter
              designated as “chief legislative body”), is empowered, in
              accordance with the conditions and the procedure specified in
              this part and part 3 of this chapter, to regulate the location,
              height, bulk, number of stories and size of buildings and other
              structures, the percentage of the lot which may be occupied,

                                    -9-
       the sizes of yards, courts and other open spaces, the density of
       population, and the uses of buildings, structures and land for
       trade, industry, residence, recreation, public activities and
       other purposes. Special districts or zones may be established
       in those areas deemed subject to seasonal or periodic
       flooding, and such regulations may be applied therein as will
       minimize danger to life and property, and as will secure to the
       citizens of Tennessee the eligibility for flood insurance under
       Public Law 1016, 84th Congress or subsequent related laws
       or regulations promulgated thereunder. Protection and
       encouragement of access to sunlight for solar energy systems
       may be considered in promulgating zoning regulations
       pursuant to this section.


Section 13-7-202 provides in part:

                Zoning plan. - Whenever the planning commission of
       the municipality makes and certifies to the chief legislative
       body a zoning plan, including both the full text of a zoning
       ordinance and the maps, representing the recommendations of
       the planning commission for the regulation by districts or
       zones of the location, height, bulk, number of stories and size
       of buildings and other structures, the percentage of the log
       which may be occupied, the size of yards, courts and other
       open spaces, the density of population, and the uses of
       buildings, structures and land for trade, industry, residence,
       recreation, public activities and other purposes, then the chief
       legislative body may exercise the powers granted and for the
       purposes mentioned in § 13-7-201, and may divide the
       municipality into districts or zones of such number, shape and
       areas it may determine, and, for such purposes, may regulate
       the erection, construction, reconstruction, alteration and uses
       of buildings and structures and the uses of land. [Acts 1935,
       ch. 44, § 2; C. Supp. 1950, § 3407.2; T.C.A. (orig. ed.), § 13-
       702.]


Section 13-7-204 provides in part:

                 Amendments to zoning ordinances. - The zoning
       ordinances including the maps, may from time to time be
       amended; but no amendment shall become effective unless it
       is first submitted to and approved by the planning commission
       or, if disapproved, receives the favorable vote of a majority of
       the entire membership of the chief legislative body. [Acts
       1935, ch. 44, § 4; C. Supp. 1950, § 3407.4; T.C.A. (orig. ed.),
       § 13-704.]


Section 13-7-205 provides in part:

              (a) The chief legislative body may create a board of
       zoning appeals of three (3) or five (5) members.




                                      -10-
Section 13-7-206 provides in part:

                Jurisdiction of board - Parties to appeals. - (a) The
       zoning ordinance may provide that the board of appeals may,
       in appropriate cases and subject to the principles, standards,
       rules, conditions and safeguards set forth in the ordinance,
       make special exceptions to the terms of the zoning regulations
       in harmony with their general purpose and intent. The chief
       legislative body may also authorize the board of appeals to
       interpret the zoning maps and pass upon disputed questions
       of lot lines or district boundary lines or similar questions as
       they arise in the administration of the zoning regulations.

               (b) Appeals to the board of appeals may be taken by
       any person aggrieved or by any officer, department, board or
       bureau of the municipality affected by any grant or refusal of
       a building permit or other act or decision of the building
       commissioner of the municipality or other administrative
       official based in whole or part upon the provisions of this
       ordinance enacted under this part and part 3 of this chapter.
       [Acts 1935, ch. 44, § 5; C. Supp. 1950, § 3407.5; T.C.A.
       (orig. ed.), § 13-706.]


Section 13-7-207 provides in part:

               Powers of board of appeals. - The board of appeals
       has the power to:
                                    ----
               (2)     Hear and decide, in accordance with the
       provisions of any such ordinance, requests for special
       exceptions or for interpretation of the map or for decisions
       upon other special questions upon which such board is
       authorized by any such ordinance to pass; and
                                    ----
       without substantial detriment to the public good and without
       substantially impairing the intent and purpose of the zone plan
       and zoning ordinance. (Acts 1935, ch. 44, § 5; C. Supp.
       1950, § 3407.5; T.C.A. (orig. ed.), § 13-707.]


Sections 13-7-302, 304 and 305 provide in part:

               13-7-302. Establishment of zones or districts
       outside municipality. - Power is hereby granted to the chief
       legislative body of any municipality to establish by ordinance
       zones or districts in territory adjoining but outside of such
       municipality and lying within planning regions in which the
       municipal planning commission has been designated as the
       regional planning commission under § 13-3-102, and in which
       territory the county has no zoning already in force; provided,
       that prior to final enactment of such ordinance, six (6)
       months’ notice of intent shall have been filed with the county
       executive of the county or counties within which the
       municipality and./or region lies. Within such zones or
       districts the municipality may by ordinance regulate the

                                     -11-
               location, height, bulk, number of stories and size of buildings
               and other structures, the percentage of lot occupancy, the
               required open spaces, the density of population and the uses
               of land, buildings, and structures. [Acts 1959, ch. 217, § 1;
               impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A., § 130611,]

               13-7-304. Board of appeals - Creation - Members,
               appointment - Terms. - In adopting the regional zoning
               ordinance, the chief legislative body of the municipality shall
               create a board of zoning appeals consisting of three (3) or five
               (5) members, a majority of whom shall be residents of the
               territory subject to the regional zoning provisions, and who
               shall be appointed for terms of such length and so arranged
               that the term of one (1) member shall expire each year. [Acts
               1959, ch. 217, § 3; T.C.A., § 13-713.]

               13-7-305. Application of part 2 of this chapter. - The terms
               of the municipal zoning regulations as appearing in part 2 of
               this chapter shall apply accept as specifically otherwise
               provided in this part. [Acts 1959, ch. 217, § 4; T.C.A., § 13-
               714.]


                            METROPOLITAN GOVERNMENT

       Title 7, Chapter 2 of Tennessee Code Annotated authorizes the creation of a combined

government for cities and counties. It was enacted by chapter 120 of the Public Act of 1957 and

subsequent amendments. The defendant, Metropolitan Government was created under the

authority of this legislation. In general, it was granted the municipal powers of its predecessors,

the City of Nashville and County of Davidson.



       The plaintiff, Harpeth Valley Utility District, as created on August 18, 1959, by

registration of its charter with the Secretary of State under the provisions of T.C.A. §§ 7-82-101

et. seq., the “Utility Law of 1937.” It provides water and sewerage disposal to areas of Davidson,

Williamson and Cheatham. Its present disposal facilities are inadequate for the present and

anticipated volume of wastewater.


       On February 20, 1996, the Metropolitan Counsel of defendant, Metropolitan

Government, adopted Resolution R96-167 approving an agreement between Metropolitan

Government and the plaintiff utility including the following provision:

               The parties agree that if HVUD determines that construction
               of an additional wastewater facility, to be sited downstream

                                             -12-
                 from the Whites Creek Facility, is in the best interests of
                 HVUD customers and ratepayers, METRO will cooperate
                 with and use its best efforts to assist HVUD in its efforts to
                 locate and construct such an additional treatment facility.
                 METRO will incur no financial obligation by virtue of this
                 assistance or cooperation. HVUD agrees to discuss with
                 METRO possible service to or treatment of METRO
                 wastewater at HVUD’s downstream plant. If HVUD has not
                 begun construction of its own wastewater treatment facility by
                 December 31, 1998, HVUD agrees to enter into a new truck
                 and treatment agreement with METRO, with terms
                 substantially similar to the existing Trunk and Treatment
                 Agreement and providing for rates and prices adjusted for
                 increases or decreases in METRO’s actual costs.


       Plaintiff engaged the services of a competent engineering firm which provided a plan for

a wastewater disposal facility. Plaintiff has acquired approximately 297 acres in “Bell’s Bend”

which satisfies the criteria of its planning engineers. The Tennessee Department of Environment

and Conservation has approved the location and plan of the facility.



       Potential bidders for construction of the facility are unwilling to contract to perform the

construction without a building permit from the Metropolitan Department of Codes

Administration or a court decision relieving plaintiff of the duty to obtain such a permit.



       Application was made to the Metropolitan Zoning Administrator for such a permit, but

the application was denied because “a wastewater treatment facility is not a permitted use at the

location indicated in your plans”.



       Metropolitan Government has no jurisdiction to interfere with the construction of

plaintiff’s planned wastewater disposal facility after approval by the State Department of

Environment and Conservation for a number of reasons:



1.     The Legislature provided for sanitary districts in 1901, thereby pre-empting control of

such activity.




                                               -13-
2.     Municipal Planning and Zoning was legislated in 1935, but the legislation granted no

powers over other governmental bodies.



3.     In 1937, the Legislative provided that utility districts were governmental bodies.



4.     The Metropolitan Counsel, which planning powers over the actions of its planning and

zoning agencies, has legislatively approved the construction of plaintiff’s planned facility.



       The intervenors argue that the plaintiff may not rely upon the doctrine of preemption

because it was not presented to the Trial Court. The record contains a memorandum filed in the

Trial Court on August 28, 1997, presenting this issue.



       Metropolitan Government argues that municipal regulation of water utilities is

permissible. However, no authority is cited or found that waste water facilities are subject to

municipal regulation contrary to the express action of the municipal legislative authority.



       In Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.2d 777 (1956), the State of

Tennessee planned a structure adjacent to a municipal airport. The Supreme Court held that the

State was not subject to county zoning regulation despite the fact that the State had sought

approval of county zoning authorities. The Court also held that a private act creating local

zoning authority did not waive governmental immunity of the State or its instrumentalities unless

the intention to do so was clearly expressed in the act.



       The legislative act under which plaintiff was created clearly qualifies it for governmental

immunity, and subsequent legislation as to sewage disposal activities accentuates this immunity.

Campbell v. City of Knoxville, Tenn. 1974, 505 S.W.2d 710.




                                              -14-
       Local governments have no power to forbid what the general law of the State authorizes.

State ex. rel. Polin v. Hill, Tenn. 1977, 547 S.W.2d 916.



       The power of eminent domain includes the power to locate the public improvement for

which private property is taken. City of Maryville v. Edmondson, Tenn. App. 1996, 931 S.W.2d

932.



       The plaintiff and any persons or firms acting for plaintiffs are authorized to proceed with

the construction of its proposed wastewater disposal facility as approved by the State Department

of Environment and Conservation without any permit or license from any division of the local

Metropolitan Government.



       The question of what if any rights, if any, the intervenors or others to recover damages

is outside the scope of this appeal.



       For the reasons discussed above, the judgment of the Trial Court is reversed and vacated.

One-half of the costs of this appeal is taxed against the Metropolitan Government of Nashville

and Davidson County and one-half of said costs is taxed against the captioned intervenors,

jointly and severally. The cause is remanded to the Trial Court for entry of judgment in

conformity with this opinion, including an equitable assignment of liability against Metropolitan

Government and the intervenors for costs accrued in that court.



                              REVERSED AND REMANDED.


                                                      _________________________________
                                                      HENRY F. TODD
                                                      PRESIDING JUDGE, MIDDLE SECTION



CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
JERRY SMITH, SPECIAL JUDGE

                                              -15-
