Harpeth Valley Utilities Dist. v. Metro Gov't ( 1998 )

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
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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
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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
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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:
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(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
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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
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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
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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,
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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.
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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
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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
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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.
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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.
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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
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