By Connor Daryani, Nashville Banner
The Tennessee General Assembly will convene once again in January. Will there be more city-versus-state battles?
As the second half of the 113th Tennessee General Assembly approaches, local elected officials around the state are working to flip the preemption narrative, hoping to make some headway in reclaiming local control.
One of the most significant outcomes of 2023’s legislative session was the onslaught of so-called “attacks on Nashville.” From an attempt to cut the Metro Council in half to takeovers of the city’s sports and airport authority boards, the Republican supermajority made multiple attempts at state preemption that courts have ruled against. But while the battle between the state and Nashville may occupy the majority of conversations around preemption, one study shows state interference reaches far beyond the boundaries of Davidson County and other blue cities in Tennessee. With that in mind, local leaders hope to find common ground and move forward on bipartisan solutions to bring back local control.
But while some areas may offer a glimmer of hope, Tennesseans shouldn’t expect any drastic reclamations of local control anytime soon.
“I think with any supermajority, you have to work slowly and build those relationships over time and be really engaged at all levels of politics,” says Vice Mayor Stefanie Dalton of Red Bank, Tenn.
State preemption touches just about every aspect of the work local jurisdictions do, creating a complicated maze for local officials to navigate. The affordable housing issue has recently dominated headlines in Nashville, with much of the Metro Council and Mayor Freddie O’Connell making it their central campaign issue during election season. But as much as local officials might want to do something about affordable housing, they are limited in what they can do without changes to state law.
“State interference into local zoning means that local governments are not able to address community concerns about short-term rentals and their negative impacts, guarantee that affordable housing units are built into new developments, or regulate the development of new utility and energy-related infrastructure,” reads a study from We Decide Tennessee, a statewide coalition of community organizations and local elected officials created to fight back against state preemption.
Inclusionary zoning is one strategy the state legislature has banned. Studies show the practice of inclusionary zoning, which requires new developments to have a certain percentage of affordable housing units, greatly increases affordable housing options. But after Nashville passed an inclusionary zoning ordinance in 2016, the state legislature swiftly passed legislation banning the practice.
But while the zoning strategy may be off the table, Dalton hopes there could be room for a compromise.
“They are going to be looking potentially at some legislation that would make it legal for cities to offer voluntary incentives to developers to include sub-market-rate housing in their housing development,” says Dalton. “Because affordable housing is an issue across this nation. But we don’t even have any option to offer voluntary incentives right now; it’s illegal to do that.”
Red Bank is a small city surrounded by Chattanooga. Dalton says that while Red Bank isn’t one of the four big cities seen as the usual suspects when it comes to being preempted by the state, it frequently runs into issues brought on by state laws interfering with the city’s ability to operate. One action Dalton is apprehensive about is the possibility of the state capping local property taxes.
“That would be absolutely devastating to our cities, especially our smaller cities like us in Red Bank,” says Dalton. “We’re about six-and-a-half square miles, and we’ve got 12,000 residents … and because we’re so small, we have a pretty small commercial corridor. So we are heavily dependent on property tax revenue.”
The ability to raise revenues is an essential part of what allows cities to provide services to their constituents. Everything from fixing potholes to maintaining parks and improving public infrastructure depends on a city having needed revenues. And while Dalton hopes that one piece of legislation that would rewrite the formula for how sales taxes are redistributed to cities could increase revenues, recent rhetoric from Republican leadership has primarily centered on potential cuts.
State preemption is not just a Tennessee problem. The National League of Cities conducted a study in 2019 showing that every state in the country other than Hawaii has passed legislation preempting local jurisdiction. The study looked at 12 different legal domains and found seven preempted in Tennessee. Tennessee, like other states with supermajorities in the legislature, is on the higher end when it comes to preemption.
“I have spoken with county and municipal officials from Memphis to Mountain City, and what I hear over and over is that the state is an impediment to raising revenue for basic public services like new schools or infrastructure,” says Isaac Swafford, the primary organizer at We Decide Tennessee. “Meanwhile, the state sits on huge budget surpluses while giving away huge tax subsidies to corporations and threatening to refuse federal education monies.”
The refusal of federal funding for education in Tennessee looks increasingly unlikely. A working group created by Republican leadership to explore the rejection of federal funding for education met multiple times in November, with little to show why it would be a good idea. Almost immediately following the conclusion of those meetings, Gov. Bill Lee began a push to expand a controversial school voucher program statewide. Critics argue this measure would divert much-needed funds from public schools, which are already stretched thin.
The elephant in the room remains the battle between the state and Nashville. But with the O’Connell administration’s hiring of Rep. Darren Jernigan (D-Nashville) as the director of legislative affairs and lots of rhetoric surrounding new beginnings with the state, local officials hope the coming session will be less combative.
“We have a new mayor, we have a new vice mayor, 50 percent new council — it is a reset moment and a time to build back relationships,” says Nashville Vice Mayor Angie Henderson.
Some legal battles over state preemption have carried over from the previous administration — top of mind is a battle over legislation that allowed the state to take over the airport authority board. In the first months of O’Connell’s administration, a three-judge panel ruled that bill unconstitutional, leading to a dramatic reversion to the old Metro-appointed board. But not only has the state already expressed its intent to appeal the ruling, Sen. Paul Bailey (R-Sparta) has already said he plans to file legislation to take over other airport authority boards around the state, which would sidestep the Home Rule provisions that Metro Legal has used to argue against legislation targeting Nashville.
But while some issues may already be under litigation, Henderson hopes that other less dramatic but arguably more impactful issues may present opportunities for bipartisan action.
“I would like to see us, as a region, make some clear advancements on transportation,” says Henderson. “Just a few weeks ago, the mayor and I were together at the Transportation Policy Board meeting there, chatting with and talking to folks in leadership at TDOT, so I think we have a lot of opportunities in some of our shared spaces and corridors.”
Earlier this month, Chattanooga was awarded a grant from the U.S. Department of Transportation to fund a study of what it would take to install an Amtrak line linking Memphis, Nashville, Chattanooga and Atlanta. This came following the conclusion of a Tennessee Advisory Commission on Intergovernmental Relations study in June that, aside from pursuing the grant, also recommended various actions the General Assembly could take to prepare the state for regional transit, including establishing a public transit office. The idea was met with bipartisan enthusiasm.
O’Connell and Dalton both sit on the board of the Tennessee Municipal League, an organization that promotes legislation deemed good for local control, and fights back against legislation that could be preemptive. Dalton says the league has been in conversation with legislators on both sides of the aisle in preparation for the coming session.
“I would hope that as we build relationships, folks in service at the state would be in dialogue with us to get our perspective as a city,” says Henderson. “Coalition building, I think, is really important all across the state, because state policy absolutely does affect and have local results — for the good and the bad.”
