When the government wants to take your land, most people assume you can at least go to court and say: “You don’t actually need my property for this. Take a different parcel. My land isn’t necessary.” That right — the ability to challenge whether a taking is truly necessary — is called the necessity defense. For most of Tennessee’s history, T.C.A. § 29-17-107 gave property owners exactly that right.
In April 2024, the Tennessee General Assembly amended that statute. For property owners facing condemnation by a sewer, utility, or water project, the necessity defense is no longer available. You may still argue about how much you are paid. You may no longer argue about whether the taking should happen at all.
A new wastewater treatment plant is, without question, a sewer project. If the City of Lebanon selects a rural site and moves to condemn the land, the affected property owners will almost certainly find themselves in that position: disputing compensation, not necessity.
This matters today — before a site is chosen — because once condemnation begins under current law, the most fundamental legal challenge available to rural landowners appears to be foreclosed.
T.C.A. § 29-17-107 is the Tennessee statute governing challenges to eminent domain proceedings. Before the 2024 amendment, it gave landowners the right to contest whether a proposed taking was actually necessary for the stated public purpose. Courts could examine whether the condemning authority genuinely needed the specific property it sought, whether the project as designed required the parcel in question, and whether less-invasive alternatives existed.
This was not a trivial procedural right. The necessity defense was the primary substantive check on the exercise of eminent domain. Without it, a landowner’s options in court collapse to a single question: what is the property worth? The question of whether the property should be taken at all is removed from judicial review.
Chapter 748 of the 2024 Tennessee Public Acts, effective April 22, 2024 (Tennessee SB 1984, 113th General Assembly), added the following exclusion to § 29-17-107:
The amendment removes the necessity defense for the listed categories of projects. A wastewater treatment facility is a sewer project. Under the amended statute, a landowner facing condemnation for a WWTP site would appear to have no statutory basis to challenge whether the condemnation is necessary — only to contest the compensation amount.
The legal interpretation of a newly enacted statute can evolve through litigation, and affected landowners should consult counsel to assess what challenges may remain available. What the text of the amendment does, on its face, is eliminate the statutory necessity defense for this category of project.
Tennessee law still provides the necessity defense for many types of condemnation proceedings. A private entity pursuing eminent domain — a pipeline company, a private utility, a developer with condemned access rights — generally remains subject to necessity challenges. The 2024 amendment created a two-tier system: property owners facing private condemners retain the substantive check; property owners facing municipal utility and sewer projects do not.
It is not obvious what principled distinction justifies that asymmetry. A landowner’s interest in contesting a forced taking does not change based on whether the condemning authority is a private company or a municipal government. If anything, the argument runs the other direction: a private company bears market risk that disciplines overreach, while a municipal government spending public funds on a long-term infrastructure project faces different incentives. The amendment removes judicial scrutiny from the context in which it may be most needed.
Lebanon has not yet selected a site. The city has not invoked eminent domain against any property owner. At this stage, the statutory limitation is prospective rather than immediate. But it shapes the legal landscape that would apply if a rural site is chosen and the city moves to acquire land.
Several candidate sites outside the city limits include parcels that are not listed for sale and whose owners have not indicated a willingness to convey. If the committee selects such a site, the city’s path to acquisition would likely involve eminent domain proceedings. Under the amended § 29-17-107, the affected property owners would — as the statute currently reads — be limited to challenging the compensation amount. The question of whether the city could have chosen a different site, whether the rural parcel was actually necessary, or whether less invasive alternatives existed would not appear to be open to them in court.
This is the connection to the site selection proceeding. The decision being made now — which site to advance — is also, in practical terms, a decision about which landowners will face condemnation proceedings under a statute that currently provides them no necessity defense. That is a material consequence of the site selection outcome, and one that has not been entered into the public record.
The amendment to § 29-17-107 removes a statutory defense. It does not necessarily foreclose all legal avenues for a landowner facing condemnation. Constitutional challenges — grounded in the public use requirement of the Fifth Amendment and its Tennessee counterpart, or in due process and equal protection arguments — are distinct from the statutory necessity defense and may still be available. Procedural challenges, challenges to the stated public purpose, and challenges to the authority of the condemning entity to act also remain as potential avenues depending on the circumstances.
What the amendment appears to remove is the most direct and historically available challenge: the right to go to court and say the taking of this specific parcel was not necessary. That is a significant narrowing of the landowner’s position, even if it does not extinguish all recourse.
The 2024 amendment is a product of the Tennessee General Assembly and can be revisited by it. The appropriate remedy is straightforward in framing, even if not in execution: restore the necessity defense for all property owners equally, regardless of the type of project driving the condemnation.
The case for a legislative fix is non-parochial. It does not require a legislator to take a position on Lebanon’s specific site selection dispute. It requires only a commitment to consistent treatment of property owners under Tennessee law: that a homeowner or farmer facing a forced taking should have the same right to contest necessity whether the condemning authority is a private pipeline company or a municipal sewer authority.
That framing — equal protection of property rights, consistently applied — is one that legislators across the political spectrum have historically been willing to support. The 2024 amendment created an anomaly. Correcting it is a legitimate legislative priority that any affected Tennessee landowner, in any county, has standing to raise.
The sequence matters. While the city is still evaluating sites, affected residents and property owners have the opportunity to shape the outcome through the public record, through formal filings, and through the political process. That window is open. It is the most favorable terrain available.
If a rural site is selected and condemnation begins, the terrain shifts. The necessity of the taking — the most fundamental question a property owner would want to raise — appears, under current law, to be outside the scope of what a court will review. The fight becomes about dollars, not about whether the taking should happen.
This is not a reason for pessimism about the legislative track. It is a reason to pursue both tracks in sequence: contest the site selection now, on the merits and on the record; and pursue the legislative remedy as a parallel effort that broadens the coalition and builds toward a fix that protects Tennessee landowners statewide. The two are complementary, not competing.
What the 2024 amendment makes clear is that the stakes of the site selection decision are higher than they might appear. A vote to advance a rural site is not merely a decision about where to locate infrastructure. Under current Tennessee law, it is a decision about which landowners will face a condemnation process in which their most fundamental defense has been removed.