Commentary written by David Seal, The Property Patriot and valued Tennessee Stands partner
Communities across Tennessee are bracing themselves for the invasion of AI Data Centers. County and municipal governments are amending zoning regulations and imposing moratoriums on approval of these facilities. However, they are ignoring a potential threat buried deep in Tennessee’s property rights statutes.
A gremlin may be hiding in eminent domain law that circumvents the well-intended efforts of municipalities to protect citizens from the big monied special interests that are pushing data centers. Local zoning regulations may be powerless in the case that I present.
Rewind for a snippet of history.
The Tennessee legislature enacted Public Chapter 863 (PC863) in 2006 in the wake of the landmark U.S. Supreme Court decision in Kelo v. New London, a case that made it possible for condemning authorities to forcefully take private property purely for economic development. Tennessee’s PC863 made takings for private economic development and private gain unlawful…with a few exceptions.
Herein lies the nasty gremlin.
T.C.A. § 29-17-102 makes 5 exceptions for property takings for private use, utility takings being one of the broad exceptions. Pay close attention to (2)(B).
(1) “Eminent domain” means the authority conferred upon the government, and those entities to whom the government delegates such authority, to condemn and take, in whole or in part, the private property of another, so long as the property is taken for a legitimate public use in accordance with the fifth and fourteenth amendments to the United States Constitution, the Constitution of Tennessee, Article I, § 21, and chapter 863 of the Public Acts of 2006; and
(2) “Public use” does not include recreational facilities, recreational purposes, or parks; private use or benefit; or the indirect public benefits resulting from private economic development and private commercial enterprise, including increased tax revenue and increased employment opportunity, except as follows:
(A) The acquisition of any interest in land necessary for a road, highway, bridge, or other structure, facility, or project used for public transportation;
(B) The acquisition of any interest in land necessary to the function of a public or private utility, a governmental or quasi-governmental utility, a common carrier, or any entity authorized to exercise the power of eminent domain under title 65;
(C) The acquisition of property by a housing authority or community development agency to implement an urban renewal or redevelopment plan in a blighted area, as authorized by title 13, chapter 20, part 2 or title 13, chapter 21, part 2;
(D) The acquisition of any interest in land for parks or natural areas by this state, in accordance with title 11; brownfield projects, as defined in § 68-212-202; or the redevelopment of brownfield sites, as defined in § 7-53-316; or
(E) Private use that is merely incidental to a public use, so long as no land is condemned or taken primarily for the purpose of conveying or permitting the incidental private use.
Fast forward to the age of data centers.
According to multiple news reports, Georgia Power is using the power and threat of eminent domain to forcefully take private property for infrastructure that would benefit data center facilities.
A recent article from the New York Post titled, “Georgia residents stand to lose everything as homes seized by private company in $16B data center plan to power AI” states,
“At least 330 properties total are in the path of Project Wansley, a new 35-mile transmission corridor that Georgia Power says is critical to meeting surging electricity demand driven by the AI boom.
Of that sum, between 20 and 30 homes are expected to be demolished outright, with hundreds of other landowners being asked to hand over permanent easements that would plant 500-kilovolt power towers feet from their bedroom windows. At least four data centers are directly tied to or supported by the line.” New York Post
In an article from the Atlanta Journal Constitution titled “The data center boom is transforming Georgia. Some residents could lose their land.”, it blames the state for purposeful recruiting of data centers to the state.
“Demand for power is on the rise again in Georgia, mainly because of the state’s recruitment of data centers. And while Georgia Power is building new power plants to generate electricity, it also needs new power lines to deliver it.” Atlanta Journal Constitution
Along with certain legislators and property rights activists, we are investigating ways to protect Tennessee property owners from utility ventures where data centers are involved and to make sure those data centers are located in appropriate places. As data centers become part of our lives, your help will be needed in this effort to protect our private property.
David Seal is a retired Jefferson County educator, recognized artist, local businessman, 917 Society Volunteer, and past Chairman of the Jefferson County Republican Party. He has also served Jefferson County as a County Commissioner and is a citizen lobbyist for the people on issues such as eminent domain, property rights, education, and broadband accessibility on the state level. David is also a 2024 winner of The Tennessee Conservative Flame Award & has received an accolade from the Institute For Justice for successfully lobbing the TN legislature to protect property rights. David can be reached at david@tennesseeconservativenews.com
Does Tennessee Law Support Utility Companies’ Use of Eminent Domain?
Commentary written by David Seal, The Property Patriot and valued Tennessee Stands partner
Communities across Tennessee are bracing themselves for the invasion of AI Data Centers. County and municipal governments are amending zoning regulations and imposing moratoriums on approval of these facilities. However, they are ignoring a potential threat buried deep in Tennessee’s property rights statutes.
A gremlin may be hiding in eminent domain law that circumvents the well-intended efforts of municipalities to protect citizens from the big monied special interests that are pushing data centers. Local zoning regulations may be powerless in the case that I present.
Rewind for a snippet of history.
The Tennessee legislature enacted Public Chapter 863 (PC863) in 2006 in the wake of the landmark U.S. Supreme Court decision in Kelo v. New London, a case that made it possible for condemning authorities to forcefully take private property purely for economic development. Tennessee’s PC863 made takings for private economic development and private gain unlawful…with a few exceptions.
Herein lies the nasty gremlin.
T.C.A. § 29-17-102 makes 5 exceptions for property takings for private use, utility takings being one of the broad exceptions. Pay close attention to (2)(B).
(1) “Eminent domain” means the authority conferred upon the government, and those entities to whom the government delegates such authority, to condemn and take, in whole or in part, the private property of another, so long as the property is taken for a legitimate public use in accordance with the fifth and fourteenth amendments to the United States Constitution, the Constitution of Tennessee, Article I, § 21, and chapter 863 of the Public Acts of 2006; and
(2) “Public use” does not include recreational facilities, recreational purposes, or parks; private use or benefit; or the indirect public benefits resulting from private economic development and private commercial enterprise, including increased tax revenue and increased employment opportunity, except as follows:
(A) The acquisition of any interest in land necessary for a road, highway, bridge, or other structure, facility, or project used for public transportation;
(B) The acquisition of any interest in land necessary to the function of a public or private utility, a governmental or quasi-governmental utility, a common carrier, or any entity authorized to exercise the power of eminent domain under title 65;
(C) The acquisition of property by a housing authority or community development agency to implement an urban renewal or redevelopment plan in a blighted area, as authorized by title 13, chapter 20, part 2 or title 13, chapter 21, part 2;
(D) The acquisition of any interest in land for parks or natural areas by this state, in accordance with title 11; brownfield projects, as defined in § 68-212-202; or the redevelopment of brownfield sites, as defined in § 7-53-316; or
(E) Private use that is merely incidental to a public use, so long as no land is condemned or taken primarily for the purpose of conveying or permitting the incidental private use.
Fast forward to the age of data centers.
According to multiple news reports, Georgia Power is using the power and threat of eminent domain to forcefully take private property for infrastructure that would benefit data center facilities.
A recent article from the New York Post titled, “Georgia residents stand to lose everything as homes seized by private company in $16B data center plan to power AI” states,
“At least 330 properties total are in the path of Project Wansley, a new 35-mile transmission corridor that Georgia Power says is critical to meeting surging electricity demand driven by the AI boom.
Of that sum, between 20 and 30 homes are expected to be demolished outright, with hundreds of other landowners being asked to hand over permanent easements that would plant 500-kilovolt power towers feet from their bedroom windows. At least four data centers are directly tied to or supported by the line.” New York Post
In an article from the Atlanta Journal Constitution titled “The data center boom is transforming Georgia. Some residents could lose their land.”, it blames the state for purposeful recruiting of data centers to the state.
“Demand for power is on the rise again in Georgia, mainly because of the state’s recruitment of data centers. And while Georgia Power is building new power plants to generate electricity, it also needs new power lines to deliver it.” Atlanta Journal Constitution
Along with certain legislators and property rights activists, we are investigating ways to protect Tennessee property owners from utility ventures where data centers are involved and to make sure those data centers are located in appropriate places. As data centers become part of our lives, your help will be needed in this effort to protect our private property.
David Seal is a retired Jefferson County educator, recognized artist, local businessman, 917 Society Volunteer, and past Chairman of the Jefferson County Republican Party. He has also served Jefferson County as a County Commissioner and is a citizen lobbyist for the people on issues such as eminent domain, property rights, education, and broadband accessibility on the state level. David is also a 2024 winner of The Tennessee Conservative Flame Award & has received an accolade from the Institute For Justice for successfully lobbing the TN legislature to protect property rights. David can be reached at david@tennesseeconservativenews.com
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Anne Lowery
Anne Lowery