Thursday, February 18, 2016

Can a Planning Commission Recommendation be appealed?

Last fall, Historic Sylvan Park Inc., sued Metro Nashville by way of a common law writ of certiorari, seeking to appeal a decision of the Metro Planning commission recommending against the extension of a historic zoning district in that neighborhood. The residents of Sylvan Park argued that the negative recommendation of the Planning Commission results in a requirement that a two thirds majority of the Metropolitan Council past the proposed zoning change pursuant to §18.02 of the Metropolitan Charter. The residents argued that because there’s no other mechanism by which to appeal the two thirds voting requirement, the Planning Commission decision was a final order subject to appeal by certiorari.

The Tennessee Court of Appeals did not agree. The court cited back to one of mild cases, Family Golf v Metro Nashville, 964 S.W. 2d 254, 259 (Tenn. App. 1997), which explained:
We view §18.02 as clear confirmation of the important advisory role of the Metropolitan Planning Commission plays in the control of the use of land Nashville. By requiring a super-majority of the Metropolitan Council to override the planning commission’s disapproval of a proposed zoning change, the Charter Commission intended to protect against random or ad hoc zoning and to ensure that the Metropolitan Council takes the carefully crafted general plan seriously.
964 S.W. 2d at 259. The important point here is this: a decision to extend the zoning district is a legislative decision made by the Metropolitan Council, with a recommendation from the Planning Commission. But that does not make the Planning Commission decision an administrative or judicial decision subject to review by the common law writ of certiorari; in fact, a zoning change application such as this can only be challenged by declaratory judgment. Fallin v Knox County, 656 SW 2d 338 (Tenn. 1983). The recommendation by the Planning Commission, both here in Nashville and across the state of Tennessee, is simply a part of the legislative process, not subject to review by means of the common law writ.

The Court of Appeals affirmed the decision of the trial court dismissing the case.

No comments:

Post a Comment