2nd Case: http://www.tncourts.gov/sites/default/files/metz.george.opn__0.pdf
In addition take a look at this Tennessean article.
These two cases involve a challenge by neighbors to a 96 unit affordable apartment complex proposed in Antioch. Once again, these cases reinforce the very common errors that are made by counsel for petitioners in a writ of certiorari case: failing to file within 60 days of the decision of the administrative body, and/or failing to have the petition verified by the petitioner(s).
A preliminary master development plan was approved on March 24, 2016 by the Metro Planning Commission, and the minutes were signed and entered on April 14, 2016. A rehearing was requested and heard on April 28, 2016; the Planning Commission denied the request and the minutes for the meeting were entered on May 12, 2016.
On May 16, the petitioners filed a common law writ of certiorari challenging the March 24, April 14, and May 12 decisions. Neither the original petition nor several amended petitions which were filed on behalf of the petitioners were verified by oath as required by Tennessee law.
On August 5, 2016, Metro Nashville filed a motion to dismiss which the trial court granted. The petitioners filed a motion to amend the petition on August 15, which was verified an otherwise comported with the procedural requirements of the common law writ of certiorari.
In the first case reviewed by the Tennessee Court of Appeals (citation above), the trial court’s decision was upheld. Once the 60 day time frame had elapsed, without the petition having been corrected, the trial court lost jurisdiction and could no longer grant a motion to amend; therefore, the case had to be dismissed for lack of compliance with the procedural requirements of the common law writ of certiorari
An additional argument in the first case was whether or not the suit papers could be considered as a declaratory judgment rather than as a common law writ of certiorari. The difficulty with this argument is that in reviewing a master development plan within a planned unit development or a specific plan, under the Metro Zoning Ordinance, the Planning Commission makes an administrative decision by applying existing law through a given set of facts. The planning commission does not create new law. The common law writ of certiorari applies to review an administrative decision which applies existing law to a development proposal; declaratory judgment action is available to review a proposed change in the law, such as a zoning change (from, let’s say, a residential zoning district to a commercial zoning district).
The court cited McFarland v. Pemberton, 2017 WL 4279199, at *22, 28-29 (Tenn. Sept.20, 2017), for this authority; this case is an extremely interesting case applying this doctrine and explaining the difference between the common law writ in a declaratory judgment action.
However, in addition to reviewing the McFarland case, counsel for petitioners in a land use planning matter might consider suing both ways, that is, filing a petition for common law writ of certiorari, properly verified and filed within 60 days of the administrative decision, as well as filing a declaratory judgment action if there is any question that the case could be filed on my are not the other. By filing both types of cases, separately, the attorney hopefully avoids these difficulties.
But it cannot be emphasized too much, that the petition for common law writ of certiorari must be verified by the petitioner, that is the petitioner must swear that the facts alleged in the petition are true to the best of the petitioner’s knowledge information and belief. Furthermore, the petition must be filed within 60 days of the decision of the administrative body. In zoning cases, for the most part, the planning commission or the board of zoning appeals are the administrative bodies making decisions although in some instances, the local legislative body may make an administrative decision itself so that the common law writ of certiorari is applicable. There are other requirements related to the common law writ, but these are the two that are most often missed and lead to dismissals of cases which might otherwise have some merit.
A second lawsuit was filed on December 27, 2016 challenging the decision on April 28, 2016. As the Court of Appeals ruled several days ago in reviewing the trial court decision to dismiss the petition for writ of certiorari, once again because the lawsuit was not filed until well after 60 days had already expired, the lawsuit was filed too late, and the trial court lost jurisdiction. Therefore, the trial court properly dismissed the petition for writ of certiorari.
Finally, on October 13, 2016, the planning commission approved the final site plan, the minutes for which were entered on October 27. This decision was challenged by the same suit filed on December 27, 2016. Although it would appear that the filing of the common law writ was also beyond the 60 days (it looks to me like the petition was filed 61 days after the entry of the minutes on October 27), the court did not address that issue but looked at whether or not the approval of the final details of the development plan was the final judgment of the Planning Commission. It concluded that it was not; the Court of Appeals decision was that the March 24 decision concerning the preliminary master development plan was the final discretionary judgment of the Planning Commission and that the final details of the site plan, approved in October, was simply a ministerial decision from which an appeal could not be taken.
The Commission’s approval of the master development plan on March 24, 2016, created legally binding, enforceable restrictions within the Forrest View PUD, and thus, it constituted the Commission’s final judgment or order. As to the final site plan approval on October 13, the Developer was entitled to the Commission’s approval as long as the final site plan complied with the master development plan. In other words, the October 13 decision was not discretionary. Accordingly, the clock for challenging the Commission’s decision started to run on April 14, 2016, when the Commission entered the minutes for the March 24 decision. Petitioners filed their writ of certiorari on December 27, 2016, which fell outside the sixty-day deadline. As a consequence, the trial court did not have subject matter jurisdiction to review the decision.The court cites an interesting similar case in the area of subdivision approval, Save Rural Franklin v. Williamson Cty. Gov’t, 2016 WL 4523418, at *6 (Tenn. Ct. App. Aug. 26, 2016), which essentially holds that waiting until final approval of a subdivision plat is too late to initiate a challenge to the decision of the Planning Commission. Rather, in the subdivision context, the decision must be challenged from the preliminary plat approval.
This decision by the Court of Appeals seems eminently reasonable. If the challenge is to the basic layout and overall design of a development, it should occur at the time that the overall design is approved. Failing to appeal from that decision within 60 days bars further review. Once the final details are submitted to the planning commission in accord with the previously approved design, it should be too late to file an appeal concerning the overall design. However, I would note, that if there is a question as to whether or not the details are consistent with the overall design, there might be an avenue to appeal concerning whether the site plan is appropriate given the previous approvals. In this case however, the challenge was clearly to the overall design of the development and what was going to take place there. The minor details reflected on a final site plan were not really at issue.
In any event, the main lesson to take away from these two cases is that a common law writ of certiorari must be based upon a petition which has been verified by the petitioner, and filed within 60 days of the administrative decision which it challenges. If there’s a question, both a common law writ and a declaratory judgment action can be filed. If there’s any question about whether the lawsuit should be filed earlier or later, it is always best to file early. Certainly, if the lawsuit is filed too early and it is not appropriate at that time, the court can dismiss and a later case may be filed. Waiting too late to file the appeal has the effect of preventing any appeal at all.