Just a quick entry today based on a Planning Commission meeting I was at earlier this week. After the staff presented my client's application for subdivision approval, including their comments and recommendations, the chair indicated that this was not a “public hearing” and that it would take a vote to waive the rules in order to allow public comment. I’m hoping that the chair misspoke but just in case there’s some misunderstanding, let me emphasize that while it may be that the hearing is not open to the public (don't misunderstand, the meeting is certainly open to the public but it may be that the statute does not require that the public be involved in the actual hearing; that is, members of the public may only be able to sit and watch although that certainly makes little sense), there certainly is a required hearing. And the basic definition of a hearing is that the applicant gets to make a presentation. The use of the word hearing in the statute also suggests that any people in support or opposition would also get to make comments about the appropriateness of the subdivision. In due course, the Planning Commission adopted a resolution waiving its rules and allowing the hearing, but let me emphasize: a hearing is required by statute in Tennessee.
In the case of a regional planning commission, Tenn. Code. Ann. § 13-3-404(a) provides that:
Any plat submitted to the commission shall contain the name and address of a person to whom notice of hearing may be sent; and no plat shall be acted upon by the commission without affording a hearing thereon, notice of the time and place of which shall be sent by mail to the address not less than five days before the date fixed for such hearing.
In the case of a municipal planning commission, Tenn. Code. Ann. § 13-4-304(c) provides that:
Any plat submitted to the commission shall contain the name and address of a person to whom notice of hearing shall be sent; and no plat shall be acted upon by the commission without affording a hearing thereon, notice of the time and place of which shall be sent by mail to such address not less than five days before the date fixed for such hearing.
As you can quite easily see, both statutory provisions require a hearing, although perhaps you might not call it a public hearing. It may be that when this legislation was passed, back in 1935, it was only anticipated that the applicant would be present to discuss the application with the members of the Planning Commission. However, since all Tennessee meeting such as this are open to the public, perhaps that distinction is not that meaningful at present.
The appellate courts have also noted this mandatory requirement. In a landmark decision issued just a few years ago, the Court of Appeals reviewed the subdivision process and remarked that a plat may not "be acted upon by the commission without affording a hearing thereon." Save Rural Franklin v Williamson County, 2016 Tenn. App. Lexis 633,*11-12, 2016 WL 4523418 (Tenn. App. 2016).
A further authority on this, although why anyone would need more I don’t know, is the Tennessee Planning Commissioner Handbook, published by the Tennessee Department of Economic & Community Development, Local Assistance Office, and primarily authored by my good friend and very capable planner, Bill Terry. The second edition is dated 2002. At page 34, we find the following:
Another due process requirement applying to both regional and municipal planning commissions is the need to notify the applicant that a public hearing is to be held on the plat.
Given the statutory directive, the remark by the Court of Appeals and the practical experience of a highly respected planner, I hope that there are not too many commissions which believe that a hearing on a subdivision plat is some type of privilege only permitted by special dispensation. A hearing on the plat is mandated by state law and the failure to give a hearing on the application for plat approval will certainly lead to quick reversal in any appeal.
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