Hudson is another important case in the area of subdivisions, although it may leave more questions than it answers. The basic question presented to the court was whether the planning commission could deny a subdivision application because it was not consistent with the “harmonious development” of the municipality? Tenn. Code. Ann. § 13-4-303(a).
The subdivision was for a development of 193 single-family homes on 65 acres of land in Davidson County. The Planning Commission rather reluctantly granted approval in the face of significant public opposition, but only after encouragement both from the staff and from the municipal attorney based on compliance with all of the applicable Subdivision Regulations. The trial court found this encouragement to be inappropriate and reversed, essentially concluding that “harmonious development” allowed the Planning Commission to make decisions beyond the scope of the technical requirements of the Subdivision Regulations. On appeal, the Court of Appeals upheld the trial court, but reversed on the “harmonious development” argument, concluding that the plain language of the statute wasn’t consistent with the trial court’s holding. The statute, by the way, authorizes adoption of subdivision regulations which “may provide the harmonious development of the municipality and its environs…” Thus, whatever the subdivision regulations provide is assumed to promote the harmonious development of the municipality. The Planning Commission has no authority to go beyond the requirements of those Subdivision Regulations. The subdivision regulations themselves are a significantly important part of the process of obtaining subdivision approval.
So far so good. Most land use planning lawyers felt that that was the appropriate interpretation of the statute. The court however went on, noting that the Metro Subdivision Regulations required compliance with the “adopted General Plan, including its constituent elements, and the Major Street Plan.” It concluded that:
the Planning Commission had the authority to determine whether the concept plan complied with the "adopted General Plan." Thus, the planning staff's description of the role of policy in the subdivision approval process was incomplete and led the commission members to discount potentially legitimate objections.
Frankly, most land use lawyers in Tennessee have always assumed that the General or Comprehensive Plan did have some role to play in subdivision consideration. This is true even though Tennessee is not a “plan as law” state, that is, in most of our jurisdictions, the plan is only advisory and basically has no legal significance. See for example Family Golf v Metro Nashville, 964 S.W. 2d 254 (Tenn. App. 1997) (permission to appeal denied April 6, 1998) (Planning Commission recommendation against a zoning change based on the General Plan is overridden by two thirds majority of Metro Council).
But the question is what role does the plan actually play in the context of subdivision consideration? First, most plans are pretty ambiguous, reflecting the inability to see very far into the future. As a result, mandatory provisions in planning documents are less frequent than found within zoning regulations or subdivision regulations. This immediately causes a problem, because with regard to small details which might be ambiguous Tennessee law has always been that ambiguity is construed in favor of the property owner. Edwards v Allen, 216 S.W. 3d 278 (Tenn. 2007). Thus, if the General Plan is ambiguous, the Planning Commission must interpreted favorably to the property owner and that would likely mean approval of the subdivision application.
Second, and perhaps much more significantly, suppose the plan directly conflicts with adopted law in the community. So for example, suppose the General Plan in one part of a local municipality envisions the property as single-family residential but the local legislative body passes a zoning regulation which permits multifamily residential uses in that same area. Recall of course that the General Plan is not law, is not passed by any legislative body (only by the Planning Commission which is not elected), and is a vision for future development not some type of binding regulation.
Back to my hypothetical: if my client applies to the Planning Commission for approval of a site plan for a multifamily residential development, can the Planning Commission deny the application based on the General Plan? Many states these days have enacted statutory provisions which make the General Plan binding, usually because it gets adopted by the local legislative body. In most jurisdictions here in Tennessee, that does not happen (there is authority for it in the planning enabling statutes, but it has not been used frequently). The planning commission adopts the General Plan and it certifies the plan to the local legislative body but that body does not in turn adopt it as law. If the Planning Commission can deny approval of a development plan based on the General Plan contrary to the zoning regulations adopted by the local legislative body, then it would seem that the ultimate authority is now in the hands of the Planning Commission. Surely this cannot be correct.
Clearly in such instances, the Planning Commission's authority to deny a development cannot be based on the general plan. The local zoning regulations take precedence and if there’s a conflict between those regulations and the General Plan, the General Plan must give way.
Unfortunately, there is no case law in Tennessee discussing this issue whatsoever and with the recent decision in the Hudson case, it will surely be coming up more and more often.
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