More on Subdivisions: Hudson v Metro Planning Commission, 2020 WL 7255807 (Tenn. App. 2020)

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. 

Depot Property v Town of Arlingotn

The Tennessee Court of Appeals recently released an interesting new opinion concerning zoning changes. In Depot Property LLC v Town of Arlington, the Court of Appeals addressed several interesting issues concerning negative recommendations of municipal planning commissions and the effect on a vote by the local legislative body. We’ll get to that in a moment.

Perhaps more importantly, the court somewhat astonishingly concludes that this case was properly brought as a common law writ of certiorari. The court was evidently persuaded by the fact that the local zoning ordinance required both the Planning Commission and the Board of Mayor and Aldermen to make specific findings that  (1) the zoning amendment is in agreement with the general plan for the area, (2) the legal purposes for which zoning exists are not contravened, (3) the zoning amendment will not have an adverse effect on adjoining property owners unless the adverse effects are outweighed by the overwhelming public good, and (4) the zoning amendment will not benefit some property owners materially to the detriment of the public as a whole. But these four “requirements,” if such they can be called, appear in virtually every zoning ordinance across the state of Tennessee. More importantly, these so-called requirements really do not bind the local legislative body in any way.

Take a look at them. The first is that the proposed zoning amendment must be consistent with the general plan. But state law does not require the local legislative body make decisions “in accordance with a comprehensive plan.” In fact, the Court of Appeals has already looked at a city charter provision was substantially similar language and decided that it did not apply in this way (Family Golf, cited in the opinion). The general plan only offers a point of view as to how the city will develop; it is simply not binding on the local legislative body and the Court reiterates that holding in this case. Since the Court of Appeals concludes that the local legislative body has the power to override the recommendation of the planning commission which is usually based on the general plan, this first of the four requirements really is irrelevant. The local legislative body does not need to make a decision which is in accord with the plan. This may be bad planning, it may be bad law (and certainly I have criticized it myself on many occasions), but it is the law of the state of Tennessee.

The second requirement, that the legal purposes for which zoning exists or not contravened, is so vague as to be entirely meaningless. Can anyone really explain what that means?

The adverse effects on adjoining property owners are the third requirement. Was there really any proof concerning that in this record? A thorough and careful reading of the opinion reveals none. I would suggest that what was really going on here is that under the standards of a declaratory judgment action, the local legislative body didn’t have to consider any of these things. It can do basically what it wants under these circumstances. These requirements are not requirements at all; the legislative body surely does take some of them into account in making the decision, but if it fails to find the presence of one or more of them, it may nevertheless pass the zoning change.

The fourth requirement is that the zoning amendment will not benefit some property owners to the detriment of the public as a whole. And what is that other than a legislative judgment to be made by the local legislative body? These are not administrative requirements such that an appeal must be made pursuant to the common law writ of certiorari. Rather, these are general guidelines which are considered by local legislative bodies as it deems appropriate.

Compare the language of most planned unit development zoning ordinances: they are much more detailed and much more specific about what must be done. The language at issue here is simply not sufficient to give rise to review by common law writ of certiorari. The court did not seem to consider this in any detail, and perhaps the parties both agreed that that was the way that the case should be taken up. Certainly, there is a strong argument that whenever the local legislative body is considering one or two parcels of land to rezone, or even if there are more parcels, but of a very small size, that the rezoning should be administratively considered rather than legislatively. However, the Supreme Court has not adopted that argument and in fact  pretty much rejected it in Fallin v Knox County. The conclusion here that these four extraordinarily general and ambiguous factors somehow convert what should be a declaratory judgment action into a common law writ of certiorari is simply incorrect. A comparison of the administrative regulations for any PUD, including the granddaddy case, McCallen v Shelby County, reveals the extraordinary difference between the level of specificity in PUD regulations versus general zoning amendment concerns. But PUDs almost always have an extraordinarily high level of regulation. Usually, in the cases I’ve been involved in, 15 to 25 pages are devoted exclusively to planned unit development. The four very short, general, and ambiguous factors found here, and found in most other zoning ordinances across the state, are simply insufficient to convert an appeal such as this one from a declaratory judgment action to a common law writ of certiorari

Setting aside the procedural issue, the court’s conclusion on the applicability of the override proviso certainly is correct. Tenn. Code Ann.  § 13-7-204 provides:

The zoning ordinance, including maps, may from time to time be amended; but no amendment shall become effective unless it is first submitted to and approved by the planning commission or, if disapproved receives the favorable vote of a majority of the entire membership of the chief legislative body.

In this case, the local legislative body was composed of seven members. To the members were asked to recuse themselves by the proponent of the amendment which they did. The remaining five members, split the vote with three voting in favor and two voting against. But that leaves the problem of Tenn. Code Ann. §13-7-204 quoted above. The last phrase of the statutory provision requires that if the proposed amendment is disapproved by the planning commission, that it received a favorable vote of a majority of the entire membership of the chief legislative body. Not a simple majority as would be needed if the planning commission recommended favorably but instead the favorable vote of the majority of the entire membership of the chief legislative body. Since the Arlington local legislative body was comprised of seven members, and since the planning commission recommended against the amendment, the proponent had to get four of the seven votes of the entire membership. He received only three votes, good enough for a simple majority of the members present and voting on the night in question, but one short of a majority of the entire membership of the local legislative body as required by the statute.

The author of Tenn. Code Ann. §13-7-204 was Alfred Bettman, the extremely influential zoning lawyer from Cincinnati. As it happens, Mr. Bettman contributed to a book which was published in 1935, just a year after the Tennessee General Assembly passed the statute which we are reviewing. In that book, entitledModel Planning Laws, Bettman provides his preferred forms for zoning and planning  legislation. Section 4 of the Immiscible Zoning Enabling Act, found on page 82, reads as follows:

The zoning ordinance, including the maps, may from time to time be amended; but no amendment shall become effective unless it shall have been proposed by or be first submitted to and approved by the planning commission of the municipality, or, if disapproved, shall receive a favorable vote of not less than two thirds of the entire membership of Council.

Notice the extreme similarity to the version adopted by the Tennessee General Assembly, except for the omission of the language concerning a two thirds majority. The Tennessee General Assembly took out the language requiring a two thirds majority and required simply a majority of the entire membership of the Council. Bettman specifically mentions the two thirds vote requirement on page 63, indicating that the supermajority vote is recommended for the same reasons as he previously discussed with regard to the location of public Works and uses. We now know that provision as the “mandatory referral” provision of the Tennessee zoning and planning statutes. Here’s what Bettman has to say about the two thirds majority requirement in that context:

This [model] form provides that when the report of the planning commission is adverse to a proposed location or use, a two-thirds vote of the Council or determining body is required to overrule the commission’s disapproval. The issue between a majority or a two thirds requirement is often stated to be whether the planning commission should be purely advisory or should have more than advisory powers. This is not an accurate way to state the issue. In the form here presented, the planning commission is not granted the power to decide finally on any question of location or extent of a public structure or use. That power resides in the legislative or administrative departments. The planning commission’s function is, in the last analysis, purely advisory; and this is not less true when a two thirds vote of the Council is necessary for decisions adverse to the advice of the commission. The two thirds requirement is simply a device for bringing about a more careful consideration of planning problems then these would be apt to receive it the ordinary majority control decision; and it could be stated that the experience of American cities has verified this, for the use of planning techniques in the recognition of planning principles have prevailed to a greater extent where this two thirds majority is required in the legislation and where is not. We are conceding of planning not as a matter of councilmanic way more fancy to be taken up or lay down as the clamor or fashion of the moment may favor, but as a basic step in the process of legislating about determining the allocation of the public and private uses of the land within the municipality.

One can certainly second-guess Bettman’s conclusion that a two-thirds majority would prevent in some way councilmanic whim or fancy from carrying the day. One only has to look at the Metro Nashville zoning changes, to understand that the two-thirds majority is no panacea. On the other hand it is clear that Bettman wanted somehow to push the ultimate decision maker to seriously consider the recommendations of the planning commission. The Tennessee general assembly did not believe that the two-thirds majority vote was lenient enough, but they did require a majority vote of the entire legislative body.

And, in a case such as the one here, where there is a negative recommendation by the planning commission, and the vote of a seven member legislative body is split 3 to 2 in favor, with two abstaining, the result must be, given Bettman’s point of view, that the zoning amendment does not pass. Not only was the court correct concerning the interpretation of the state statute, but there was a fundamental public policy which Bettman was attempting to acknowledge and enforce: careful consideration of any zoning amendment which the planning commission recommended against, and which also presumably meant that either the land use plan did not contemplate.

There is one final aspect of this case which seems at odds with the policy underlying state land use legislation. The proponent of the amendment argued that the plan was a “growth plan” within the meaning of Tenn. Code Ann. §6-58-107. First, although the court simply assumes that the General Plan of the municipality is the same as a growth plan, generally there are separate documents. In fact, usually, but growth plan is much less precise, and very vague and general. However, having assumed that the municipal General Plan was the growth plan, the court then turned to the language of the Smart Growth Statute, which mandates consistency with the growth plan, and concluded that there was no real inconsistency. That the fact that the area of the town which was the subject of the amendment did show in the plan that should be rezoned commercial did not specify the time frame within which that would happen.

Respectfully, it seems that if the plan itself does not indicate that the change should take place some time in the future, then that change is appropriate immediately.

Mandatory Consistency

In my comments yesterday, I referred to Tenn. Code Ann. § 13-4-202(b), which allows a planning commission to request legislative approval of General Plans here in Tennessee, and the recent amendment extending the required consistency to include local zoning boards. Perhaps it would be well to discuss the original provision in order to understand it further.

Before exploring that topic, some history is perhaps worth reviewing. Remember that planning is an important precursor to land use regulations. The theory is that a plan is developed by the planning commission, and then regulations, including the zoning ordinance are passed giving effect to the plan. In the words of the Standard Zoning Enabling Act (see a discussion in Wiki here), zoning was to be "in accordance with the comprehensive plan." Many state zoning acts use this language, at least originally, even if it is not precisely clear what was intended.

Here in Tennessee, however, that language was avoided entirely. Alfred Bettman, from Ohio, was asked to draft the Tennessee act in 1934. He was one of the most prominent land use attorneys of the early 20th Century, and he selected very different language:

Whenever the planning commission of the municipality makes and certifies to the chief legislative body a zoning plan, including both the full text of a zoning ordinance and the maps, representing the recommendations of the planning commission for the regulation by districts or zones . . . , then the chief legislative body may exercise the powers granted . . . , and may divide the municipality into districts or zones of such number, shape and areas it may determine, and, for such purposes, may regulate the erection, construction, reconstruction, alteration and uses of buildings and structures and the uses of land.

It would seem that statute contemplates the "zoning plan" as the text of the zoning ordinance and the zoning map or maps. A separate plan, such as we are accustomed to today, was not necessary to the adoption of the zoning ordinance.

This was Bettman's view of planning and zoning. In his regard, the Planning Commission was the keeper of the plan; it was not a political document that would be sullied by the political machinations of the city council, but a bible to be interpreted and construed by the planning commission.

Unfortunately, while this might have been a fine planning perspective, it neglects the practical impact of local politics in America. The General Plan might remain pure and protected by the Planning Commission but it also became irrelevant. The city council began to simply ignore the plan and the high priests on the planning commissions. To the extent that the state zoning law required a large majority to override a recommendation of the Commission, that became an accepted practice. In Metro Nashville, for example, where a 2/3rds majority is required to override by the Charter, if the local councilmember wishes to override, it is usually not a problem.

In took about 30 years, but in 1964, TJ Kent in his famous book, "The Urban General Plan" argued that the plan had to be adopted by the city council in order to have an impact on the decisions being made by city leaders. He argued persuasively that the plan could not just be the Planning Commission's document but that it had to be shared with the leadership of the city and adopted by the city council. Perhaps the plan would not remain quite so pristine, but it would have an impact on decision not not be entirely ignored as so many had become.

Tennessee's legislation was not immediately amended to reflect this change in planning philosophy. But in 2008, the General Assembly allowed a city to choose to follow the Kent model (it is not required). Let's take a look at the language:

Once the commission has adopted the general plan or amendment of the general plan for the planning jurisdiction of the commission, the commission's transmittal of the certification to the legislative body may simultaneously include a resolution by the planning commission requesting the consideration and adoption of the general plan by the legislative body of the municipality . . . The municipal legislative body, by ordinance, may adopt the general plan as certified by the planning commission

Tenn. Code Ann. § 13-4-202(b). The planning commission gets to choose: if councilmanic action seems apropos, then the planning commission may request it, and if not, not. But, once the request has been made and accepted, the planning commission is no longer the sole keeper of the plan. Substantial control over the document is vested in the council

The planning commission may vote to amend, but outside of only a few counties, before the amendment becomes effective, the council must also adopt it. Tenn. Code Ann. § 13-4-202(b)(1)(A). Further if the council wants to amend, the commission has 60 days to agree; if not, the council may pass the amendment by a majority vote. Tenn. Code Ann. § 13-4-202(b)(2)(A).

To illustrate this power further, suppose the planning commission asks for the involvement of the council, but the plan as certified has some objectionable elements. Remember that the statutory language authorizes the council to adopt the General Plan as certified. Tenn. Code Ann. § 13-4-202(b). Does this effectively prevent the council from acting? No way; the council simply adopts the plan as certified and then immediately notifies the planning commission of its intent to remove the offending elements out of the plan. If the planning commission will not agree within 60 days, the council simply passes its own version after the 60 days expires. Tenn. Code Ann. § 13-4-202(b)(2)(A).

The importance point in this legislative amendment is that once the General Plan is adopted in this way, all future land use decisions must be consistent with the plan. Tenn. Code Ann. § 13-4-202(b)(2)(B)(iii). That is, the city council (or county legislature), the planning commission, and the zoning board (except with regard to variances) must make decisions which are consistent with the plan. If not, it will provide a legal grounds to challenge the decision and seek a reversal. With the exception of the Smart Growth Act, Tenn. Code Ann. § 6-58-101, 107, this is the only statute that requires mandatory consistency with the General Plan.

I think that TJ Kent would applaud the changes made by the General Assembly. Whether many municipalities will adopt this process, and how effectively it will work here in Tennessee, remains to be seen. At least now however, the choice is there, and the local governments can make an educated decision about how to implement the long range planning process within their jurisdictions.

BZA decisions must be consistent wtih General Plan

One of the more interesting new zoning laws which becomes effective July 1, 2011 (that's right, next year, not this!) extends the mandatory consistency of the General Plan in those jurisdictions where the Planning Commission has recommended and the local legislative body has adopted the General Plan. This is a distinct minority of Tennessee jurisdictions: most General Plans are adopted by the Planning Commission and no legislative action is needed.

But in those areas where it is, Chapter 648 of the 2010 Tennessee Pubic Acts requires that not only must any land use decision by the legislative body and planning commission be consistent with the plan, but so too must all zoning board decisions (excepting variances). For attorneys as well as applicants to the effected zoning boards, this may add another wrinkle in the application process. The applicant will have to prove consistency with the plan, or possibly face reversal on appeal.

Let me say that it may be necessary under the state laws in effect now (in fact I usually try to prove such consistency whenever I am in front of a zoning board) so that perhaps this isn't such a big deal. However, Chapter 648 makes the requirement much more pointed, and opposing parties may find this fairly easily and thus have another argument to invalidate a zoning board decision.

I would be remiss if I did not mention that the 2008 amendment that authorized adoption of general plans by the local legislative body permits but does not require the planning commission to request adoption of the plan by the legislative body. In effect, once such a request is made and the plan adopted by the LLB, the plan becomes a creature of the LLB, and not of the planning commission. The City of Columbia Planning Commission has made such a request; I don't recall hearing if the plan was ultimately adopted by the local legislative body or not. There may be other examples but as of yet, I believe they are few and far between.

Take a look at Tenn. Code Ann. § 13-4-202(b) to understand the basic premise behind the statutory scheme; Tenn. Code Ann. § 13-3-304(b) is the companion regional provision.