|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: October 12, 2001
RE: Planning and Zoning Under Chapter 1101
The materials you faxed do not include the LGPAC policy regarding planing regions, so I have nothing to look at there except the TCCA’s comments. However, I assume those are an accurate reflection of the LGPAC’s automatic extension policy. In any event, the following comments discuss what I think is the law in this area.
You undoubtedly recall that a bunch of UT and state organizations did a joint publication on Chapter 1101 that covered, among many other things, the right of municipalities to plan and zone outside their territorial limits after Chapter 1101 (See P. 27.). Unfortunately, that publication, Growth Policy, Annexation and Incorporation Under Public Act 1101 of 1998: A Guide for Community Leaders was (and still is) is probably wrong on those issues. Here is the way I see them after repeated reviews of the planning and zoning laws before and after the passage of Chapter 1101. I admit that the way I see them may not be correct. I had hoped that by now some city or county would have taken the issue to court.
Extraterritorial Planning, Subdivision
and Zoning Regulation Under Previous Laws.
Under the law as it existed before passage of Public Chapter 1101, it was possible for a city to receive two kinds of extraterritorial jurisdiction: (1) planning and subdivision authority without zoning authority (Tennessee Code Annotated, title 13, chapter 3); and (2) planning and subdivision authority with zoning authority (Tennessee Code Annotated, title 13, part 7).
(1) Planning and subdivision regulation authority: In order to exercise planning jurisdiction outside its corporate limits, the city applied to the Local Government Planning Advisory Committee (LGPAC) for designation as a regional planning commission. If the LGPAC approved that designation, it set a limit of up to five miles in which the city could impose subdivision regulations and exercise other planning functions. Once approved as a regional planning commission, the city could exercise this authority regardless of whether the county had adopted zoning or subdivision regulations. However, this authority did not include the authority to zone in this territory.
(2) Zoning authority: A city could exercise zoning authority beyond its corporate limits only if it met the following conditions: (A) The city was designated as a regional planning commission by LGPAC (in the manner prescribed above); (B) the county had no zoning in force; and (C) the city notified the county of its intent to zone at least six months prior to enacting zoning for the area. If the county subsequently adopted zoning for the territory and provided for its enforcement, the city’s zoning in that area was automatically repealed.
Extraterritorial Planning, Subdivision
and Zoning Regulation under Public Chapter 1101.
Public Chapter 1101 did three important things with respect to planning and subdivision and zoning regulations.
1. Amended Tennessee Code Annotated, sections 13-3-102 and 13-3-401(2) to provide that the authority of regional planning commissions (those planning commissions designated regional planning commissions by LGPAC under Tennessee Code Annotated, section 13-3-102) can be extended by the LGPAC to the Urban Growth Boundary (UGB), the obvious corollary of which is that it cannot be extended past the UGB.
2. Provided that notwithstanding the extraterritorial jurisdiction regional planning commissions have under Tennessee Code Annotated, title 13, chapter 3 (subdivision regulation jurisdiction), nothing in Chapter 1101 shall be construed to authorize municipal planning commission jurisdiction beyond the UGB [Tennessee Code Annotated, § 6-58-106(d)].
3. Provided that in a county without county zoning, a city may adopt zoning and subdivision regulations beyond its corporate limits only with the approval of the county legislative body [Tennessee Code Annotated, § 658-106(d)].
Read together, those thee things have the following implications for city planning, and for city subdivision and zoning regulations beyond city limits.
1. Regional planning commissions in counties without county zoning: A municipal planning commission that has been designated a regional planning commission cannot adopt zoning or subdivision regulations outside its corporate limits without the approval of the county legislative body. Even with such approval of the county legislative body, neither subdivision regulations nor zoning regulations can extend beyond the UGB. [Tennessee Code Annotated, § 6-58-106)(d)].
2. Regional planning commissions in counties with county zoning: The authority of the LGPAC to designate a municipal planning commission a regional planning commission, and to authorize the regional planning commission to adopt subdivision regulations beyond its corporate limits, was not changed by Public Chapter 1101, except that such municipal authority cannot be extended beyond the UGB. In addition, it does not appear that the authority of regional planning commissions to recommend zoning regulations within the above geographical limits was changed by Public Chapter 1101.
3. Planning commissions not designated regional planning commissions: As was true under previous laws, a municipal planning commission that has not been designated a regional planning commission has no authority to adopt subdivision or zoning regulations outside its corporate limits.
I do recall in the seminars that were taught on Chapter 1101, that questions were raised on the impact that law had on the planning and zoning authority of municipalities and counties. After the first seminar or so, it became clear that the material on that subject in the joint publication was at least party wrong, but I do not think there was ever any confusion over the LGPAC role in how planning regions were extended, both before and after Chapter 1101. The truth is, I doubt that anyone every raised (or even thought of) the issue of automatic extensions. When questions came up on the impact of Chapter 1101 on planning and zoning relationships between cities and counties, most of the questions I recall were over what appeared to be a huge hit taken by municipalities on their subdivision and zoning authority in counties without county zoning, under what is now Tennessee Code Annotated, § 6-58-106(d). Needless to say, where a municipality worried about the gap between its present regional planning boundary and its UGB, MTAS advised it that it could petition the LGPAC for an extension of the boundary.