|Legal Opinion: |
Text of Document:
January 24, 2003
Dear Town Attorney:
You have the following question: Can the mayor appoint one of the aldermen to the planning commission when the mayor and one of the aldermen are already members of the planning commission?
Your letter of January 3, 2003, says that “Our charter calls for one Alderman and the Mayor’s designee to serve.” I suspect you mean that the Municipal Code calls for the mayor and the mayor’s designee to serve. Section 11-101 of that code provides for a municipal planning commission created and established under Tennessee Code Annotated, title 13, chapter 4, part 1. Section 11-102 provides for a seven member planning commission comprised of the mayor and a person designed by the mayor, a member of the board of mayor and aldermen designated by the board, and five “citizens appointed by the mayor.” The membership of the planning commission provided for in § 11-102 of the Municipal Code is consistent with the required membership of planning commissions under Tennessee Code Annotated, § 13-4-104 et seq. The alderman proposed to be appointed to the planning commission by the mayor would be one of the five “citizen” members appointed by the mayor.
The answer to that question is not clear, but in my opinion the answer is no, for the following reasons:
Tennessee Code Annotated, §13-4-101, authorizes municipalities to appoint a planning commission consisting of no less than 5 and no more than 10 members, the number to be determined by the municipal governing body. The members are appointed as follows:
- One member is the mayor or his delegate.
- One member is a member of the governing body of the city appointed by that body.
- All other members are appointed by the mayor.
On its face, Tennessee Code Annotated, §13-4-101, does not restrict the population from whom the mayor can select the members he is entitled to appoint to the planning commission. I can find no law in Tennessee or any other state on the question of whether Tennessee Code Annotated, §13-4-101, or a similar statute, contemplates the appointment of “citizen” members of the planning commission from among the membership of the governing body of the city. On that point Tennessee Code Annotated, § 13-4-101 is ambiguous. When a statute is ambiguous, the cardinal rule of statutory interpretation is the intention of the legislature. When I read Tennessee Code Annotated, §13-4-102, in the context of other municipal planning statutes, it does not appear to me that the General Assembly intended to give the mayor the authority to load the planning commission with members of the city’s governing body. In fact, were it otherwise, the mayor could in cases where the number of members of the city’s governing body is equal to or greater than the number of members of the planning commission, insure that the planning commission consisted entirely of members of the city’s governing body. Surely, that could not have been the intent of the General Assembly when it expressly provided for two categories of appointments:
- the limited representation of the city’s governing body on the planning commission by the mayor (or his delegate), and a member of the city’s governing body appointed by that body;
- the appointment by the mayor of the remaining members of the planning commission from among the “citizens.”
A city’s governing body can under Tennessee Code Annotated, §13-7-205, appoint the planning commission to be the board of zoning appeals. If Tennessee Code Annotated, §13-4-101, permits the entire planning commission to consist of the city’s governing body, the result is that a city’s governing body could also be: (1) the planning commission, and (2) the board of zoning appeals. I would be surprised if the courts would find that it was the intent of the General Assembly to authorize such a mix of the legislative, administrative, and quasi-judicial functions in the city’s governing body.
Along the same line, Tennessee Code Annotated, §13-4-104, provides that the zoning decisions of the planning commission can be overruled by a majority vote of the city’s governing body. If the planning commission could be comprised of a majority, or entirely, of the city’s governing body, that body would be passing on its own decisions. While that kind of arrangement may not necessarily be illegal on its face, it appears to me that the obvious intent of the General Assembly in authorizing the creation of a planning commission, and giving the city’s governing body the power to overrule its zoning decisions, was to create two separate bodies. That is true even though the planning commission itself was to be comprised partially of members of the city’s governing body. In fact, the city governing body’s influence on the planning commission was to come through, not be totally consumed by, its members on that commission. The entire city governing body would have a crack at the planning commission’s zoning decisions.
Tennessee Code Annotated, section 13-4-102, also calls for the appointment of the chairman of the planning commission from “among the appointed members.” Needless to say, all members of the planning commission are appointed. Under the rules of statutory construction, every word and phrase means something with respect to ascertaining the legislative intent, and the legislature is not presumed to have done a vain and useless thing. Tennessee Code Annotated, §13-4-101, does not speak of the mayor (or his delegate) and the member of the city’s governing body as being “appointed” to the planning commission; rather, “One (1) of the members shall be the mayor of the municipality or a person designated by the mayor and one (1) of the members shall be a member of the chief legislative body of the municipality selected by that body.” Then, in the remainder of that section is found the following language:
All other members shall be appointed by such mayor, except as otherwise provided in subsection (b) [which does not pertain to your Town]. All members of the commission shall serve as such without compensation, except membership on the board of zoning appeals. The terms of appointive members shall be of such length as may be specified by the chief legislative body; provided, that they shall be so arranged that the term of one (1) member will expire each year. Any vacancy in an appointed membership shall be filled for the unexpired term by the mayor of the municipality, who shall also have authority to remove any appointed member at the mayor’s pleasure. [Emphasis is mine.]
As pointed out above, that language supports the proposition that there are two classes of membership on the planning commission: the mayor or his delegate and the member of the city’s governing body is the first class; the mayor’s appointees is the second class. The General Assembly must have intended the appointment to the chairmanship of the planning commission to come from the second class, the members appointed by the mayor. Was the intention of that arrangement to insure that the chairman of the planning commission be the mayor’s appointees, or was it to insure that the chairman of the planning commission not be a member of the city’s governing body? In the context of Tennessee Code Annotated, §13-4-101 et seq., I think the latter possibility better reflects the intention of the General Assembly.
Sidney D. Hemsley
Senior Law Consultant