|Legal Opinion: |
Text of Document: June 19, 2003
Dear Chief Building Official,
Your Management Consultant has advised me that you have asked about the city’s ability to regulate sand filtration wastewater systems being constructed outside the city in developments located in the regional planning commission’s jurisdiction. In my opinion, the city has no ability to regulate such systems in those areas.
It is my understanding that your planning commission is a regional planning commission, having received such designation from the department of economic and community development, pursuant to T.C.A. § 13-3-102. As such, the planning commission has jurisdiction over development outside the city’s boundaries and within the urban growth boundary.
The powers of regional planning commissions are set in T.C.A. § 13-3-104, and include the following:
(a) ....to promote the mutual cooperation of the planning commissions of municipalities within the region...to confer with and advise municipal and county executive and legislative bodies with respect to the formulation of public improvement programs and the financing of such programs....
(c) The commission, its members and employees, in the performance of its functions, may enter upon any land and make examinations and surveys and place and maintain necessary monuments and marks on such land.
(d) In general, the commission has such powers as may be necessary for it to perform its functions and to promote regional planning.
Despite the broad language used in paragraph (d) of the above-cited section of the Tennessee Code, the commission only has such powers as are conferred through zoning ordinances and planning regulations including subdivision regulations.
Planning commissions have only advisory powers, in that the commission advises the governing body whether a project or activity is in agreement with the general plan. The code does provide local governments with the power to adopt stringent regulations for the harmonious development of the municipality, but when a regional planning commission is reviewing subdivisions located outside the municipality, it must depend on county officials for enforcement. The so-called “mandatory referral” power of a regional planning commission is found in T.C.A. § 13-3-406, which provides that a county may not accept roads in a subdivision until it has received commission approval. This strength of the commission is somewhat watered down by language which allows the county governing body to accept streets despite lack of commission approval by a majority vote of the total membership of the governing body. Unlike the powers granted to municipal planning commissions, this section addressing regional commissions covers only roads, highways and utilities in county roads, and is therefore not as broad as the municipal powers.
The only power a regional planning commission has over building permits issued by counties is found at T.C.A. § 13-3-411, which provides that no building permit shall be issued unless one of the following criteria is met:
(1) The street giving access to the lot upon which the building is proposed to be placed has been accepted or opened as, or shall have otherwise, received the legal status of, a public street prior to that time;
(2) The street corresponds in its location and lines with a street shown on a subdivision plat approved by the planning commission, or on a street plat made and adopted by the planning commission; or
(3)(A) The lot fronts upon a permanent easement which conforms to all rules, regulations and specifications applicable to the permanent easement of the planning commission or other department, division or agency of the county; provided, that such rules, regulations, and specifications governing permanent easements shall not take effect until such rules, regulations, and specifications are approved by the county body in a resolution by a two-thirds (2/3) vote; and
(B) The permanent easement has access to an existing highway, street or thoroughfare, or with a street located or accepted by the county legislative body after submission to the planning commission, and in case of the planning commission’s disapproval, by the favorable vote of the county legislative body required in § 13-3-406 [not less than a majority of the entire membership of the body].
You will note from the language quoted above that this code section does not mention withholding or denying a building permit on grounds that the commission does not approve of the plat, but only addresses access and permanent easements.
In City of Church Hill v. Taylor, 1996 WL 605247 (Tenn. App. 1996) (unpublished opinion), the city sued for an injunction to prevent the development of a trailer park outside city limits, but located within the area subject to the jurisdiction of the planning commission. The city objected to the development and the commission denied approval of the plat while a new zoning amendment was being considered by the city, which would result in a change of zoning in the area which would prevent the use of the subject property for a trailer park. The Court ruled that the injunction was improper, and the developer had the right to proceed with the development under the then applicable zoning regulations.
Although the Taylor case is not on point with the situation in your City, it is instructive on the general rule that a planning commission is held to enforcing the zoning and subdivision regulations which are in place at the time a developer applies for approval of their plat.
As there are no Tennessee cases on point with your question, I have researched case law in other jurisdictions which may be helpful in the analysis. In City of Georgetown v. Deevco, Inc., 451 S.W.2d 422 (KY App. 1970), the Kentucky Court held that the planning commission could not deny approval for a development of land that conformed to the zoning regulations on grounds that streets located in the area were not sufficient to handle the increased traffic congestion anticipated by the commission. An Illinois city was held to plain interpretation of its zoning ordinance in J.C. Penny Properties, Inc. v. Village of Oak Lawn, 349 N.E.2d 637 (Ill. App. 1976). The Illinois court found that the property owner’s application was in compliance with city ordinances, although the city had passed a moratorium seeking to limit the number of restaurants in the area. The court held the city could not modify the zoning ordinance merely by passing such a moratorium, and if an applicant is in compliance, the permits must be granted.
There is no case law which addresses powers of regional planning commissions, particularly municipal commissions operating as regional bodies seeking enforcement outside municipal boundaries. As such, we are left with the statutory language cited above, which leaves much to be desired from an enforcement standpoint.
There is no language contained in the Tennessee Code which provides regional planning commissions with the power to regulate the installation and operation of wastewater treatment systems such as sand filtration systems. It may be argued that regional planning commissions have such authority under some of the broad language used in the enabling statute, but there is no language granting regional planning commissions powers of enforcement, as they remain advisory in nature.
In my opinion, the planning commission has no ability to regulate the installation and operation of sand filtration wastewater systems in developments located outside city limits.
I hope this information is helpful. Thank you for consulting with MTAS.
Melissa A. Ashburn