|Legal Opinion: |
Text of Document: June 22, 1998
You have the following question: Does a use on review application for the siting of a cellular tower treated as an ordinance that requires approval on two readings by the city council, or does the application require approval only after a single hearing by the city council?
In my opinion, the application for a use on review for the siting of a cellular tower (or for any other use on review) is approved by ordinance by the city council, which in your city requires two readings. That answer is an about face from the conclusion I first reached when I started researching this question. However, I concede there is a strong contrary argument.
But here let me add some gratuitous comments about permits for cellular towers that may save the city some problems if the facts as I understand them are true. Those facts are that the applicant for approval of a use on review for a cellular tower meets all the requirements contained in the zoning ordinance for such a use. The city has approved the use in one hearing. Now, due to reasons having nothing to do with the requirements for uses on review in general, and for cellular towers in particular, there is some question of whether the application would be approved in a second hearing. In granting approval for uses on review, the city council has some discretion. However, that discretion is limited. If an applicant for such a use meets the requirements contained in the zoning ordinance for the approval of the use, he is entitled to his permit. [Anderson County v. Remote Landfill Services, 833 S.W.2d 903 (Tenn. App. 1991.)]
In fact, the discretion the city council has with respect to approval of uses on review for cellular towers is probably more limited than in any other use on review. Under the Federal Communications Act of 1996:
Any decision by a State or local government or instrumentality there to deny a request to place, construct, or modify personal wireless facilities shall be in writing and supported by substantial evidence in a written record.
If the applicant for the permit in question meets the standards for uses on review in general, and uses on review for cellular towers in particular, the city cannot possibly support its denial of the permit with “substantial evidence.” [See AT&T Wireless Services v. Orange County, U.S. Dist. LEXIS (M.D. Fla. 1/14/97); Century Cologned of Southern Michigan v. City of Forestburg, 1997 U.S. D. LEXIS 20553 (W.D. Mich. 11/10/97); AT&T Wireless & PrimeCo v. City of Virginia Beach, 979 F. Supp. 416 (E.D. Va. 1997); Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732 (D.D. Ill. 1997); Western PCS II Corp. v. City and County of Santa Fe, 957 F. Supp. 1230 (D.N.M. 1997).]
Let me analyze my answer to the question by outlining what I think are the arguments in favor of the proposition that uses on review need be approved only on one reading, then by answering that argument,
The Argument that Only One Hearing is Required For Uses on Review
Uses on review are generally described by zoning authorities as special exceptions or special permits. [ Yokley, Zoning Law and Practice, Section 20-1 et seq.; 83 Am Jur 2d, Zoning and Planning, Section 960. It has been said that:
The grant of a special use permit through an ordinance is not an amendment of the general zoning ordinance. Rezoning contemplates the amendment of an existing zoning ordinance which changes the zoning classification of a previously zoned area. On the other hand, while the granting of an unclassified use permit may authorize a change in land use, the issuance of a special permit contemplates an exception granted pursuant to a previously existing zoning ordinance, subject to certain guidelines and standards laid down therein. [83 Am Jur 2d, Zoning and Planning, Section 9623.]
In Tennessee, as in probably many if not all, jurisdictions, the adoption of a zoning ordinance is a legislative act, while the approval of a use on review is an administrative act. That appears to be true even where the legislative body that adopted the zoning ordinance appoints to itself the authority to approve uses on review rather than delegate that authority to a subordinate body. [Nance v. County of the City of Memphis, 672 S.W.2d 208 (Tenn. App. 1984); Anderson County v. Remote Landfill Services, above. Also see State v. Winchester, 400 S.W.2d 47 (Mo. 1966), and 5 McQuillin, Municipal Corporations, section 25.217.]
Article VII of your zoning ordinance also recognizes the administrative nature of the approval of uses on review by the City Commission [now City Council.] Section 101.1 provides that with respect to the standards for the approval of uses on review, “The Commission [City Council], in the exercise of its administrative judgement, shall be guided by adopted plans and policies, including the General Plan, and by the following general standards....”
It appears clear that because in Tennessee the approval of uses on review is not a legislative act, Tennessee cities are not required to approve uses on review by ordinance. In fact, probably few cities in Tennessee approve them by ordinance; most probably approve them in one hearing.
Article VII of the zoning ordinance contains Regulations for Uses Permitted on Review. Article VII, Section 100, provides that:
The following uses are permitted in certain districts only on review of the _____ City Commission. Uses Permitted on Review which are not specially listed in this ARTICLE shall also be permitted only on review by the _____ City Commission, and shall be compatible with the General Standards referred to below.
Among the “General Standards referred to below” is General Standard 101.2, which provides that:
If the Commission approves a reviewed use such approval may be attended with restrictions on future conversion or use, additional conditions related to access, Parking [sic], landscaping, screening or fencing, or other related considerations that will lessen the impact of the requested use on the existing neighborhood. Such attendant restrictions and conditions shall be made a part of the amendment to this Ordinance allowing said reviewed use, and shall be noted on the Zoning Map.
It is that emphasized last sentence in Article VII, General Standard 101.2, that
suggests that uses on review are approved by ordinance. In fact, absent this provision, any argument that uses on review require approval by ordinance evaporates.
But Article VII, Section 100, creates two classes of uses on review: The first class is uses on review “specifically listed” in Article VII; the second class is other uses not expressly contained in Article VII. There are fourteen or fifteen uses in the first class, including cellular towers. Each “specifically listed” use contains express standards and restrictions that pertain to that particular use. For those reasons arguably the general standards apply only to uses on review not “specifically listed.” If that is true, General Standard 101.2 would not apply to cellular towers.
Article IV, Section 105, which governs the procedure for uses permitted on review contemplate only a single hearing for the approval of uses on review, and nothing in Ordinance No. 633, which added cellular towers to the “specially listed” uses on review under Article VII, contradicts Article IV, Section 105. Article IV, Section 105, supplies some of the procedure for uses on review. With respect to the public hearing on the use on review application, it says:
At the public meeting the City Commission shall hear testimony from [various parties]. At the conclusion of the discussions, the Commission shall grant or deny approval, or defer the application if necessary....
In addition, even among the uses on review “specifically listed” in Article VII, some suggest that only one hearing is intended for the approval or disapproval of such uses. Section 102 allows cemeteries as one of the 14 “specifically listed” uses on review. In Section 102.3, it is said that:
The City Commission shall hold a public hearing on the request for the Use on Review. The notice and publication of the public meeting shall conform to the procedures as prescribed in ARTICLE IV hereof for hearings before the commission.
Section 109 allows off premise signs as a “specifically listed” use on review. Section 109.2.3 says that:
The Chief Building Official shall, after ascertaining that all required information has been submitted, add the application to the agenda of a regularly scheduled public meeting....
There is also an argument that it is illogical that the zoning ordinance intended that uses on review be approved by ordinance because Tennessee Code Annotated, section 13-4-204, requires amendments to zoning ordinances to be referred to the planning commission for approval or disapproval prior to a hearing by the city council. This is a persuasive argument considering that Article IV, Section 105, which governs procedures for uses on review, does not expressly provide for referral of applications for uses on review to the planning commission.
Even if the General Standards in Article VII, Section 101, apply to “specifically listed” uses on review, it can be argued that the sentence “Such attendant restrictions and conditions shall be made a part of the amendment to this Ordinance allowing said reviewed use, and shall be noted on the Zoning Map” contained in General Standard 101.2, does not apply to each use on review granted by the city council; rather, that the “this Ordinance” in that sentence refers to amendments to city’s zoning ordinance authorizing a certain category of uses on review, in particular the restrictions that apply to those uses on review. Cellular towers were added to the “specifically listed” uses on review in Article VII by Ordinance 633. Ordinance 633 contained certain restrictions on the approval of uses on review. Under this argument, “this Ordinance” refers to Ordinance No. 633, specifically the restrictions on cellular towers contained within that ordinance.
If we accept the argument that Article VII, Section 101.2, does not apply to “specially listed” uses on review, applications for the approval of a use on review for a cellular tower requires only one hearing, and we need analyze the question no further. If that argument is not accepted, there remain the other arguments, including the argument that the language of the zoning ordinance and of Ordinance No. 633 contemplates only one hearing, the argument that the ordinance referred to in General Standard 101.2 refers to the city’s zoning ordinance, and the argument that the zoning ordinance does not provide for planning commission consideration of uses on review.
All of those are individually and collectively good arguments.
Argument That Uses On Review Require Passage By Ordinance
Article IV, outlines the powers of several city planning entities, including the planning commission, board of zoning appeals and the city council, and prescribes the procedures for various actions of those entities, including amendments to the zoning ordinance, variances, and uses on review. Section 103 outlines the powers of your city council, among which is:
(b) Hearing and deciding applications or zoning changes, upon receipt of the Planning Commission’s recommendations. Such changes may include special conditions the Commission feels are necessary to prevent the changed use for negatively impacting existing uses; but such special conditions shall be made a part of the legally binding Amendment to this Ordinance, and shall be noted on the Zoning Map;....
In addition Article IV, Section 104, which governs the procedure for amendments to the zoning ordinance and rezonings, says in Section 104.2.8 that:
The City Commission may, when enacting an amendment to this Ordinance, attach additional conditions or restrictions in use, Setback [sic], access, screening, or any other factor designed to protect the neighboring properties from adverse effect [sic]. Such conditions and restrictions shall be inserted into the enacting legislation and shall be noted on the Zoning Map, and shall be enforced as provided in this Ordinance.
Those provisions undoubtedly refers to the imposition of “special conditions” or “additional conditions or restrictions” by the city council in the context of an amendment to the zoning ordinance, including rezoning, rather than in the context of the imposition of special conditions or restrictions on the approval of a use on review. However, I point to those provisions because their emphasized portions are almost identical to the last sentence in Article VII, Section 101.2, or General Standard 101.2, as it is referred to above: “Such attendant restrictions shall be made a part of the amendment to this Ordinance allowing said reviewed use, and shall be noted on the Zoning Map.” As I understand it, all those provisions were contained in the zoning ordinance at the time it was adopted in 1989. Whatever the case there, it is clear that whoever drafted Article VII, Section 101.2, knew of the existence of Article IV, Section 103, and Section 104.2.8. Article IV, Section 103 and Section 104.2.8 apply to both amendments to the zoning ordinance itself and to rezonings, including special conditions and restrictions attached to rezonings. The nearly identical language of Article VII, Section 101.2, suggests that it applies to the approval of individual uses on review as well as to categories of uses on review added to the zoning ordinance. In fact, Article VII, Section 100, indicates that uses on review not “specifically listed” in that Article may be approved by he city council. Any special conditions or restrictions pertaining to such an approved use on review would have no way to make it to the zoning map except by ordinance.
While it is true that generally special permits are not amendments to zoning ordinances but conditions imposed under the authority of the zoning ordinance, and that in Tennessee uses on review are administrative rather than legislative decisions, I can find no law or doctrine preventing a city from requiring administrative decisions in general, and special permits in particular, to be issued by ordinance. Indeed, what the zoning ordinance says about the place of the zoning map in the scheme of the zoning ordinance is consistent with requiring uses on review to be approved by ordinance. Article II, Section 231, defines the “Zoning Map” as:
An official map kept at the offices of the _____ Regional Planning Commission, which delineates the boundaries of the various Zoning Districts, and which, along with the Zoning Ordinance Text, comprises the Zoning Ordinance....
Article III, Section 100, sets out the zoning districts and boundaries of the city. Article III, Section 101, then declares that:
The boundaries of said district are hereby fixed and established as shown upon the Zoning Map, consisting of a series of maps [drawn to a certain scale and located in a certain place....Each of these Maps, supplemental sheets, and index is hereby adopted and made a part of this Ordinance; and said Maps and all notations, references, and other information shown thereon shall be as such a part of this Ordinance as if the matters and information set forth by said Maps were fully described herein.
The argument is made above that Article VII, Section 100, creates two classes of uses permitted on review: those “specially listed” in Article VII, and those not so listed, that the general standards apply only to the second class, and that cellular towers are in the first class. However, Article VII, Section 101, says this with respect to the application of the General Standards:
In order to accomplish the general purpose of this Ordinance, it is necessary to give special consideration to certain uses because they are unique in nature, require large land areas, are potentially incompatible with existing Development, or because effects of such uses cannot definitely be foreseen. The uses listed under the various districts herein as “Uses Permitted on Review” are so classified because they more intensely dominate or influence the areas in which they are located than do other uses permitted in the distinct. However, the nature of such uses makes it desirable that they be specifically placed into the Development pattern which exists at the time of their arrival.
It is difficult to accept the argument that the general standards apply only to the “specifically listed” permitted uses on review in Article VII. Article VII, Section 101, itself declares that, “The uses listed under the various districts herein as ‘Users Permitted on Review...’” Among the uses on review permitted in the “various districts” are the “specifically listed” uses on review. It would require far too much time to list all the “specifically listed” uses on review permitted in the various zoning districts, but one can flip through each zoning classification and find many of them. The last sentence of Article VII, Section 1-101, says, “However, the nature of such uses makes it desirable that they be specifically placed into the Development pattern which exists at the time of their arrival.” The word “they” in that sentence obviously refers to “The uses listed under the various districts herein as ‘Uses Permitted on Review.’”
It is also eminently logical, and consistent with the purpose and policy of the zoning ordinance, that all uses on review meet general standards as well as the specific standards that apply to the “specifically listed” permitted uses on review.
It is true that language in Article VII, and Article IV, Section 105, appears to suggest that uses on review are approved or disapproved on only one hearing. However, I discovered (much to my surprise) that similar language appears in Article IV, Section 104, which governs the procedure for amendments to the zoning ordinance and to rezoning. Section 104.2.6 charges the chief building official with adding the application for a zoning amendment “to the agenda of a regularly scheduled public meeting.” Section 104.2.7 says that:
The _____ City Commission, at a regularly scheduled meeting announced as specified above, shall consider the application and grant or deny approval, or defer if necessary. In its deliberations the city commission shall consider the testimony and recommendations of various parties], and the following criteria, prior to making or accepting any motions to approve, deny, or defer.
That language in the zoning ordinance governing the procedure for amendments to the zoning ordinance and to approval of uses on review reflects a reality that applies to any applicant for city council approval on any issue, whether the approval must be obtained once, twice, or more than twice: at the end of the discussion on the issue, the city council approves, disapproves, or defers. There is no guarantee the applicant will receive a subsequent meeting on the issue.
One cannot conclude from reading Article IV, Section 104, which governing amendments to zoning ordinances and rezoning, that such action requires two hearings. One must also know that amendments to zoning ordinances must only be done by ordinance, and that under your city charter ordinances require two readings. The same thing applies to Article IV, Section 105, which governs uses permitted on review. If one knows that uses on review are administrative actions on the part of the city council and in Tennessee are not generally approved by ordinance, Article IV, Section 105, supports the conclusion they are approved only on one hearing. However, Article VII, Section 101.2, intercepts that conclusion in language that clearly suggests uses on review are approved by ordinance, and that appropriate conditions and restrictions are noted on the zoning map.
The argument that Article IV, Section 105, does not provide for the referral of an application of a use on review to the planning commission for approval or disapproval is not so easily dismissed. The same is true of the provisions in Article VII governing “specifically listed” uses on review with only one exception: cemeteries. [Section 102.] In fact, most of the “specifically listed” uses on review prescribe the chief building official to determine whether the applicant for approval of the use meets the specific standards pertinent to the use in question. Under Tennessee Code Annotated, section 13-7-204, amendments to the zoning ordinance, including maps, must be “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.” Apparently, that is not done with uses on review.
However, that fact does not decide the question of whether uses on review are intended by the zoning ordinance to be approved by ordinance, even if the city errors by not submitting applications for uses on review to the planning commission. It is the duty of the courts to construe a statute so that no part will be inoperative, superfluous, void or insignificant, and to give effect to every word, phrase, clause of the act in order to carry out legislative intent. In addition, the courts should assume that the legislative body used each word in a statute purposely, and that the use of these words conveyed some intent and had a meaning and purpose. Finally, where different portions of a statute seem to conflict, the courts must harmonize them if practicable, and lean in favor of a construction that will render every word operative rather than one which make some idle and nugatory. Tiger Creek Bus Lines v. Tiger Creek Transportation Association, 216 S.W.2d 348 (Tenn. 1948); Day v. North American Rayon Corp., 140 F. Supp. 490 (E.D. Tenn. 1956); General Care Corp v. Olsen, 705 S.W.2d 642 (Tenn. 1968); Loftrin v. Langsdon, 813 S.W.2d 475 (Tenn. Ct. App. 1991); Dingman v. Harvell, 814 S.W.2d 362 (Tenn. Ct. App. 1991); Crow v. Fergeson, 814 S.W.2d 721 (Tenn. 1991.).] Municipal ordinances are construed using the same rules of construction that apply to statutes. [Anderson County v. Remote Landfill Services, above.]
If one concludes that applications for uses on review are not required to be approved by ordinance on the ground that the zoning ordinance does not expressly require such ordinances to be referred to the planning commission, what is to be made of Article VII, Section 101.2? Is it to be rendered useless when it plainly provides that:
If the Commission approves a reviewed use such approval may be attended with restrictions on future conversion or use, additional conditions relating to access, Parking [sic], landscaping, screening or fencing, or other related considerations that will lessen the impact of the requested use on the existing neighborhood. Such attended restrictions and conditions shall be made a part of the amendment to this Ordinance allowing said reviewed use, and shall be noted on the Zoning Map.
The subject of that provision appears to be the approval of individual applications for uses on review, not “specifically listed” uses on review which become a part of the zoning ordinance. It also appears to plainly say that such applications are approved by ordinance. The fact that the zoning ordinance--and the practice of the city--overlooks Tennessee Code Annotated, section 13-4-107, which requires amendments to zoning ordinances to be submitted to the planning commission does not change the operation of that law. It is still a part of the zoning ordinance even without receiving a nod of the ordinance.
In my opinion, the argument in favor of the proposition that uses on review in your city require approval by ordinance is the better one. It appears to me to reflect the intention of the zoning ordinance, even though approval of uses on review by ordinance is not typical of most cities in Tennessee. That interpretation is consistent with the zoning ordinance read in its entirety and with the rules of statutory construction
Sidney D. Hemsley
Senior Law Consultant