|Legal Opinion: |
Text of Document: Dear Planning Manager:
You have the following question: Who has the authority to appoint the regional planning commission’s director?
This question arises, in part, from a paucity of documentation on the establishment of the regional planning commission by the State Planning Office, and with respect to your regional planning commission’s by-laws. There are no signed copies of the by-laws, and apparently no minutes of the regional planning commission indicating their adoption. (I see no indication in your e-mail to your MTAS Management Consultant that either the City or County has attempted to locate in the old State Planning Office the documents supporting the creation of that planning commission). However, there are minutes of both the quarterly court of your County (April, 1962) and of the City Feb., 1962) calling for an agreement between the two bodies for the establishment of a regional planning commission. The County’s minutes contain a text of resolution containing an agreement between the two bodies which is to be submitted to the State Planning Office for its tis creation of a regional planning commission under “sections 13-201 through 12-212, inclusive [now Tennessee Code Annotated [now § 12-3-101 et seq. ] And which presently appears to be consistent with that statutory scheme. In fact, the last major paragraph of that resolution it provides, “that said Commission shall have the power to appoint and fix the compensation of the Director and other staff t that it may deem necessary…” But as pointed out, there is apparently no record in the city’s or the county’s archives that that or any other agreement was ever drafted and executed, or that the State Planning Office ever created the regional planning commission.
However, my opinion is that the planning commission appoints the planning director. That opinion is based on the assumption that the regional planning commission was established in accordance with Tennessee Code Annotated, § 13-3-301. That assumption appears strongly supported by the fact that is has functioned as if it were established under that statute for around 50 years ago, and that both the County and the City have operated under a set of bylaws entitled “City-County Regional Planning Commission,” which, though unsigned and not showing up as having been adopted in the regional planning commission’s record, declares that “The City-County Regional Planning [sic.] , hereinafter referred to as the Commission, was created by Resolution of the Tennessee State Planning Commission, up the request of the City and the County,
Tennessee, on January 10, 1963, under Section 12-3-101, Tennessee Code Annotated.” Those by-laws have been amended at least twice since then (9/26/95, and 10/29/08), which also indicates that the parties were operating under der them... In addition, Section 11-101 of the Municipal Code provides that “Pursuant to section 13-3-301, Tennessee Code Annotated, the City-County Regional Planning Commission created pursuant to section 13-3-101, Tennessee code Annotated, is hereby designated as the city’s planning commission.” The historical citation to that section indicates that it derived from “63 Code, 2-20 modified.” Those records are all consistent with the proposition that both the County and the City did make an agreement for the creation of a regional planning commission under Tennessee code Annotated, 13-3-301, that a regional planning commission was created by the State Planning Office, and that both those governments have operated under that agreement since the early early 1960s.
You indicated in an e-mail to MTAS Management Consultant that “I have been made aware of a Supreme Court ruling on a case that may be somewhat similar to our situation. I have attached he case to this e-mail for our review. There was no case attached to the e-mail, but I have located a Tennessee Court of appeals case that does appear to bear on your situation, and which lends support to my opinion: Hutcherson v. Criner, 11 S.W.3d 126 (Tenn. Ct. App. 1999).Ct. App. 1999). There a plaintiff, much aggrieved over the refusal of the county to allow him to establish a landfill in the county, challenged the validity of the county’s entire zoning ordinance, and alleged that the makeup of the regional planning commission was illegal (although the specific illegality was not specified).
The Court rejected both his challenges reasoning that while the procedural requirements pertaining to zoning ordinances and amendments are generally mandatory:
“After long public acquiescence in the substance of an ordinance, public policy does not permit such an attack on the validity of an ordinance because of procedural irregularities." [Citing Trainor v. City of wheat Ridge, 697 P.2d 37, 39 (Colo. App. 1984)….In Trainor, the zoning ordinance under attack had been in effect for over ten years before the plaintiffs filed their complaint. Thus, the court held that given the extensive public reliance on the ordinance, such was immunized form a belated attack on various procedural grounds by Mfr. Hutcherson. The 1984 Zoning Resolution has been in effect for over ten ears and has been relied on extensively by the residents of Lauderdale County including Mr. Hutcherson. As such, the 1984 Zoning Resolution is immunized from an attack on procedural grounds. [At 134-35]
The City-County regional planning commission has been operating as if it were legitimately established under an agreement between those two bodies for around 50 years. As far as I know, during that entire time, the two governments and the public have relied on that “agreement,” for far longer than the ten years at issue in Hutcherson. Under that agreement, the regional planning commission selects the planning director. Indeed, Tennessee Code Annotated, § 13-3-102 says that: Any provision relating to the appointment of a planning director contained in any metropolitan or county charter or private act or interlocal agreement must be used in appointing a planning director.... My research of the history of the regional planning statutes indicates that there was no provision for the appointment of a “planning director” by the planning commission under an interlocal agreement until the passage of Public Acts 2010, Chapter 47. But the passage of that act seems obviously to suggest that the General Assembly was aware that at least one or more regional planning commissions appointed their planning director under the authority of an interlocal agreement. It is true that the Interlocal Cooperation Act found at Tennessee Code Annotated, §12-9-11 et seq., was adopted in 1967 and that it may authorize interlocal agreements for regional planning commissons, but agreement cannot be found. In any event, Tennessee Code Annotated, § 13-13-3-102 now expressly authorized regional planning commissions to enter into interlocal agreements under which the planning director would be appointed by the planning commission. That method of appointing the planning director is consistent with Article VII, Section 1 of the by-laws of the City-County Regional Planning Commission, which provides that “The members of the Commission shall appoint and fix the compensation of a Director of Planning.” Apparently, there is also a long record of the director of planning being appointed by that method. Hutcherson, above, appears to immunize the planning commission from any real or perceived errors in the appointment of a planning director by the regional planning commission.
Sidney D. Hemsley
Senior Law Consultant