|Legal Opinion: |
Text of Document: June 4, 2002
You have advised me of a situation which has arisen in your City involving an application to rezone property. It is my understanding that the planning commission disapproved of the rezoning, and the board vote resulted in 4 in favor and 3 opposed, with 2 members abstaining from the vote. The City zoning ordinance states that when an amendment to zoning is disapproved by the planning commission, in order for the amendment to become effective, it must “receive a majority vote of the entire membership.” Article XIV, Section 2. You therefore interpret the vote at issue to be insufficient to pass the amendment, as a majority vote of the membership of the board is required, as opposed to a quorum of the present members. My research reveals that you are correct.
Although the Charter for the City provides that actions such as ordinances “shall be passed by a majority of the members present, if there is a quorum,” an exception is made in Tennessee law for actions effecting zoning. T.C.A. § 13-7-204 states:
The zoning ordinance, including the maps, may from time to time be amended;
but no amendment shall become effective unless it is 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.
This language, contained in the state enabling legislation which vests local legislative bodies with the prerogative to make final decisions on all zoning matters, has been found to be valid and constitutional by the courts. Family Golf v. Metropolitan Government of Nashville and Davidson County, 964 S.W.2d 254 (Tenn. App. 1997). Some cities have zoning ordinances which require a favorable vote by a so-called “super majority” of two thirds of the entire membership of the legislative body in order to overcome the disapproval of the planning commission. The courts have upheld such requirements as being proper under the enabling legislation.
In our phone conversation you raised the issue of how members who abstained from the vote should be viewed in determining the final count. Under T.C.A. § 13-7-204 it does not matter that members abstained from the vote for whatever purpose, as a “favorable” vote is specifically required.
When the City Administrator contacted Legal Consultant Dennis Huffer with this same question, he did not inform Dennis that the proposed zoning amendment had not been approved by the planning commission. I have consulted with Dennis concerning the facts you shared with me and he is in agreement that the above-cited statutory language is controlling.
It is therefore our combined opinion that the zoning amendment failed to pass the council vote, as it did not receive favorable votes from a majority of the membership of the council.
I hope this information is helpful. Please do not hesitate to contact me should you have any questions or need further information.
Thank you for consulting with MTAS.
Melissa A. Ashburn