November 6, 2006
Notice to Schools
You may have problems with this notice provision in Tennessee Code Annotated, § 6-51-102(b)(2). As you know, that statute requires at least 30 days notice to the county school system in advance of the public hearing on the plan of services. I discovered that notice requirement is not even in my Annexation Handbook, an omission I will immediately correct.
The requirement in Tennessee Code Annotated, section 13-7-204 that amendments to zoning ordinances be submitted to the planning commission before passage by the city’s governing body was held to be mandatory in Holdredge v. City of Cleveland, 402 S.W.2d 709 (1966). Citing Holdredge, the Court reached the same result in Haynes v. City of Pigeon Forge, 883 S.W.2d 619 (Tenn. Ct. App. 1994), and in State ex rel. Browning-Ferris Industries of Tennessee, Inc. v. Board of Commissioners, 806 S.W.2d 181 (Tenn. Ct. App. 1990). The Holdredge Court emphasized that, “Zoning laws are enacted in the exercise of police power. The police power belongs to the state, and passes to municipalities only when and as conveyed by legislative enactment. [Citation omitted]. Statutes prescribing how police powers may be exercised are mandatory and exclusive of other methods.” [At 712]
In Town of Surgoinsville v. Sandridge, 866 S.W.2d 553 (Tenn. Ct. App. 1993), it was argued that the passage of an amendment to a zoning ordinance failed on two procedural grounds. The first ground was that it was not published as required by its charter. The town argued that newspaper articles about the zoning ordinance constituted publication. The Court rejected that argument, declaring that the charter required the publication of the ordinance itself or its caption and a summary. While the newspaper article summarized the amendment, it did not state the caption of the ordinance. In addition, the court could find no authority for the proposition that a newspaper article would satisfy a statutory publication requirement, and pointed to other jurisdictions where that argument had been rejected.
The second ground was that the town had given only 11 days notice of the proposed amendment, and Tennessee Code Annotated, section 13-7-203, required “at least” 15 days notice. Citing Clapp v. Knox County, 273 S.W.2d 694 (1954), the Court declared that, “Our Supreme Court has held the requirements for giving notice for hearing on amendments to zoning ordinances must be ‘substantially complied with.’” [At 556] Because the statute in this case required “at least” 15 days, the 11 day notice could not constitute substantial compliance. Interestingly, the Court also suggested that the substantial compliance rule did not even apply to statutory notice requirements. “We do not infer from Clapp that a municipality must only substantially comply with the requirement for timeliness, i.e. the minimum time which must elapse between the published notice and the hearing. ‘Where the enabling act prescribes the time which must elapse between the notice and the hearing, failure to comply renders a zoning ordinance invalid.’” [At 556]
The failure to follow statutory notice requirements in the adoption even of ordinances is serious business. Generally charter and general law requirements governing notices are mandatory. It was held in Terry v. Commissioners of Cookeville, 198 Tenn. 1010 (1947), that where a city issued bonds under its charter, where the city’s charter required the issue to be authorized by ordinance, and where the city authorized the issue by resolution, the issue failed.
The city argued that the requirement for an ordinance was directory rather than mandatory, and that the plaintiffs were not prejudiced because they had a vote on the bond issue at the election called for in the resolution. But the Court rejected that argument, declaring that, “...the legislative stipulation, here appearing, that the manner of exercise should be by way of ordinance made it incumbent, in order to validate, that such more deliberate form of authorization should have been adopted.” [Citation omitted]
However, many states, including Tennessee, have adopted the substantial compliance rule regarding the formalities required for the passage of ordinances. [State v. City of Lafayette, 572 S.W.2d 922 (1978)]. The obvious problem with that rule is that it is often difficult to determine what constitutes substantial compliance with the mandatory procedures with respect to any particular ordinance.
Most of the cases both inside and outside Tennessee deal with that question in the context of procedures prescribed by state law or charter, rather than the contents of notices.
It is said in State v. City of Lafayette, citing earlier cases from Tennessee and other jurisdictions, that:
[T]he procedure for the enactment of an ordinance set forth in a city’s charter generally has been held to be mandatory but the procedure must be given a reasonable construction, one that does not result in frustrating the legislative process at the municipal level. The charter provisions being mandatory, it follows that, unless, in enacting the annexation ordinance, the legislative body of the City of Lafayette substantially complied with the requisite procedure, the ordinance is invalid. [At 924]
In that case, the city’s charter provided that, “No bill shall become an ordinance without having been passed on three separate readings and no more than one reading shall be had on one day.” The annexation ordinance was read in its entirety at the first meeting, and a copy was given to each councilman. In the next two meetings the mayor simply announced that a vote would be taken on “Ordinance 151, the annexation ordinance.” The Court held that process constituted substantial compliance with the city’s charter requirement that the ordinance be read on three readings. It reasoned that:
From our examination of the record, we have no doubt that each time the councilmen cast their vote for the passage of the annexation ordinance, they were aware of the matter embodied within the ordinance and of the effect of the ordinance, on passage. [At 924]
[Also see Metro Government of Nashville v. Mitchell, 539 S.W.2d 20 (1976); Biltmore Hotel Court v. City of Berry Hill, 390 S.W.2d 223 (1965).]
That rule that the procedural requirements contained in Tennessee Code Annotated, section 13-7-204 were mandatory was modified somewhat by Wilgus v. City of Murfreesboro, 532 S.W.2d 50 (1975). There the Court rejected a challenge to an amendment to a zoning ordinance made on the ground that it had been amended between second and third readings without being resubmitted to the planning commission. “The test,” said the Court, “is whether the revision is so substantial as to create a strong probability that the commission’s recommendation would have been affected by the revision. If the change is both inconsequential and produces no detrimental effects to those who would oppose it, then the revised proposal is not required to be resubmitted.” [At 54]
Indeed, one of the challenges the plaintiff’s raised in Wilgus was that the ordinance had been published only once in violation of the city’s charter. The city’s charter required ordinances to be published three times, but the zoning ordinance itself required only one publication. The court rejected that challenge, declaring that the plaintiff lacked standing to challenge the ordinance on that ground because he had notice of the proposed ordinance and had several times attended city council meetings at which the ordinance had been an issue for the purpose of opposing it. But in rejecting the challenge, the Court declared that, “It is an elementary principle that ordinances of a city are subordinate to charter provisions. [Citation omitted.] The city may not by ordinance nullify a mandatory provision of its charter.” [At 52]
It was held in Morton v. Johnson City, 333 S.W.2d 924 (1960), that the purpose of the public notice requirements contained in the state’s annexation law is political. There the Court said of the required notice of the meeting:
The words “public hearing” have a variety of varied meaning depending upon the facts and circumstances of each particular case. These words have been variously defined and the definition in each particular case depends of course upon the subject of the hearing, the nature of the Board or the persons holding the hearing. These words and their meanings vary accordingly. The words here in the Statute of a “public hearing” were not used with respect to a proceedings in which the constitutional rights of any person might be affected. The subject before the Commission was the adoption of an ordinance annexing the territory in question. Such a hearing is required under the political or legislative issue of this kind is a kind of a hearing that is to be accorded so that this body may make up its mind from a political standpoint in their legislative action as to whether or not it is feasible and right to annex this territory.... The only question was to allow those that wished to stay and say their piece to be allowed to do so and then the Commission could make up its own legislative mind. This was not a question for the court as to the feasibility of making the annexation or not making the annexation, and things of that kind, but was only required that they be given this privilege of being heard. [At 929]
The meeting, continued the Court, was:
Merely the council in its political being calling a hearing on the feasibility of the annexation. It is just like the members could go out any time they wanted to and look over the territory and talk to this one or that one or the other one about it, in other words it is a means of letting them make up their political minds as to the legislative feasibility of the act. [At 930]
It is also said in State ex rel. Senff v. City of Columbia, 343 S.W.2d 888 (1961), that:
The contention here is made by those opposing this ordinance that this notice should be strictly construed rather than liberally construed. We, of course, (not in so many words) have held to the contrary in Morton v. Johnson City, supra. We held there that the type of public hearing which is contemplated and called for under the Statute (Section 6- 309, 6-310, T.C.A). With respect to the adoption of an annexation ordinance of the kind is that kind of hearing that is to be accorded by a city commission so that the body make up its mind from a practical standpoint as to whether it is feasible and right to annex property. [At 890]
But the City’s problem is, of course, that the notice requirement contained in Tennessee Code Annotated, § 6-51-102(b)(2) is expressly stated: thirty days before the public hearing on the plan of services. Indeed, that express requirement is preceded by the requirement that the notice be given “as soon as practicable, but in no event less than thirty (30) days prior to the public hearing requirement...”
Open Meetings Law Issue
One of the most overlooked parts of the Open Meetings Law is Tennessee Code Annotated, § 8-44-104(a), which requires that, “The minutes of any such governmental body shall be promptly and fully recorded, shall be open to public inspection, and shall include but not be limited to a record of persons present, all motions, proposals and resolutions offered, the results of any votes taken, and a record of individual votes in the event of a roll call.”
But I doubt that the phrase “a record of persons present” refers to a record of the members of the public who attend the meeting. In fact, such a requirement would be almost impossible to meet where the number of attendees is large and where they come late and where they move in and out of the meeting. I do admit there is no case law to support that conclusion. It can be argued that under the rules of statutory construction an interpretation that would require the names of the attending public to be recorded would produce a ridiculous result.
In the unreported case of Grace Fellowship Church of Loudon County v. Lenoir City Beer Board, 202 WL 88874 (Tenn. Ct. App. 2002), the minutes of two meetings of the beer board said respectively:
- “The Lenoir City Beer Board met April 19, 1999 at 10:00 a.m. at City Hall to consider the application of Jane N Mosier for the off premises beer permit for K-VA-T Food Stores, Inc., Food City Store # 650 at 455 Hwy. 321. The permit was not approved. Plemons Yes, Littleton No /s/Billy Joe Littleton, Sec.”
- “The Lenoir City Beer Board met at City Hall on May 3, 1999 at 10. a.m. to reconsider the application of K-VA-T Food Stores for off premises permit, at 455 Highway 95/321. Moved by Plemons to approve the permit. 2nd by Littleton. Plemons Yes. Littleton Yes /s/Billy Joe Littleton, Sec.”
The Court voided the actions taken at both meetings (but did not invoke the injunctive or oversight remedies provided for in Tennessee Code Annotated, § 8-44- 106), declaring that the minutes of the beer board did not comply with the Open Records Law.
The Court did not indicate whether it had a problem with the failure of the minutes to reflect everybody who was present at the meeting, or only the members of the beer board who were present. But the Court cited the language of Tennessee Code Annotated, § 8-44-104(a), as requiring that the minutes of meetings “shall include, but not be limited to, a record of the persons present, all motions, proposals and votes in the event of a roll call.” That statute speaks in terms of motions, proposals and votes in the event of a roll call. For that reason, “a record of the persons present,” logically applies to the members of the governing body–in this case the beer board–present.
That is as close as I can come to answering your questions.
Sidney D. Hemsley
Senior Law Consultant