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Original Author: Hemsley, Sid
Date of Material: 09/28/1998

Zoning--Laws and regulations
Zoning--Public information

Failure of the Local Government to Substantially Comply with the Public Hearing Notice

Reviewed Date: 05/05/2021
MTAS was asked whether the failure of the local government to substantially comply with the public hearing notice and other procedural requirements prescribed by the state law is jurisdictional rather than directory.

1. Where the 15 day notice of a public hearing on an amendment to the zoning ordinance or zoning map required by Tennessee Code Annotated, section 13-7-203, was not met and the amendment is otherwise properly passed, is the amendment fatally defective even if over a long period of time property owners and citizens have relied on legality of the amendment?

2. If under the above facts the amendment to the zoning ordinance or zoning map was fatally defective, can the city’s governing body be required to zone the property to reflect the zoning classification of the property as if the amendment to the zoning ordinance or zoning map had been properly passed.

The heavy weight of authority in both Tennessee and other jurisdictions indicates that the answer to both questions 1 and 2 is no.

In the overwhelming number of states, the failure of the local government to substantially comply with the public hearing notice and other procedural requirements prescribed by the state law is jurisdictional rather than directory. Tennessee appears to be in that overwhelming number of states. [See 2 Yokley, Zoning Law and Practice, 4th ed., section 9-6, 4 Yokley, Zoning Law and Practice, 4th ed., section 11-10; and 96 ALR2d 449. In Tennessee, see Holdredge v. City of Cleveland, 402 S.W.2d 709 (Tenn. 1966); Wilgus v. City of Murfreesboro, 532 S.W.2d 50 (Tenn. Ct. App. 1975); State ex rel. Browing-Ferris Industries of Tennessee, Inc. v. Board of Commissioners, 806 S.W.2d 181 (Tenn. Ct. App. 1990); Haynes v. City of Pigeon Forge, 883 S.W.2d 619 (Tenn. Ct. App. 1994); Town of Surgoinsville v. Sandidge, 866 S.W.2d 553 (Tenn. App. 1993).]

The substantial compliance rule affords the courts some wiggle room from a strict application of the law governing public hearing notice and other procedural requirements but where there was not substantial compliance the amendment is fatally defective notwithstanding the public’s reliance on the validity of the amendment. That puts a heavy burden on anyone who has an investment in the zoning classification in question, including the government itself, to check the validity of the original zoning ordinance or map, and any amendments thereto. In Town of Surgoinsville v. Sandidge, above, for example, the procedural errors at issue (including an 11 day public notice) involved an 1988 amendment to the zoning ordinance. In holding the ordinance invalid, the Court declared that, “This [15 day public notice] requirement has been strictly construed, even where no prejudice to a property owner is shown.” [At 556.]

So far I have found only one case in which the court determined that equitable principles apply to property owners’ past reliance upon the validity of a procedurally-defective amendment, to a zoning ordinance, but even in that case the court held the procedural error rendered the amendment generally fatal. In Hallenborg v. Town Clerk of Billerica, 275 N.E.2d 525, the town passed an amendment to the town’s zoning by-laws. Section 5.8 of the amendment permitted apartments in the town. A Massachusetts general law required 14 days’ public notice of a hearing by the planning advisory board on such amendments before they were considered by the town’s governing body. Only 13 days’ notice of the planning advisory board’s meeting was given on that amendment. Several months later the plaintiffs filed for a writ of mandamus to order the building inspector to enforce the zoning by-laws as they existed before the amendment, and to revoke all building permits issued for apartment houses under the amendment. Apparently several permits for apartments had been issued under the amendment. One permit holder, in reliance on his permits, had spent $500,000 and had a loan commitment of more than $1,000,000. Other permit holders had spent considerable sums.

The Supreme Judicial Court of Massachusetts itself posed the question: “[W]hether the by-law amendment was rendered invalid by the defect in the notice of the planning board hearing which complied with the ten-day requirement in Section 18 of the zoning by-law, ‘but was in fact one day less than’ the fourteen days called for by G.L. c. 40A, section 6. The Court pointed to the general rule that, “Ordinarily in the enactment and amendment of ordinances and by-laws, fairly strict compliance by local legislative bodies with prescribed statutory procedures is treated as mandatory. [Citations omitted.] However, continued the Court, “The principle is not inflexible...and a court, in appraising the legal effect of insubstantial noncompliance with procedural details, must consider whether strict compliance is mandatory or only directory [Citations omitted], and whether an asserted minor noncompliance in fact is significantly inconsistent with, or prejudicial to, the apparent legislative objectives of the proscribed procedures. [Citations omitted.]

In this case, declared the Court:

On the present record, every equitable consideration requires treating the by-law amendment as valid, at least as applied to the interveners, permit holders who have changed positions in reliance upon the by-law as having been properly adopted, particularly where the record, as already noted, gives not the slightest of prejudice to any petitioner or to any other person arising from the minor defect in publishing the statutory notice. Even a landowner, who had intended to object at the planning board hearing, still could have had an opportunity to object and be heard at the town meeting in opposition to the proposed amendment and to the planning board’s purely advisory report on it. [Citations omitted.] [At 530.]

But the Court’s remedy was limited and did not extend to a declaration that the amendment was generally valid:

There are limits, however, upon the extent to which there is discretion completely to deny relief by mandamus, where the petitioner attempts to assert a public right. [Citations omitted], and is without another remedy. [Citations omitted.] We think....[Citation omitted.] that relief by mandamus here ought to be delayed long enough to permit either adoption of the by-law amendment with full compliance with c. 40A, section 6, or an amendment to protect persons who in good faith have relied upon the amendment as properly adopted, or to give time for whatever other relief, administrative or otherwise, is available to interveners. Accordingly, although relief will not be denied to the petitioners at this time and on this record, the writ, in any event, is not to issue before the expiration of nine months after the receipt in this case is received in the Superior Court, and further stays of issuance of the writ may be generated in the discretion of the Superior Court if further time is needed to correct the consequences of the defect in notice.... [At 530-31.]

Nowhere in this case is there a suggestion by the Court that it had the power to force the city’s governing body to properly adopt the amendment; the delay in the issuance of the writ of mandamus was to give that body the opportunity to properly pass the amendment at issue, or to adopt an amendment that would protect the property holders who had in good faith relied upon the procedurally defective by-law, or to give the property holders the opportunity to seek other administrative or other relief. But it seems clear that following an appropriate delay, the plaintiffs would be entitled to a writ of mandamus prohibiting apartment houses in the city because the zoning amendment that would have allowed them had been improperly passed.

The question of whether the Supreme Judicial Court of Massachusetts had in Hallenborg invalidated the zoning amendment in question arose in Pastan v. Board of Appeals of Billerica, 311 N.E.2d 588 (App. Ct. Mass. 1974). In that case the board of appeals had upheld the refusal of the building inspector to issue the plaintiff a permit for an apartment house. The question of whether the plaintiff was entitled to the permit turned, said the Court, on whether Hallenborg had actually invalidated the zoning amendment that permitted apartment houses. Yes, answered the Court, declaring that:

We construe the Hallenborg decision to have invalidated section 5.8, notwithstanding that protective provisions were made for the interveners in that decision, who had undertaken substantial obligations in reliance on permits obtained by them under section 5.8. The plaintiff does not show that he is entitled to the benefits extended by that decision. [At 588.]

Pastan strongly implies that the city’s governing body never did properly pass the by-law, the corollary of which is that it was not compelled to do so by the Supreme Judicial Court of Massachusetts, notwithstanding the fact that the Court thought the procedural error at issue in that case was trivial.

[Incidentally, Hallenborg shows up in State ex rel Wilson v. City of LaFayette, 572 S.W.2d 922 (Tenn. 1978), in which it was held that it was substantial compliance for an ordinance to be read in its entirety once when the charter required it to be read three times, when on second and third readings it was voted on as “Ordinance 151, the annexation ordinance.” The Court cited Hallenborg, among other cases, for the propositions that the procedure for the enactment of city ordinances is generally held to be mandatory, and that unless there is substantial compliance with such procedures, the particular ordinance at issue is invalid.]