March 27, 1996
You have four questions with respect to a proposed planned unit development (PUD) for a mobile home park that, according to your fax of March 4, meets all the requirements of the city’s zoning ordinance governing PUDs:
1. Can the planning commission withhold approval of the project solely at the request of city council?
2. Can the city council require that the planning commission withhold approval if the project meets the requirements of the zoning ordinance?
3. Can the city council direct the building official not to issue the required permits on the project, if the project is approved by the planning commission, and all other necessary information (plans, permits, etc.) has been provided and is acceptable?
4. Can city council rezone the property (on their [its] own initiative) to a more restrictive zoning district?
The answer to each of questions 1, 2 and 3 is no. The answer to question 4 is yes, but, to put it indelicately, under the facts related to me, the developer of the PUD could eat the city’s lunch.
Questions 1 and 2:
The distribution of authority among the city council and the city’s planning commission under the city’s own zoning ordinance makes it clear that the city council cannot override the planning commission with respect to PUD planning and development (or with respect to the application of the zoning ordinance in general).
The city’s zoning ordinance says this with respect to the approval of PUDs:
Section 14-204 defines a PUD as “An integrated design for development of residential, commercial, or industrial uses or combination of uses which is professionally designed to allow flexibility and initiative in site and building design and location, in accordance with a plan approved by the planning commission.” [Emphasis is mine.]
Section 14-308(1) says, “A PUD may be developed in any district provided that the uses permitted and density requirements of the district allow the development and the PUD plan elements are approved by the planning commission.” [Emphasis is mine.] The same provision goes to include within categories of permitted PUDs, “Cluster type subdivisions and condominiums, townhouses, multi-dwelling units, rental developments, multi-use parks, travel trailer parks, and multi-use or ownership developments....” [Emphasis is mine.]
Section 14-308(8) says that, “The planning commission may permit changes or alterations in [street and utility construction standards], provided the spirit and intent of this section can be preserved.” [Emphasis is mine.]
Section 14-308(9) provides for a plan preparation and review process for two classes of property: PUDs requiring the subdivision of property, and PUDs not requiring the subdivision of property. The first class of property involves, “PUDs in which property is divided for the purpose of sale or rental, such as a subdivision or mobile home park.” However, that provision clearly implies that in both classes the planning commission approves the preliminary PUD plan. The same provision expressly says that the planning commission approves the final PUD plan/preliminary subdivision plant and the final PUD plan. [Emphasis is mine.]
Section 14-308(12) provides for minor and major changes in the PUD project. With respect to the former, “The planning commission may approve changes in minor shifts of building locations, proposed streets and ways, ....” With respect to the later, a new plan is required to be submitted “in accordance with the procedures and requirements for approval of a PUD plan.” Needless to say, that plan must obtain the approval of the planning commission under section 14-308(9). [Emphasis is mine.]
Standing by itself, Section 14-308 of the city’s zoning ordinance gives to the planning commission authority to approve PUDs. Nothing in the city’s zoning ordinance permits the city council to direct, or to intervene in any way in, the work of the planning commission. In fact, under Chapter 10 of the city’s zoning ordinance, appeals from the application of the zoning ordinance are to the board of zoning appeals. Under Chapter 11 of the city’s zoning ordinance amendments to the ordinance are the function of the city council.
The distribution of authority among the city council and the planning commission reflected above is consistent with state law.
Under Tennessee Code Annotated, section 13-7-201 et seq. municipal governing bodies have the authority to enact zoning ordinances. The enactment of zoning ordinances is an exercise of the legislative police power, while the application of the zoning ordinance is an administrative function. [See Fiser v. City of Knoxville, 584 S.W.2d 659 (Tenn. Ct. App. 1979).] However, even the legislative power to enact or amend a zoning ordinance is dependent upon the planning commission. Tennessee Code Annotated, section 13-7-202 says,
Whenever the planning commission of the municipality makes and certifies to the chief legislative body a zoning plan, including both the full text of a zoning ordinance and the maps, representing the recommendations of the planning commission....then the chief legislative body may exercise the powers granted and for the purposes mentioned in section 3-7-201, and may divide the municipality into districts or zones of such number, shape and areas it may determine, and, for such purposes may regulate the erection, construction, reconstruction, alteration and uses of buildings and structures and the uses of land. [Emphasis is mine.]
Tennessee Code Annotated, section 13-7-204 provides that even amendments to the zoning ordinance, which are a legislative function of the city council, must first be submitted to the planning commission for its approval or disapproval. The planning commission’s disapproval may be overridden only by a favorable vote of a majority of the entire membership of the city council.
A party dissatisfied with the application of the zoning ordinance turns not to city council (unless he seeks to have the zoning ordinance amended), but to the board of zoning appeals. It has been held that the jurisdiction of the board of zoning appeals is limited to that expressly conferred by statute, and that a board of zoning appeals has no authority under the statutes creating it to review the decisions of the planning commission with respect to a site plan approval. [Father Ryan High School, Inc. v. City of Oak Hill, 774 S.W.2d 184 (Tenn. Ct. App. 1988); Whittemore v. Brentwood Planning Commission, 835 S.W.2d 11 (Tenn. Ct. App. 1992)] Although those holdings apply to boards of zoning appeal, they undoubtedly also apply to the distribution of authority among municipal governing bodies and their planning commissions. The planning commission has no power with respect to the city council, and the city council has no power with respect to the planning commission, not contemplated in the state statutes governing municipal zoning in Tennessee.
Section 14-308(11) of the city’s zoning ordinance plainly says,
The developer of a PUD shall be entitled to receive appropriate development permits following approval of the final PUD plan and the preliminary plat, where applicable. However, none of these permits shall be issued until the building official receives a PUD plan which bears the signed certificates of approval and of application and agreement. (See Appendix C. For examples).
That language appears to give the building official no discretion in the issuance of a permit in the case of a PUD; if the developer bears the appropriately signed certificate contained in Appendix C, he is entitled to the permit. Under section 14-905 of the city’s zoning ordinance the building inspector has discretion with respect to the final site inspection and issuance of a certificate of occupancy (and other duties with respect to the application of the city’s building and other utility codes to the PUD), but his duty to issue the building permit for the PUD if the developer bears the above certificate appears to be mandatory. It is said in Anderson County v. Remote Landfill Services, 833 S.W.2d 903 (Tenn. Ct. App. 1992), citing Harrell v. Hamblen County Quarterly Court, 526 S.W.2d 505 (Tenn. Ct. App. 1975), that:
Ordinarily the issuance of a building permit is purely an administrative act, and the person charged with its issuance must follow the literal provisions of the zoning ordinance. He is circumscribed by their provisions and absent some cogent reason based on the wording in the ordinance, the granting of the permit is required as a matter of course. The granting or withholding of a permit is not a matter of arbitrary discretion. If the application complies with the requirements of the ordinance, he is entitled to his permit. [At 910.] [Emphasis is mine.]
Theoretically, in some cities, the building inspector, being a city employee, would be subject to instructions from the municipal governing body at the peril of his job. However, under your Municipal Charter, Article IV, the city manager is in charge of the administration of the city, and the city council has no authority to direct the building inspector (or any other city employee) to do anything. Any such direction would have to come from the city manager. But the city manager would have no more authority to command the operations of the planning commission under the city’s zoning ordinance and state law than would the city council.
But even if we assumed that either the city manager or the city council directed the building inspector not to issue a building permit to a PUD developer bearing the certificate contained in Appendix C of the zoning ordinance, and the building inspector obeyed, what would be the result? Among other remedies, the developer might seek a writ of mandamus ordering the building inspector to issue the permit on the grounds that the latter’s duty to issue the permit is mandatory and ministerial. [See State v. Clark, 173 Tenn. 81, 114 S.W.2d 800 (1938).] However, the developer might first have to exhaust his right of appeal to the board of zoning appeals. [State ex rel. Poteat v. Bowman, 491 S.W.2d 77 (Tenn. 1973).] Among the powers of boards of zoning appeal is the power to hear and decide appeals arising from the refusal of any municipal official or entity to issue a building permit. [Tennessee Code Annotated, section 13-7-206.]
But whatever remedies the developer might seek, he would stand a better than excellent, if not ironclad, chance of forcing the city to issue him the building permit.
The city council unquestionably has the authority to amend its zoning ordinance. However, under the facts you related to me in your fax on March 4, any amendment would be purely an attempt on the part of the city to block the development of the mobile home park. The courts would certainly be aware of the purpose of an amendment to the zoning ordinance, considering the late stage of the planning and approval of mobile home park. Your fax indicates that the property in question has been zoned R-2, Medium Density Residential, since its annexation in 1983; that mobile home parks have been an allowed use in the R-2 district since 1959; that mobile home parks are expressly permitted as a PUD in the zoning ordinance; and that there are no environmental or traffic standards in the zoning ordinance that allow the planning commission to deny approval of the project.
It may be true that a large number of people do not want the mobile home park in the city and that they have appealed to the city council to help them. None of that gives the city council any more power than does the state law and the city’s own zoning ordinance with respect to PUDs (or any other use permitted under the zoning ordinance). Any amendment of the zoning ordinance by the city council to accomplish through the back door what it could not accomplish through the front door is bound to be transparent, and, if the developer sticks to his guns, unsuccessful. Cities in Tennessee have broad discretion in enacting and amending their zoning ordinances, such enactments and amendments being legislative in nature, and the courts will not interfere with zoning enactments unless the particular enactment is clearly arbitrary, capricious or unreasonable. [McCallen v. City of Memphis, 786 S.W.2d 633 (Tenn. 1990).] I doubt the courts would have much trouble finding that an amendment to the zoning ordinance that had the effect of keeping mobile home park out of the city under the circumstances clearly arbitrary, capricious and unreasonable. It is the law in Tennessee (and elsewhere) that while mobile homes can be restricted to mobile home parks, they cannot be completely banned from the city. A rezoning of the land in question when the developer has met all the PUD requirements for a mobile home parks smacks of banning mobile homes from the city. [See Mobile Home City of Chattanooga v. Hamilton County, 552 S.W.2d 86 (Tenn. Ct. App. 1976), cert. denied, 431 U.S. 956 (1977).]
Sidney D. Hemsley
Senior Law Consultant