August 4, 2006
As I understand the facts you related to me, the City's planning commission has recommended a change in zoning for a piece of property from R-1 to PRD (Planned Residential District), the latter classification of which is mixed used residential. The city council has passed the zoning change on two readings. Section 11.03 of the Municipal Charter requires that ordinances be passed on three readings. However, on third reading of the ordinance there was no motion to adopt or reject the ordinance, and there is no sign that posture of the city council on that ordinance will change.
Your question is: What remedy do the applicants for the rezoning have to force the city council to vote down or pass the ordinance on third reading?
The answer to that question is not clear. A provision of the zoning ordinances appears to require the Board of Mayor and Aldermen to A" consider" the application for rezoning, but the zoning ordinance does not indicate what " consider" means. Robert's Rules of Order, Newly Revised [RRONR], which the city has adopted to govern parliamentary procedure supplies the answer, but I do not know if the Tennessee courts would accept that answer. I can find only three cases in the United States where a similar question arose, and those cases the question was whether a writ of mandamus would issue to resolve the failure of the city council to act on the rezoning application at issue. The court denied the writ in one case, and granted it in two. In the two cases the court granted the writ for on different grounds.
The city's zoning ordinance apparently contains no express remedies for such a situation. Title 14 of the Municipal Code contains the zoning ordinance. Title 14, Chapter 15, thereof contains the process governing amendments to the zoning ordinance, including who has the authority to initiate amendments ( '14-1502), public hearing on amendments ('14-1506), a provision requiring that after the amendment is passed, it will be reflected on the zoning map ( '14-1507), and provisions governing new applications for zoning changes after an application has been denied ( '14-1508). But there has been neither an approval nor a denial of the rezoning application at issue.
However, '14-607(14), which governs the review process for PRD's, provides that after the planning commission approves the preliminary plat (which serves as a " recommendation to the board of mayor and aldermen to rezone to PRD any property included in the plan and to approve the preliminary development plan as submitted" ), AThe board of mayor and aldermen shall, following the provisions of the zoning ordinance, consider the request for rezoning to PRD. Any change in the preliminary plat must be submitted to the planning commission, after which " If the final plat is approved by the planning commission, the approval shall be forwarded to the board of aldermen for approval of a contract for development, setting the amount of bonds to be posted before the plan is recorded." [Subsections (a) and (b)]
But '14-607(14) of the Zoning Ordinance itself provides that " The board of mayor" and aldermen " shall consider the request for rezoning to PRD." Obviously, the board of mayor and aldermen in its own zoning ordinance has obligated itself to " consider" an application for a rezoning to PRD after the rezoning has been approved by the planning commission.
What constitutes " consideration" ?
I have searched in vain for cases defining " consideration" in the contexts of '14- 607(14). But in '1-102 of the Municipal Code, the city has adopted RRONR, to govern its business in meetings, " in all cases to which they are applicable and in which they are not inconsistent with the provisions of the charter or this code." As far as I can determine, nothing in the city's charter or zoning ordinance is inconsistent with RRONR.
RRONR, '4, page 31, lines 1-7, say:
The handling of a motion varies in certain details according to conditions. In the ordinary cases, especially under new business, there are six essential steps- three by which the motion is brought before the assembly, and three in the consideration of the motion. [Emphasis is in RRONR]
The first thee steps required for bringing the motion before the assembly are: (1) A member makes a motion; (2) A member seconds the motion; and (3) The chair states the question on the motion. [RRONR, '4, p. 31, lines10-24] The three steps required to consider the motion are: (1) Members debate the motion; (2) The chair puts the question; and (3) The chair announces the result of the vote. [RRONR, p. 40, lines 20- 32]
If RRONR, '4, is adopted as the rule for determining what the word " consideration" means in the context of '14-607(14), it is clear that it means that a vote on the rezoning is required. I suspect one would be hard pressed to prove that such a rule was the intent of the authors of the zoning ordinance, but it can be argued that in its adoption of RRONR, the city council intended that parliamentary system of rules to resolve questions of exactly the kind at issue.
But even RRONR, '4, does not answer the question of what happens when, as in the City's case, the application for a razoring to PRD has been considered in two readings; the application simply did not receive a motion for adoption on third reading. Arguably, because the City 's charter requires the adoption of ordinance on three readings, the " consideration" contemplated in '14-607(14) entitles the applicant a vote on the third reading.
It has been repeatedly held in Tennessee (and in other jurisdictions) that zoning is a legislative power. For that reason, city councils have broad discretion in determining the zoning classification of property, and the courts will not disturb such decisions unless the decision at issue reflects an abuse of discretion. [See, for example, Fiser v. City of Knoxville, 584 S.W.2d 659 (Tenn. Ct. App. 1979); Keeton v. City of Gatlinburg, 684 S.W.2d 97 (Tenn. Ct. App. 1984); Falin v. Knox County Board of Commissioners, 656 S.W.2d 338 (Tenn. 1983); McCallen v. City of Memphis, 768 S.W.2d 633 (Tenn. 1990); Tower Sites, L.L.C. v. Knox County , 126 S.W.2d 52 (Tenn. Ct. App. 2003).] But here, the City Council has made no decision on a zoning application, at least in the sense of an up or down vote on the proposed rezoning for a PRD.
In Calhoun v. Mayo , 553 So.2d 51 (Ala. 1989), the question was whether the city council was required to vote on a zoning change from R-1 to Agricultural. The planning commission recommended the change, and the proposed zoning change was brought before the city council for a vote. However, no motion for the change was made by any council member, and no vote was ever taken. The property owners filed a petition in the circuit court, and the circuit court issued a writ of mandamus directing the city council to vote on the proposed zoning change.
The Alabama Supreme Court reversed the circuit court, declaring that:
The Rainbow City zoning ordinance....provides the procedures pursuant to which a proposed change in zoning is sought. Section 1701 states that the planning commission may report its recommendations to the Council; however, the zoning ordinance may be changed only by a vote of the Council. The planning commission is an advisory body and as such can only make recommendations to the Council, and it does not have the power to pass finally on an application to rezone. Its recommendations are not binding on the Council. The recommendations of the planning commission are only factors to be considered by the Council. [Citation omitted by me.] Whether to change the zoning classification is a matter left to the legislative discretion of the municipal authorities. [Citation omitted by me.] [At 52]
However, the Court also pointed out that the property owners had not applied for a variance. In that connection, the Court pointed to three things that are required for a writ of mandamus to issue:
(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate legal remedy; and (4) property invoked jurisdiction of the court. [Citation omitted by me.] In thi s case, the Council has no imperative duty to vote, and the Mayo 's have another adequate legal remedy available to them, by filing the application for a variance with the board of adjustment. [At 52]
A tie vote also occurred on a rezoning application in Harrison v. Arogeti , 183 S.E.2d 761 (Ga. 1971), but a statute in that case clearly provided that the board " shall proceed to hear and determine the recommendation [of the planning commission] and dispose of the matter." The Court reasoned that the tie vote constituted inaction, not disposal, by the board. The writ of mandamus issued by the court ordered the application to be considered at the next regularly scheduled meeting of the board. The court declared that, " Nothing in the order and judgment appealed from need be construed as requiring the commissioners of roads and revenues to approve the application." [At 764]
A different approach was taken by the Nevada Supreme Court in Board of Commissioners of the City of Las Vegas v. Dayton Development Company , 530 P.2d 1187 (Nev. 1975). There the city council tied 2-2 on a recommendation from the planning commission to rezone property from residential and civic to commercial. The plaintiff sought a writ of mandamus to compel the reclassification of the property by the city commissioners. In granting the writ of mandamus, the Court said:
The extraordinary remedy of mandamus is available to compel the performance of an act which the law especially enjoins as a duty resulting from office. [Citations omitted by me.] That writ is also available to correct a manifest abuse of discretion by the governing body, and occasionally has been so utilized in zoning cases . [Citations omitted by me.] [At 1189]
In finding an abuse of discretion in the tie vote, the Court reasoned that:
With regard to the remedy of mandamus, the case at hand presents an entirely new problem. It is apparent that the Board of City Commissioners was not under a duty to grant the requested zoning change since the application therefor was addressed to the sound discretion of the board. We think it would be equally clear that the Board, in an attempt to exercise its discretion to resolve the issue before it, was unable to do so because of the tie vote. As we see it, the exercise of discretion contemplates a decision . Here, none was made. The applicant lost simply because a majority vote was not secured. They [sic] did not lose because the majority, qualified to vote, exercised a discretionary judgment against them. The Commissioners divided equally in attempting to resolve the merits. Thus, a determination by the Board, for or against the application, was not made. Consequently, we are wholly unable in this case, to review the record before the Board and ascertain whether its decision was arbitrary and capricious, since the Board was unable to reach a decision. Neither was the district court in a position to make that determination. [Citations omitted by me.]....In this highly unusual context, we believe that it is appropriate to extend the scope of mandamus in order to allow court review and decision. Any other view would permit the possible loss of valuable rights by reason of the Board 's failure to decide the issue. We are not willing to countenance such a result. [At 1189-90]
[Emphasis is mine.]
I am not sure which approach the Tennessee courts would take.
What constitutes " consideration" in '14-607(14) may still be too uncertain to entitle the property owner to a writ of mandamus requiring the Board of Mayor and Aldermen to vote on the rezoning on third and final reading. The standard for the issuance of a writ of mandamus in Tennessee is similar to the Alabama standard found in Calhoun v. Mayo , above. It is said by the Tennessee Supreme Court in State ex rel. Weaver v. Ayers, 756 S.W.2d 217 (1988), that:
The law controlling the availability of the extraordinary remedy of the Writ of Mandamus is well-settled in Tennessee. AIt is the universally recognized rule that mandamus will only lie to enforce a ministerial act or duty and will not lie to control a legislative or discretionary duty. Lamb v. State ex rel. Kisabeth , 207 Tenn. 159, 162, 338 S.W.2d 854, 856 (1960) (citation omitted). The distinction between ministerial and discretionary acts is generally " 'that where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial, but where the act to be done involves the exercise of discretion and judgement, it is not deemed merely ministerial. '" State ex rel. Miller National Ins. Co. v. Fumbanks , 177 Ten. 455, 462, 151 S.W.2d 148, 150-151 (1941) (citation omitted). Furthermore, " [t]he office of mandamus is to execute, not adjudicate. It does not ascertain or adjust mutual claims or rights between the parties. If the right is doubtful, it must be first established in some other form of action: mandamus will not lie to establish as well as enforce a claim of uncertain merit. It follows therefore that mandamus will not be granted where the right is doubtful. '" Peerless Construction Co. v. Bass , 158 Tenn. 518, 520, 14 S.W.2d 732, 732 (1929) (citation omitted)....In short, " [t]he writ of mandamus will not lie to control official judgment or discretion, but is the proper remedy where the proven facts show a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and relator has no other specific or adequate remedy." [Citations omitted by me]. [At 221]
Section 14-607(14) indicates the applicant for a rezoning to a RPD has a right to " consideration" of his application by the Board of Mayor and Aldermen, but it is not clear what that term means. Even if it is conceded that it means what RRONR, '4 says it means, it is still not clear that the applicant is entitled to vote on three hearings. " Consideration" once or twice by the board may be enough.
Arguably, the applicants also have other remedy in a declaratory judgment action on what " consideration" means within the meaning of '14-607 of the Zoning Ordinance. That remedy would take time, and time is the enemy of development. It does not appear that the remedy of a variance is a legally or practically realistic one. For those reasons, it seems to me that the logical approach of the Tennessee courts would be similar to the one taken by the Georgia court in Harrison v. Arogeti: treat the term ": consideration" as requiring a vote under RRONR, and issue a writ of mandamus requiring the court to vote on the application on third reading.
But it also appears that the courts in Tennessee are, like the courts in Nevada, able to treat a municipal governing body 's failure to act as an abuse of discretion, and by a writ of mandamus themselves correct that abuse of discretion. It is said in State ex rel. Millsaps v. Board of Education of Blount County , 121 S.W., 499 (1909), that:
We know of no exception to the rule that the courts will not, by mandamus, disturb the decisions and actions of the boards and officers having discretionary powers, except where they act in an arbitrary and oppressive manner [citation omitted by me.], or act beyond their jurisdiction [citation omitted by me], or where they refuse to assume a jurisdiction which the law devolves upon them. [Citation omitted by me.] [At 500] [Emphasis is mine.]
That language actually contains two grounds for the issuance of mandamus:
- Abuse of discretion
- Refusal to assume a jurisdiction which the law devolves upon them.
There appears precedent in Tennessee for the courts to marry those two grounds. In State ex rel. New v. Smith , 254 S.W. 554 (1923) a statute required the county to provide one first-class high school located where the greatest number of students could be benefitted. The court rejected a petition for a writ of mandamus requiring that the high school be located in Woodbury, reasoning that:
In the opinion expressed by the witnesses, Woodbury is the proper location, and the trial court judge so found, and if that location meets of the requirements of the act, and would benefit the most high school pupils, it would, of course, become the duty of the board to locate there. But relators do not establish a clear legal right to coerce the board of education in the selection of the site. The discretion is lodged in the board, and they should be given an opportunity to exercise their sound discretion. Given such an opportunity, if they refuse to act, or act unreasonably or capriciously, the writ would lie to control their action and compel obedience to the statute. [At 555]
That language seems to make it clear that had the school board attempted to determine the location of the high school and had either made a patently bad decision, or stalled in the effort to make a decision (including in the manner that is at issue in the City), the courts could have
stepped in and substituted their judgment for the judgment of the school board, or ordered the school board to accelerate the determination process. But I suspect that the preference of the Tennessee courts would have been to give the board the first chance to make a decision by ordering it to move toward a decision.
Sidney D. Hemsley
Senior Law Consultant