Topic Vault - November 1999

Local legislative bodies, planning commissions, and boards of zoning appeals make planning and zoning decisions every day that affect the use, enjoyment, and value of real property. Most of these decisions are not challenged. Sometimes, however, lawyers are asked to try to overturn them. Here is a brief primer on how to proceed.

In Fallin v. Knox County Board of Commissioners, 656 S.W.2d 338 (Tenn. 1983), the Supreme Court ruled that under most circumstances the proper way to bring into question the act of a legislative body is a suit for declaratory judgment. The Supreme Court established a narrow standard of review by stating that a court is bound to affirm the legislative body's actions if those actions are subject to reasonable debate or have a conceivable rational basis. The reviewing court may, however, consider matters outside of those presented to the legislative body. M.C. Properties, Inc. v. City of Chattanooga, 24 TAM 9-6 (Tenn. App., January 28, 1999).
Decisions of planning commissions and boards of zoning appeals are reviewed by common law writ of certiorari under TCA § 27-8-101. The function of a common law writ of certiorari is to bring before a court charges either of want of jurisdiction in, or failure to observe essential forms of law by, a lower tribunal. A court is not permitted to review the judgment of the lower tribunal on the merits pursuant to the common law writ. The statutory writ of certiorari under TCA § 27-8-102 is available for this purpose, but generally statutory certiorari may be used only if an inferior tribunal, board, or officer is exercising judicial functions and renders a final judgment. Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272 (1965).
Tenn. Code Ann. §§ 13-7-106 and -107 and 13-7-206 and -207 set out the powers of boards of zoning appeals. Although these powers are broad, it has been held that boards of zoning appeals exercise administrative rather than judicial functions. Reddoch v. Smith, 214 Tenn. 213, 379 S.W.2d 641 (1964).
Tenn. Code Ann. § 27-9-101, et seq., establish the procedures for petitions for both common law and statutory certiorari and give the chancery and circuit courts concurrent jurisdiction over these writs. The provisions of § 27-9-111(d), which state that in certiorari proceedings the trier of fact shall weigh the evidence and determine the facts by preponderance of the proof, apply only to the statutory writ. Hoover Motor Express Co. v. Railroad & Pub. Util. Comm., 195 Tenn. 593, 261 S.W.2d 233 (1953). Review pursuant to the common law writ is on the record only except that extrinsic evidence may be offered concerning whether the board or commission exceeded its jurisdiction or acted illegally, arbitrarily, or capriciously. Hemontolor v. Wilson Co. Bd. of Zoning App., 883 S.W.2d 613 (Tenn. App. 1994).
TCA § 27-9-102 requires that petitions for common law certiorari be filed within sixty (60) days from the entry of the order or judgment. Failure to file in a timely manner deprives the court of jurisdiction. Thandiwe v. Traughber, 909 S.W.2d 802 (Tenn. App. 1994). The 60 day period begins to run on the date the matter is considered, not when the board or commission subsequently approves the minutes of its meeting. Advanced Sales, Inc. v. Wilson County, 24 TAM 29-12 (Tenn. App., May 28, 1999).
Planned unit development (or PUD) zoning contemplates the development of a tract of land as a unit and generally allows more flexibility as to uses, location of buildings, and similar matters than does conventional zoning. PUD zoning is generally "overlay" zoning. In other words, PUDs may be approved in some or all zoning districts, subject to standards and procedures. See generally , E. Yokley, Zoning Law and Practice, §§ 6-1 to 6-4 (4^th ed. 1978). The legislative body usually determines only whether a proposed development meets a set of previously established criteria. Thus in McCallen v. City of Memphis, 786 S.W.2d 633 (Tenn. 1990), the Supreme Court held that a decision concerning PUD zoning is administrative in nature and that the proper vehicle for challenge is common law certiorari.
Although there are procedural differences between common law certiorari and declaratory judgment, there is no real difference in the substantive law applicable to the two types of actions. Courts seek to determine whether the decisions of administrative bodies are illegal, arbitrary, and capricious and whether the decisions of legislative bodies are fairly debatable and have a rational and justifiable basis. In McCallen v. City of Memphis, the Supreme Court compared the two standards as follows:

The fairly debatable, rational basis, as applied to legislative acts, and the illegal, arbitrary, and capricious standard relative to administrative acts are essentially the same. In either instance, the court's primary resolve is to refrain from substituting its judgment for that of the local government body. An action will be invalidated only if it constitutes an abuse of discretion. If any possible reason exists justifying the action, it will be upheld.

The Vault
How to Challenge a Planning or Zoning Decision
November 1999 Coburn Dewees Berry
Local legislative bodies, planning commissions, and boards of zoning appeals make planning and zoning decisions every day that affect the use, enjoyment, and value of real property. Most of these decisions are not challenged. Sometimes, however, lawyers are asked to try to overturn them. Here is a brief primer on how to proceed. In Fallin v. Knox County Board of Commissioners, 656 S.W.2d 338 (Tenn. 1983), the Supreme Court ruled that under most circumstances the proper way to bring into question the act of a legislative body is a suit for declaratory judgment. The Supreme Court established a narrow standard of review by stating that a court is bound to affirm the legislative body's actions if those actions are subject to reasonable debate or have a conceivable rational basis. The reviewing court may, however, consider matters outside of those presented to the legislative body. M.C. Properties, Inc. v. City of Chattanooga, 24 TAM 9-6 (Tenn. App., January 28, 1999). Decisions of planning commissions and boards of zoning appeals are reviewed by common law writ of certiorari under TCA § 27-8-101. The function of a common law writ of certiorari is to bring before a court charges either of want of jurisdiction in, or failure to observe essential forms of law by, a lower tribunal. A court is not permitted to review the judgment of the lower tribunal on the merits pursuant to the common law writ. The statutory writ of certiorari under TCA § 27-8-102 is available for this purpose, but generally statutory certiorari may be used only if an inferior tribunal, board, or officer is exercising judicial functions and renders a final judgment. Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272 (1965). Tenn. Code Ann. §§ 13-7-106 and -107 and 13-7-206 and -207 set out the powers of boards of zoning appeals. Although these powers are broad, it has been held that boards of zoning appeals exercise administrative rather than judicial functions. Reddoch v. Smith, 214 Tenn. 213, 379 S.W.2d 641 (1964). Tenn. Code Ann. § 27-9-101, et seq., establish the procedures for petitions for both common law and statutory certiorari and give the chancery and circuit courts concurrent jurisdiction over these writs. The provisions of § 27-9-111(d), which state that in certiorari proceedings the trier of fact shall weigh the evidence and determine the facts by preponderance of the proof, apply only to the statutory writ. Hoover Motor Express Co. v. Railroad & Pub. Util. Comm., 195 Tenn. 593, 261 S.W.2d 233 (1953). Review pursuant to the common law writ is on the record only except that extrinsic evidence may be offered concerning whether the board or commission exceeded its jurisdiction or acted illegally, arbitrarily, or capriciously. Hemontolor v. Wilson Co. Bd. of Zoning App., 883 S.W.2d 613 (Tenn. App. 1994). TCA § 27-9-102 requires that petitions for common law certiorari be filed within sixty (60) days from the entry of the order or judgment. Failure to file in a timely manner deprives the court of jurisdiction. Thandiwe v. Traughber, 909 S.W.2d 802 (Tenn. App. 1994). The 60 day period begins to run on the date the matter is considered, not when the board or commission subsequently approves the minutes of its meeting. Advanced Sales, Inc. v. Wilson County, 24 TAM 29-12 (Tenn. App., May 28, 1999). Planned unit development (or PUD) zoning contemplates the development of a tract of land as a unit and generally allows more flexibility as to uses, location of buildings, and similar matters than does conventional zoning. PUD zoning is generally "overlay" zoning. In other words, PUDs may be approved in some or all zoning districts, subject to standards and procedures. See generally , E. Yokley, Zoning Law and Practice, §§ 6-1 to 6-4 (4^th ed. 1978). The legislative body usually determines only whether a proposed development meets a set of previously established criteria. Thus in McCallen v. City of Memphis, 786 S.W.2d 633 (Tenn. 1990), the Supreme Court held that a decision concerning PUD zoning is administrative in nature and that the proper vehicle for challenge is common law certiorari. Although there are procedural differences between common law certiorari and declaratory judgment, there is no real difference in the substantive law applicable to the two types of actions. Courts seek to determine whether the decisions of administrative bodies are illegal, arbitrary, and capricious and whether the decisions of legislative bodies are fairly debatable and have a rational and justifiable basis. In McCallen v. City of Memphis, the Supreme Court compared the two standards as follows: The fairly debatable, rational basis, as applied to legislative acts, and the illegal, arbitrary, and capricious standard relative to administrative acts are essentially the same. In either instance, the court's primary resolve is to refrain from substituting its judgment for that of the local government body. An action will be invalidated only if it constitutes an abuse of discretion. If any possible reason exists justifying the action, it will be upheld.

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