Agenda - Planning Commission - 05/05/2011

Home

March 25, 2011 I Volume 51 No. 6 Zoning Bulletin The town's Planning Commission recommended denial of Cox's ap- plication. The Board of mayor and aldermen (the "Board") then consid- ered the application. The Board had a total of seven members, which included the mayor and six aldermen. Prior to the Board's consideration of his rezoning ap- plication, Cox requested that the mayor and one alderman recuse them- selves from consideration of the application. He made this request on the grounds of either a conflict of interest or a predetermined position on the question of rezoning of the Property. The mayor and alderman agreed to recuse themselves. The remaining five Board members ultimately voted three (in favor) to two (opposed) to approve Cox's rezone application. Thereafter, the town attorney advised that the rezoning application had failed. He noted that under Tennessee statutes—T.C.A. § 13-7- 204—if a proposed amendment to a zoning ordinance is not approved by the municipal planning commission, then in order to be adopted, it must receive a favorable vote by a majority of the entire membership of the municipality's legislative body. Thus, to be adopted, the town attor- ney advised that Cox's rezoning application needed a favorable vote by four members of the seven -member Board. This, he said, was regardless of how many members recused themselves or were otherwise absent. The Board then referred the matter back to the Planning Commission. The Planning Commission again voted to deny Cox's rezone application. The Board again considered Cox's application. The mayor and five of the six aldermen attended the Board meeting. The mayor and one alderman recused themselves. The four remaining Aldermen considered the applica- tion. The motion to approve the rezone failed for lack of a second. Cox later filed in court a petition for common law certiorari against the town. Cox claimed that he had received a "majority" vote of the Board in favor of the zoning amendment (i.e., the rezone application). Cox asked the court to void the denial of his application. The court found that the Board's decision to treat its three -to -two vote favoring Cox's rezoning application as insufficient to amend the town's zoning ordinance was contrary to the provisions in T.C.A. § 12- 4-101(c)(3)(B). That statute states that a member of a municipal zoning body who "abstains from voting" on an issue "shall not be counted for the purpose of determining the majority vote." The town appealed. The town argued that the trial court erred in find- ing that the general statute—S 12-4-101(c)(3)(B)----controlled over the mandatory provisions of S 13-7-204. DECISION: Reversed. The Court of Appeals of Tennessee agreed with the town that § 13-7- 204 applied to the Board's vote on Cox's rezoning application. The court 8 © 2011 Thomson Reuters