Depot Property, LLC and Terry Cox v. Town of Arlington, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 16, 2010 Session

DEPOT PROPERTY, LLC AND TERRY C. COX

v.

TOWN OF ARLINGTON, TENNESSEE

Appeal from the Chancery Court for Shelby County

No. CH-09-2381-1 Walter L. Evans, Chancellor

No. W2010-01488-COA-R3-CV - Filed January 31, 2011

This is a zoning case. The homeowner purchased a house in an area zoned as single-family

residential and applied to have the property rezoned for office use. The application was

considered by the town legislative body. Some members of the legislative body recused

themselves. A majority of the members present voted in favor of the rezoning application,

but it did not receive a majority of the entire membership of the legislative body, including

the members who recused themselves. Pursuant to T.C.A. § 13-7-204, the rezoning

application was deemed to have failed. The homeowner then filed a petition for a common

law writ of certiorari, asking that the trial court deem the rezoning application approved

based on the favorable vote of the majority of the members who participated in the

consideration of his rezoning application. The trial court granted the writ, deemed the

rezoning application approved, and modified the legislative body’s decision to grant the

homeowner’s application. The town appeals. We reverse, finding, inter alia, that an

affirmative vote by a majority of the entire membership of the town legislative body was

required for adoption of the rezoning application.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed.

H OLLY M. K IRBY, J.,, delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,

W.S., and J. S TEVEN S TAFFORD, J., joined.

Terry C. Cox and F. Auston Wortman, III, Cox & Wortman, PLLC, Collierville, Tennessee,

for Petitioner/Appellees, Depot Property, LLC and Terry C. Cox.

Edward J. McKenney, Jr., Harris Shelton Hanover Walsh, PLLC, Memphis, Tennessee, for

Respondent/Appellant, Town of Arlington, Tennessee.

OPINION

F ACTS AND P ROCEEDINGS B ELOW

On December 11, 2008, Petitioner/Appellee Terry Cox (“Cox”) purchased a home in an older

residential part of Arlington, Tennessee, located at 11965 Walker, in an area apparently

known as Depot Square. Cox formed a limited liability company, Petitioner/Appellee Depot

Property, LLC (“Depot Property”), to hold the property, and in January 2009, Cox conveyed

the property to Depot Property. Cox is a member of Depot Property and, as a licensed

attorney, represented Depot Property throughout the pertinent proceedings. Therefore, unless

indicated otherwise, “Cox” as used herein shall be inclusive of both Terry Cox and Depot

Property.

The property purchased by Cox is zoned single family residential. However, Cox wanted to

use the property as a law office instead of a residence, so he filed an application with the

Respondent/Appellant Town of Arlington (“Town”) to have the property rezoned for office

use. This rezoning would require an amendment to the Town’s zoning ordinance.

Pursuant to state statutes and the Town’s zoning ordinance, the Arlington Planning

Commission (“Planning Commission”) must do the initial review of all applications for

amendments to the zoning ordinances. The Planning Commission then makes a

recommendation to the Town’s legislative body, the Board of Mayor and Aldermen

(“Board”), regarding any such proposed amendment. The Planning Commission considered

Cox’s rezoning application during its January 2009 meeting. During the course of the

discussion, the Planning Commission referred to the Land Development Plan of Arlington,

Tennessee (“Plan”).1 The Plan addresses development and zoning for the Town, and states

that it “is an advisory document intended to serve as a guide” for the Town. A map

accompanying the Plan showing anticipated future land use indicates “commercial” use as

an ultimate use of the area including Cox’s property. The discussion at the Planning

Commission meeting also referenced the provision in the Town’s municipal ordinance listing

the grounds required for granting an application to amend the zoning ordinance.2

1

Tennessee Code Annotated § 13-4-201 requires municipal planning commissions “to make and adopt an

official general plan” showing the commission’s recommendations as to, among other things, zoning for

private property. T.C.A § 13-4-201 (2005).

2

In order to amend the zoning ordinance, both the Planning Commission and the Board are required to make

specific findings that the zoning amendment is in agreement with the general plan for the area, the legal

purposes for which zoning exists are not contravened, the zoning amendment will not have an adverse effect

on adjoining property owners unless the adverse effects are outweighed by the overwhelming public good,

(continued...)

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Numerous Town residents attended the Planning Commission meeting to address Cox’s

rezoning application. Cox spoke in favor of his application, commenting that he purchased

the property partly in reliance on the indication of the future land use map attached to the

Plan that the zoning in the area would ultimately be changed to commercial. Cox also recited

his past experience in successfully renovating property. A few of the residents attending the

meeting spoke in favor of Cox’s application and commercial zoning for the overall area.

Others asked questions about lighting and parking requirements for Cox’s property if his

zoning application were granted. Most of the residents attending the Commission’s meeting

spoke against Cox’s application, expressing concerns such as a potential increase in traffic,

change in the character and appeal of the area, future encroachment of commercial

development, and a negative effect on the value of their property. Several speakers noted

that Arlington had other available office space for Cox to use for his law office. At the

conclusion of the meeting, the Planning Commission voted four to three to recommend that

the Board deny Cox’s application to rezone the property for office use. Cox’s application

was then forwarded to the Board, along with the Planning Commission’s recommendation

of denial.

In May 2009, while his rezoning application was pending, Cox filed a planned unit

development application, seeking permission for a planned unit development for the same

property. During its May 2009 meeting, the Planning Commission approved Cox’s planned

unit development application, but conditioned its approval on the Board’s grant of Cox’s

application to change the zoning of the property to office use. The Planning Commission did

not change its negative recommendation to the Board on the rezoning issue.

The Board has a total of seven members, namely, the Mayor and six Aldermen. Prior to the

Board’s consideration of his rezoning application, Cox requested that the Mayor and one

Alderman recuse themselves from consideration of the application, on the grounds of either

a conflict of interest or a predetermined position on the question of rezoning the property.3

The Mayor and the Alderman agreed to do so.

The Board considered the rezoning of Cox’s property for the first reading at its July 2009

meeting. In accordance with Cox’s prior request, the Mayor and one Alderman recused

2

(...continued)

and the zoning amendment will not benefit some property owners materially to the detriment of the public

as a whole. Municipal Zoning Ordinance for Arlington, Tennessee, Article 13, § 13.5.

3

Cox requested that one other Alderman recuse himself from the proceedings, but this request was later

withdrawn.

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themselves, and temporarily left the Board meeting. This left five Board members present

to consider Cox’s rezoning application. It passed on the first reading by a vote of four to one.

A public meeting for the second and final reading on the rezoning was set for August 3,

2009.

At the Board’s August 2009 public meeting, the Mayor and the same Alderman again

recused themselves and temporarily left the meeting. It was brought to the attention of the

five remaining Board members that the Planning Commission recommended denial of Cox’s

original rezoning application, but approved his planned development application, contingent

on the Board’s approval of rezoning application. Ultimately, three Board members voted to

approve the rezoning of the property, while two Board members voted against it. The Town

Attorney, Gerald Lawson, advised the Board that under Tennessee statutes, specifically

T.C.A. § 13-7-204, that if a proposed amendment to a zoning ordinance is not approved by

the municipal planning commission, 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, Cox’s rezoning application needed a favorable vote by four members of the seven-

member Board, regardless of how many members recused themselves or were otherwise

absent. As Cox’s rezoning application had received only three votes, the Town Attorney

advised that the rezoning application had failed. In the wake of this opinion, the Board

referred the matter back to the Planning Commission.4 Subsequently, Cox withdrew his

application for a planned unit development, and asked the Planning Commission to

reconsider his application to rezone the property.

At its September 2009 meeting, the Planning Commission reconsidered Cox’s request to re-

zone the property for office use. Cox again spoke on his own behalf. Numerous Town

residents attended the meeting and spoke against Cox’s rezoning application. They raised

concerns about the change in the character of the area, the use of the property if Cox later

sold it, and the effect on the resale value of their homes were rezoning carried out. Several

noted that there were other available commercial locations in Arlington for Cox to use as his

law office. The Planning Commission voted three to two to recommend that the Board deny

Cox’s application to rezone the property.

4

During the September 2009 meeting of the Board, Cox submitted a request that the Board “ratify and affirm

[the] conclusive effect” of the Board’s August 2009 vote, thereby granting his application to rezone because

a majority of the Board members actually voting voted in favor of changing the zoning of the property. The

Board did not act on this request, based on advice by the Town Attorney that a motion to reconsider can only

be made by an individual on the “prevailing side.”

-4-

In October 2009, the Board again considered Cox’s application to amend the zoning

ordinance to allow office use for his property. The Mayor and five of the six Aldermen

attended the Board meeting. Once again, the Mayor and one Alderman recused themselves

and left the meeting; this left four Board members in attendance. The Board was informed

that the Planning Commission recommended denial of Cox’s zoning amendment. Cox spoke

in favor of his proposal, and also told the Board that he disagreed with the Town Attorney’s

opinion that an affirmative vote by four of the seven Board members was required to amend

the zoning ordinance. Numerous Town residents voiced their opposition to the rezoning

proposal, expressing the same concerns that had been raised previously. The Town Attorney

reiterated to the Board that a majority of the seven-member board, or four votes, was required

to pass Cox’s proposed amendment to the zoning ordinance. The motion to approve the

rezoning failed for lack of a second.

After that, in December 2009, Cox filed a petition for common law certiorari against the

Town in the trial court below.5 The petition claimed that Cox had in fact received a

“majority” vote of the Board in favor of the zoning amendment, and that the denial of his

zoning application was contrary to the Plan, in which the property in question is “designated

for commercial zoning.” The petition sought to have the denial of his application by the

Board and by the Planning Commission declared void, and requested the entry of an order

rezoning the property for office use.

After Cox’s petition was filed, the trial court issued the writ of certiorari as requested. The

Town then filed the record of its proceedings on Cox’s rezoning application.

On February 12, 2010 the Town filed its answer. In it, the Town noted that the Town’s Plan

was intended as a guide or an advisory document. The Town contended that under T.C.A.

§ 13-7-204, amending the rezoning ordinance requires an affirmative vote by a majority of

the entire membership of the Board where, as here, the planning commission did not

recommend the approval of the rezoning amendment. The Town also maintained that its

decision on Cox’s application was not illegal, arbitrary or capricious.

On April 6, 2010, the trial court conducted a hearing on the petition. The appellate record

does not include a transcript of the hearing.

On May 13, 2010, the trial court issued findings of fact and conclusions of law. After

reviewing the Town proceedings on Cox’s application, as reflected in the record filed with

the court, the trial court framed the issue:

5

The petition also sought declaratory relief and damages. The parties later consented to the entry of an order

dismissing these claims.

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The basic question presented for resolution by the Court is whether the Board

of Mayor and Aldermen was arbitrary, capricious and in violation of the City

Charter, state statute and its own adopted land use plan in denying Petitioners’

application for rezoning of the subject property.

The trial court’s analysis set out the scope of the judicial review of the decision of a board

or tribunal under T.C.A. § 29-9-10, limited to whether the agency, board or tribunal exceeded

its jurisdiction or acted illegally, arbitrarily or fraudulently. It noted that Cox had the burden

of showing that the Board “exceeded its jurisdiction, acted illegally, arbitrarily, or without

material evidence to support its decision.”

In its conclusions of law, the trial court recited the state statutes,6 Town charter provisions,7

6

The trial court quoted the following statutes:

A. Tennessee Code Annotated § 12-4-101(c)(3)(B), Personal interest of officers

prohibited, states in pertinent part:

Any member of a local governing body of a municipality who abstains from voting for cause

on any issue coming to a vote before the body shall not be counted for the purpose of

determining a majority vote.

B. Tennessee Code Annotated § 6-58-107, Approved plan required – Land use decision

to be consistent with plan, states in pertinent part:

After a land use plan is so approved, all land use decisions made by the legislative body and

municipality’s . . . planning commission shall be consistent with the land use plan.

C. Tennessee Code Annotated § 13-7-204 Ordinances; amendment

The zoning ordinance, including the maps, may from time to time be amended; but no

amendment shall become effective unless it is first submitted to and approved by the

planning commission or, if disapproved, receives the favorable vote of a majority of the

entire membership of the chief legislative body.

(Emphasis in trial court findings of fact and conclusions of law.)

7

The trial court recited a statement in the preface to the Town Charter to the effect that, in an action on

adopting an ordinance, “[a]ny form of board action shall be passed by a majority of the members present,

if there is a quorum.” It also noted that Section 1-103 of the Town Charter stated that the transaction of

business at the Board meetings would be governed by ROBERT ’S RULES OF ORDER , Newly Revised. The trial

court quoted the charter provision allowing any Board member to recuse himself from the vote on any

measure in which it might appear that his personal interest could affect his vote.

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and other authorities8 that were pertinent. The trial court found that the Board’s decision to

treat its 3-to-2 vote favoring Cox’s rezoning application as insufficient to amend the Town’s

zoning ordinance was contrary to the provision in T.C.A. § 12-4-101(c)(3)(B), which states

that a member of a municipal governing body who “abstains from voting” on an issue “shall

not be counted for the purpose of determining a majority vote.” It also found that the denial

of Cox’s application to rezone the property contravened the provision in T.C.A. § 6-58-107

stating that “all land use decisions made by a legislative body and the municipality’s . . .

planning commission shall be consistent with the land use plan,” and found unpersuasive the

Town’s argument that the Plan “was not a ‘growth plan.’ ” It concluded that the Board acted

unlawfully, arbitrarily and capriciously in denying Cox’s rezoning application, and found that

the Board’s decision should be “reversed and modified so as to approve said application.”

On May 28, 2010, the trial court entered an order, incorporating by reference its prior

findings of fact and conclusions of law. The order held:

1. The three-to-two favorable vote of the Board of Mayor and Aldermen is

recognized as approval of [Cox’s] re-zoning application to use the subject

property as a law office.

2. The decision of the Board of Mayor and Aldermen denying [Cox’s] re-

zoning application to use the subject property as a law office be, and the same

is hereby, modified so as to approve said application.

The Town now appeals.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, the Town raises three issues. First, it asserts that the provisions of T.C.A. § 13-7-

204 apply under the facts of this case and mandate that four members of the seven-member

Board must vote in favor of Cox’s application in order to amend the Town’s zoning

ordinance, and that the trial court erred in relying on Town charter provisions to the contrary.

Second, the Town contends that the trial court erred by finding that general statutes

controlled over the mandatory provisions of T.C.A. § 13-7-204. Finally, the Town asserts

that the trial court erred in finding that the Board’s decision was arbitrary and capricious.

8

Because the Town charter stated that Board meetings would be governed by ROBERT ’S RULES OF ORDER ,

the trial court quoted the following provision of ROBERT ’S RULES : “When a quorum is present, a majority

vote, that is a majority of the votes cast, ignoring blanks, is sufficient for the adoption of any motion that is

in order.” ROBERT ’S RULES OF ORDER , Rule 46, Newly Revised (2000).

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This Court has previously addressed judicial review of a municipality’s decision on zoning

matters:

Public and judicial policy favors permitting the community decision-makers

closest to the events to make zoning and land use decisions, so courts must

refrain from substituting their judgment for the broad discretionary power of

local government bodies. Wadlyn Corp. v. City of Knoxville, 296 S.W.3d 536,

544 (Tenn. Ct. App. 2008); Lafferty v. City of Winchester, 46 S.W.3d 752,

758 (Tenn. Ct. App. 2000). “[C]ourts reviewing either zoning ordinances or

the administrative decisions implementing zoning ordinances are inclined to

give wide latitude to the responsible local officials. Whittemore v. Brentwood

Planning Comm’n, 835 S.W.2d 11, 15 (Tenn. Ct. App. 1992).

Lakeland Commons, L.P. v. Town of Lakeland, No. W2009-01859-COA-R3-CV, 2010 WL

2075363, at *3 (Tenn. Ct. App. May 25, 2010).

The decision of a municipal legislative body on whether to approve an application to rezone

property is administrative rather than legislative in nature when “the discretionary authority

of the government body must be exercised within existing standards or guidelines.”

McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990). See also Lakeland

Commons, 2010 WL 2075363, at *3. Here, the decision of the Board on Cox’s application

was administrative, and thus was properly challenged by a petition for a writ of certiorari.

See McCallen, 786 S.W.2d at 634. “The issuance of such a writ is not actually an

adjudication of anything,” rather, it “ ‘is simply an order to the lower tribunal to file the

compete record of the proceedings so the trial court can determine whether the petitioner is

entitled to relief.’ ” Dobbins v. Tenn. Dept. of Correction, No. M2010-00009-COA-R3-CV,

2010 WL 4225822, at *3 (Tenn. Ct. App. Oct. 25, 2010) (quoting Keen v. TDOC, 2008 WL

539059, at *2 (Tenn. Ct. App. Feb. 25, 2008)). “Once the writ is granted and the certified

record is filed, then the trial court is charged with adjudicating the petition on the merits.”

Dobbins, 2010 WL 4225822, at *3.

In reviewing the decision of an administrative tribunal under a common law writ of certiorari,

the appellate court utilizes the same standard of review used by the trial court. Wright v.

Tenn. Peace Officer Standards & Training Comm’n, 277 S.W.3d 1, 8 (Tenn. Ct. App.

2008) (citations omitted). That standard has been stated as follows:

“Review under the common law writ is limited to whether the inferior board

or tribunal (1) has exceeded its jurisdiction, or (2) has acted illegally,

arbitrarily, or fraudulently.’ ” McCallen, 786 S.W.2d at 638 (quoting Hoover

Motor Exp. Co. v. RR & Pub. Util. Comm’n, 195 Tenn. 593, 261 S.W.2d 233,

-8-

238 (Tenn. 1953)). The court may not reweigh the evidence or scrutinize the

intrinsic correctness of the decision. Lafferty, 46 S.W.3d at 759. Instead, “the

court will review the record independently to determine whether it contains

‘such relevant evidence that a reasonable mind might accept as adequate to

support a rational conclusion.’ ” Id. (quoting Hedgepath v. Norton, 839

S.W.2d 416, 421 (Tenn. Ct. App. 1992)). The decision will be considered

arbitrary only when there is no evidence in the record to support it. Id. (citing

Sexton v. Anderson County, 587 S.W.2d 663, 667 (Tenn. Ct. App. 1979)).

“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. Both

legislative and administrative decisions are presumed to be valid and a heavy

burden of proof rests upon the shoulders of the party who challenges the

action.” McCallen, 786 S.W.2d at 741

Lakeland Commons, 2010 WL 2075363, at *4.

Regardless, however, we review the trial court’s conclusions of law de novo with no

presumption of correctness. Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d

415, 425 (Tenn. Ct. App. 2005). Statutory interpretation is a question of law. Sullivan v.

Edwards Oil Co., 141 S.W.3d 544, 547 (Tenn. 2004) (citing Wallace v. State, 121 S.W.3d

652, 656 (Tenn. 2003)).

A NALYSIS

T.C.A. § 13-7-204

The threshold issue in this appeal is whether Tennessee Code Annotated § 13-7-204 applies

to the Board’s vote on Cox’s application to amend the Town’s zoning ordinance so as to

permit office use of his property.

“Local governments . . . have no power to control the use of land unless the State of

Tennessee delegates the power to them.” Cherokee Club, Inc. v. City of Knoxville, 152

S.W.3d 466, 471 (Tenn. 2004). “Accordingly, local governments must exercise their

delegated powers consistently with the delegation statutes.” Family Golf of Nashville, Inc.

v. Metropolitan Gov’t of Nashville and Davidson County, 964 S.W.2d 254, 257 (Tenn. Ct.

App. 1997). Thus, the Town’s action on Cox’s application to amend the Zoning Ordinance

must be considered in light of the Tennessee statutes that govern zoning.

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In analyzing the Board’s decisions, the trial court relied in part on provisions of the Town’s

charter that define what constitutes a “majority vote” for purposes of the Board’s action on

Cox’s rezoning application. To the extent that the Town charter conflicts with state statutes,

the charter must, of course, yield to the law of the State. Waldorf v. City of Chattanooga,

237 S.W.2d 939, 941 (Tenn. 1951).

The trial court also relied on Tennessee Code Annotated § 6-2-102, part of the overall Title

on Cities and Towns, in the Chapter on the powers of municipalities with a mayor-alderman

charter. The statute addresses the procedure for the enactment of an ordinance, and states:

“Any form of board action shall be passed by a majority of the members present.” T.C.A.

§ 6-2-102 (2005) (emphasis added). As the action on Cox’s rezoning application amounts

to an amendment of the Town’s zoning ordinance, the trial court concluded that, under this

statute, the 3-to-2 vote of the Board in favor of Cox’s application was sufficient.

The trial court also relied on Tennessee Code Annotated § 12-4-101(c)(3)(B), part of Title

12 on Public Property, Printing and Contracts, the Chapter on Public contracts. Section 12-4-

101 is entitled “Personal interest of officers prohibited,” and contains general provisions on

the actions of public officials with respect to the contracts of a municipality or other political

subdivision. Subsection (c)(3)(B) of the statute states that a member of a municipal

governing body who abstains from voting on an issue “shall not be counted for the purpose

of determining a majority vote.” T.C.A. § 12-4-101(c)(3)(B). Because two voting members

of the Board, the Mayor and one Alderman, abstained from voting on Cox’s application, the

trial court also found this statute supported Cox’s argument that the Board’s 3-to-2 vote in

favor of his application was sufficient.

The trial court recited Tennessee Code Annotated § 13-7-204 in its findings of fact and

conclusions of law, but implicitly concluded that it was not applicable. We must respectfully

disagree.

Section 13-7-204 is contained in Title 13 on Public Planning and Housing, in the Chapter on

Zoning. This Court has observed that the statutes in this Chapter address both zoning and

planning by municipalities:

The state enabling legislation places the authority to plan and the authority to

zone with different local governmental entities. Planning is entrusted to

appointed municipal or regional planning commissions. See T.C.A. §§ 13-3-

101, 13-4-101 (1992 & Supp. 1996). In contrast, the zoning power is squarely

placed in the hands of the local legislative bodies because the power to zone

is viewed as essentially a legislative exercise of the government’s police

power. See Holdredge v. City of Cleveland, 218 Tenn. 239, 247-48, 402

S.W.2d 709, 712 (1966); Brooks v. City of Memphis, 192 Tenn. 371, 375, 241

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S.W.2d 432, 434 (1951). Local legislative bodies may enact zoning plans

recommended by planning commissions, but they are not obligated to. See

T.C.A. § § 13-7-102, 13-7-202. Local legislative bodies may also amend

zoning ordinances; however, they must submit proposed changes to the

planning commission for review. If the planning commission disapproves of

a proposed change, a majority of the “entire membership” of the local

legislative body must approve the proposed change in order for it to be valid.

See T.C.A. §§13-7-105(a), 13-7-203(b), 13-7-204. Accordingly, the state

enabling legislation vests the local legislative bodies with the prerogative to

make financial decisions on all zoning matters. See State ex rel. SCA Chem.

Servs., Inc. v. Sanidas, 681 S.W.2d at 564; E.C. Yokley, The Place of the

Planning Commission and the Board of Zoning Appeals in Community Life,

8 Vand. L.Rev. 794, 795 (1955).

Family Golf of Nashville, Inc. v. The Metropolitan Government of Nashville and Davidson

County, 964 S.W.2d 254, 258 (Tenn. Ct. App. 1997). Thus, the statutes note the different

roles of the municipal planning commission and the municipal legislative body in the zoning

process. Id. at 257-58.

Section 13-7-204, in particular, alludes to the function of a municipality’s planning

commission and the municipality’s legislative body with respect to the amendment of the

municipal zoning ordinance. It states:

The zoning ordinance, including maps, may from time to time be amended; but

no amendment shall become effective unless it is first submitted to and

approved by the planning commission or, if disapproved receives the favorable

vote of a majority of the entire membership of the chief legislative body.

T.C.A. § 13-7-204 (2005). Thus, it provides that an amendment to the zoning ordinance

must first be presented to the planning commission. This requirement has been found to be

mandatory. See Holdredge v. City of Cleveland, 402 S.W.2d 709, 712 (Tenn. 1966).

Reflecting the “division of power” intended in the statutory scheme, the statute also provides

that if the planning commission disapproves of a proposed amendment to the municipality’s

zoning ordinance, adoption of the amendment by the legislative body requires a “super-

majority” of sorts, i.e., the amendment “shall not become effective unless it . . . receives the

favorable vote of a majority of the entire membership of the chief legislative body.” See

Family Golf, 964 S.W.2d at 258 (stating that a similar provision in the metro charter

“mirrored” the “division of power evident in the state enabling legislation”). This

requirement is echoed elsewhere in the zoning statutes. See T.C.A. § 13-7-105(a) (similar

provision for a county legislative body’s amendment to a zoning ordinance, if the regional

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planning commission disapproves the amendment); see also T.C.A. § 13-7-203(b) (similar

provision for change or departure from the planning commission’s certified text or maps if

disapproved by the planning commission).

Assuming, without deciding, that Sections 6-2-102 and 12-4-101 would otherwise apply to

the Board’s action on Cox’s rezoning application, we find that Section 13-7-204 controls.

It is well-settled that, in the event of conflicting statutes, “a more specific statutory provision

takes precedence over a more general provision.” Graham v. Caples, No. W2009-00200-SC-

S09-CV, 2010 WL 418222 at *3 (Tenn. Oct. 20, 2010) (citing Arnwine v. Union Cnty. Bd.

of Educ. 120 S.W.3d 804, 809 (Tenn. 2003). Indeed, “where the mind of the legislature has

been turned to the details of a subject and they have acted upon it, a statute treating the

subject in a general manner should not be considered as intended to affect the particular

provision.” Arnwine, 120 S.W.3d at 809.

Section 13-7-204 is clearly intended to address precisely the situation presented herein. At

the time Cox’s proposed amendment to the Town zoning ordinance was presented to the

Board, it had already been “disapproved” by the Planning Commission. Under these

circumstances, Section 13-7-204 addresses the vote required for enactment of Cox’s

proposed rezoning amendment.

In interpreting this statute, this Court must “ascertain and give effect to the legislature’s

intent.” Home Builders Ass’n of Middle Tenn. v. Williamson Cty., 304 S.W.3d 812, 817

(Tenn. 2010). We must “give effect to every word phrase, clause and sentence” of the

statute. Tidwell v. Collins, 522 S.W.2d 764, 777 (Tenn. 1975). Where, as here, “the

language contained within the four corners of a statute is plain, clear, and unambiguous. . .

‘the duty of the courts is simple and obvious, namely, to say sic lex scripta and obey it.’ ”

Carson Creek Vacation Resorts, Inc. v. State of Tenn. Dept. of Revenue, 865 S.W.2d 1, 2

(Tenn. 1993) (quoting Miller v. Childress, 21 Tenn. (2 Hum.) 319, 321-22 (1841)).

In this case, the statutory language is clear and unambiguous. Under Section 13-7-204, a

favorable vote from the majority of the entire seven-member Board was required to enact

Cox’s proposed amendment to the Town zoning ordinance. Cox’s application received only

three favorable votes. Therefore, the Board correctly determined that the proposed

amendment had failed. Accordingly, we must respectfully reverse the trial court’s decision

to the contrary.

Unlawful, Arbitrary and Capricious

The trial court also held that, in the event that the 3-to-2 vote by the Board was deemed a

denial of Cox’s proposed rezoning amendment, the Board’s action was unlawful, arbitrary

and capricious because it did not comport with the indication in the map attached to the Plan

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that the area in which Cox’s property is located would at some point be zoned commercial.

This holding was based on Tennessee Code Annotated § 6-58-107, which provides for the

adoption of a “growth plan” for each county. Once such a “growth plan” is approved, the

statute states, “all land use decisions made by the legislative body and the municipality’s .

. . planning commission shall be consistent with the growth plan.” T.C.A. § 6-58-107 (2005).

Assuming, without deciding, that the map attached to the Town’s “Land Use Plan” is a

“growth plan” within the meaning of this statute,9 we must find that the Board’s action was

not “inconsistent” with the growth plan. The map indicates only that, at some undetermined

point in the future, the area in which Cox’s property is located may be zoned “commercial.”

The “plan” does not state when such a change in zoning would occur. Indeed, a portion of

the public discourse at the meeting on Cox’s rezoning application indicated that, while the

area in which Cox’s property is located may at some point be zoned commercial, it was

premature to do so at this point, because the surrounding neighborhood remains appealing

to families currently residing there and also to potential residents looking for a unique

residential neighborhood. Thus, we find that the Board’s decision is not “inconsistent” with

the alleged growth plan within the meaning of Section 6-58-107.

Apart from any perceived inconsistency with the map attached to the Town’s Plan, the record

contains ample basis for the Board’s denial of Cox’s rezoning application. Numerous nearby

residents voiced concerns to the Board about whether permitting Cox’s property to be

rezoned would bring about undesirable changes in the character of the area, would have a

negative effect on the value of the neighbors’ homes, and other such matters. The Town’s

zoning ordinance states that, in order for an amendment to the ordinance to be adopted, it

must not “have an adverse impact on adjoining property owners unless the adverse effects

are outweighed by the overwhelming public good,” and also that the amendment must “not

benefit some property owners materially to the detriment of the public as a whole.”

A RLINGTON Z ONING O RDINANCE § 13.5. The record contains ample support for the Board’s

apparent conclusion that the requirements to amend the Town’s zoning ordinance were not

met. Under all of these circumstances, we must respectfully disagree with the trial court’s

conclusion that the Board’s decision was unlawful, arbitrary or capricious.

9

Under T.C.A. § 6-58-107, “the growth plan shall include, at a minimum, documents describing and depicting

municipal corporate limits, as well as urban growth boundaries, planned growth areas, if any, and rural areas,

if any. . . .” T.C.A. § 6-58-107 (2005).

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C ONCLUSION

The decision of the trial court is reversed. Costs on appeal are taxed to the Appellees

Terry C. Cox and Depot Property, LLC, for which execution may issue, if necessary.

____________________________________________

HOLLY M. KIRBY, JUDGE

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