The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 15, 2005 Session
STEVEN A. EDWARDS, ET AL. v. NANCY ALLEN, ET AL.
Appeal from the Chancery Court for Rutherford County
No. 03-6806CV Robert E. Corlew, III, Chancellor
No. M2004-01944-COA-R3-CV - Filed November 28, 2005
Plaintiffs appeal the action of the trial court in granting Defendants’ Tennessee Rule of Civil
Procedure 12.02(6) Motions to Dismiss their challenge to a November 9, 1992, amendment to the
Rutherford County Zoning Resolution. The trial court determined that the 10-year statute of
limitations provided by Tennessee Code Annotated section 28-3-110 barred the action and that the
discovery rule did not apply. We hold that on the record before the Court, the November 9, 1992,
purported amendment is void ab initio. The judgment of the trial court is reversed, and the cause
is remanded for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and PATRICIA J. COTTRELL, J., joined.
Frank M. Fly, Kerry Knox, Murfreesboro, Tennessee, for the appellants, Steven A. Edwards, Sally
Edwards, Fran Lovell, Tonia Nadeau, and Joanne M. Batey.
D. Randall Mantooth, Mark W. Honeycutt, II, Nashville, Tennessee, for the appellee, Nancy Allen,
Rutherford County Executive.
John I. Harris, III, Nashville, Tennessee, for the appellee, Alan Loveless.
G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellees, Tommy G. Jackson and
Susanne Jackson.
OPINION
Defendants Tommy G. Jackson and wife Susanne Jackson were owners of a 108.1-acre tract
of land located at 8890 Big Springs Road, Rutherford County, Tennessee. Prior to November of
1992, this land was zoned “residential 20" under the Rutherford County Zoning Resolution. On
October 2, 1992, Mr. Jackson submitted a Rutherford County Land Use Application Form to the
Rutherford County Regional Planning Commission requesting that he be allowed to use 10 acres of
his 108.1-acre tract for “at present one skeet field and one trap field, in future possibly more skeet
fields and trap fields.” The Planning Commission on October 10, 1992, published a Notice of Public
Hearing in the Daily News Journal, a newspaper of general circulation in Rutherford County. This
Notice asserted that the County Commission would hold a public hearing on Monday, November
9, 1992, at 7:30 p.m. in the Circuit Court Room of the Rutherford County Courthouse to obtain
public comment on pending matters which included:
3) a request submitted by Tommy Jackson to reclassify a ten acre parcel from R-20
to Service 7997 to allow a skeet and trap field. The parcel is located on Big Springs
Road as referenced by Tax Map 173, Parcel No. 16.02, as recorded in deed book 243,
page 170 in the Rutherford County Register of Deed’s office.
Joe Black Hayes, Chairman RUTHERFORD COUNTY REGIONAL PLANNING
COMMISSION.
To be run: October 10, 1992.
The Rutherford County Planning Commission held its regular meeting on October 19, 1992,
and the minutes of that meeting provide:
VI. C. TOMMY JACKSON A-286
Location: Big Springs Road, Tax Map 173, Parcel Number 16.02. Mr. Jackson
requested reclassification of a 10 acre parcel from Residential 20 to Service 7997 to
allow skeet and trap fields.
Mr. Jackson stated that the skeet and trap fields will be a private club. He said that
their (sic) will be no alcoholic beverages on the property. He stated that up to five
members would be shooting at one time and the rest would wait at the clubhouse.
The operating hours would be from 10 a.m. to 7 p.m. on Monday through Saturday
and from 12:30 p.m. to 7 p.m. on Sundays. They plan to have no lighting.
Chairman Hayes opened the floor to public hearing. Mary Hawthorn stated that she
live[s] on adjoining property and is concerned with the gun shots spooking their
ponies. Bill Gum stated that he owns adjoining property with cattle on his property
and is opposed to the request due to the potential of cattle being shot. Grady Jones
stated noise from a four-wheeler or chainsaw would be greater than the shotguns
fired on the property. Ed Barrett stated that a shot gun is much safer than a riffle (sic)
and would not carry 300 yards. Douglas Hawthorn expressed concern of noise and
number of people on the property.
Following further discussion, Mr. Phillips made a motion, seconded by Dr. Fullerton
to approve Mr. Jackson’s request with no lighting or alcoholic beverages allowed,
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and on shooting after 7 p.m. The motion carried unanimously be (sic) roll call vote
(11 for).
The agenda of the Rutherford County Commission meeting for November 9, 1992, contained
an entry disclosing:
10) PLANNING AND ZONING COMMISSION
Norris Colvert, Director
a) RE: PUBLIC HEARING - TOMMY JACKSON REZONING REQUEST
MEMO TO: Board of Commissioners
FROM: Planning Department
DATE: November 9, 1992
Furnished for your information and study are copies of documents
scheduled to appear on the Board of Commissioners agenda
November 9, 1992
TOMMY JACKSON A-286
LOCATION: Big Springs Road TAX MAP: 173 PARCEL: 16.02
COMMISSIONER: Bob Woods SIZE OF SITE: 10 acres
EXISTING ZONING: Residential 20
EXISTING USE: Vacant
ZONING REQUEST: Service 7997 (skeet and trap fields)
PLANNING COMMISSION: October 19, 1992 – Recommends
approval with conditions being no lighting, alcoholic beverages, or
shooting after 7 p.m. The motion carried unanimously by roll call
vote (11 for).
The record contains no evidence of the actual proceedings before the Rutherford County
Commission on November 9, 1992, other than the official minutes of such meeting which contain
the following:
A RESOLUTION TO AMEND
THE RUTHERFORD COUNTY ZONING MAP,
ADOPTED APRIL 9, 1962
WHEREAS, the Rutherford County Regional Planning Commission in
regular session October 19, 1992 completed a detailed analysis of property referenced
by Zoning Map No. 173, Parcel No. 16.02, located in the 24th Civil District on Big
Springs Road; and
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WHEREAS, due notice was published and a hearing held in accordance with
Tennessee Code Annotated 13-7-105 and Article IV of the Rutherford County
Zoning Resolution; and
WHEREAS, it had been determined that the proposed reclassification of the
above referenced property will not adversely affect the health, safety, or general
welfare of the citizens of Rutherford County; and
WHEREAS, the Rutherford County Regional Planning Commission
recommends that the subject property be reclassified from Residential 20 to Service
7997 to allow a skeet field by a vote of 11 for.
NOW THEREFORE BE IT RESOLVED by the Rutherford County Board of
Commissioners that:
The Zoning Map of Rutherford County be amended by reclassifying from
Residential 20 to Service 7997 as referenced by Tax Map 173, Parcel Number 16.02,
and starting from a pin in Beginning at a pin in Big Springs Road S 1° 34' 40" E
795.8' to a pin S 15° 13' 20" W 342.8' to a pin by a 18" Hickory S 23° 4' 31" W 321.4'
to a pin S 6° 15' W 537.2' to a pin S 84° 7' E 1071.4' to a pin S 82° 49' E 126.15' to
a pin N 11° 40' 72" W 2139.72' to a pin N 87° 7' W 207.45' to a pin N 86° 5' W
849.9' to a pin which is the beginning N 86° 43' W 845.65' containing 90 acres more
or less and hereby established upon Zoning Map 173 on file as reclassification
request A-286 at the Rutherford County Planning Department. The reclassification
is approved with the following conditions: no artificial lighting, alcoholic beverages,
or shooting after 7 p.m.
November 9, 1992
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Chairman John B. Mankin recessed the Rutherford County Board of
Commission Meeting to hold a Public Hearing on the Tommy Jackson rezoning
request.
Chairman John B. Mankin requested that all those desiring to speak for or
against the issue to please stand, state their name and give a brief statement as to
whether they are for or against the issue and why.
Tommy Jackson spoke for his request briefly. Ed Barrett also spoke in favor
or (sic) the request.
No one spoke against the issue.
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Chairman John B. Mankin closed the Public Hearing and called the
Rutherford County Board of Commission Meeting back in session.1
Thus, we see that everything from the original Application to Rezone through the Notice of
Public Hearing through the proceedings before the Planning Commission of October 19, 1992, and
up until the Final Resolution of the Rutherford County Commission of November 9, 1992, concerns
only a 10-acre tract. The first time there is any mention of a 90-acre tract is in the actual rezoning
resolution adopted by the Rutherford County Commission following the public hearing on November
9, 1992.
From November 9, 1992, until some time in 1999, all went well among the neighbors as Mr.
Jackson limited his skeet range operation to the 10 acres of property for which he originally
requested the zoning reclassification. Some time in 1999 Mr. Jackson allowed the defendant Alan
Loveless d/b/a Big Springs Clay Target Sports to begin operation on the property, and he expanded
the shooting range to cover approximately 60 acres of the Jackson tract.
On June 13, 2003, the present action was filed seeking declaratory judgment that the
Rutherford County Commission’s November 9, 1992, Resolution:
(1) Violates the express terms of the Rutherford County Zoning
Resolution and is therefore unlawful, invalid and of no effect
whatsoever;
(2) Constitutes “illegal spot zoning” because it was clearly arbitrary
and capricious, having no relation to the public health, safety and
welfare of the citizens of Rutherford County and because it arbitrarily
favored individual landowners to the detriment of the surrounding
landowners, and is therefore unlawful, invalid and of no effect
whatsoever;
(3) Violated Tennessee Code Annotated § 13-7-105 because the
Rutherford County Commission provided a description of the
property to be rezoned in its notice of hearing that was substantially,
materially and misleadingly different from the description of the
property actually rezoned in the November 9, 1992 Resolution so as
to render the Resolution unlawful, invalid and of no effect
whatsoever;
1
The Rutherford County Commission meeting minutes of November 9, 1992, as they appear in the record in
this case do not disclose what action was taken on the resolution, and we are left to assume from all circumstances that
the resolution must have received an affirmative vote of the Commission.
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(4) Violated Plaintiffs’ procedural due process rights under the 5th
and 14th Amendments of the Constitution of the United States
because the Rutherford County Commission provided a description
of the property to be rezoned in its notice of hearing that was
substantially, materially and misleadingly different from the
description of the property actually rezoned in the November 9, 1992
Resolution so as to render the notice misleading and defective, and
thus unlawful, invalid and of no effect whatsoever; and
(5) Violated Plaintiffs’ procedural due process rights under Article I,
Section 8 of the Constitution of the State of Tennessee because the
Rutherford County Commission provided a description of the
property to be rezoned in its notice of hearing that was substantially,
materially and misleadingly different from the description of the
property actually rezoned in the November 9, 1992 Resolution so as
to render the notice misleading and defective, and thus unlawful,
invalid and of no effect whatsoever.
Each defendant filed a Tennessee Rule of Civil Procedure 12.02 Motion to Dismiss for
Failure to State a Claim upon which Relief can be Granted. These Motions asserted that the
Complaint showed on its face that the 60-day statute of limitations provided by Tennessee Code
Annotated section 27-9-102 together with the 1-year statute of limitations provided by Tennessee
Code Annotated section 28-3-104 and the 10-year statute of limitations provided by Tennessee Code
Annotated section 28-3-110 had all expired before suit was filed.
The trial court determined that the 10-year statute of limitations provided by Tennessee Code
Annotated section 28-3-110 barred the cause of action and that the discovery rule did not apply.
Plaintiffs filed a timely appeal.
A procedural problem must be resolved at the outset. The case is before this Court on appeal
from the grant of the trial court of Tennessee Rule of Civil Procedure 12.02(6) Motions to Dismiss.
These Motions are based entirely on the alleged expiration of the statute of limitations with the trial
court applying a 10-year statute. The parties and the trial court have addressed the statute of
limitations question without first resolving the validity of the November 9, 1992, Amendment to the
Zoning Resolution. The question of a statute of limitations cannot be resolved without first
addressing the validity of the ordinance as these issues are inextricably interwoven. If the
amendment to the ordinance is void ab initio, there is no applicable statute of limitations. So it is
that before this Court can resolve the statute of limitations issues raised by the Tennessee Rule of
Civil Procedure 12.02(6) Motions, it must first determine the validity of the November 9, 1992,
Resolution on the record that is before the Court. The determination that follows is within the
context of a Tennessee Rule of Civil Procedure 12.02(6) Motion and without prejudice to the rights
of any party to further develop the record after remand.
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Based on the record that is before this Court, the resolution of November 9, 1992, is void ab
initio.
Tennessee Code Annotated section 13-7-105 provides in pertinent part:
13-7-105. Amendments of zoning ordinance provisions — Procedure. — (a)
The county legislative body may, from time to time, amend the number, shape,
boundary, area or any regulation of or within any district or districts or any other
provision of any zoning ordinance; but any such amendment shall not be made or
become effective unless the same be first submitted for approval, disapproval or
suggestions to the regional planning commission of the region in which the territory
covered by the ordinance is located, and, if such regional planning commission
disapproves within thirty (30) days after such submission, such amendment shall
require the favorable vote of a majority of the entire membership of the county
legislative body.
(b)(1) Except as provided in subdivision (b)(2), before finally adopting any such
amendment, the county legislative body shall hold a public hearing thereon, at least
fifteen (15) days’ notice of the time and place of which shall be given by at least one
(1) publication in a newspaper of general circulation in the county. A complete
summary of such amendment shall be published at least once in the official
newspaper of the county or in a newspaper of general circulation in the county. The
summary shall include a statement that a complete copy of the amendment is
available and where such copy may be obtained. If the zoning ordinance rezones
property, a description of the property that is rezoned shall be included in the
summary.
Tenn.Code Ann. § 13-7-105(a) and (b)(1).
No amendment to the zoning ordinance purporting to rezone 90 acres of the Jackson property
was ever submitted to the Rutherford County Regional Planning Commission, and no
recommendation of such rezoning was ever made by the Rutherford County Planning Commission.
The only recommendation from the Planning Commission prior to the November 9, 1992,
Resolution of the Rutherford County Commission was a recommendation following the October 19,
1992, meeting of the Planning Commission which recommended the rezoning of the 10 acres
requested by Jackson. The Notice of Public Hearing published in the Daily News Journal on
October 10, 1992, gave notice of a public hearing scheduled November 9, 1992, on Jackson’s
application to reclassify a 10-acre parcel of land. Following the public hearing of November 9, 1992,
the Rutherford County Commission purported by resolution to rezone, not the 10 acres that was the
subject of the public hearing, but a 90-acre tract described by metes and bounds.
Such a zoning resolution is void ab initio under essentially undisputed authority.
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The Supreme Court of Rhode Island addressed such a case in DeLucia v. Town of Jamestown,
265 A.2d 636 (R.I.1970). Notice of a public hearing relative to a proposed zoning amendment had
been properly published which provided among other things that Plaintiff’s residential district would
require a minimum lot size of 40,000 square feet. The public hearing was timely held at which
property owners affected expressed their objections and their approval or disapproval of the
amendment. More than 30 days after the public hearing the town council adopted the amendment
to the zoning ordinance, but the amendment as adopted differed significantly from the amendment
that was disclosed in the Notice of Hearing and in the public hearing. The amendment, as adopted,
required among other things in the Plaintiff’s district a minimum lot size of 80,000 square feet. In
holding the amendment to the zoning ordinance to be void as beyond the jurisdiction of the town
council, the Supreme Court of Rhode Island stated:
Consequently, if as a result of the hearing held pursuant to such notice, the
local legislature determines that the amendment as proposed should be substantially
altered, acquisition of jurisdiction to adopt a substantially altered amendment
requires that public notice thereof be given and a public hearing held thereon.
Clearly, the purpose of holding a public hearing and giving notice thereof is
designed to bring possibly desirable changes to the attention of the town council
before enactment. If, notwithstanding objections to the map and ordinance as
proposed or suggestions of substantial alterations thereto made at the hearing, the
local legislative body finds the map and ordinance as proposed conform to a
comprehensive plan, its adoption of them is a valid exercise of its delegated police
power. Interested persons having notice of what the local legislature purports to do
might well fail to attend the public hearing, being satisfied with that which is
proposed.
On the other hand, if the local legislature is free to make substantial
alterations in either the proposed map or ordinance without again giving notice and
conducting a public hearing, the holding of such hearing becomes meaningless.
Having heretofore held in Rhode Island Home Builders, Inc., supra, that such public
notice and hearing are conditions precedent to the local legislature’s jurisdiction to
take final action, we conclude that the alterations to the proposed map and ordinance
in the instant case, if substantial, were made in excess of the Jamestown Town
council’s jurisdiction.
...
It is our holding, therefore, that the action of the Jamestown Town Council
on January 9, 1967, purporting to adopt amendments to the map and ordinance
proposed for consideration at the public hearing of December 5, 1966, was ultra vires
of the town council’s jurisdiction. Judgment affirmed.
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DeLucia, 265 A.2d at 639-40.
Addressing the same question as to deviation between the notice of public hearing and the
zoning amendment ultimately adopted, the United States Court of Appeals for the District of
Columbia, reversing the trial court, held such variation fatal to the validity of a zoning amendment.
The facts before the court involved a proposed zoning change with a required public hearing thereon
set for May 27, 1957, after proper advertisement. The notice provided that interested persons could
examine the proposed amendment and the zoning maps made a part thereof by visiting the Office
of the Zoning Commission. The plaintiffs in the case visited this office, and on review of the
proposed amendment and the maps determined that the area in question was to be classified under
the proposed amendment as in R-1-B category which would permit only detached single family
dwellings on lots 50 feet wide and containing at least 5,000 square feet. Further requirements were
that the dwelling occupy no more than 40 percent of the lot area and have two side yards at least 8
feet in width. At the public hearing Plaintiffs appeared and expressed general support for the
proposed zoning plan. Almost a year later, without further public hearing, the zoning commission
passed the zoning amendment, but the area involving Plaintiffs’ property was downgraded from R-1-
B classification to an R-3 classification. This category would permit the erection of row houses
occupying 60 percent of the lot area on lots 20 feet wide containing at least 2,000 square feet. No
notice of this change from the proposed amendment was given, and no public hearing on the change
was held prior to its adoption. Reversing the trial court, the District of Columbia Court of Appeals
held:
We think it unquestionable that the notice and public hearing required by
Section 5-415 of the Code were not given with respect to the R-3 zoning adopted for
the area in question. The notice, by means of the map incorporated therein, made a
specific proposal to classify the area as R-1-B for zoning purposes. Thus in terms it
gave notice of that proposal only. To be sure, there was a general admonition in the
notice that the zoning of all lots and parcels in the District would be affected and
changed. But the proposal for R-1-B zoning in the notice did represent a change in
zoning in the area. The general notice of change can hardly be construed as notice
to the public that the zoning of the particular area involved would be changed in any
other way than that specifically proposed.
The statute states that before an amendment is put into effect, a public hearing
shall be held thereon. That was not done with respect to the amendment adopted for
the area involved. The only hearing held related to the proposed amendment which
was finally rejected by the Zoning Commission. Before another proposal could be
adopted, a notice and hearing relating to it were required under the plain terms of the
statute. Cf. McClatchy Broadcasting Co. v. Federal Communications Commission,
1956, 99 U.S.App.D.C. 199, 239 F.2d 19, certiorari denied, Sacramento Telecasters,
Inc., v. McClatchy Broadcasting Co., 1957, 353 U.S. 918, 77 S.Ct. 662, 1 L.Ed.2d
665.
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The hearing on the rejected amendment cannot be treated as an acceptable
substitute for the required hearing, since the amendment purportedly put into effect
on May 12, 1958, represented a major and substantial change from the proposed
amendment. It lowered the zoning standard for the area, whereas the proposal had
been for a somewhat higher standard than that then existing. The proposal was so
fundamentally changed that a public hearing was required before an amendment
embodying the change could validly be adopted. This is the uniform holding under
comparable statutes. See, e.g., Fish v. Town of Canton, 1948, 322 Mass. 219, 77
N.E.2d 231; Village of Sands Point v. Sands Point Country Day School, 1955, 2
Misc.2d 885, 148 N.Y.S.2d 312, 316, affirmed, 1956, 2 A.D.2d 769, 154 N.Y.S.2d
428; cf. State ex rel. Kling v. Nielsen, 1957, 103 Ohio App. 60, 144 N.E.2d 278.
Here, of course, the possibility of an R-3 classification was not alluded to at the
hearing and the appellants had no opportunity to express their objections and views
as to it. They were not required to anticipate the possibility of changes from the
proposed amendment – changes of which not even a hint had been given. Cf.
Callanan Road Improvement Co. v. Town of Newburgh, 1957, 6 Misc.2d 1071, 167
N.Y.S.2d 780, affirmed, 1958, 5 A.D. 2d 1003, 173 N.Y.S.2d 780.
Castle v. McLaughlin, 270 F.2d 448, 451-52 (D.C.Cir.1959) (footnotes omitted).
What ever may be the parameters of notice in any other context, the rule in a great majority
of jurisdictions appears to be that the notice provisions relative to the enactment of and the
amendment of zoning ordinances is jurisdictional. The Supreme Court of Arizona in Hart v. Bayless
Inv. & Trading Co., 346 P.2d 1101 (Ariz.1959) addressed this issue. The original zoning ordinance
for Maricopa County had been enacted in 1949 and the issue before the Court was the validity of a
January 25, 1951, amendment to the zoning ordinance and the validity of a June 2, 1952, amendment
thereto. The case has certain parallels to the case at bar.
In their answer to the amended complaint the defendants, in addition to
asserting the legality of the ordinances, raised certain affirmative defenses which
challenged the standing of this particular plaintiff to attack the ordinances in
question. The allegations were that, even if the ordinances were defective, the
plaintiff was barred from contesting their validity because of laches, estoppel, waiver,
and lack of equity. However, after setting out these defenses, the defendants also
presented a counterclaim asking for a judical [sic] determination of the question
whether the ordinances were valid and enforceable. This counterclaim for
declaratory relief squarely presented the issue of the validity of the ordinances in
question.
Hart, 346 P.2d at 1104-05.
In holding that the 1951 and 1952 amendments to the zoning ordinance were void for failure
to comply with the notice provisions of the governing statute, the Supreme Court of Arizona held:
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The remaining question, then, is whether the failure to comply with the notice and
hearing conditions of the Zoning Act left the Commission and Board without
jurisdiction to adopt either or both of the ordinances in question.
We have not previously been presented with this precise question; however,
this Court has shown a predilection in analogous cases to demand strict compliance
with statutory requirements concerning the zoning aspect of the police power. In
Kubby v. Hammond, 68 Ariz. 17, 22, 198 P.2d 134, 138, we said:
“Zoning ordinances, being in derogation of common law
property rights, will be strictly construed and any ambiguity or
uncertainty decided in favor of property owners.”
That case dealt with the construction of an ordinance, rather than with the question
of its validity. However, we feel that the principle stated therein is applicable in this
case.
In Wood v. Town of Avondale, 72 Ariz. 217, 219, 232 P.2d 963, 964, we said:
“Property owners are entitled to notice before the passage of
a zoning ordinance which would limit the use of their property.
Berratta v. Sales, 82 Cal.App. 324, 255 P.538; Makrauer v. Board of
Adjustment of City of Tulsa, 200 Okla. 285, 193 P.2d 291. * * *.”
The Wood case was quoted with approval in 3 Metzenbaum, Law of Zoning 1893,
wherein it is written, at page 1889:
“Since the enactment of zoning regulations finds its authority
through the police power, and since the police power must come by
way of delegation from the state * * * it is axiomatic that, in the
passage of zoning ordinances, the municipalities and other political
subdivision must scrupulously comply with the state statutes which
delegate that power.”
In other jurisdictions, courts which have been confronted with this issue have
found, almost without exception, that compliance with statutory requirements as to
hearing and notice is jurisdictional and that ordinances which have not been adopted
in conformity with the enabling Act are void. Hurst v. City of Burlingame, 207 Cal.
134, 277 P. 308; Kelly v. City of Philadelphia, 382 Pa. 459, 115 A.2d 238; Rhode
Island Home Builders v. Budlong Rose Co., 77 R.I. 147, 74 A.2d 237; Treat v. Town
Plan & Zoning Commission, 145 Conn. 136, 139 A.2d 601; Gendron v. Borough of
Naugatuck, supra.
...
In the Rhode Island Home Builders case, supra, the Supreme Court
held:
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“* * * The provisions relating to first advertising the notice of public
hearing on a proposed amendment are in form and substance
mandatory conditions precedent to the proper exercise of the power
thus delegated to the council. A failure to conform thereto is not to
be treated as a mere irregularity in the service of a personal notice
which may be waived. In our judgment such provision is not
directory or intended to notify only remonstrants who may actually
appear at the hearing, but contemplates other possible remonstrants
and is a condition precedent to the jurisdiction or power of the
council to make any valid enactment in that regard.” 74 A.2d 239.
...
Although we recognize that laches may, under some circumstances, bar an
individual complainant from asserting the invalidity of an ordinance, we cannot agree
that mere passage of time will suffice to instill life into an enactment which was void
at its inception. We hold that both the 1951 and the 1952 ordinances are void and of
no effect.
Hart, 346 P.2d at 1109-10.
In holding a zoning ordinance void ab initio because of inadequate notice, the Supreme Court
of Virginia held:
We have previously stated that, as a whole, Virginia’s zoning statutes are designed
to prevent zoning changes from being made “suddenly, arbitrarily, or capriciously.”
Bd. of Supervisors of Fairfax County v. Snell Construction Corp., 214 Va. 655, 658
202 S.E.2d 889, 892 (1974).
The history of Code § 15.2-2204(A) adds further illumination. Prior to 1992,
the statute did not require the notice published by the locality to contain a
“descriptive summary” or a summary of any kind. In 1992, the General Assembly
inserted the “descriptive summary” requirement. Acts 1992 ch. 757. This change
by the General Assembly suggests that it is not enough to provide information that
will merely direct readers to the physical location of the actual text of the proposed
amendments. The “descriptive summary” requirement goes beyond referral to the
primary document.
...
We hold that the notice published by the Board did not contain a sufficiently
descriptive summary of the proposed amendments to the Spotsylvania County zoning
ordinances. No citizen could reasonably determine, from the notice, whether he or
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she was affected by the proposed amendments except in the most general sense of
being located in a particular type of zoning district. Nor could a citizen determine
whether the proposed amendments affected zoning issues that were of interest or
concern to the citizen. Given the number of issues subsumed under the heading
“development standards,” using that heading as a descriptive summary fails to inform
citizens of the universe of possible zoning ordinance amendments in any meaningful
way. Both the evolution of the statute and the treatment of analogous statutes
illustrate that such a notice is inadequate under Code § 15.2-2204(A).
We do not, in this opinion, attempt to dictate the exact language of future
notices, nor do we seek to establish a bright line rule. However, considering the
intent and language of the statute, the notice in this case was inadequate. Because the
notice was inadequate in failing to provide a “descriptive summary,” the Board acted
outside the powers granted to it. See Code § 15.2-2204; Potomac Greens Assoc., 245
Va. at 378, 429 S.E.2d at 228. Consequently, the zoning ordinances passed pursuant
to the notices published on January 23, January 30, and February 6, 2002 and at issue
in this case are void ab initio.
Glazebrook v. Bd. of Supervisors of Spotsylvania County, 587 S.E.2d 589, 592-93 (Va.2003).
It is not the notice question standing alone that presents a problem in this case. There is a
striking parallel between the holding of the Court of Appeals of Maryland in von Lusch v. Bd. of
County Comm’rs of Queen Anne’s County, 302 A.2d 4 (Md.1973) and the holding the Supreme
Court of Tennessee in Westland West Cmty. Ass’n v. Knox County, 948 S.W.2d 281 (Tenn.1997).
The governing Maryland zoning statute contained provisions quite similar to Tennessee Code
Annotated section 13-7-105(a) and (b)(1). The Maryland statute required that proposed amendments
first go to the planning commission whose recommendations were advisory but not binding on the
County Commission. The Maryland statute closely parallels the procedure of Tennessee Code
Annotated section13-7-105 (a) and (b)(1). The amendment in issue in von Lusch involved
requirements relative to commercial and non-commercial airports.
In holding the amendment void because of the inadequacy of the notice of public hearing,
the Court held:
The text amendment as adopted by the County Commissioners provided for
separate treatment for commercial airports and private, non-commercial airports but,
more importantly, provided in Section 17.141 that every existing airport, airfield,
landing strip, whether commercial or non-commercial as of the date of enactment of
the ordinance, “shall be deemed a conditional use as of that date,” thus purporting to
grant a special exception to those existing uses without reference to the Board of
Appeals and provided that this ordinance would supersede all other regulations for
those uses. This action of conferring a special exception status on the uses thereby
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making them a permitted conforming use not subject to phasing out or other
restrictions applicable to the originally proposed nonconforming use status is a most
substantial change in both theory and practical application of the provisions of that
ordinance to those uses. One might say that it was practically a 180 degree change
of position. Such a substantial change in provisions must be the subject of another
notice and hearing as we held in Rasnake.
von Lusch, 302 A.2d at 9-10.
The Court likewise held the ordinance to be void because of failure to resubmit the
amendment to the Planning Commission.
As we have already pointed out, Art. 66B, § 4.04 requires the local legislative
body to provide for the manner in which amendments should be made. Pursuant to
this requirement, inter alia, the County Commissioners provided in Section 21.23 as
follows:
“21.23 No change in or departure from the proposed
amendment as recommended by the Planning Commission shall be
made unless the same be resubmitted to said Commission for its
further recommendation. The Planning Commission shall file its
further recommendation within thirty (30) days, unless additional
time is granted, after which the County Commissioners shall make
their decision.”
As we have already noted, Section 3.00 provides that the word “shall” is
mandatory and not directory.
It is apparent that the provisions of Section 21.23 are mandatory and must be
complied with by the County Commissioners. There is sound reason for this
mandatory requirement, i.e., that the County Commissioners should have the benefit
of the expertise of the Planning Commission in the amendatory process. The
appellees seek to overcome this requirement by suggesting that inasmuch as the
counsel for the Planning Commission was present at the June 15 hearing and
indicated that the proposed change was, in his opinion, in accord with the thinking
of the Planning Commission, no useful purpose would be served by resubmission to
the Planning Commission. The short answer to this contention is that the ordinance
provides mandatorily for a return to the Planning Commission, itself, the deliberation
of that Commission on the proposed change and a further report by that Commission
to the County Commissioners. There is no provision that counsel for the Planning
Commission can give that consideration and it is clear to us that he cannot commit
the Planning Commission to the approval of a change with no re-referral and
consideration by the Planning Commission. It is quite true that as and when the
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proposed change is referred back to the Planning Commission and a further report
made to the County Commissioners by that Commission, the County Commissioners
are not bound by that Commission’s recommendations. See Bujno v. Montgomery
County Council, 243 Md. 110, 118, 220 A.2d 126, 130 (1966); Miller v. Abrahams,
239 Md. 263, 272, 211 A.2d 309, 314 (1965); and 1 Anderson, American Law of
Zoning § 4.32 (1968). This does not mean, however, that the County Commissioners
may, in effect, accept the opinion of counsel for the Planning Commission for what
he thinks the Planning Commission will conclude and recommend and ignore the
mandatory provisions of Section 21.23 of the Zoning Ordinance.
For these two reasons, we have concluded that the adoption of the text
amendments by the County Commissioners on June 22, 1971, creating new Sections
17.14, 17.141 and 17.142 of the Zoning Ordinance was invalid and void.
von Lusch, 302 A.2d at 10.
In holding null and void a zoning amendment where the County Commission substantially
deviated from the recommendations of the Planning Commission, the Tennessee Supreme Court
held:
The appellee, Thomas N. Schriver, filed a rezoning application with the
Knoxville-Knox County Metropolitan Planning Commission (“MPC”). His
application sought to amend a tract of land’s zoning from Agriculture (“A”) to
Shopping Center (“SC”). The MPC unanimously denied Schriver’s requested
change. He then appealed the MPC’s decision to the County Commission.
During the hearing before the County Commission, the appellee presented a
zoning proposal that differed from the proposal he originally submitted to the MPC.
He requested the commission to rezone the property to Planned Commercial (“PC”)
as opposed to SC. The County Commission approved the revised amendment
request and rezoned the property as PC.
The appellants, Westland West Community Association, et al., appealed the
commission’s zoning decision to the Knox County Chancery Court. They alleged
that the Commission’s decision was void. They argued that Tenn.Code Ann. § 13-7-
105(a) mandated that the appellee submit his new proposal to the MPC prior to
seeking review before the County Commission. The chancery court agreed and held
that when the appellee changed his request from SC to PC, he was required to by
statute to resubmit the zoning request to the MPC.
The Court of Appeals reversed the chancery court’s decision. They found that
resubmission of the more onerous proposed amendment to MPC would have been
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futile due to the MPC’s previous determination that “any commercial zone would be
contrary to the . . . Sector plan.” Pursuant to Wilgus v. City of Murfreesboro, 532
S.W.2d 50 (Tenn.Ct.App.1975), the court held that resubmission is not mandated
unless there is “a strong probability that the [regional planning] commission’s
recommendation would have been affected by the revision.”
The appellants argue that the Court of Appeals erred in focusing its analysis
solely on whether the board’s decision would have been the same upon resubmission.
They maintain that the proper inquiry should focus on the gravity of the revised
proposal’s changes. Provided the revisions are substantial, Tenn.Code Ann. § 13-7-
105(a) mandates resubmission. We agree in part.
A county legislative body is vested the statutory power to amend zoning
ordinances. Tenn.Code Ann § 13-7-105(a). A proposed zoning amendment,
however, shall neither be granted nor become effective unless the proposed
amendment is first submitted to the regional planning commission. Id. The regional
commission can then either approve, disapprove, or make suggestions. Id. If the
regional commission rejects the proposed amendment, the amendment may then be
submitted to the county legislative body for approval. Id.
...
We find the statute’s language clear. A proposed amendment to a zoning
scheme must first be submitted to the regional planning commission. If a proposed
zoning amendment is not first presented to the regional planning commission, the
county commission is devoid of jurisdiction to act upon the proposal.
Once a proposed amendment has been submitted to the regional planning
commission, the proposal may be revised. Whether the revised proposal must then
be resubmitted to the regional planning commission is contingent upon: (1) the
gravity of the revision(s), and (2) whether the board’s recommendations would have
been altered by the revision(s). Wilgus v. City of Murfreesboro, 532 S.W.2d 50, 53-
54 (Tenn.Ct.App.1975). If the revision is inconsequential and would not have altered
the board’s recommendation, resubmission is not mandated. If, however, the
revision(s) substantially alters the initial proposal, the proper inquiry is: (1) whether
there is a detrimental impact on those who would oppose the proposal; and (2)
whether the board’s recommendations would have been altered by the revision(s).
Id.; State v. Board of Comm’rs of Knox County Tenn., 806 S.W.2d 181, 188
(Tenn.Ct.App.1990). An affirmative answer to either question mandates
resubmission.
In the present case, we are not confronted with a mere revision to a previously
proposed zoning amendment. Accordingly, we do not revert to the test for
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determining whether a revision was substantial. We are confronted with an entirely
new zoning classification proposal (i.e., a new zoning amendment proposal) which
had never been before the regional planning commission. We find a clear distinction
between a newly proposed classification and a previously submitted classification
that has undergone mere revisions. Tennessee Code Annotated § 13-7-105 mandates
submission of the new classification without further inquiry.
Accordingly, we hold that the proposed zoning change to planned commercial
in the present case must have been presented to the regional planning commission
before the county commission had jurisdiction to act on the proposal. The county
commission’s review and approval was, therefore, both null and void.
Westland West Cmty. Ass’n, 948 S.W.2d at 282-83.
The Supreme Court has held:
The power to restrain by local police regulation the property owner’s right to
pursue plans for buildings and repairs depends upon valid municipal ordinances,
authorized by an empowering statute; for the police power belongs to the state, and
passes to municipalities and local governing bodies only when and as conveyed by
legislative enactment. 6 R. C. L. p. 240, § 229; 19 R. C. L. p. 800, § 108; Farmer v.
City of Nashville, 127 Tenn. 516, 156 S.W.189, 45 L. R. A. (N. S.) 240; City of
Nashville v. Linck, 12 Lea, 499; Long v. Taxing District, 7 Lea, 134, 40 Am. Rep. 55;
Raleigh v. Dougherty, 3 Humph. 11, 39 Am. Dec. 149.
State ex rel. Lightman v. City of Nashville, 60 S.W.2d 161, 162 (Tenn.1933).
Once it is determined that Tennessee Code Annotated section 13-7-101 et seq. measures the
jurisdiction of county government in the implementation of its power to zone, it necessarily follows
that the failure of the Rutherford County Commission to provide notice of and hold a new public
hearing after it chose to expand the acreage to be rezoned from 10 acres to 90 acres and the failure
to resubmit the 90-acre proposal to the Rutherford County Planning Commission renders the
November 9, 1992, purported amendment to the zoning ordinance ultra vires and void. Brumley v.
Town of Greeneville, 274 S.W.2d 12 (Tenn.Ct.App.1954); Holdredge v. City of Cleveland, 402
S.W.2d 709 (Tenn.1966); Family Golf of Nashville, Inc. v. Metro. Gov’t of Nashville and Davidson
County, 964 S.W.2d 254 (Tenn.Ct.App.1997); Haynes v. City of Pigeon Forge, 883 S.W.2d 619
(Tenn.Ct.App.1994).
It cannot reasonably be said that either of the shortcomings in the zoning amendment at bar
can be classified as “insubstantial” deviations from the mandates of the statutory scheme in a manner
that might make applicable. Wilgus v. City of Murfreesboro, 532 S.W.2d 50 (Tenn.Ct.App.1975).
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That the notice requirements of the statutory scheme are jurisdictional and universal is
discussed at length in State ex rel. SCA Chemical Servs., Inc. v. Sanidas, 681 S.W.2d 557, 564-65
(Tenn.Ct.App. 1984).
That the failure to resubmit the amended zoning resolution to the Planning Commission after
expanding by nine fold the territorial limits of the property originally recommended for rezoning by
the Planning Commission is fatal to the jurisdiction of the Rutherford County Commission to enact
the November 9, 1992, amendment is equally clear. Holdredge, 402 S.W.2d 709 (Tenn.1966);
Family Golf of Nashville, Inc., 964 S.W.2d 254 (Tenn.Ct.App.1997); Westland West Cmty. Ass’n,
948 S.W.2d 281 (Tenn.1997).
Defendants interpose in defense various statutes of limitation including the 60-day limitations
provided by Tennessee Code Annotated section 27-9-102, the 1-year statute of limitations provided
by Tennessee Code Annotated section 28-3-104 and the 10-year statute of limitations provided
Tennessee Code Annotated section 28-3-110. The trial court applied the 10-year statute of
limitations and dismissed the case.
No statute of limitations is applicable in this case, and the passage of time is meaningless.
An ordinance that is void ab initio is just as stillborn as is a judgment that is void ab initio.
The unquestioned line of authority consigning a void judgment to the status of a nullity is
equally applicable to a void ordinance.
The Court of Appeals of Kentucky observed:
There is no doubt that the judgment of May 23, 1931, is void, if, in fact, as
alleged in the petition, the defendants in that action, who are the plaintiffs in the
present action and the appellants here, were not served with process and had no legal
notice of the pendency of the action. It is essential to the proper rendition of a
judgment in personam that the court have jurisdiction of the parties, and a personal
judgment without such jurisdiction is void. Ely v. United States Coal & Coke Co.,
243 Ky. 725, 49 S.W.2d 1021; McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343, 61
L.Ed. 608, L.R.A. 1917F, 458; Restatement of the Law of Judgments, §§ 6, 8, and
117; 1 Freeman on Judgments, §§ 226, 228, and 339. Ordinarily limitations must be
pleaded and may not be raised by demurrer, but, as stated by appellees in their brief,
there is an exception to the rule where the action is one for relief from fraud brought
more than five years after the fraud was perpetrated. In such an action the plaintiff
must allege facts to excuse the delay. Cox v. Simmerman, 243 Ky. 474, 48 S.W.2d
1078. KRS 413.130 provides that relief for mistake or fraud must be commenced
within five years after discovery of the fraud or mistake but not longer than ten years
after the commission of the act. This statute has no application to a judgment that is
void because the defendant was not before the court. He must have been a party to
the suit with an opportunity to know of the fraud or mistake or to discover it after it
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was committed. A void judgment is no judgment at all, and no rights are acquired
by virtue of its entry of record. A court may, in a proper proceeding, vacate it at any
time. The lapse of time is no bar to such relief. Brown’s Adm’r v. Gabhart, 232 Ky.
336, 23 S.W.2d 551; Johnson v. Carroll, 190 Ky. 689, 228 S.W.412; Gardner v.
Lincoln Bank & Trust Co., 251 Ky. 109, 64 S.W.2d 497.
Hill v. Walker, 180 S.W.2d 93, 95 (Ky.Ct.App.1944).
Void judgments are the subject of Federal Rule of Civil Procedure 60(b)(4) and its
counterpart, Tennessee Rule of Civil Procedure 60.02(3). Because the federal rule and the Tennessee
rule are essentially identical, decisions under federal rule 60 may be considered in construing
Tennessee rule 60. March v. Levine, 115 S.W.3d 892, 908 (Tenn.Ct.App.2003).
An attack on a void judgment was sustained under Federal Rule of Civil Procedure 60(b)(4)
after a lapse of 30 years in Crosby v. Bradstreet Co., 312 F.2d 483 (2nd Cir.1963) with the court
holding, “The order was void, and under Rule 60(b)(4) of the Federal Rules of Civil Procedure, the
parties must be granted relief therefrom.” Crosby, at 485.
The Court of Appeals of Oregon in construing the Oregon counterpart to Federal Rule of
Civil Procedure 60(b)(4) discussed at length the rationale behind the rule.
Plaintiff argues that Mills’s motion to set aside the judgment was not timely.
We set aside the judgment because there is no timeliness requirement for moving to
set aside a void judgment. ORCP 71 B(1) provides, in pertinent part:
“On motion and upon such terms as are just, the court may
relieve a party or such party’s legal representative from a judgment
for the following reasons: * * * (d) the judgment is void; * * *. The
motion shall be made within a reasonable time, and for reasons (a),
(b), and (c) not more than one year after receipt of notice by the
moving party of the judgment.”
Although the rule would seem both to require Mills to have filed this motion within
a reasonable time after learning of the judgment and to grant the trial court discretion
in acting on the motion, neither of those requirements can apply to a motion to set
aside a void judgment.
In Burt & Gordon v. Stein, 128 Or.App. 350, 876 P.2d 338, rev. den., 320 Or.
270, 882 P.2d 603 (1994), we held that it was an abuse of discretion for a trial court
to refuse to set aside a void judgment. In doing so, we quoted Black’s Law
Dictionary 1412 (5th ed. 1979), which defined a void judgment as
“ ‘[o]ne which has no legal force or effect, [the] invalidity of
which may be asserted by any person whose rights are affected at any
time and at any place or collaterally. One which, from its inception
is and forever continues to be absolutely null, without legal efficacy,
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ineffectual to bind parties or support a right, of no legal force and
effect whatever, and incapable of confirmation, ratification, or
enforcement in any manner or to any degree. One that has merely
semblance without some essential elements, as want of jurisdiction
or failure to serve process or have party in court.’ (Citation
omitted.)”
128 Or.App. at 354-55, 876 P.2d 338. Because a void judgment, as the definition
indicates, is a nullity ab initio, all that a trial court does when it sets it aside is to give
effect to its prior determination of its nullity. It does not exercise any discretion, and
there cannot be any time limitations on its action.
As both the Supreme Court and this court have recognized, the source of
ORCP 71 is FRCP 60. Both courts have also relied on federal cases in construing
other portions of the rule. See McCathern v. Toyota Motor Corp., 332 Or. 59, 23
P.3d 320 (2001); Johnson v. Johnson, 302 Or. 382, 391-92, 730 P.2d 1221 (1986);
Jansen v. Atiyeh, 96 Or.App. 54, 59-60, 771 P.2d 298 (1989). A leading treatise
describes the law under FRCP 60(b)(4), which is essentially identical to ORCP 71
B(1)(d):
“Rule 60(b)(4) authorizes relief from void judgments.
Necessarily a motion under this part of the rule differs markedly from
motions under the other clauses of Rule 60(b). There is no question
of discretion on the part of the court when a motion is under Rule
60(b)(4), nor is there any requirement, as there usually is when
default judgments are attacked under Rule 60(b), that the moving
party show that he has a meritorious defense. Either a judgment is
void or it is valid. Determining which it is may well present a
difficult question, but when that question is resolved, the court must
act accordingly.
“By the same token, there is no time limit on an attack on a
judgment as void. The one-year limit applicable to some Rule 60(b)
motions is expressly inapplicable, and even the requirement that the
motion be made within a ‘reasonable time,’ which seems literally to
apply to motions under Rule 60(b)(4), cannot be enforced with regard
to this class of motion. A void judgment cannot acquire validity
because of laches on the part of the judgment debtor.”
Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, 11 Federal Practice and
Procedure § 2862 (2d ed. 1995) (footnotes omitted).
Those federal law principles are consistent both with the nature of a void
judgment and with our previous cases under ORCP 71 B(1)(d). We believe that they
accurately state Oregon law on the subject. In short, the reasonable time to move to
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set aside a void judgment is forever, and it is an abuse of discretion for a trial court
to fail to do so. The trial court erred by not setting aside the judgment.
Estate of Hutchins v. Fargo, 72 P.3d 638, 642-43 (Or.Ct.App.2003).
The Supreme Court of North Dakota, in construing its counterpart of Federal Rule of Civil
Procedure 60(b)(4), held:
Valid service of process is necessary to acquire personal jurisdiction over a
defendant, and a judgment entered without personal or subject matter jurisdiction is
void. McComb v. Aboelessad, 535 N.W.2d 744, 747 (N.D.1995). Rule 60(b)(iv),
N.D.R.Civ.P., allows relief from a void judgment. Although the decision to vacate
a judgment under Rule 60(b) is ordinarily left to the discretion of the trial court, the
court has no discretion under subdivision (b)(iv) if the judgment is void. Johnson,
Johnson, Stokes, Sandberg & Kragness, Ltd. v. Birnbaum, 555 N.W.2d 583, 585
(N.D.1996); First Western Bank & Trust v. Wickman, 527 N.W.2d 278, 279
(N.D.1995). If the judgment is valid, the motion to vacate must be denied; if the
judgment is void, the court has no discretion to protect it and it must be vacated.
Johnson, 555 N.W.2d at 585; First Western, 527 N.W.2d at 279. The question to be
resolved is whether the judgment is void as a matter of law, and our review of the
trial court’s decision is plenary. First Western, 527 N.W.2d at 279.
Eggl asserts Fleetguard’s motion to vacate was untimely, coming more than
seven years after judgment was entered. A motion to vacate a judgment under
N.D.R.Civ.P. 60(b) “must be made within a reasonable time.” Cases construing the
corresponding federal rule, however, clarify that there is no time limit for attacking
a void judgment under Rule 60(b)(iv). See, e.g., New York Life Ins. Co. v. Brown,
84 F.3d 137, 142 (5th Cir.1996); Precision Etchings & Findings, Inc. v. LGP Gem,
Ltd., 953 F.2d 21, 23 (1st Cir.1992); Meadows v. Dominican Republic, 817 F.2d 517,
521 (9th Cir.), cert. denied, 484 U.S. 976, 108 S.Ct. 486, 487, 98 L.Ed.2d 485
(1987); see also 12 James Wm. Moore et al., Moore’s Federal Practice §§
60.44[5][c], 60.65[1] (1998); 11 Charles Alan Wright et al., Federal Practice and
Procedure §§ 2862, 2866 (1995). “[T]here is and can be no time limit on judicial
relief from a judgment that is, in fact, already a nullity and always subject to direct
and collateral attack,” and therefore “[a]nytime is a ‘reasonable’ time to set aside a
void judgment.” 12 Moore, supra, § 60.65[1], at 60-197. Fleetguard’s motion was
not untimely.
Eggl v. Fleetguard, Inc., 583 N.W.2d 812, 814 (N.D.1998).
In discussing the void judgment rule, the United States Fifth Circuit Court of Appeals
observed:
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Motions brought pursuant to Rule 60(b)(4), however, constitute such exceptional
circumstances as to relieve litigants from the normal standards of timeliness
associated with the rule. While Rule 60(b)(1) motions must be brought within one
year, we have held that motions brought pursuant to subsection (4) of the rule have
no set time limit. This court has explained that “‘[t]here is no time limit on an attack
on a judgment as void. The one-year limit applicable to some Rule 60(b) motions is
expressly inapplicable, and even the requirement that the motion be made within a
“reasonable time,” which seems literally to apply to motions under Rule 60(b)(4),
cannot be enforced with regard to this class of motion.’” New York Life Insurance
Company v. Brown, 84 F.3d 137, 142-43 (5th Cir.1996) (quoting Briley v. Hidalgo,
981 F.2d 246, 249 (5th Cir.1993)). Other courts have noted simply that “[u]nlike its
counterparts, Rule 60(b)(4), which provides relief from void judgments, ‘is not
subject to any time limitation.’” Orner v. Shalala, 30 F.3d 1307, 1310 (10th
Cir.1994) (quoting V.T.A., Inc., 597 F.2d at 224 n. 9 and accompanying text). While
failing to prescribe concrete time limitations, the courts have established that the
normal temporal considerations do not apply in the Rule 60(b)(4) context.
Carter v. Fenner, 136 F.3d 1000, 1006 (5th Cir.1998).
The Fifth Circuit Court has likewise observed:
Rule 60(b)(4) allows district courts to “relieve a party . . . from a final
judgment” because the judgment is void. We typically review district court orders
denying Rule 60(b) relief for abuse of discretion. CJC Holdings, Inc. v. Wright &
Lato, Inc., 979 F.2d 60, 63 (5th Cir.1992). “When, however, the motion is based on
a void judgment under rule 60(b)(4), the district court has no discretion – the
judgment is either void or it is not.” Recreational Prop. Inc. v. Southwest Mortgage
Serv. Corp., 804 F.2d 311, 313 (5th Cir.1986); 11 CHARLES ALAN WRIGHT , ARTHUR
R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2862 (2d
ed. 1995). “[T]here is no time limit on an attack on a judgment as void. The one-
year limit applicable to some Rule 60(b) motions is expressly inapplicable, and even
the requirement that the motion be made within a ‘reasonable time,’ which seems
literally to apply to motions under Rule 60(b)(4), cannot be enforced with regard to
this class of motion.” Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir.1993) (quoting
11 CHARLES ALAN WRIGHT , ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2862 (1973)) (brackets in original).
New York Life Ins. Co. v. Brown, 84 F.3d 137, 142-43 (5th Cir.1996).
While cases involving time limitations relative to attacks on void municipal ordinances are
sparse, it is clear that void still means void and lapse of time cannot validate an ordinance void ab
initio. State ex rel. Welks v. Town of Tumwater, 400 P.2d 789 (Wash.1965) involved an attack on
a zoning ordinance enacted 17 years earlier and two later ordinances purporting to amend the first
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ordinance. In holding all three zoning ordinances to be void, the Supreme Court of Washington
held:
The defects in ordinance No. 246 were not remedied by the enactment of
ordinance No. 437. Ordinance No. 437 did not purport to re-enact No. 246. The rule
is:
“The general rule is that void ordinances cannot be amended
and that an ordinance passed as an amendment to a previous
ordinance, which never took effect, is invalid; a void ordinance
cannot be vitalized by amendment, and re-enactment is necessary to
validate that intended to be enacted by it. Hence, where an ordinance
is passed by one branch of the legislative body at one session, and is
not passed by the other until the next session, it is void, and a later
amendment cannot give it any validity. Without question, where an
ordinance is void, a subsequent ordinance, that cannot be enforced
of itself, and that purports to amend a single section of the prior
ordinance, is invalid. * * *.” (Italics ours.) 6 McQuillin, Municipal
Corporations (3rd ed.) § 21.05, p. 183.
The fact that the ordinances of the town of Tumwater, including the
ordinances here in question, had, prior to the commencement of the present action,
been included in the codification of the ordinances of the town of Tumwater, as
provided for by Laws of 1957, chapter 97, does not result in the re-enactment of the
ordinances. Such a statute does not contemplate the re-enactment or the
republication of the ordinances, but merely their compilation for convenient use and
to simplify the method of their proof. Defects in the ordinances or in their enactment
are not thereby cured. Barrett v. Chicago, M. & St. P.R. Co., 190 Iowa 509, 175
N.W. 950, 180 N.W. 670.
State ex rel. Welks v. Town of Tumwater, at 792.
Further buttressing the view that lapse of time alone cannot validate a void ordinance is Bd.
of Zoning Appeals of Monroe County v. Berndt, 502 N.E.2d 1349 (Ind.Ct.App.1987). In that case,
Monroe County allegedly enacted its zoning ordinance on June 3, 1974. More than 10 years later
on July 23, 1984, the Zoning Board initiated an action against Sandra S. Berndt alleging violation
of the zoning ordinance. Defendants answered that the 1974 ordinance was invalid because notice
of the public hearing had been published on May 17, 1974, which was 12 days prior to the public
hearing scheduled for May 29, 1974. The controlling statute provided, “The notice shall be
published at least twice within ten (10) days before the time set for the hearings.” Bd. of Zoning
Appeals of Monroe County, 502 N.E.2d at 1352. The Zoning Board argued that since one of the two
notices had been published within 10 days prior to the May 29 hearing that its mistake in publishing
the first notice 12 days prior to the hearing instead of within 10 days constituted “substantial
compliance” with the controlling statute. Not so said the Indiana Court of Appeals holding that the
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1974 zoning ordinance was null and void ab initio and further holding that the re-codification
adopted by Monroe County on May 23, 1983, did not validate the 1974 zoning ordinance. Said the
Court:
If an ordinance is revised upon codification, the county commissioners first must
satisfy all of the original conditions precedent such as public hearings and legal
notice. An ordinance which is being revised cannot be summarily codified without
following the normal steps for an ordinance’s original enactment or amendment.
Since section 6 does not apply to revisions, it is obvious that it does not apply
to invalidly enacted ordinances. Prior to codifying such an ordinance, we hold that
the county commissioners must first satisfy the conditions precedent such as public
hearings and notice to validly enact the ordinance. “The validating ordinance must
be passed in the manner essential to the valid enactment of the original.” 62 C.J.S.
Municipal Corporations, § 432(b) (1949). Only validly enacted ordinances may be
codified under the conditions of section 6. “A codification may not have the effect
of curing defects in ordinances or in their enactment.” 5 E. McQuillin, Municipal
Corporations § 16.86 (3d ed. 1981); see also 62 C.J.S. Municipal Corporations §
432(b) (1949) (“Defects in ordinances are not cured by the inclusion of the
ordinances in a compilation for convenient use and to simplify the method of their
proof.”); cf. City of Chester v. Elam (1962), 408 Pa. 350, 184 A.2d 257; State ex rel.
Weiks v. Town of Tumwater (1965), 66 Wash.2d 33, 400 P.2d 789. Put simply,
codification cannot breath[e] life into that which is dead.
Bd. of Zoning Appeals of Monroe County, 502 N.E.2d at 1353-54.
It is well at this point to discuss Hutcherson v. Criner, 11 S.W.3d 126 (Tenn.Ct.App.1999).
In that case, the complaint was filed on December 7, 1995, to enforce provisions of a 1984 zoning
resolution together with 1991 and 1992 amendments thereto. Defendant challenged the sufficiency
of the notice for a public hearing prior to the 1984 zoning ordinance. In a non-jury trial, the trial
judge held that the county had complied with the notice provisions prior to the public hearing. On
appeal, the Court of Appeals held:
With regard to the 1984 Zoning Resolution, we agree with the trial court’s
finding that the 1984 Resolution is not invalid due to failure to comply with the
statutory requirements. The evidence does not preponderate against the trial court’s
findings in this regard. Moreover, “after long public acquiescence in the substance
of an ordinance, public policy does not permit such an attack on the validity of the
ordinance because of procedural irregularities.” Trainor v. City of Wheat Ridge, 697
P.2d 37, 39 (Colo.App.1984)(citing Edel v. Filer Township, 49 Mich.App. 210, 211
N.W.2d 547 (1973); Taylor v. Schlemmer, 353 Mo. 687, 183 S.W.2d 913 (1944);
Struyk v. Samuel Braen’s Sons, 17 N.J.Super. 1, 85 A.2d 279 (1951)); see also 83
Am.Jur.2d Zoning and Planning § 581 (1992). In Trainor, the zoning ordinance
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under attack had been in effect for over ten years before the plaintiffs filed their
complaint. Thus, the court held that given the extensive public reliance on the
ordinance, such was immunized from a belated attack on various procedural grounds.
The same holds true for the 1984 Zoning Resolution that is under attack on
procedural grounds by Mr. Hutcherson. The 1984 Zoning Resolution has been in
effect for over ten years and has been relied on extensively by the residents of
Lauderdale County including Mr. Hutcherson. As such, the 1984 Zoning Resolution
is immunized from an attack on procedural grounds.
Hutcherson, 11 S.W.3d at 134-35.
Hutcherson was decided after a non-jury trial on the merits in which compliance with the
notice provisions prior to the 1984 public hearing was a disputed question of fact. The Court of
Appeals affirmed the trial court on the basis that the evidence did not preponderate against the trial
court’s findings in this regard. As to the question of any long public acquiescence, we note that the
case at bar is before the Court on Defendants’ Tennessee Rule of Civil Procedure 12.02(6) Motions
to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted. The allegations of the
Complaint must be accepted as true. It is alleged therein:
16. EXPANSION OF THE SHOOTING RANGE: Despite the
Commission’s inconsistency and lack of oversight, Mr. Jackson proceeded to operate
a skeet range only on the 10 acres of property for which he originally requested the
zoning reclassification. Sometime in 1999, however, Mr. Jackson allowed Defendant
Alan Loveless d/b/a/ Big Springs Clay Target Sports to begin operation on the
property. Mr. Loveless capitalized on the Commission’s neglect by expanding the
shooting range to approximately six times the size of the original shooting range, or
approximately 60 acres of Mr. Jackson’s tract.
Since no issue is made by any party as to Mr. Jackson’s use of the original 10-acre tract for
his skeet range and there is no dispute to the alleged fact that the expansion beyond the limits of 10
acres did not begin until 1999, there can be no longstanding acquiescence by the public, and thus no
public policy considerations are involved that could adversely affect Plaintiffs’ right to raise the issue
of the void character of the November 9, 1992, zoning resolution.
Whether the November 9, 1992, zoning resolution could be effective as to the original 10
acres is not an issue that is before the Court in this case.
It is clear then that the purported zoning resolution of November 9, 1992, is void ab initio
because of the failure of the resolution to substantially comport to the recommendations of the
Planning Commission and for failure of the County Commission to resubmit the proposed resolution
to the Planning Commission when it decided to dramatically depart from the recommendations of
the Planning Commission.
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This case having been resolved on non-constitutional grounds, we decline to address the
constitutional issues. Haynes, 883 S.W.2d 619 (Tenn.Ct.App.1994); Watts v. Memphis Transit
Mgmt. Co., 462 S.W.2d 495, 498 (Tenn.1971).
Since the case is before this Court on appeal of dismissal under Tennessee Rule of Civil
Procedure 12.02(6) for failure to state a claim upon which relief can be granted, the judgment of the
trial court will be reversed and the case remanded for further proceedings not inconsistent with this
opinion. While it would appear from the record made in this case that the void character of the
November 9, 1992, Zoning Resolution cannot be successfully challenged under any facts that can
be developed upon remand, such a determination at this time by this Court would be improper. We
reverse the action of the trial court in granting the Tennessee Rule of Civil Procedure 12.02(6)
Motions and remand the case for such further proceedings as may be necessary.
Costs of the cause are assessed to the appellees.
___________________________________
WILLIAM B. CAIN, JUDGE
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