George Metz v. Metropolitan Government of Nashville And Davidson County, TN

02/16/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 5, 2017 Session

GEORGE METZ, ET AL. v. METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.

Appeal from the Chancery Court for Davidson County

No. 16-1335-III Ellen Hobbs Lyle, Chancellor

No. M2017-00719-COA-R3-CV

This appeal arises from the dismissal of a petition for writ of certiorari to challenge two

administrative decisions by the Planning Commission of the Metropolitan Government of

Nashville, Davidson County, Tennessee. The petition was dismissed pursuant to a Tenn.

R. Civ. P. 12.02(1) motion for lack of subject matter jurisdiction. The challenge to the

first decision was dismissed because the statutory sixty-day period had run from the date

the minutes approving the challenged decision had been entered. The challenge to the

second decision, the Planning Commission’s decision to approve the final site plan, was

deemed untimely because the challenge to a site plan must be filed within sixty days of

the entry of the minutes approving the master development plan, not the final site plan,

and the statutory period had run. Finding no error, we affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S. delivered the opinion of the Court, in which RICHARD

H. DINKINS and W. NEAL MCBRAYER, JJ., joined.

Gina Crawley, Nashville, Tennessee, for the appellants, George Metz, Marilyn Metz,

Aubrey Pearson, Jr., Jacqueline Pearson, Berry Wright, and Evelyn Wright.

John Cooper, Director of Law; Lora Barkenbus Fox, Catherine J. Pham, Nashville,

Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson

County, Tennessee.

William N. Helou, Nashville, Tennessee, for the appellee, The Ridge at Antioch, Limited

Partnership.

OPINION

George Metz, Marilyn Metz, Aubrey Pearson, Jr., Jacqueline Pearson, Berry

Wright, and Evelyn Wright (“Petitioners”) are neighbors who live near the site of an

affordable housing project called The Ridge at Antioch (“The Ridge”), which is located

within the Forest View Park Planned Unit Development Overlay District (“Forest View

PUD”). In 1985, the Metropolitan Council (“Metro Council”) conditionally approved the

Ridge for up to 212 multi-family dwelling units.

In 2016, the developer of The Ridge, The Ridge at Antioch, Limited Partnership,

(“the Developer”) presented a master development plan (also known as a preliminary

master development plan or a preliminary site plan)1 seeking to reduce the number of

dwelling units. The Commission approved the master development plan on March 24,

2016. The minutes for the March 24 meeting were signed and entered on April 14, 2016.

At the request of Petitioners, a member of the Metro Council requested a rehearing. The

Commission denied the request on April 28, 2016. The Commission approved and

entered the minutes for the April 28 meeting on May 12, 2016.

On May 16, 2016, Petitioners filed a petition for writ of certiorari and supersedeas

in the Chancery Court for Davidson County, asking the court to review the March 24,

April 14, and May 12 decisions. Petitioners alleged that the Commission acted in an

arbitrary and judicially excessive manner when it found the Forrest View PUD to be

active; however, Petitioners did not support their petition by oath, as required. Petitioners

filed several amended petitions but none were supported by oath.

The Metropolitan Government of Nashville and Davidson County (“Metro”) filed

a motion to dismiss on August 5, 2016, and on August 15, Petitioners filed a proposed

new petition that was supported by oath and otherwise complied with the requirements

for a writ of certiorari. The trial court granted Metro’s motion to dismiss, stating that the

original petition filed on May 16 did not meet the requirements for a writ of certiorari.

The trial court further ruled that it did not have jurisdiction to grant Petitioners’ motion to

amend the petition or to convert it into a declaratory judgment action. The Petitioners

appealed to this Court, and we affirmed. See Metz v. Metro. Gov’t of Nashville &

Davidson Cty., No. M2016-02031-COA-R3-CV, 2017 WL 4677248, at *1 (Tenn. Ct.

App. Oct. 17, 2017).

1

Metro’s previous zoning code used “preliminary master development plan.” Its current zoning

code uses “master development plan.” See Metro. Gov’t of Nashville & Davidson Cty. v. Barry Const.

Co., 240 S.W.3d 840, 843 n. 5 (Tenn. Ct. App. 2007). Metro also frequently refers to the master

development plan as a “preliminary site plan.”

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While that appeal was pending, the Developer submitted construction and

engineering plans to Metro’s planning director. The planning director reviewed the

detailed plans and certified to the Commission that the plans matched the master

development plan approved on March 24, 2016. On October 13, 2016, the Commission

approved the final site plan2 and entered the minutes on October 27.

On December 27, 2016, Petitioners commenced this action by filing a writ of

certiorari in the Chancery Court for Davidson County, alleging that the Commission

approved “an illegal final site plan” on October 13, 2016. The petition sought injunctive

relief from two of the Commission’s decisions, the October 13 decision and the April 28

decision to deny a rehearing.

On January 6, 2016, Metro filed a motion to dismiss arguing that the writ of

certiorari was time-barred as to both decisions. The trial court granted the motion to

dismiss, ruling that “the triggering event for determining the 60-day time to appeal in this

case was approval of the revised preliminary site plan” on March 24. Accordingly,

Petitioners’ writ of certiorari was untimely. This appeal followed.

ISSUE

This appeal focuses on the subject matter jurisdiction of the trial court to

adjudicate the writ of certiorari. Metro filed a Tenn. R. Civ. P. 12.02(1) motion

challenging the court’s subject matter jurisdiction. The trial court granted the motion and

dismissed the petition. Accordingly, the dispositive issue in this appeal is whether the

trial court correctly determined that it did not have subject matter jurisdiction.3

STANDARD OF REVIEW

A Rule 12.02 motion to dismiss “seeks only to determine whether the pleadings

state a claim upon which relief can be granted.” Edwards v. Allen, 216 S.W.3d 278, 284

(Tenn. 2007). Such a motion challenges the legal sufficiency of the complaint, not the

2

Metro’s zoning code, now repealed, previously referred to the “final site plan” as the “final

master development plan.” See Barry Const. Co., 240 S.W.3d at 843 n.5.

3

Petitioners present three issues for our consideration: (1) whether the Commission acted in a

discretionary manner when it approved the Developer’s final site plan without the benefit of final planned

unit development approval; (2) whether the Commission’s preferential treatment of the Developer

affected its ability to render decisions in accordance with the laws of the land; and (3) whether the

Commission has the authority to enter a judgment prior to voting. Metro identifies the dispositive issue as

whether the trial court erred in dismissing the petition for common law writ of certiorari where Petitioners

missed the mandatory sixty-day deadline for filing. We have determined the dispositive issue in this

appeal is whether the trial court correctly determined that it did not have subject matter jurisdiction.

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strength of the plaintiffs’ proof. Id. A Rule 12.02 motion admits the truth of all relevant

and material averments contained in the complaint, but asserts that such facts do not

constitute a cause of action. Id. (citing Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716

(Tenn.1997)). In considering a motion to dismiss, we are required to take the relevant and

material factual allegations in the complaint as true and to construe liberally all

allegations in favor of the plaintiffs. Id.

The question of whether a court has subject matter jurisdiction is a question of

law. Staats v. McKinnon, 206 S.W.3d 532, 542 (Tenn. Ct. App. 2006). We review issues

of law pursuant to the de novo standard. Edwards, 216 S.W.3d at 284. Therefore, we

review the issue de novo with no presumption of correctness given to the ruling of the

trial court. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

ANALYSIS

The concept of subject matter jurisdiction addresses a court’s power to adjudicate

a particular type of case or controversy. Staats, 206 S.W.3d at 541-42. “A court derives

its subject matter jurisdiction, either explicitly or by necessary implication, from the

Tennessee Constitution or from legislative acts.” Id. at 542 (citing Meighan v. U.S. Sprint

Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996); Dishmon v. Shelby State Cmty. Coll.,

15 S.W.3d 477, 480 (Tenn. Ct. App. 1999)).

The existence of subject matter jurisdiction depends on the nature of the

cause of action and the relief sought. Thus, when a court’s subject matter

jurisdiction is questioned, it must first ascertain the nature or gravamen of

the case. The court must then determine whether the Tennessee

Constitution, the General Assembly, or the common law have conferred on

it the power to adjudicate cases of that sort. Both determinations present

questions of law which this court reviews de novo without a presumption of

correctness.

Staats, 206 S.W.3d at 542-43 (internal citations omitted).

There are two methods to challenge a court’s subject matter jurisdiction. The first,

and most common, is a “facial” challenge. Id. at 542. The second is a “factual” challenge.

Id. This appeal presents a factual challenge.

A factual challenge denies that the court actually has subject matter

jurisdiction as a matter of fact even though the complaint alleges facts

tending to show jurisdiction. It controverts the complaint’s factual

allegations regarding jurisdiction, and puts at issue the sufficiency of the

evidence to prove facts that would bring the case within the court’s subject

matter jurisdiction. A factual challenge to subject matter jurisdiction creates

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“genuine issues as to material fact,” but it does not require the court to

convert the motion into one for summary judgment. Instead, the court must

resolve these factual issues, at least preliminarily. The court must

“determine whether the evidence in favor of finding jurisdiction is

sufficient to allow the case to proceed.”

In assessing factual challenges to subject matter jurisdiction at the motion

to dismiss stage, a court must keep in mind that the plaintiff bears the

ultimate burden of proving facts establishing the court’s jurisdiction over

the case. If a defendant has filed affidavits or other competent evidentiary

materials challenging the plaintiff’s jurisdictional allegations, the plaintiff

may not rely on the allegations of the complaint alone but instead must

present evidence by affidavit or otherwise that makes out a prima facie

showing of facts establishing jurisdiction. The trial court will “take as true

the allegations of the nonmoving party and resolve all factual disputes in its

favor . . . [without crediting] conclusory allegations or draw[ing] farfetched

inferences.” However, the court’s initial resolution of the factual issues

relating to jurisdiction is not final and conclusive. As the Tennessee

Supreme Court has explained, the court does “not make any finding as to

whether [the plaintiff’s] version of events is, in fact, correct. That will be

for a jury to decide if the case goes to trial.”

Id. at 543-44 (internal citations omitted).

Tenn. Code Ann. § 27-9-102 requires that a sworn petition for writ of certiorari be

filed within sixty days from the entry of the order or judgment. The time for appealing a

Planning Commission decision, as Metro correctly states in its brief, “starts running when

the minutes are signed and entered.” See McMurray Drive Area Homeowners Ass’n v.

Metro. Gov’t of Nashville & Davidson Cty., No. M2005-00616-COA-R3-CV, 2006 WL

1026428, at *5 (Tenn. Ct. App. Apr. 18, 2006).

Petitioners challenge two separate decisions of the Commission. We will discuss

each in turn.

I. THE APRIL 28, 2016 DECISION

The petition challenging the April 28, 2016 decision was dismissed as untimely

because no petition was filed within sixty days of the entry of the minutes. The minutes

were entered on May 12, 2016. The petition was not filed until December 27, 2016,

which was more than sixty days from May 12, 2016. Because the petition filed on

December 27, 2016 was untimely, the trial court correctly determined that it was without

subject matter jurisdiction to hear the appeal. See Talley v. Bd. of Prof’l Responsibility,

358 S.W.3d 185, 192 (Tenn. 2011) (discussing Tennessee Constitution, Article VI § 10);

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Bd. of Prof’l Responsibility v. Cawood, 330 S.W.3d 608, 609 (Tenn. 2010); Blair v.

Tennessee Bd. of Prob. & Parole, 246 S.W.3d 38, 40 (Tenn. Ct. App. 2007). For these

reasons, the trial court correctly determined that it did not have jurisdiction to hear the

challenge to the Commission’s April 28, 2016 decision.

II. THE OCTOBER 13, 2016 DECISION

The timeliness of Petitioner’s challenge of the October 13, 2016 decision requires

a more detailed analysis.

Tenn. Code Ann. § 27-9-101 provides that “anyone who may be aggrieved by any

final order or judgment of any board or commission functioning under the laws of this

state may have the order or judgment reviewed by the courts.” As previously stated, the

aggrieved party has sixty days from the entry of the final judgment to file a petition of

certiorari in the chancery court. Tenn. Code. Ann. § 27-9-102. The question, here, is

which Commission decision constitutes a “final order or judgment” from which

Petitioners have sixty days to appeal. Metro argues that it is the Commission’s March 24

decision approving the master development plan, and Petitioners argue that it is the

Commission’s October 13 decision approving the final site plan. We agree with Metro.

A planned unit development district (“PUD”) “is an alternative zoning process that

allows for the development of land in a well-planned and coordinated manner, providing

opportunities for more efficient utilization of land than would otherwise be permitted

by…conventional zoning provisions.” M.C.L. § 17.36.030. A PUD can be applied over

an existing zoning district, but the regulations within a PUD are set by the master

development plan. M.C.L § 17.36.040. The master development plan is a “development

concept of all land areas encompassed by a PUD district.” Id. Our courts recognize “that

a PUD district overlay is a type of ‘zoning,’ and that the preliminary master plan that

forms the basis for the approval of a PUD constitutes a set of legally enforceable

development restrictions.” Barry Const. Co., 240 S.W.3d at 851 (internal citations

omitted).

A final site plan consists “of a detailed set of construction plans” that must

demonstrate compliance with the general development concept of the master

development plan. M.C.L. § 17.36.040. A final site plan is approved if it comports with

the master development plan. M.C.L. § 17.40.170. Accordingly, this court has previously

held that approval of the final site plan is a ministerial act:

The determination of whether the Green Hills [final site] plan complied

with [the standards of the base zoning as modified by the Green Hills

Urban Design Overlay] did not call for the adoption of a new zoning

regulation or an amendment to the existing zoning laws, which would have

constituted legislative action. Neither does the rule give the Executive

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Director discretion in making such a determination; rather, the rule only

allows him/her to review the plan to see whether it complies with the

[Shopping Center Regional] zoning regulations and the Green Hills [Urban

Design Overlay].

Green Hills Neighborhood Ass’n v. Metro. Gov’t of Nashville & Davidson Cty., No.

M2014-01590-COA-R3-CV, 2015 WL 2393977, at *4 (Tenn. Ct. App. May 18, 2015).

In this case, the Forest View PUD was adopted by the Metropolitan Council in

1985. On March 24, 2016, The Ridge presented a master development plan that also

constituted a revision to the Forest View PUD. The 2016 revision decreased the number

of multi-family residential units that could be built on the property from 212 to 96. The

Commission found that the revised plan was “consistent with the overall concept of the

Council approved plan, and [was] consistent with zoning requirements.” It approved the

revised master development plan with the following conditions:

1. This approval does not include any signs. Signs in planned unit

developments must be approved by the Metro Department of Codes

Administration except in specific instances when the Metro Council

directs the Metro Planning Commission to review such signs.

2. The requirements of the Metro Fire Marshal’s Office for emergency

vehicle access and adequate water supply for fire protection must be met

prior to the issuance of any building permits.

3. If the PUD final site plan or final plat indicates that there is less acreage

than what is shown on the approved preliminary plan, the final site plan

shall be appropriately adjusted to show the actual total acreage, which

may require that the total number of dwelling units or total floor area be

reduced.

4. Prior to or with any additional development applications for this

property, the applicant shall provide the Planning Department with a

corrected copy of the preliminary PUD plan.

The Commission entered the minutes for the March 24 decision on April 14, 2016.

After The Ridge submitted construction and engineering drawings later in 2016,

providing specifications of what would be built, Metro’s planning director submitted a

report to the Commission certifying that they matched the master development plan. The

Commission approved the final site plan on October 13, 2016.

Petitioners primarily argue that the Commission did not approve a master

development plan on March 24, 2016, because the Commission placed conditions on its

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approval.4 We disagree. The conditions concerned matters outside of the plan itself; the

Commission did not require the Developer to correct or change the proposed master

development plan. Therefore, the Commission approved a master development plan on

March 24.

The Commission’s approval of the master development plan on March 24, 2016,

created legally binding, enforceable restrictions within the Forrest View PUD, and thus, it

constituted the Commission’s final judgment or order. As to the final site plan approval

on October 13, the Developer was entitled to the Commission’s approval as long as the

final site plan complied with the master development plan. In other words, the October 13

decision was not discretionary. Accordingly, the clock for challenging the Commission’s

decision started to run on April 14, 2016, when the Commission entered the minutes for

the March 24 decision. Petitioners filed their writ of certiorari on December 27, 2016,

which fell outside the sixty-day deadline. As a consequence, the trial court did not have

subject matter jurisdiction to review the decision. See Save Rural Franklin v. Williamson

Cty. Gov’t, No. M2014-02568-COA-R3-CV, 2016 WL 4523418, at *6 (Tenn. Ct. App.

Aug. 26, 2016); Talley, 358 S.W.3d at 192; Cawood, 330 S.W.3d at 609; Blair, 246

S.W.3d at 40-41.

For the foregoing reasons, the trial court correctly determined that the sixty-day

period for appeal of the site plan had lapsed. Accordingly, the trial court correctly

decided it did not have jurisdiction to review the October 13, 2016 decision.

IN CONCLUSION

The judgment of the trial court is affirmed and costs of appeal are assessed against

Petitioners, jointly and severally.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

4

Though Petitioners argue that the March 24 decision was not appealable, we note that

Petitioners did appeal that decision through a writ of certiorari filed on May 16, 2016. See Metz, 2017 WL

4677248, at *1.

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