Jack R. Owen Revocable Trust v. City of Germantown Tennessee

05/23/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 10, 2019 Session

JACK R. OWEN REVOCABLE TRUST v. CITY OF GERMANTOWN

TENNESSEE ET AL.

Appeal from the Chancery Court for Shelby County

No. CH-18-1095-1 Walter L. Evans, Judge

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No. W2018-01662-COA-R3-CV

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Appellee Germantown Planning Commission voted to change the zoning designation of

property held by Appellant trust. In response, Appellant filed a petition for common law

writ of certiorari seeking review of the Planning Commission’s decision. Appellees

moved for dismissal of Appellant’s petition for writ of certiorari under Tennessee Rule of

Civil Procedure 12.02(1). Following a hearing on Appellant’s request for temporary

injunction to halt Appellee City of Germantown from taking any action on the Planning

Commission’s recommendation for rezoning, the trial court granted Appellees’ motion to

dismiss finding that it lacked subject-matter jurisdiction because the Planning

Commission’s recommendation did not constitute a final judgment for purposes of

review under Tennessee Code Annotated Section 27-9-101. On appeal, Appellant argues

that the trial court’s adjudication of the motion to dismiss was premature because

Appellant had no opportunity to respond to the motion. Appellant also contends that the

grant of the motion to dismiss was error because, under Tennessee Code Annotated

sections 13-7-203(b) and 13-7-204, the Planning Commission’s decision was a final

approval of the rezoning as opposed to a mere recommendation. Discerning no error, we

affirm.

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

Affirmed

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Richard L. Winchester and Robin W. Webb, Memphis, Tennessee, for the appellant, Jack

R. Owen Revocable Trust.

Edward J. McKenney, Jr. and William Joseph Wyatt, Memphis, Tennessee, for the

appellees, City of Germantown, TN, and The Germantown Planning Commission.

OPINION

I. Background

Appellant Jack R. Owen Revocable Trust (the “Trust”) is the owner of a 13.65

acre parcel of real estate located in Germantown, Tennessee (the “Property”). The

Property is part of a larger 19.77 acre area (the “Triangle”). In 2007, the City of

Germantown (the “City”) and the Germantown Planning Commission (the “Planning

Commission,” and together with the City, “Appellees”) adopted a redevelopment plan for

the City’s commercial core. This plan was called the Germantown Smart Growth Plan

(“Plan”). In conjunction with the adoption of the Plan, the City developed a set of

ordinances, which it called the Germantown Smart Code (“Smart Code”). As part of the

Plan, the City assigned zoning classifications of “T5,” “T4,” or “T3” to properties located

within the “Smart Growth” areas. The Triangle, including Appellant’s Property, was

located within the “Smart Growth” area and was assigned a T4 zoning classification. The

Smart Code permits the development of mixed uses, including retail establishments,

restaurants, and residential units, within a T4 zoned area.

The Property remained a T4 zoned property until approximately January 2018. At

that time the City’s Board of Mayor and Aldermen (the “Board”) discussed rezoning the

Triangle from T4 to R, which designation would permit only the building of single family

residences on the Property. By letter dated June 6, 2018, the City Mayor, on behalf of the

Board, requested that the City and the Planning Commission rezone the Triangle from T4

to R. On June 10, 2018, the Planning Commission held a public meeting to consider the

rezoning request. The Planning Commission ultimately voted to recommend removal of

the Triangle from the “Smart Growth” area and rezoning of the Triangle to R.

On July 24, 2018, Appellant filed a petition for common law writ of certiorari and

complaint for declaratory judgment in the Shelby County Chancery Court (“trial court”).

Appellant sought review of the June 10, 2018 decision by the Planning Commission to

recommend that the Board approve an amendment to the Smart Code that would remove

the Triangle from the commercial portion of the “Smart Growth” area and rezone it for

single family residential use. Specifically, Appellant asserted that the Planning

Commission did not follow the required procedure and reached an incorrect result. As

part of Appellant’s request for relief, it asked the trial court to issue a temporary

injunction enjoining the City from proceeding with the process of rezoning the Triangle

pending review by the trial court. A hearing on Appellant’s request for temporary

injunction was set for August 9, 2018.

On August 3, 2018, Appellees filed a response to Appellant’s request for

declaratory judgment, and a motion to dismiss. Appellees moved for dismissal of

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Appellant’s petition for writ of certiorari on the ground that the trial court lacked subject

matter jurisdiction because the Planning Commission’s recommendation was not a “final

order or judgment” for purposes of review under Tennessee Code Annotated section 27-

9-101, infra. Concerning Appellant’s request for declaratory judgment, Appellees sought

dismissal on the additional ground that Appellant’s original claim for declaratory

judgment could not be joined with its petition for writ of certiorari. The trial court did

not rule on this question. Rather, on August 8, 2018, Appellant filed an amended petition

for writ of certiorari striking its complaint for declaratory judgment leaving only the

petition for writ of certiorari and request for injunctive relief.

On August 9, 2018, at the conclusion of the hearing on Appellant’s request for

temporary injunction, the trial court found that it lacked subject matter jurisdiction over

the petition for writ of certiorari because the Planning Commission’s recommendation

was not a final order or judgment. Appellant’s counsel responded that “the only thing on

the agenda today was the temporary injunction,” to which the Chancellor replied, “The

Court is of the opinion that [it] has no jurisdiction to hear the matter and because of that

fact, the Court is dismissing the action at this point.” Appellant appeals.

II. Issue

Appellant raises five issues for review; however, we perceive that there is one

dispositive issue, to-wit: Whether the trial court erred in granting Appellees’ motion to

dismiss for lack of subject matter jurisdiction

III. Standard of Review

This case was decided on grant of Appellees’ motion to dismiss. The resolution of

a Tennessee Rule of Civil Procedure 12.02 motion to dismiss is determined by an

examination of the pleadings alone. Leggett v. Duke Energy Corp., 308 S.W.3d 843,

851 (Tenn. 2010); Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696

(Tenn. 2002). A defendant who files a motion to dismiss “‘admits the truth of all of the

relevant and material allegations contained in the complaint, but . . . asserts that the

allegations fail to establish a cause of action.’” Brown v. Tenn. Title Loans, Inc., 328

S.W.3d 850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co.,

172 S.W.3d 512, 516 (Tenn. 2005)).

In considering a motion to dismiss, courts “must construe the complaint liberally,

presuming all factual allegations to be true and giving the plaintiff the benefit of all

reasonable inferences.” Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007)

(citing Trau-Med., 71 S.W.3d at 696). A trial court should grant a motion to dismiss

“only when it appears that the plaintiff can prove no set of facts in support of the claim

that would entitle the plaintiff to relief.” Crews v. Buckman Labs Int’l, Inc., 78 S.W.3d

852, 857 (Tenn. 2002); see also Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007). We

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review the trial court’s legal conclusions regarding the adequacy of the complaint de

novo with no presumption that the trial court’s decision was correct. Webb v. Nashville

Area Habitat for Humanity, Inc., 346 S.W.3d 422, 429 (Tenn. 2011).

IV. Analysis

Subject matter jurisdiction refers to a court’s “lawful authority to adjudicate a

controversy brought before it.” Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.

2000). A court’s subject matter jurisdiction is derived—“either explicitly or by necessary

implication”—from the state constitution or statute. Benson v. Herbst, 240 S.W.3d 235,

239 (Tenn. Ct. App. 2007). The existence of subject matter jurisdiction depends on “the

nature of the cause of action and the relief sought.” Landers v. Jones, 872 S.W.2d 674,

675 (Tenn. 1994). If subject matter jurisdiction is lacking, the court must dismiss the

case. Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999).

Whether a court lacks subject matter jurisdiction presents a question of law, which we

review de novo. Chapman v. DaVita, Inc., 380 S.W.3d 710, 712–13 (Tenn. 2012).

Appellant first contends that the trial court’s grant of Appellees’ motion to dismiss

for lack of subject matter jurisdiction was premature. Specifically, Appellant’s brief

states that Appellees’ “written motion to dismiss was granted by the court with no setting,

notice of setting, or opportunity of counsel to brief and argue [Appellant’s] legal

position.” In support of its position, Appellant cites Tennessee Rule of Civil Procedure

6.04, which requires that “[a] written motion, other than one which may be heard ex

parte, and notice of the hearing thereof shall be served not later than five days before the

time specified for the hearing.” Tenn. R. Civ. P. 6.04(1). “Opposing affidavits may be

served not later than one day before the hearing . . . .” Tenn. R. Civ. P. 6.04(2).

Appellant also cites Rule 10.01(i) of the local Rules of the Chancery Court of Shelby

County, which provides, in relevant part, that

[a]ll motions . . . to dismiss shall be filed at least thirty (30) days before

hearing of same . . . attorneys for the respondent shall deliver copies of

memorandum briefs to the Court . . . at least ten days prior to the hearing of

the motion. No motion shall be heard unless there is compliance with this

rule.

The sole ground for Appellees’ motion to dismiss Appellant’s petition for writ of

certiorari (which was the only cause of action left after Appellant filed its amended

petition, see supra) was that the trial court lacked subject matter jurisdiction over the

case. Tenn. R. Civ. P. 12.02(1). Appellant’s argument fails to acknowledge that the

issue of subject matter jurisdiction may be raised at any time during the proceedings, by

the parties or by the court. McQuade v. McQuade, No. M2010-00069-COA-R3-CV,

2010 WL 4940386, at *4 (Tenn. Ct. App. Nov. 30, 2010). “A court may raise the issue

of subject-matter jurisdiction sua sponte, even where no party objects.” Wilken v.

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Wilken, No. W2012-00989-COA-R3-CV, 2012 WL 6727197, *11 (Tenn. Ct. App. Dec.

27, 2012) (citing Ruff v. State, 978 S.W.2d 95, 98 (Tenn. 1998); McQuade, 2010 WL

4940386, at *4; In re Estate of Boykin, 295 S.W.3d 632, 635 (Tenn. Ct. App. 2008);

Tenn. R. App. P. 13(b)). Not only must a court determine its subject matter jurisdiction,

but “[a] trial court must [also] dismiss an action whenever it appears that it lacks

jurisdiction of the subject matter.” Tenn. R. Civ. P. 12.08 (“[W]henever it appears by

suggestion of the parties or otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.”). As explained by the Tennessee Supreme

Court:

Because the orders and judgments entered by courts without jurisdiction

over the subject matter of a dispute are void, Brown v. Brown, 198 Tenn. at

610, 281 S.W.2d at 497, issues regarding a court’s subject matter

jurisdiction should be considered as a threshold inquiry, Redwing v.

Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn.

2012), and should be resolved at the earliest possible opportunity.

In re Estate of Trigg, 368 S.W3d 483, 489 (Tenn. 2012) (emphases added). Here, the

trial court was initially asked to grant injunctive relief, which was the subject of the

August 9, 2018 hearing. In the absence of subject matter jurisdiction, the trial court

would not have had the authority to grant the requested relief. As such, whether the trial

court was acting on Appellees’ Tenn. R. Civ. P. 12.02(1) motion, or was acting sua

sponte, it was correct to make a jurisdictional determination as a “threshold inquiry” prior

to granting or denying Appellant any relief. Accordingly, the timing of the trial court’s

ruling is not reversible error.

Concerning the substantive finding of lack of subject matter jurisdiction, as noted

above, a court’s subject matter jurisdiction is derived—“either explicitly or by necessary

implication”—from the state constitution or statute. Benson v. Herbst, 240 S.W.3d 235,

239 (Tenn. Ct. App. 2007). Tennessee Code Annotated section 27-9-101 is the

applicable statute in this case and provides, in relevant part, that

[a]nyone 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 . . . .

(Emphasis added). Concerning section 27-9-101’s use of the words “final order or

judgment,” this Court has explained:

The language “final order or judgment” in Tenn. Code Ann. § 27-9-101

must also be construed in the context of Tenn. Code Ann. § 27-8-101,

which creates another requirement for the writ, by providing that,

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The writ of certiorari may be granted whenever authorized by

law, and also in all cases where an inferior tribunal, board, or

officer exercising judicial functions has exceeded the

jurisdiction conferred, or is acting illegally, when, in the

judgment of the court, there is no other plain, speedy, or

adequate remedy. (emphasis added ).

The requirement that, to be subject to review by the common law writ of

certiorari, a board’s decision must be the result of its exercise of judicial

functions explains the use of the words “order” and “judgment” in Tenn.

Code Ann. § 27-9-101 . . . . Those terms are, of course, generally used to

describe actions by courts.

Walker v. Metro Bd. of Parks & Rec., No. 2007-01701-COA-R3-CV, 2009 WL

5178435, *9 (Tenn. Ct. App. Dec. 30, 2009), perm. app. denied (Tenn. June 30, 2010). A

decision or action by a board or commission that is not final is “not subject to judicial

review under the common law writ of certiorari.” Id. (citing State Dep’t. of Commerce

v. FirstTrust Money Servs., 931 S.W.2d 226, 228–29 (Tenn. Ct. App. 1996)). Rather,

such decisions or actions are merely advisory in nature. Id. Accordingly, the question of

the trial court’s jurisdiction over the subject matter of this case rests on a determination of

whether the Planning Commission’s action constitutes a “final order or judgment,” or

whether its recommendation was interlocutory in the sense that it required further action

on the part of the City’s Board of Mayor and Aldermen. Tenn. Code Ann. § 27-9-101.

The role of the Planning Commission in rezoning is set out at Tennessee Code

Annotated sections 13-7-203(b) and 13-7-204. Section 13-7-203(b) provides:

No change in or departure from the text or maps as certified by the planning

commission shall be made, unless such change or departure be first

submitted to the planning commission and approved by it, or, if

disapproved, shall receive the favorable vote of a majority of the entire

membership of the chief legislative body.

Tennessee Code Annotated section 13-7-204 provides:

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.

It is undisputed that the rezoning of the Triangle did not take place as a direct

result of the June 10, 2018 decision of the Planning Commission. Rather, as discussed

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above, the Planning Commission merely recommended that the Board enact the proposed

ordinance removing the Triangle from the commercial portion of the Smart Growth Plan

and returning it to its previous single family residential zoning classification.

Nonetheless, on appeal, Appellant argues that the Planning Commission’s decision to

recommend such action was “final” because it established that the rezoning could be

accomplished by a majority of the quorum of the Board, who were present at the meeting

when the final vote was taken, as opposed to the majority of the entire Board, which

would be required if the Commission had recommended that the Board not enact the

proposed ordinance. In furtherance of its argument, Appellant cites the case of Depot

Property, LLC v. Town of Arlington, No. W2010-01448-COA-R3-CV, 2011 WL

334472 (Tenn. Ct. App. Jan. 31, 2011), for the proposition that “the result of a rezoning

application was decided, in essence, not by the Board of Mayor and Aldermen, but rather,

by the action of the Planning Commission.” Respectfully, Appellant misconstrues the

holding in Depot.

In Depot, the planning commission recommended that the board of mayor and

aldermen deny plaintiff’s application to rezone his property. 2011 WL 334472, at *5. At

the board of mayor and aldermen meeting, plaintiff’s application received three favorable

votes and two unfavorable votes, with two members of the seven-person board recusing

themselves. Id. at *7. The town attorney advised the board that because the commission

recommended denial of plaintiff’s application, under Tennessee Code Annotated section

13-7-204 (supra), for plaintiff’s application to pass, it needed a favorable vote by a

majority of the entire seven-person board. Id. at *8. Because the plaintiff’s application

received only three favorable votes, it failed. Id.

Plaintiff then filed a petition for common law writ of certiorari asking the Shelby

County Chancery Court to approve the rezoning application based on the favorable vote

of the majority of board members who participated in the meeting where the application

was heard. Id. at *1. Plaintiff argued that that his application had, in fact, received a

majority vote of the board because, pursuant to Tennessee Code Annotated section 12-4-

101(c)(3)(B), the votes of the abstaining members “shall not be counted for purpose of

determining a majority vote.” Id. at *12. The trial court granted the writ and deemed the

rezoning application approved. Id. at *1. On appeal, this Court reversed the trial court.

The Depot Court held that Tennessee Code Annotated sections 13-7-203(b) and

13-7-204 are specific statutes and, as such, control the case. Id. at *7. As set out above,

these statutes identify the Planning Commission’s role in rezoning actions and specify the

number of votes required by the board based on whether the Planning Commission

recommends approval or denial of the rezoning. Contrary to Appellant’s argument, the

Depot Court did not hold that the planning commission’s action under these statutes

constitutes a final order or judgment for purposes of a section 27-9-101 appeal under a

common law writ of certiorari. Rather, the Depot Court treated the case as one of

statutory construction, i.e., how many board member votes are required, under sections

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13-7-203(b) and 13-7-204, for approval of a zoning application following an unfavorable

recommendation by the planning commission. In fact, the Depot Court discussed, in

detail, the separate role of the planning commission in zoning decisions, to-wit:

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 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

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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, 218 Tenn. 239, 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”).

Depot, 2011 WL 334472, at * 7. Contrary to Appellant’s argument, Depot stands for the

proposition that there is a clear “division of power” between the Planning Commission

and the local legislative body (here, the City’s Board of Mayor and Aldermen). Id.

Concerning zoning designations, the role of the Planning Commission involves planning

and making recommendation to the local legislative body. Tenn. Code Ann. §§ 13-7-

203(b) and 13-7-204. However, the Planning Commission has no authority concerning

final approval of the zoning classification. While the Planning Commission’s

recommendation informs the number of votes required for final approval of a zoning

application, the final decision is left to the legislative body. As noted above, “[l]ocal

legislative bodies may enact zoning plans recommended by planning commissions, but

they are not obligated to.” Id. (citation omitted) (emphases added). However, where a

planning commission’s recommendation requires further action by a legislative body, it is

not a final order or judgment. See Walker v. Metro Bd. of Parks & Rec., 2009 WL

5178435, at *10 (“The Parks Board’s recommendation was not final in that it was not the

decisive governmental act authorizing or taking any specific action.”).

The facts and legal issues presented in the instant appeal are very similar to those

presented in Historic Sylvan Park, Inc., et al. v. Metropolitan Government of Nashville,

Davidson County, Tennessee, et al., No. M2014-02254-COA-R3-CV, 2015 WL

5719771 (Tenn. Ct. App. Sept 29, 2015). In Sylvan Park, the Metropolitan Planning

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Commission recommended that the Metropolitan Council not approve an ordinance that

would expand the historic conservative overlay district of the Sylvan Park neighborhood

in Nashville. 2015 WL 5719771, at *1. Residents of the neighborhood filed a petition

for common law writ of certiorari under Tennessee Code Annotated section 27-9-101

seeking review of the planning commission’s recommendation. Id. The planning

commission moved for dismissal on the ground that its decision “was only a

recommendation and not a ‘final order’ from which an appeal may be taken with a writ of

certiorari.” Id. The trial court granted the motion finding that it lacked subject matter

jurisdiction because the planning commission’s recommendation was not a final order as

required under section 27-9-101. Id. at *3.

On appeal to this Court, the residents argued that the planning commission’s

recommendation that the council deny the proposed amendment to the neighborhood’s

historic overlay triggered a requirement, under the Metropolitan Code, that upon

disapproval by the planning commission, no zoning change could become effective

“unless it shall be adopted by a two-thirds majority of the whole membership of the

council and also then be approved by the metropolitan mayor, with a three-fourths

majority of the whole membership of the council required to override a veto.” Sylvan

Park, 2015 WL 5719771, at *2. Like the Appellant here, the residents in Sylvan Park

argued that “because there is no mechanism by which to appeal the two-thirds voting

requirement, the [p]lanning [c]ommission’s decision ‘is a final order, subject to review by

certiorari.’” Id. at *3. This Court disagreed explaining that “[i]n light of the specific role

assigned to the [p]lanning [c]ommission, and because, as set forth in Metropolitan

Charter § 18.02, further action by the Council is needed in order for the proposed

ordinance to be enacted, the [p]lanning [c]ommission’s recommendation cannot be

considered ‘a final order or judgment.’” Id. Accordingly, the Sylvan Park Court held

that “[b]ecause the recommendation by the [p]lanning [c]ommission was not a final

order, the trial court did not have authority to review the [p]lanning [c]ommission’s

decision by certiorari, and it properly dismissed the petition for lack of subject matter

jurisdiction.” Id. In view of its holding that the planning commission’s recommendation

was not a final order, the Sylvan Park Court pretermitted appellants’ argument that the

planning commission’s “vote was ‘arbitrary, capricious, unreasonable, illegal, and

exceeded its jurisdiction;’ that it violated due process, the law of the land, and Tenn.

Code Ann. § 13-4-304; and that it ‘lacked substantial and material evidence’” Id. We

conclude that the holding in Sylvan Park is controlling in this case. As in Sylvan Park,

here, the Planning Commission’s recommendation does not constitute a final order or

judgment so as to confer subject matter jurisdiction on the trial court under section 27-9-

101. Rather, the Planning Commission’s action is interlocutory in the sense that the

Planning Commission has no authority to actually order the rezoning. The power to

make a final decision concerning the rezoning of the Appellant’s Property rests with the

Board. As such, we conclude that the trial court did not err in dismissing Appellant’s

petition for writ of certiorari for lack of subject matter jurisdiction.

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V. Conclusion

For the foregoing reasons, we affirm the trial court’s order dismissing Appellant’s

petition for writ of certiorari. Costs of the appeal are assessed to the Appellant, Jack R.

Owen Revocable Trust, for all of which execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

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