Opposition Brief — Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City

Office-Supreme Court, U.S.

BILLED

AUG 1 1994

No. 84-4 ALEXANDER L. STEVAS,

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1984

WILLIAMSON COUNTY

REGIONAL PLANNING CoMMISSION, Et Al.,

Petitioners,

.

HAMILTON BANK OF JOHNSON CITY,

Respondent.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Sixth Circuit

BRIEF FOR RESPONDENT

HAMILTON BANK OF JOHNSON CITY

IN OPPOSITION TO PETITION

G. T. NEBEL

Bass, BERRY & SIMS

2700 First American Center

Nashville, Tennessee 37238

(615) 244-5370

Dated: August 1, 1984

A OE EE SY EE STE IELTS, ET TE

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

BEST AVAILABLE COPY

i

QUESTIONS PRESENTED

Respondent denies that the “Questions Presented” are

as stated by Petitioner. Rather, Respondent asserts that

the single proper question presented is as follows:

Did the court of appeals correctly rule that the appli-

cation of zoning regulations by the Defendant Plan-

ning Commission, which divested Plaintiff's proper-

ty of any economically viable use, constituted a “tak-

ing” for which the Defendant must provide just com-

pensation.

‘i

OTHER PARTIES NOT LISTED IN THE CAPTION

WILBURN H. KELLEY, JR.,

County Judge

MITCHEL BEARD,

Planning Commission Member

ROBERT MEDAUGH,

Planning Commission Member

JACK MEAGHER,

Planning Commission Member

JOE BAUGH,

Planning Commission Member

CAROLYN WATERS,

Planning Commission Member

KENNETH MCNEIL,

Planning Commission Member

CHARLES MOSLEY,

Planning Commission Member

MORTON STEIN,

County Planner

THAYER MARTIN,

County Engineer

Hamilton Bank of Johnson City became a wholly-

owned subsidiary of Third National Corporation on De-

cember 1, 1982, and on September 20, 1983, formally

changed its name to Hamilton Bank of Upper East Ten-

nessee. Other subsidiaries of Third National Corporation

are: Third National Bank of Nashville; American Nation-

al Bank and Trust Company of Chattanooga; Third Na-

tional Bank in Anderson County; Merchants Bank; The

First National Bank of Lawrenceburg; The Union Bank;

Third National Bank in Sevier County; Citizens Bank;

Bank of Obion County; First National Bank of Rutherford

County; Third National Mortgage Company; Third Lease

Corvoration; Third National Life Insurance Company.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............ccceccceccceccees j

OTHER PARTIES Not LISTED IN THE CAPTION ......... ii

TABLE OF AUTHORITIES ...........00cee cee eece cece iv

OPINIONS BELOW ...... ccc ccc cc ccccccccccccccccece 2

ee edn eee asebes seeenseneeese 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE .........cccccceccccececes 2

1. Factual Backe@round .........cccccccccccccccces 2

2. Proceedings Below ................0 ce cee ee eee 3

REASONS FOR DENIAL OF THE WRIT 5

1. No Conflict With Prior Decisions Of This Court .. 5

2. No Conflict With Other Courts Of Appeals Deci-

NE OEM eh, he aed he hbNs Obeee 8608 7

3. Respondent’s Right To Develop The Property Was

Properly And Thoroughiy Considered Below .... 10

in eee cdbes bbs DaUNGK Ere CeeNeneesenseos 12

The following abbreviations are used in this brief: “Tr.” (trial trans-

cript); “Ex” (trial exhibit).

iv

TABLE OF AUTHORITIES

CASES: Page

Agins v. City of Tiburon, 447 U.S. 255 (1980) ....... 5, 11

Barbian v. Panagis, 694 F.2d 476 (7th Cir. 1982) .... 8

Citadel Corp. v. Puerto Rico Highway Authority, 695

F.2d 31 (1st Cir. 1982), cert. denied., 104 S. Ct. 72

GED ncichadebinhonecebsubGnk66e0nseersenenees 9, 10

Devines v. Maier, 665 F.2d 138 (7th Cir. 1981) ....... 7

Frazier v. Lowndes County, Miss., Board of Education,

710 F.2d 1097 (5th Cir. 1983) ............ 2c eee

Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.

1981), appeal dismissed, 455 U.S. 901 (1982), aff'd

after remand, 699 F.2d 734 (1983) ........-+-+-. 8,9

Hodel v. Virginia Surface Mining and Reclamation As-

sociation, Inc., 452 U.S. 264 (1981) ...........-. 7

Kaiser Aetna v. United States, 444 U.S. 164 (1979)... 12

Kimball Laundry Co. v. United States, 338 U.S. 1

SED occcukdacdebsncenscutebbesasssstvecsones 5, 6

Loretto v. Teleprompter Manhattan CATV Corp., 468

is & 7: peer i2

Martino v. Santa Clara Valley Water District, 703 F.2d

1141 (9th Cir.), cert. denied., 104 S. Ct. 151 (1983)

8

Nectow v. Cambridge, 277 U.S. 183 (1928) ..........- 5

Parratt v. Taylor, 451 U.S. 527 (1981) .......-.----- 7

Penn Central Transp. Co. v. New York City, 488 U.S. _

DRED ccckeccececcesssechennsnsnnctnecease 5, 6

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

EE csi cn bekes dbacussdeceueeethesseerekentss 5, 6

San + « Gas & Electric Co. v. City ef San Diego, 450

ig | | errr 5, 6, 7, 8

United Staies v. General Motors Corp., 323 U.S. 37

SED ond cdecn cudcdatnessvesbetseusndewneeens

5

United States v. Petty Motor Co., 327 U.S. 372 (1946) 5

CONSTITUTIONAL PROVISIONS:

U.S. Const. Amend. 5 ........ 1, 2, 3, 4, 6, 7, 8, 9, 10, 12

STATUTORY PROVISIONS:

Oe BO ig icc dackccdwdascauess sdeueuedeus 2,3

{N THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-4

WILLIAMSON COUNTY

REGIONAL PLANNING ComMIssION, Et Al.,

Petitioners,

We

HAMILTON BANK OF JOHNSON CITY,

Respondent.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Sixth Circuit

BRIEF FOR RESPONDENT

HAMILTON BANK OF JOHNSON CITY

IN OPPOSITION TO PETITION

Respondent, Hamilton Bank of Johnson City (hereinaf-

ter referred to as “Hamilton”) respectfully submits that

the Court should deny Williamson County Regional Plan-

ning Commission’s (hereinafter referred to as “the Plan-

ning Commission”) Petition for a Writ of Certiorari seek-

ing review of a decision rendered by the Sixth Circuit.

The Sixth Circuit decision reversed the district court's

grant of a judgment notwithstanding the verdict in this

Fifth Amendment case brought by Hamilton seeking

compensation for the taking of its property.

2

OPINIONS BELOW

The opinions of the United States Court of Appeals for

the Sixth Circuit and the United States District Court for

the Middle District of Tennessee are set forth in the

Appendix to the Petition.

JURISDICTION

Hamilton does not question the jurisdiction of this

Court.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment to the United States Constitu-

tion and United States Code, Title 42, Section 1983 are

correctly set forth in the Petition.

STATEMENT OF THE CASE

1. Factual Background

Hamilton is the owner of approximately 250 acres lc.

cated in the Northern portion of Williamson County. (Ex.

9850, 9851). Prior to 1973, the property was owned by

Willie Temple, who farmed the property. (Tr. 322).

Several individuals were interested in deveioping the

property for residential purposes and applied to the Wil-

liamson County Commission to have the Temple land

rezoned from agricultural to residential cluster. (Tr. 322).

In 1973, the Planning Commission changed its zoning

ordinances to permit residential cluster development®

(Tr. 322).

The Planning Commission originally approved the de-

velopment plan for Temple Hills County Club Estates

(hereinafter referred to as “Temple Hills”) in 1973. (Ex.

01009, 01012, 01013, 01014). Between 1973 and 1979, the

plan for the development of Tempie Hills was reapproved

Pm mn

3

on a number of occasions under the original regulations

that were in effect in 1973 at the time of the original

approval, even though newer, tougher regulations had

been inacted at various times between 1973 and 1979.

(Ex. 9701, 9079, 01014, 01016, 0106A, 01022, 01932, 01056

and 01057: Tr. 1003, 142-51, 176-77). Between 1973 and

1979, the developer spent Three to Five Million Dollars

on improvements to the property in reliance on the Plan-

ning Commission’s approval. (Tr. 345, 115).

In 1979, for the first time, the Planning Commission

attempted to change the rules of development in the

middle of the game and retroactively applied new sub-

division regulations and zoning ordinances to the Temple

Hills project. (Ex. 9035, 01073; Tr. 149-51, 364).

The imposition of the regulations on the Temple Hills

project made it impossible to complete. (Tr. 1721). The

Planning Commission twice disapproved plans for devel-

opment of the property under the new regulations. (Tr.

105-07). As a result, the property had no measurable

economic value and Hamilton was accordingly divested of

any economically viable use of the property. (Tr. 680-81,

716-17).

2. Proceedings Below

Hamilton brought this action against the Planning

Commission in the United States District Court for the

Middle District of Tennessee pursuant to the provisions

of 42 U.S.C. § 1983 and § 1985. Hamilton contended that

the actions of Defendants constituted a viclaticn of its

Federal Const{tutiona! Rights under the Just Compensa-

tion Clause of the Fifth Amendment, and the equal

protection and due process clauses under the Fourteenth

Amendment. Hamilton also alleged various state court

claims, including an allegation that Defendants were

estopped from retroactively applying new subdivision

4

regulations and zoning ordinances to the Temple Hills

project.

At the close of all of the evidence, the district court

granted Defendants’ motion for directed verdict on the

substantive due process and equal protection claims. The

case was then submitted to the jury on the remaining

issues of procedural due process, taking without just

compensation, and estoppel. In answer to special in-

terrogatories, the jury found against Hamilton and in

favor of Defendants on the issue of procedural due proc-

ess. In addition, the jury returned a verdict that Hamil-

ton had been denied economically viable use of its proper-

ty in violation of the just compensation clause of the Fifth

Amendment. The jury also found that Defendants were

estopped under state law from requiring Hamilton to

comply with the present zoning regulations as opposed to

the 1973 zoning regulations. The jury assessed damages

in the amount of $350,000 for the temporary taking of

Plaintiffs property.

The Defendants subsequently filed a motion for judg-

ment notwithstanding the verdict. The court granted the

motion in part and denied it in part. The court allowed the

jury verdict of estoppel to stand and issued a judgment of

permanent injunction enjoining Defendants from requir-

ing Hamilton to comply with present regulations rather

than the 1973 regulations. In granting the Defendants’

motion for judgment notwithstanding the verdict in part,

the court held that judgment on the taking issue would be

inconsistent with the jury’s finding that the Defendants

were estopped from applying current regulations. As a

result, the Plaintiff lost its jury verdict for damages in the

amount of $350,000.

Plaintiff then appealed the district court’s judgment

notwithstanding the verdict to the Sixth Circuit Court of

a ET te

5) €

Appeals. The court of appeals reversed the judgment of

the district court holding that there existed sufficient

evidence that the Plaining Commission lad effected a

temporary taking of Hamiltun’s property for which dam-

ages were correctly awarded. 729 F.2d 402 (6th Cir.

1984).

REASONS FOR DENIAL OF THE WRIT

1. No Conflict With Prior Decisions Of This Court.

This Court clearly established in Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393 (1922), that governmental

regulations affecting an owner’s use of his property may

constitute a taking. In Pennsylvania Coal, Justice

Holmes maintained that “if regulation goes too far, it will

be recognized as a taking.” 260 U.S. at 415. Moreover, the

taking clause was explicitly held applicable to zoning

regulations in Agins v. City of Tiburon, 447 U.S. 255

(1980), when this Court stated:

“The application of a oo zoning law to particular

property effects a taking if the ordinance does not

substantially advance legitimate state interests, see

Nectow v. Cambridge, 277 U.S. 183, 188, 72 L. Ed.

842, 48S. Ct. 447 (1928), or denies an owner economi-

cally viable use of his land, see Penn Central tena

Co. v. New York City, 438 U.S. 104, 138 n. 36, &7 L.

Ed.2d 631, 98 S. Ct. 2646 (1978).” 447 U.S. at 260.

This Court has also recognized that a taking need not be

permanent, but that a temporary deprivation of property

can constitute a taking for which damages are an appro-

priate remedy. Kimball Laundry Co. v. United States,

338 U.S. 1 (1949); United States v. Petty Motor Co., 327

U.S. 372 (1946); United States v. General Motors Corp.,

323 U.S. 373 (1945).

Accordingly, this Court’s recent decision in San Diego

Gas & Electric Co. v. City of San Diego, 450 U.S. 621

6

(1981), is in keeping with a long line of authority when it

clearly indicates that a zoning regulation can effect a Fifth

Amendment taking. The Petitioners argue that the court

of appeals placed too much emphasis on ‘he opinions of

Justices Brennan and Rehnquist in San Diego Gas. But

when one analyzes Kimball and the other cases cited by

the court of appeals, it is clear thet Justice Brennan's

opinion is not the thin reed Petitioner argues it to be. The

majority of this Court in San Diego Gas held the case

nenjusticiable for lack of a final order. There is no evi-

dence that they disagreed with the substantive law as

stated by Justice Brennan. To the contrary, Justice

Blackmun, the author of the majority opinion, himself

acknowledged that the taking argument should not “be

cast aside lightly.” 450 U.S. at 633. This strongly in-

dicates that Justice Blackmun saw at least some merit in

the substantive contentions of San Diego Gas. Even more

important is the fact that Justice Rehnquist, who filed a

concurring opinion in the technical holding of the case,

stated that he would agree “with muen of what is said in

the dissenting opinion of Justice Brennan.” 450 U.S. at

633-34. Combining Justice Rehnquist with the four dis-

senters alone would constitute a majority of this Court.

Moreover, the views expressed in Justice Brennan’s

opinion were a logical extension of earlier decisions of this

Court. Justice Brennan was unequivocal that a city’s

exercise of its police power through promulgation of ; on-

ing regulations can constitute a “taking” within the mean-

ing of the Fifth Amendment, citing a long line of decisions

of this Court recognizing this principal. 450 U.S. at 647-

48. Justice Brennan asserted that each decision had as its

source the opinion of Justice Holmes in Pennsylvania

Coal and noted that this entire court had implicitly recog-

nized this principal in Penn Central Transp. Co. v. New

York City, 438 U.S. 104 (1978), when it analyzed whether

7

the restrictions on the plaintiff's property imposed by a

New York City ordinance effected a “taking” within the

meaning of the Fifth Amendment. 450 U.S. at 648-49.

Furthermore, Justice Brennan’s dissent was based on

sound policy considerations. Part of that polic;’, as J ustice

Brennan observes in a footnote to his opinion, is that

damages must be awarded for temporary taking through

overregulation because injunctive or declaratory relief

would “hardly” prevent the enactment of suhsequent un-

constitutional regulations by the government entity. 450

U.S. at 655 n. 22.

Finally, it is important to note that Justice Brennan's

dissent in San Diego Gas has subsequently been cited

with approval by Justice Powell on at least two occasions.

See, Hodel v. Virginia Surface Mining and Reclamation

Association, Inc., 452 U.S. 264 (1981); Parratt v. Taylor,

451 U.S. 527 (1981).

Accordingly, the court of appeals correctly applied a ©

long line of this Court’s decisions in ruling that there was

sufficient evidence upon which the jury could find that

Hamilton had been denied any economically viable use of

its property by the Planning Commission’s application of

its zoning ordinances.

2. No Conflict With Other Courts Of Appeals Decisions.

A number of Circuit Courts of Appeal have been quick

to join the Sixth Cireuit in embracing the view of J ustice

Brennan in San Diego Gas. For example, recent decisions

of the Seventh Circuit have applied the reasoning

adopted by the Sixth Circuit in the instant case. In De-

vines v. Maier, 665 F.2d 138 (7th Cir. 1981), tenants who

had been evicted from substandard housing by a city

sought compensation under state law and the Fifth and

Fourteenth Amendments to the United States Constitu-

8

tion. Senior Circuit Judge for the Sixth Circuit John

Peck, sitting by designation, examined the plaintiffs’

claims and held that the eviction was a “taking” entitling

the tenants to just compensation under the Fifth Amend-

ment. In concluding that the district court had erred in

finding that the housing code regulations did not con-

stitute a regulatory taking, Judge Peck cited Justice

Brennan’s dissent in San Diego Gas for the proposition

that public takings of private property may occur as the

result of regulations which were intended only to promote

public health, safety or morals. 665 F.2d at 142. Judge

Peck also explicitly pointed out that Justice Brennan's

dissent expressed the view of at least five members of this

Court as to the merits of the case in San Diego Gas. Id.

The Seventh Circuit reiterated this view in Parbian v.

Panagis, 694 F.2d 476, 482 n. 5 (7th Cir. 1982), when it

stated that the dissent in San Diego Gas “reflects the

view of a majority of the Court.”

Similarly, the courts in the Ninth Circuit adhere to the

reasoning employed by the Sixth Circuit in the instant

case. In Martino v. Santa Clara Valley Water District,

703 F.2d 1141 (9th Cir), cert. denied, 104 S. Ct. 151

(1983), plaintiffs, who nad been precluded from develop-

ing their property by ordinances enacted by defendants,

sought compensation under the Fifth Amendment. In

reversing the district court’s grant of summary judgment

‘for defendants, the Ninth Circuit expressed the view that

damages are an appropriate remedy for a temporary

taking resulting from overregulation, noting that it

agreed with the views expressed by “a majority of the

Court” in San Diego Gas. 703 F.2d at 1148.

In addition, the Fifth Court adopted this same reason-

ing in Hernandez v. City of Lafayette, 643 F.2d 1188 (5th

Cir. 1981), appeal dismissed, 455 U.S. 901 (1982), aff'd

9

after remand, 699 F.2d 734 (1983). In Hernandez, the

plaintiff was denied a zoning reclassification for his prop-

erty when the city legislators realized that such a rezon-

ing would increase the cost of obtaining a right-of-way

easement across the plaintiffs land. Agreeing with the

plaintiff's contention that the City’s current zoning

ciassification as unconstitutional, the court declared:

“(I]t is well established that the application of a general

zoning law to particular property will effect a ‘taking’ of

that property under the just compensation clause of the

Fifth Amendment if the ordinance denies the owner an

economically viable use of his land.” 643 F.2d at 1197.

Accordingly, the court refused to grant the City immun-

ity for damages resulting from the uncompensated tak-

ing. Id.

Petitioner’s reliance on the Fifth Circuit opinion in

Frazier v. Lowndes County, Miss., Board of Education,

710 F.2d 1097 (Sth Cir. 1983), is misplaced. The court in

Frazier did not address the issue of an appropriate reme-

dy for a Fifth Amendment taking; it merely found that the

plaintiffs’ use of their property had not been aeprived.

Frazier involved an attempt by the defendant school

board to increase the amount of rent to be paid by plaintiff

lessees. In a brief discussion of the Fifth Amendment

issue, the court ruled that the actions of the school board

had not sufficiently deprived plaintiffs of their property

interest to constitute a “taking.” Thus, Hernandez, not

Frazier, clearly reflects the Fifth Circuit’s view that the

awarding of damages is appropriate for a “taking” of

property as a result of overregulation.

Finally, the First Circuit’s opinion in Citadel Corp. v.

Puerto Rico Highway Authority, 695 F.2d 31 (1st Cir.

1982), cert. denied., 104 S. Ct. 72 (1983), does not neces-

sarily conflict with the Sixth Circuit’s opinion in the in-

10

S$tant case. in Citadel, governmental agencies had

“frozen” development on plaintiffs property while plan-

ning to ultimately condemn it in order to build a highway.

In refusing to award damages, the court seemed to be

most influenced by the fact that the offending gov-

ernmental agency was a “state” within the meaning of the

Eleventh Amendment and was thus immune from a claim

for damages in a federal action. 695 F.2d at 34. In the

instant case, the trial court determined that the Defend-

ants were not cloaked with Eleventh Amendment im-

munity because they were neither the state nor agents of

the state. (Order dated December 18, 1981, set forth in

Appendix). The Defendants have not appealed from that

order. Because Citadel involved an agency immune from

damages under the Eleventh amendment, the court’s

other statements regarding damages for temporary tak-

ings are merely dicta.

3. Respondent’s Right To Develop The Property Was Proper-

ly And Thoroughly Considered Below.

Petitioner persists in asserting that Hamilton cannot

claim an unconstitutional temporary taking under the

Fifth Amendment because the developer never previous-

ly submitted nor had approved a plat that complied with

either the 1973 zoning ordinance or the 1977 and 1979

amended zoning ordinances.

As the record clearly indicates and as the court of

appeals noted, the plat submitted by the developer was

approved and reapproved on a number of occasions be-

tween 1973 and 1979. Actually, the Petitioner’s argument

is that the developer never submitted a plat that was in

compliance with the applicable zoning ordinances as in-

terpreted by the post-1979 Planning Commission. The

court of appeals correctly observed that “(t]he plat was

apparently in compliance under one interpretation of the

i EE ee Te ee ee

11

zoning regulations, but not under an alternate interpreta-

tion.” 729 F.2d at 403.

Furthermore, as pointed out by the court of appeals,

this Court’s opinion in Agins v. City of Tiburon, 447 U.S.

255 (1980), does not require a contrary result. In Agins,

the plaintiffs argued that the “enactment” of the zoning

ordinances which restricted plaintiffs’ use of their proper-

ty constituted a “taking.” The plaintiffs, however, never

submitted a development plan requiring the ordinances

to be applied to them. This Court concluded that for a

taking to occur the plaintiffs in Agins would be required

to submit a development plan. Hamilton, on the other

hand, submitted a plan which was disapproved for

reasons that imply a disapproval of any plan which would

allow Hamilton to develop the property for an economi-

cally viable use.

Moreover, as stated by the court of appeals, the Peti-

tioner’s argument that the plat never complied with the

applicable zoning ordinances is inconsistent with the

jury’s findings regarding the state law estuppel claim.

Since there was material evidence from which the jury

could find that the developer had received previous ap-

provals by the Planning Commission and since the state

law estoppel verdict by necessity means that the jury

found that the developer had obtained prior approval,

then the Petitioner’s argument that the plat was never in

compliance with the 1973 zoning ordinance must fail.

The Petitioner also contends that the court of appeals

incorrectly upheld the sufficiency of the evidence that

Hamilton’s property retained no economicaliy viable use

after the Planning Commission’s application of its ordi-

nances. Petitioner’s contention is unfounded, however,

because the evidence overwhelmingly shows that Hamil-

ton’s property was rendered useless by the actions of the

Planning Commission.

12

Whether property has been divested of any economi-

cally viable use is a factual inquiry. Loreito v. Telepromp-

ter Manhattan CATV Corp., 458 U.S 419, 426 (1982);

Kaiser Aetna v. United States, 444 U.S. 164, 174-75

(1979). The jury clearly found that Hamilton’s property

retained no economically viable use as a result of the

actions of the Planning Commission. Furthermore, even

though the Petitioner never seriously argued on appeal

that the property retained an economically viable use, the

court of appeals found sufficient evidence to uphold the

verdict of the jury. Accordingly, Petitioner’s contentions

present purely factual issues that have been addressed by

the jury, reviewed by the court of appeals, and do not

require review by this Court.

CONCLUSION

The decision of the court of appeals in the instant case

vroperly follows decisions of this Court, and is wholly

consistent with the purposes and goals of the Fifth

Amendment. Thus, Respondent respectfully submits

that there are no compelling reasons for this Court to

grant the Petition for Writ of Certiorari, and that it,

therefore, should be denied.

Respectfully submitted,

G. T. NEBEL

Bass, BERRY & SIMS

2700 First American Center

Nashville, Tennessee 37238

(615) 244-5370

Attorney for Hamilton Bank

of Johnson City

APPENDIX

APPENDIX

TABLE OF CONTENTS

Page

Order Denying Defendants’ Motion to Dismiss dated

December 18, 1981 .....---:eseerrrrrrrrr la

Defendants’ Motion to Dismiss dated September 18,

Big SAL aE C ENO ER EEE ORT T OS ORES 2a

la

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

Case No. 81-3567

HAMILTON BANK OF JOHNSON CITY

VS.

WILLIAMSON CouNTY REGIONAL

PLANNING COMMISSION, et a/

RECEIVED FOR ENTRY

2:30 PM

Dec. 18, 1981

J. Murdic, Deputy Clerk

ORDER

The defendant’s motion tc dismiss came to be heard on

December 14, 1981 and was denied for reasons stated on the

record.

John T. Nixon

JOHN T. NIXON

UNITED STATES DISTRICT JUDGE

2a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

No. 81-3567

JUDGE JOHN NIXON

HAMILTON BANK OF JOHNSON CITY,

Plaintiff

VS.

WILLIAMSON COUNTY REGIONAL

PLANNING CoMMISSION, Et Al,

Defendants.

DEFENDANTS’ MOTION TO DISMISS FOR

FAIL! RE TO STATE A CLAIM UPON WHICH

RELIEF CAN BE GRANTED

Come the defendants and pursuant to Rule 12(b)(6) of the

Federal Rules of Civi! Procedure move for an Order dismissing

the plaintiff's action on the grounds that it fails to state a claim

upon which relief can be granted against the defendants.

In support of the Motion, the defendants would show that

the plaintiff's Complaint alleges in Paragraph Two (2) that the

Williamson County Regional Planning Commission was estab-

lished pursuant to Tennessee Code Annotated § 13-3-101 and

that the individual named defendants are either members of

the Williamson County Regional Planning Commission or em-

ployees of and on the staff cf the Wiliiamson County Regional

Planning Commission.

The plaintiff thus concedes in the sworn Complaint that the

Williamson County Regional Planning Commission is a state

agency created pursuant to Tennessee legislation. Defendants

thus respectfully submit that the Complaint fails to state a

claim against any of the defendants due to the fact that state

3a

agencies along with their members ?.1d employees are granted

immunity under the Eleventh Amendment of the Constitution

of the United States.

In support of this Motion, the defendants rely upon the

sworn Complaint filed by the plaintiff, the applicable law and

the Memorandum attached in Support of said Motion.

Respectfully submitted,

STEWART, Estes & DONNELL

By: Thomas M. Donnell, Jr.

THOMAS M. DoNNELL, JR.

Robert L. Estes

M. Milton Sweeney

14th Fl, Third Nat’l Bank Bldg.

Nashville, TN 37219

615/244-6538

Attorneys for Defendants

CERTIFICATE

I certify that an exact copy of this Motion with supporting

Memorandum was hand delivered to the offices of Frank C.

Gorrell and G.T. Nebel, Attorneys for Plaintiff at BASS,

BERRY & SIMS, 2700 First American Center, Nashville,

Tennessee 37238 on this the 18th day of September, 1981.

Thomas M. Donnell, Jr.

THoMAS M. DOoNNELL, JR.