ISI Holdings Of TN, LLC v. Mount Pleasant Regional Planning Commission ( 2017 )

09/12/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 22, 2017 Session
ISI HOLDINGS OF TN, LLC, ET AL. v. MOUNT PLEASANT REGIONAL
PLANNING COMMISSION, ET AL.
Appeal from the Chancery Court for Maury County
No. 16-049 Stella L. Hargrove, Judge
___________________________________
No. M2016-01607-COA-R3-CV
___________________________________
This is an appeal from a successful petition for a writ of certiorari involving land use. The
trial court ruled in favor of the petitioners after finding that the location approved for the
proposed power station violated an applicable zoning ordinance. After the trial court’s
decision, the City of Mount Pleasant amended its ordinance to clarify that the zoning
ordinance did not apply to public utilities. The City of Mount Pleasant Planning
Commission thereafter approved the construction of the power station under the amended
ordinance. The petitioners filed no writ of certiorari of the approval under the amended
ordinance and therefore ask that this appeal be dismissed as moot. Because this case no
longer serves to offer any meaningful relief to the parties and no exceptions to the
mootness doctrine are present, we dismiss this appeal as moot.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J.,M.S., and RICHARD H. DINKINS, JJ., joined.
Mark E. McGrady, Nashville, Tennessee, for the appellant, Mount Pleasant Regional
Planning Commission.
Kori Bledsoe Jones, Columbia, Tennessee, for the appellant, Mount Pleasant Power
System.
Brian Christian Neal and Gregory T. Young, Nashville, Tennessee, for the appellees, ISI
Holdings of TN, LLC and Insulating Services, Inc.1
1
Neither ISI Holdings of TN, LLC nor Insulating Services, Inc. filed a brief in this case; rather
their only participation in this appeal was the filing of a motion to consider post-judgment facts and to
dismiss this appeal as moot. As such, these parties were only permitted to address these motions at oral
argument and were not permitted to address the underlying merits of the trial court’s decision.
OPINION
Background
Appellant Mount Pleasant Power System (“the Power System”) proposed a
municipal project for the construction of an electrical substation, an open pole yard, and
an open transformer storage area (“the Project”), which was approved by the Mount
Pleasant Regional Planning Commission (“the Planning Commission” and together with
the Power System, “Appellants”) on or about December 8, 2015. Appellees ISI Holdings
of TN, LLC and Insulating Services, Inc. (together, “Appellees”) either own or occupy
the property adjacent to the property upon which the Project is to be constructed. On
February 3, 2016, Appellees filed a verified petition for a writ of certiorari and
supersedeas to challenge the approval, arguing that the approval violated the zoning
regulations contained in the Mount Pleasant Municipal Code, and that the Power System
provided inadequate notice of the Project. Specifically, Appellees alleged that the Mount
Pleasant Municipal Code required that public utility uses be confined to areas zoned
“AG,” or agricultural districts, while the property proposed for the Project was zoned
“LM”, for restrictive light manufacturing uses.
The trial court entered an order directing the Clerk and Master to issue writs of
certiorari and supersedeas on February 4, 2016. The record from the administrative
proceeding was subsequently filed in the trial court. Shortly thereafter, Appellants filed a
motion to dissolve the writ of supersedeas on the ground that Appellees failed to provide
adequate notice or post a bond. In the alternative, Appellants asked that bond be set at no
less than $1 million. The matter was set by agreement for final hearing on June 2, 2016.
At the hearing, the parties stipulated to certain facts and exhibits to be considered
by the trial court. Following the hearing, the trial court entered an order overturning the
Planning Commission’s decision to approve the Project as “illegal, arbitrary, capricious
and an abuse of discretion” because the Project did not comply with Mount Pleasant’s
zoning ordinance. The trial court also denied Appellants’ request to dissolve the writ of
supersedeas. Appellants appealed.
After Appellants filed their briefs, on January 19, 2017, Appellees filed a motion
to consider post-judgment facts and dismiss the appeal as moot. Appellees argued that
this Court should consider the following facts:
1. While this appeal was pending, on August 23, 2016, the Mount Pleasant
City Commission passed Ordinance 2016-989 (“Amended Ordinance”) that
does the following:
a. Permits public utilities in any zoning district within the City of Mount
Pleasant; [and]
-2-
b. Specifies that the restrictions set forth for properties zoned LM, among
other things, “shall not apply to public utilities or public utility
improvements.”
2. Thereafter, on September 13, 2016, the Planning Commission approved
the Project under the Amended Ordinance;
3. Thereafter, [the Power System] began constructing the Project; [and]
4. Appellees have not timely filed a Writ of Certiorari or Declaratory
Judgment action challenging passage of the Amended Ordinance, approval
of the Project by the Planning Commission under the Amended Ordinance,
or [the Power System’s] current construction of the Project.
(Internal citations omitted). Because of the Amended Ordinance, Appellees argued that
the Power System had succeeded in getting approval for the Project and that the appeal
was rendered moot by the additional facts.
The Planning Commission responded to Appellees’ motion, agreeing that facts 1,
2, and 3 should be considered in this appeal, but arguing that because a challenge to an
ordinance is categorized as a declaratory judgment action with a ten year statute of
limitations, that the case was not rendered moot, as Appellees still had time to challenge
the ordinance upon which the Project was approved in September 2016. The Power
System also responded, agreeing that all the facts should be considered, but denying that
the case was moot. This Court entered an order on January 30, 2017 granting the motion
to consider post-judgment facts with regard to facts 1, 2, and 3 and reserving judgment on
the final fact, as well as Appellees’ motion to dismiss the appeal as moot.
Analysis
Although Appellants raised several issues in their appellate briefs regarding the
propriety of the trial court’s decision to reverse approval of the Project, as an initial
matter, we must first determine whether this case is rendered moot by the adoption of the
Amended Ordinance and the expiration of the time period for filing a writ of certiorari to
challenge the approval of the Project pursuant to the Amended Ordinance. Mootness is a
doctrine of justiciability. Norma Faye Pyles Lynch Family Purpose LLC v. Putnam
Cty., 301 S.W.3d 196, 203 (Tenn. 2009). Justiciability, in turn, is a doctrine by which
courts determine “whether a particular case presents a legal controversy.” Id. As the
Tennessee Supreme Court has explained:
A case must remain justiciable (remain a legal controversy) from the time it
is filed until the moment of final appellate disposition. State v. Ely, 48
S.W.3d 710, 716 n. 3 (Tenn.2001); Alliance for Native Am. Indian Rights,
Inc. v. Nicely, 182 S.W.3d at 338; 1 Ronald D. Rotunda & John E. Nowak,
Treatise on Constitutional Law § 2.13(c)(ii), at 261 (4th ed. 2007)
-3-
(hereinafter “Treatise on Constitutional Law”). While the doctrines of
standing and ripeness focus on the suit’s birth, the doctrine of mootness
focuses attention on the suit’s death. 13B Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper Federal Practice and Procedure § 3533.1, at
735–37. A moot case is one that has lost its justiciability either by court
decision, acts of the parties, or some other reason occurring after
commencement of the case. West v. Vought Aircraft Indus., Inc., 256
S.W.3d at 625; McCanless v. Klein, 182 Tenn. at 637, 188 S.W.2d at 747;
McIntyre v. Traughber, 884 S.W.2d at 137. A case will be considered
moot if it no longer serves as a means to provide some sort of judicial relief
to the prevailing party. Knott v. Stewart County, 185 Tenn. at 626, 207
S.W.2d at 338–39; Bell v. Todd, 206 S.W.3d 86, 96 (Tenn.Ct.App.2005);
Massengill v. Massengill, 36 Tenn.App. 385, 388–89, 255 S.W.2d 1018,
1019 (1952).
Norma Faye Pyles Lynch, 301 S.W.3d at 203–04. Thus, a case may lose its justiciability
and thereby become moot as the result of a court decision, acts of the parties, or some
other event that occurs during the pendency of the case. Id. If a case no longer serves as a
means to provide some sort of judicial relief to the prevailing party it will be considered
moot. Id. In determining whether a case has been rendered moot, Tennessee courts
consider several factors, including: “the reason that the case is alleged to be moot, the
stage of the proceeding, the importance of the issue to the public, and the probability that
the issue will recur.” Id. at 204. Generally, a case rendered moot will nevertheless be
decided on the merits in the following circumstances:
(1) when the issue is of great public importance or affects the
administration of justice, (2) when the challenged conduct is capable of
repetition and of such short duration that it will evade judicial review, (3)
when the primary subject of the dispute has become moot but collateral
consequences to one of the parties remain, and (4) when the defendant
voluntarily stops engaging in the challenged conduct.
Id. (footnotes omitted) (discussed in detail, infra).
I.
In addition to these circumstances, the Planning Commission argues that this
Court should decline to dismiss a case as moot when a jurisdictional issue is raised. In
support of this argument, the Planning Commission cites this Court’s Opinion in State ex
rel. Baker v. Turner, 562 S.W.2d 435 (Tenn. Ct. App. 1977). In Baker, the appellee
mother was awarded custody of the child in the parties’ divorce with paternal grandfather
having visitation. Id. at 436. Thereafter, the paternal grandfather filed a petition to have
the child declared dependent and neglected. Id. The child was thereafter placed in foster
care and the mother filed a petition for habeas corpus in chancery court. Id. The chancery
-4-
court returned custody of the child to mother and entered an injunction preventing any
further proceedings regarding the child without permission of the chancery court, which
injunction applied not only to the parties, but also to the Tennessee Department of
Children’s Services (“DCS”) and employees of the juvenile court. Id. at 436–37. The
chancery court later entered several orders regarding child support and dissolved the
injunction as to the juvenile court employees and DCS. Id. at 437. The juvenile court and
DCS nevertheless appealed the chancery court’s issuance of the injunction, arguing that
the juvenile court retained jurisdiction to adjudicate a dependency and neglect action
notwithstanding that custody decision had been made by another court relevant to a
divorce. Id. Because the injunction had been dissolved, the mother filed a motion to
dismiss on the basis of mootness. Id. A majority of this Court concluded that the trial
court’s subject matter jurisdiction to enter the disputed injunction remained a justiciable
issue notwithstanding the dissolution of the injunction. Id. In reaching this decision, the
majority concluded that “the crucial question presented is whether the juvenile court has
jurisdiction to hear and determine the petition charging that the child is dependent and
neglected.” As such, the Court of Appeals proceeded to analyze that question.
A lone judge dissented from the court’s opinion, determining instead that the
appeal was moot. Id. at 438 (Nearn, J., dissenting). Judge Nearn explained his concern as
follows: “[T]he decree complained of is the one which enjoined employees of the
Juvenile Court and of the Tennessee Department of Human Services from proceeding.
That injunction was dissolved by the Chancellor. Why should this Court consider the
efficacy of the injunction when it no longer exists and no one is affected by it?” Id. As
such, Judge Nearn concluded that no justiciable issue remained for the court’s
consideration. Id. Despite Judge Nearn’s dissent, the Tennessee Supreme Court denied
permission to appeal this Court’s decision in Baker. Id. at 435 (noting that permission to
appeal was denied by the Tennessee Supreme Court on February 13, 1978).
Appellees generally argue that a jurisdictional issue likewise must be addressed in
this case as an initial matter. Specifically, the Power System appears to argue that the
plain language of Tennessee Code Annotated section 13-4-104 provides the exclusive
means of approval of the Project, thereby depriving the trial court of authority to consider
Appellees’ petition for a writ of certiorari to challenge the approval. Instead, the Power
System argues that the Power System can simply “proceed with its Project,” presumably
without judicial review of the Project’s legality.2 Similarly, the Planning Commission
argues that a writ of certiorari was not the proper vehicle for challenging the Planning
Commission’s decision in this case. Assuming arguendo that this issue must be
determined notwithstanding Appellees’ mootness argument, we cannot agree that the trial
2
The Power System’s argument on this issue was raised in its initial brief to this Court and
therefore is not specifically addressed to the issue of mootness. Because the Power System’s argument
appears to implicate the trial court’s subject matter jurisdiction to consider the approval of the Project
under section 13-14-104, we have attempted to address this argument in the context of whether disputes
regarding the trial court’s subject matter jurisdiction remain justiciable.
-5-
court in this case lacked subject matter jurisdiction. We first consider the Power System’s
argument on this issue.
There is no dispute that the approval of the Project in this case was governed by
section 13-4-104, which provides, in relevant part:
Whenever the commission shall have adopted the plan of the municipality
or any part thereof, then and thenceforth . . . no public utility, whether
publicly or privately owned, shall be constructed or authorized in the
municipality until and unless the location and extent thereof shall have been
submitted to and approved by the planning commission; provided, that in
case of disapproval, the commission shall communicate its reasons to the
chief legislative body of the municipality, and such legislative body, by a
vote of a majority of its membership, shall have the power to overrule such
disapproval and, upon such overruling, such legislative body shall have the
power to proceed; provided, that if the public . . . utility be one the
authorization or financing of which does not, under the law governing the
same, fall within the province of such legislative body, then the submission
to the planning commission shall be by the state, county, district, municipal
or other board or official having such jurisdiction, and the planning
commission’s disapproval may be overruled by such board by a majority
vote of its membership, or by such official. . . . The failure of the
commission to act within thirty (30) days from and after the date of official
submission to it shall be deemed approval, unless a longer period be
granted by such chief legislative body or other submitting board or official.
Thus, section 13-14-104 provides that the municipality’s planning commission has the
power to approve or disapprove the “location and extent” of a public utility within the
municipality. Id. Where the planning commission disapproves of the utility, however,
the planning commission must submit its reasoning to the “chief legislative body of the
municipality,” which may then overrule the decision of the planning commission. Id.
In this case, the Planning Commission approved the construction of the Project on
December 8, 2015. The Power System therefore argues that it “satisfied its only statutory
requirement under the State’s planning and zoning laws and can proceed with its Project”
without judicial review. We cannot agree. First, we note that the Power System cites no
law wherein Tennessee courts have held that a decision to approve a public utility under
section 13-14-104 may not be reviewed by the Tennessee courts exercising writ of
certiorari jurisdiction. Indeed, other than a reference to the language of the statute, no law
is cited by the Power System to support this interpretation. “[W]here a party fails to
develop an argument in support of his or her contention or merely constructs a skeletal
argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Supreme Court,
301 S.W.3d 603, 615 (Tenn. 2010).
-6-
Moreover, such an interpretation of section 13-14-104 flies in the face of
Tennessee’s writ of certiorari law. Here, it appears that the Planning Commission argues
that because section 13-14-104 does not expressly provide for judicial review, such is not
available. On the contrary, the Tennessee writ of certiorari statute expressly 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, where not otherwise specifically provided, in the manner
provided by this chapter.” Tenn. Code Ann. § 27-9-101 (emphasis added). Thus, section
27-9-101 contemplates writ of certiorari review only where review is not expressly
provided for otherwise by statute. The lack of express review language contained in
section 13-14-104 is therefore not fatal to the trial court’s jurisdiction in this case.
The Planning Commission next argues that its decision to approve the Project was
not the type of “final order or judgment” required to confer writ of certiorari jurisdiction.
Rather, the Planning Commission argues that its decision was merely a
“recommendation” that is not reviewable by writ of certiorari, citing Walker v. Metro.
Bd. Of Parks & Recreation, No. M2007-01701-COA-R3-CV, 2009 WL 5178435 (Tenn.
Ct. App. Dec. 30, 2009). Walker involved a number of complex issues, one of which
questioned whether the trial court had writ of certiorari jurisdiction to review the
recommendation of a park board to enter into a contract regarding the use of a park. Id. at
*3. The Court of Appeals ultimately determined that this decision was not reviewable
under the writ of certiorari framework.
In reaching this decision, this Court first discussed the distinctions between
petitions for writ of certiorari and declaratory judgment actions:
Actions for certiorari and those for declaratory judgment are distinct
forms of action to which a petitioner may have recourse, depending on the
nature of the decision maker involved or of the governmental action from
which the petitioner seeks relief. An action for certiorari is the proper
remedy for a party aggrieved by the final order or judgment of an
administrative body which has acted in a judicial or a quasi-judicial
capacity to apply existing law to the facts of a particular case. Tenn. Code
Ann. § 27-9-101 et seq.; McCallen v. City of Memphis, 786 S.W.2d at 638;
Fallin v. Knox County Bd. of Commissioners, 656 S.W.2d at 342.
The distinction between declaratory judgment actions and those
brought as common law writ of certiorari is that “determinations . . . [that]
are administrative determinations, judicial or quasi-judicial in nature, and
are accompanied by a record of the evidence produced and the proceedings
had in a particular case” are reviewable by certiorari, “whereas, the
enactment of ordinances or resolutions, creating or amending zoning
regulations, is a legislative, rather than an administrative, action and is not
ordinarily accompanied by a record of the evidence, as is the case of an
-7-
administrative hearing.” Fallin v. Knox County Bd. of Commissioners,
656 S.W.2d at 342-43. Legislative actions are not reviewable by common
law writ of certiorari. Id. The test for determining whether the
governmental action is legislative or administrative, also called quasi-
judicial is whether it “makes new laws or executes one already in
existence.” Moore & Associates, Inc. v. West, 246 S.W.3d 569, 575 (Tenn.
Ct. App. 2005) (quoting McCallen v. City of Memphis, 786 S.W.2d at
640).
Walker, 2009 WL 5178435, at *8. Importantly, this Court also noted that section 27-9-
101 “clearly limit[s] judicial review of actions by administrative bodies to final orders or
judgments. Accordingly, this court has construed [section] 27-9-101 to mean that actions
by boards or commissions that are not final orders or judgments are not subject to judicial
review under the common law writ of certiorari.” Id. at *9 (citing State Dept. of
Commerce v. FirstTrust, 931 S.W.2d 226, 228-229 (Tenn. Ct. App. 1996) (holding that a
subpoena duces tecum issued in conjunction with an order of investigation does not
amount to a final order subject to judicial review); Isom v. Knox County Retirement &
Pension Board and Knox County, Tennessee, No. 03A01-9708-CH-00333, 1998 WL
136556, at *1 (Tenn. Ct. App. March 27, 1998) (dismissing the common law writ of
certiorari action since no final order or judgment by the board had been entered)). Finally,
this Court noted that to qualify for review by writ of certiorari, “a board’s decision must
be the result of its exercise of judicial functions[.]”Walker, 2009 WL 5178435, at *9
(citing Tenn. Code Ann. § 27-8-101 (“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)).
Based upon these rules, this Court determined that the action by the parks board
was not reviewable by writ of certiorari. First, we noted that the parks board did not have
the authority to approve or disapprove the contract regarding the park. Walker, 2009 WL
5178435, at *10. Rather, the ultimate decision was to be made by the Metropolitan
Council in that case. Id. Because the parks board did not have ultimate decision making
authority, its decision was merely a recommendation requiring further legislative action,
rather than a final order or judgment as required by section 27-9-101. Id. (citing Dalton v.
Spencer, 511 U.S. 462, 114 S. Ct. 1719, 128 L. Ed. 2d 497 (1994) (holding that a
recommendation by an administrative body requiring further executive or legislative
action is not a final order or judgment); Public Citizen v. Dept. of Health and Human
Services, 795 F. Supp. 1212, 1221-1222 (D.D.C. 1992) (same)); Outgamie County v.
Smith, 38 Wis. 2d 24, 155 N.W.2d 639, 644-645 (Wis. 1968) (same). Finally, this Court
noted that the decision by the parks board was “simply not the kind of administrative
decision that is subject to judicial review under the common law writ of certiorari.”
Walker, 2009 WL 5178435, at *10. In reaching this decision, we noted that the parks
-8-
board’s decision was “not the product of a judicial or quasi-judicial proceeding” and did
not implicate the exercise of a judicial function, but was merely a policy decision not
subject to writ of certiorari review. As such, this Court held that the trial court correctly
dismissed the writ of certiorari action filed to challenge the recommendation of the parks
board.
Despite the Planning Commission’s argument otherwise, the same is not true in
this case. First, we note that this Court has previously held that the decision of a planning
commission to approve the proposed use of real property involves a quasi-judicial
function subject to writ of certiorari review. See B & B Enterprises of Wilson Co., LLC
v. City of Lebanon, No. M2003-00267-COA-R3-CV, 2004 WL 2916141, at *3 (Tenn.
Ct. App. Dec. 16, 2004) (citing Reddoch v. Smith, 214 Tenn. 213, 222, 379 S.W.2d 641,
645 (Tenn. 1964); Lafferty v. City of Winchester, 46 S.W.3d 752, 758 (Tenn. Ct. App.
2000); Burson & Simpson Lodge Devs., Inc. v. Metropolitan Gov’t, No. 01A01-9805-
CH-00249, 1999 WL 114257, at *2-3 (Tenn. Ct. App. Mar. 5, 1999)) (“Planning
commissions, like other boards and commissions of local government, are performing a
quasi-judicial function when they review a proposed use of a particular tract of real
property.”). Indeed, this Court has previously allowed a writ of certiorari petition
challenging a decision implicating approval under section 13-14-104. See CK Dev., LLC
v. Town of Nolensville, No. M2010-00633-COA-R3-CV, 2012 WL 38287, at *6 (Tenn.
Ct. App. Jan. 6, 2012) (“The decision of whether to grant a building permit, for example,
is an administrative act, even if made by a legislative body,” and the decision is therefore
amenable to writ of certiorari review); Roten v. City of Spring Hill, No. M2008-02087-
COA-R3-CV, 2009 WL 2632778, at *8 (Tenn. Ct. App. Aug. 26, 2009) (allowing a writ
of certiorari action to determine whether a planning commission had authority to approve
a site plan under section 13-14-104); Whittemore v. Brentwood Planning Comm’n, City
of Brentwood, 835 S.W.2d 11, 15 (Tenn. Ct. App. 1992) (allowing a direct challenge in
the chancery court to the approval of a proposed land use under section 13-14-104 and
holding that the decision was not reviewable by the board of zoning appeals). Thus,
unlike in Walker, the Planning Commission’s decision in this case is certainly “the kind
of administrative decision” that has been historically subject to judicial review. Walker,
2009 WL 5178435, at *10. Indeed, the dispute in this case involved specifically whether
the zoning ordinance was applicable to the Project and whether, if applicable, the zoning
ordinance prevented the construction of the Project—“i.e. applying the facts of the matter
before the board to an ordinance or other legal rule”—the very type of decision this Court
held was subject to writ of certiorari review in Walker. Walker, 2009 WL 5178435, at
*10
We also note that the Planning Commission’s decision in this case is a final
decision by the agency tasked with making a decision under section 13-14-104. As
Appellants point out in their briefs, although section 13-14-104 contains two “overruling
provisions,” neither was triggered in this case. Rather, the legislative body’s authority to
overrule the decision of a planning commission under section 13-14-104 is only
-9-
prompted where a planning commission denies a proposed project. In this case, the
Planning Commission approved the Project and section 13-14-104 provides no further
review of that decision by the legislative body. See generally Tenn. Code Ann. § 13-14-
104. As such, the Planning Commission’s decision was not merely a recommendation,
but a final agency decision, as required by Tennessee Code Annotated section 27-9-101.
Because the Planning Commission’s decision constituted a final agency decision
involving a quasi-judicial function, the Planning Commission’s approval of the Project in
this case was subject to review by writ of certiorari.
II.
Having determined the jurisdictional issue in favor of both the trial court’s and this
Court’s jurisdiction, we return to the issue of mootness. As previously discussed, a case
becomes moot where it no longer serves to offer relief to the prevailing party. Norma
Faye Pyles Lynch, 301 S.W.3d at 203–04. Here, Appellees assert that given the approval
of the Project under the Amended Ordinance, there is no relief that may be had to
Appellees should they prevail. We agree. Here, the purpose of Appellees’ writ of
certiorari action was to prevent the Power System from constructing the Project on
Appellees’ adjoining property. Specifically, Appellee attempted to thwart the Power
System’s effort by arguing that the applicable zoning ordinance was violated by the
Project. The trial court thereafter agreed with Appellees and halted the Project. The
parties agree, however, that events have taken place since the trial court’s decision that
have an effect on this case.
In particular, the Mount Pleasant City Commission passed the Amended
Ordinance on August 23, 2016, and the Project was thereafter approved by the Planning
Commission under the Amended Ordinance on September 13, 2016. Construction of the
Project has now begun. Furthermore, the parties do not dispute that Appellees have not
filed a timely writ of certiorari to challenge the approval of the Project under the
Amended Ordinance.3 Because we have determined that writ of certiorari is the proper
vehicle for challenging the Planning Commission’s decision to approve the Project under
section 13-14-104,4 we agree with Appellees that this case no longer serves to offer
meaningful relief to Appellee should it prevail.
Here, the purpose of Appellees’ action was to prevent construction of the Project,
an effort in which Appellees have ultimately not prevailed. A similar circumstance
occurred in Fisher v. Rutherford Cty. Reg’l Planning Comm’n, No. M2012-01397-
COA-R3-CV, 2013 WL 2382300 (Tenn. Ct. App. May 29, 2013). In Fisher, the
3
Accordingly, we grant Appellees’ request to consider post-judgment facts regarding sentence 4
solely with regard to the timely filing of a writ of certiorari regarding the approval of the Project under the
Amended Ordinance. We deny the remainder of Appellees’ motion to consider post-judgment facts.
4
Although a declaratory judgment may conceivably be filed to challenge the Amended
Ordinance, no party has cited any law to suggest that such an action would have any effect on the
approval of the Project where it was not timely challenged by a writ of certiorari.
- 10 -
petitioner filed a writ of certiorari to prevent the construction of mosque. By the time the
appeal was heard, however, the mosque had been built and was in operation. As such,
“the principal judicial relief sought by the plaintiffs—to stop the construction of the
mosque—[was] no longer available[.]” Id. at *2. Accordingly, this Court held that the
action was rendered moot. Id. (exercising discretion to proceed to the merits after
determining that a single issue involved “great public interest”). Based upon the approval
of the Project under the Amended Ordinance and Appellees’ failure to timely challenge
the approval via a petition for a writ of certiorari, we must likewise conclude that this
case no longer serves to provide any meaningful relief to Appellees.
The Power System argues that even assuming that no relief may be available to
Appellees should they prevail, meaningful relief is still available to the Power System.
Specifically, the Power System argues that it is entitled to damages based upon the trial
court’s erroneous decision to grant a writ of supersedeas without requiring Appellees to
post a bond, as required by Tennessee Code Annotated section 27-9-106. We cannot
agree, however, that such relief is available to the Power System. Rather, after a thorough
review of the record in the trial court, we can locate no request for damages made by the
Power System. While the Power System asked that the writ of supersedeas be dissolved
or an appropriate bond in the amount over $1 million be required, the Power System
simply did not include in any of its filings before the trial court a request for damages due
to the allegedly wrongful issuance of the writ of supersedeas. It has generally been held
that “‘issues raised for the first time on appeal are waived.’” Dye v. Witco Corp., 216
S.W.3d 317, 321 (Tenn. 2007) (quoting Black v. Blount, 938 S.W.2d 394, 403 (Tenn.
1996)). Here, the Power System’s failure to seek damages was noted by Appellees in
their pre-trial brief. Despite this clear notice, the Power System failed to amend its
pleading to specifically request damages. As such, their request for damages is waived
and provides no meaningful relief to the Power System in this case. The issue of damages
related to the issuance of the writ of supersedeas is therefore not a bar to the application
of the mootness doctrine in this case.
The Power System also argues that this Court should proceed to determine
whether the zoning ordinance was originally applicable to the Project, notwithstanding
the later amendment of the applicable ordinance and the approval of the Project.
Specifically, the Power System suggests that this Court should offer “guidance as to how
to proceed with future public utility projects.” We cannot agree. Here, there can be no
dispute that the ordinance at issue was amended to clarify that public utilities are not
subject to the zoning requirements applicable to other projects; the Project was
subsequently approved under this Amended Ordinance. As such, were this Court to
analyze the issue of the zoning ordinance’s applicability to “future public utility
projects,” it would merely be rendering an impermissible advisory opinion. As our
supreme court has explained:
Courts may not issue advisory rulings. See Super Flea Mkt. of
Chattanooga, Inc. v. Olsen, 677 S.W.2d 449, 451 (Tenn. 1984). “However
- 11 -
convenient or desirable for either party that the questions mooted in the
case be authoritatively settled for future guidance, the court is not justified
in violating fundamental principles of judicial procedure to gratify that
desire.” State ex rel. Lewis, 347 S.W.2d at 48 (quoting S. Pac. Co. [v.
Eshelman], 227 F. [928,] 932 [(N.D.Cal.1914)]).
State v. Rodgers, 235 S.W.3d 92, 97 (Tenn. 2007) (noting certain exceptions
corresponding to the factors outlined in Norma Faye Pyles Lynch). Here, the Power
System’s request that this Court resolve future controversies is simply not sufficient to
show a “‘genuine and existing controversy, calling for present adjudication.’” Rodgers,
235 S.W.3d at 98 (quoting State ex rel. Lewis, 347 S.W.2d at 48). Accordingly, this case
has been rendered moot by the approval of the Project under the Amended Ordinance.
III.
As previously discussed, once a case has been rendered moot, Tennessee courts
will consider whether a number of exceptions apply that would nonetheless justify the
court’s continued involvement. As such, we have been directed by the Tennessee
Supreme Court to “consider whether to exercise [our] discretion to apply one of the
recognized exceptions to the mootness doctrine.” Hooker v. Haslam, 437 S.W.3d 409,
417 (Tenn. 2014). According to our supreme court:
Those exceptions, applicable in the court’s discretion, may arise:
(1) when the issue is of great public importance or affects the
administration of justice;
(2) when the challenged conduct is capable of repetition and is of
such short duration that it will evade judicial review;
(3) when the primary subject of the dispute has become moot but
collateral consequences to one of the parties remain; and
(4) when the defendant voluntarily stops engaging in the conduct.
Id. at 417–18 (citing Norma Faye Pyles Lynch, 301 S.W.3d at 204).
We begin first with the public interest exception, specifically whether the issue is
one “of great public importance or [that] affects the administration of justice[.]” Norma
Faye Pyles Lynch, 301 S.W.3d at 204. This exception is available only “under
‘exceptional circumstances where the public interest clearly appears.’” Id. at 210
(quoting Dockery v. Dockery, 559 S.W.2d 952, 955 (Tenn. Ct. App. 1977)). In order to
determine this issue, we must consider the following factors:
(1) the public interest exception should not be invoked in cases affecting
only private rights and claims personal to the parties; (2) the public interest
- 12 -
exception should be invoked only with regard to “issues of great
importance to the public and the administration of justice”; (3) the public
interest exception should not be invoked if the issue is unlikely to arise in
the future; and (4) the public interest exception should not be invoked if
the record is inadequate or if the issue has not been effectively addressed in
the earlier proceedings.
Norma Faye Pyles Lynch, 301 S.W.3d at 2010–11 (footnote omitted). Where the above
factors do not exclude use of the public interest exception, we are directed to “balance the
interests of the parties [and] the public . . . to determine whether the issue, albeit moot,
should not be dismissed.” Hooker, 437 S.W.3d at 418 (citing Norma Faye Pyles Lynch,
301 S.W.3d at 2010–11). In performing this balancing test, we may consider, inter alia,
the assistance a decision on the merits will provide to public officials, the likelihood the
issue will recur, the urgency in resolving the issue, the costs of litigating the issue again,
as well as whether the issue is purely legal, or involves factual disputes. Hooker, 437
S.W.3d at 418 (citing Norma Faye Pyles Lynch, 301 S.W.3d at 2010–11).
The Tennessee Supreme Court has previously concluded that questions of
condemnation of private property in which a constitutional right is involved and the
constitutionality of non-attorney judges presiding over criminal matters involved matters
of such great public importance as to justify departing from the mootness doctrine. See,
e.g., Norma Faye Pyles Lynch, 301 S.W.3d at 210 (involving condemnation); City of
White House v. Whitley, 979 S.W.2d 262, 265 (Tenn. 1998) (involving the judges that
preside over criminal matters). In contrast, the Tennessee Supreme Court has indicated
that no great public importance has been shown where the outcome of the litigation
would have no far-reaching consequences and the case was not a class action, even where
the overarching question was “of immense public importance.” See Hooker, 437 S.W.3d
at 418. In a similar circumstance, this Court has noted that even though disputes
concerning elections involve issues of public concern, an election contest is largely a
personal action meant to vindicate the rights of the petitioner because it does not “affect a
large segment of the voting public.” LaRouche v. Crowell, 709 S.W.2d 585, 587–88
(Tenn. Ct. App. 1985); see also Hatcher v. Chairman, 341 S.W.3d 258, 262 (Tenn. Ct.
App. 2009) (declining to apply the public interest exception where the claim was “one
primarily involving personal rights rather than rights of great public concern”). Where the
interests of the public at large are represented by the suit, however, this Court has found
that the public interest exception is applicable. See City of Chattanooga v. Tennessee
Regulatory Auth., No. M2008-01733-COA-R12-CV, 2010 WL 2867128, at *8 (Tenn.
Ct. App. July 21, 2010) (involving a suit wherein the City of Chattanooga intervened in
an administrative hearing for the purpose of objecting to a proposed rate hike on its
residents); see also Fisher, 2013 WL 2382300 (finding a “great public interest” in
addressing questions regarding the notice to the public required by the Open Meetings
Act).
- 13 -
First, we note that unlike many of the cases in which this exception has been
applied, the dispute in this case does not involve any constitutional rights. Moreover, by
its very nature, the type of claim raised by Appellees in this case is intended not to
vindicate the rights of the public as a whole, but only to protect the rights of a person
“aggrieved by any final order or judgment of any board or commission[.]” Tenn. Code
Ann. § 27-9-101. This Court has held that “to be ‘aggrieved’ a party must at least be able
to show ‘a special interest in the agency’s final decision or that it is subject to a special
injury not common to the public generally.’” Roten, 2009 WL 2632778, at *3 (quoting
Wood v. Metro. Nashville & Davidson Cty Gov’t, 196 S.W.3d 152 (Tenn. Ct. App.
2005)). As such, the claim in this case involves only a dispute between interested parties
as to the appropriateness of the Project at issue. Simply put, the interests of the public at
large are not at issue in this case, nor does this case involve the type of “exceptional
circumstances” previously held to justify application of the public interest exception.
Because we conclude that this case largely involves “only private rights and claims
personal to the parties,” and does not implicate matters of great public importance, we
conclude that the public interest exception is inapplicable.5
Likewise, the dispute in this case is not “capable of repetition and is of such short
duration that it will evade judicial review.” Hooker, 437 S.W.3d at 417. This Court has
held that in order to invoke this exception: “A mere theoretical possibility that an act
might reoccur is not sufficient to invoke the exception. Rather, there must be a reasonable
expectation or a demonstrated probability that the same controversy will recur involving
the same complaining party.” City of Chattanooga v. Tennessee Regulatory Auth., No.
M2008-01733-COA-R12-CV, 2010 WL 2867128, at *5 (Tenn. Ct. App. July 21, 2010).
Here, given the Planning Commission’s approval of the Project under the Amended
Ordinance and Appellees’ decision to forgo a challenge to the approval by way of a
timely petition for a writ of certiorari, it does not appear any future attempts to gain
approval of this particular Project are necessary. Even considering the more general
question trumpeted by Appellants in this case, the applicability of local zoning
ordinances to all projects approved under Tennessee Code Annotated section 13-14-104
is simply not the type of claim that will evade judicial review. Indeed, as previously
discussed, the writ of certiorari procedure, coupled with the writ of supersedeas, provides
an appropriate means of challenging the approval of a public utility pursuant to
Tennessee Code Annotated section 13-14-104 and indeed has been utilized to challenge
similar decisions historically.
Because issues of subject matter jurisdiction have been resolved and the Power
System’s request for damages is waived, it also does not appear that collateral
consequences are present that require this Court’s review. Hooker, 437 S.W.3d at 418;
see also Norma Faye Pyles Lynch, 301 S.W.3d at 204 (citing only cases in which the
collateral consequences stemmed from criminal convictions). Indeed, the Tennessee
5
We therefore need not complete the balancing test outlined in Haslam. See Hooker, 437 S.W.3d
at 418 (citing Norma Faye Pyles Lynch, 301 S.W.3d at 210–11).
- 14 -
Supreme Court has held that this exception applies only to “prejudicial collateral
consequences,” including “the continued effect of an order that has expired or is invalid.”
Hudson v. Hudson, 328 S.W.3d 863, 866 (Tenn. 2010). It is unclear how Appellants may
be prejudiced by the result in this case as they ultimately prevailed in their effort to
construct the Project.
Finally, we note that the mootness in this case is not the result of the defendant’s
voluntary cessation of the challenged conduct. Hooker, 437 S.W.3d at 418. Here,
Appellants, as defendants to this writ of certiorari action, did not render this case moot by
discontinuing their conduct. Rather, this case was rendered moot when Appellants
obtained approval of the Project under an Amended Ordinance specifically exempting
public utilities from the zoning ordinance and no timely challenge was made to that
decision. While the Power System argues that Appellees have voluntary stopped pursuing
this appeal, we note that the Tennessee Supreme Court made clear that it is the
defendant’s voluntary cessation of challenged conduct that is at issue with regard to this
exception. See Hooker, 437 S.W.3d at 418 (holding an exception exists “when the
defendant voluntarily stops engaging in the conduct”) (emphasis added). Indeed, the
Tennessee Supreme Court discussed this doctrine in the context of “the voluntary
cessation of illegal conduct.” Norma Faye Pyles Lynch, 301 S.W.3d at 205. The only
illegal conduct alleged to have occurred in this case involved the improper approval of
the Project. As such, Appellees had committed no alleged “illegal conduct,” the cessation
of which would result in the case being rendered moot.
Based on the foregoing, we conclude that this case had been rendered moot by
events occurring after the judgment in this case and no exceptions are present that
persuade this Court to exercise our discretion to consider this case regardless of its
mootness. Consequently, we grant Appellees’ motion to dismiss this appeal as moot.
Costs of this appeal are taxed one-half to Appellants, and their surety, and one-half to
Appellees, for all of which execution may issue, if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
- 15 -