phyllis-hovenden-bill-hovenden-ellen-wemyss-patricia-highers-richard ( 1996 )


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  • PHYLLIS HOVENDEN,                )
    Petitioner/Appellant,      )
    BILL HOVENDEN, ELLEN WEMYSS,     )
    PATRICIA HIGHERS, RICHARD        )
    ROUCH, and CITIZENS FOR AN       )
    ORDERLY DEVELOPMENT OF           )
    GALLATIN,                        )
    Petitioners,               )       Sumner Chancery
    )       No. 94C-243
    VS.                              )       Appeal No.
    )       01-A-01-9508-CH-00383
    CITY OF GALLATIN, GALLATIN       )
    PLANNING COMMISSION, GALLATIN )
    CITY COUNCIL, L.A. GREEN, III, )
    TRUSTEE, L.A. GREEN, III and     )
    FILED
    CALVERT GREEN CLEVENGER,         )
    March 8, 1996
    Respondents/Appellees,     )
    and WAL-MART STORES, INC.,       )
    Cecil W. Crowson
    Intervenor/Appellee.       )
    Appellate Court Clerk
    IN THE COURT OF APPEALS OF TENNESSEE
    MIDDLE SECTION AT NASHVILLE
    APPEAL FROM THE CHANCERY COURT OF SUMNER COUNTY
    AT GALLATIN, TENNESSEE
    HONORABLE IRVIN H .KILCREASE, JR., BY INTERCHANGE
    RALPH W. MELLO
    101 Westpark Drive, Suite 250
    Brentwood, Tennessee 37027
    ATTORNEY FOR PETITIONER/APPELLANT
    C.L. Rogers
    Joe H. Thompson
    ROGERS & MOORE
    119 Court Square
    Gallatin, Tennessee 37066
    ATTORNEYS FOR RESPONDENTS/APPELLEES
    CITY OF GALLATIN, GALLATIN PLANNING COMMISSION,
    AND GALLATIN CITY COUNCIL
    Paul C. Ney, Jr.
    DORAMUS & TRAUGER
    222 Fourth Avenue, North
    Nashville, Tennessee 37219
    ATTORNEY FOR RESPONDENTS/APPELLEES
    L.A. GREEN, III and GREEN & LITTLE, A PARTNERSHIP
    Robert E. Parker
    George A. Dean
    PARKER, LAWRENCE, CANTRELL & DEAN
    200 Fourth Avenue, North - Suite 500
    Nashville, Tennessee 37219
    ATTORNEYS FOR INTERVENOR/APPELLEE WAL-MART STORES, INC.
    MODIFIED, AFFIRMED AND REMANDED
    HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
    CONCUR: SAMUEL L. LEWIS, JUDGE and WILLIAM C. KOCH, JR., JUDGE
    PHYLLIS HOVENDEN,                )
    Petitioner/Appellant,      )
    BILL HOVENDEN, ELLEN WEMYSS,     )
    PATRICIA HIGHERS, RICHARD        )
    ROUCH, and CITIZENS FOR AN       )
    ORDERLY DEVELOPMENT OF           )
    GALLATIN,                        )
    Petitioners,               )
    )                   Sumner Chancery
    )                   No. 94C-243
    VS.                              )
    )                   Appeal No.
    )                   01-A-01-9508-CH-00383
    CITY OF GALLATIN, GALLATIN       )
    PLANNING COMMISSION, GALLATIN )
    CITY COUNCIL, L.A. GREEN, III, )
    TRUSTEE, L.A. GREEN, III and     )
    CALVERT GREEN CLEVENGER,         )
    Respondents/Appellees,     )
    and WAL-MART STORES, INC.,       )
    Intervenor/Appellee.       )
    OPINION
    The captioned petitioners filed their “Petition for Writ of Certiorari and Verified
    Complaint” seeking review of the action of the City Council of Gallatin in regard to the
    zoning of certain property and for injunctive relief. From an adverse judgment in the Trial
    Court, one of the petitioners, Phyllis Hovenden, has appealed, presenting the following issues
    for review:
    1. Whether the appropriate analysis for reviewing the actions
    of the Gallatin City Council in passing an ordinance to rezone
    property should be declaratory judgment?
    2. Whether the Chancery Court erred in failing to award
    petitioners a declaratory judgment after determining that the
    Gallatin Planning Commission and Gallatin City Council did
    not make the requisite findings of fact?
    3. Whether the Gallatin Planning Commission and Gallatin
    City Council violated the Gallatin Zoning Ordinance by
    considering and granting a rezoning request before a
    preliminary master plan was submitted?
    4. Whether the Gallatin Planning Commission and the Gallatin
    City Council violated the Gallatin Zoning Ordinance by
    considering a proposed master plan that did not include a
    certification that the services of one or more design
    professionals were utilized in the preparation of the master
    plan?
    -2-
    5. Whether the Chancellor erred in denying petitioner's motion
    to supplement the record with the minutes of the Gallatin
    Planning Commission and the Gallatin City Council?
    Petitioners are owners of property in the vicinity of a 23 acre tract which is the subject
    of zoning action by the Gallatin Planning Commission and the Gallatin City Council for the
    purpose of permitting the construction of a shopping complex for the use of the intervenor,
    Wal-Mart Stores, Inc.
    Prior to the present proceeding, the subject property was zoned “MRO-PUD,” which
    means “Multiple Residential Office-Planned Unit Development.” Within this area multiple
    residences, offices and planned unit developments were allowed. A “Planned Unit
    Development” is a planned use which includes uses not ordinarily allowed in the zone if they
    are included in a plan for development of a particular tract which specifies the particular use
    to which each part of the tract is to be devoted. If approved by the City Council, the planned
    unit development is binding upon the developer and any change in the designated use of any
    part of the development must be approved by the Council.
    On May 21, 1984, the “Final Master Plan” of a planned unit development of the
    subject property under the name “Village Green,” was approved and included in the planning
    records of the City of Gallatin. The plan designated various sections of the tract for
    “Office/Commercial, to become retail (General Retail Sales and Services Food Services
    Commercial) to a maximum of 100,000 GAF and with minimum of 137 cars (1:800 GAF).
    To exclude major department or discount stores and gasoline stations specifically.”
    (Emphasis supplied.)
    The emphasized words excluded the use of the land for the proposed Wal-Mart Store.
    The purpose of this proceeding is to amend the plan of Village Green Planned Unit
    Development to remove the above emphasized exclusion so that the Wal-Mart Store could be
    built.
    -3-
    There was a difference of opinion as to the proper manner of removing the exclusion.
    Some thought that it could be removed by simply amending the provisions of the 1984 Plan
    of Village Green Planned Unit Development. Others thought that a change of the basic
    zoning classification of the property was required. Ultimately both methods were pursued
    and consummated, and the results are the subject of this judicial review.
    The plan to change the basic zoning was initiated first. On June 1, 1994, the Planning
    Commission recommended, and on June 28, 1994, the City Council enacted Ordinance No.
    094-981 changing the zoning of Village Green from “MRO-PUD General Commercial” to
    “CG-PUD General Commercial.”
    On July 5, 1994, the City Council passed Ordinance 094-980 concurring in the action
    of the Planning Commission amending the 1984 Plan of Village Green Planned Unit
    Development to “Commercial General,” thereby removing the above emphasized exclusions.
    On July 25, 1994, the Planning Commission finally approved the amendment of the
    plan of Village Green Planned Unit Development as concurred in by the City Council on July
    5, 1994.
    On July 27, 1994, the captioned petitioners filed their “Petition for Writ of Certiorari
    and Verified Complaint” seeking relief from Ordinance No. 094-981 changing the zoning of
    the subject property, Ordinance No. 094-980 concurring in the amendment of the plan of
    Village Green Planned Unit development, and the July 25, 1994 final approval of the
    amendment by the Planning Commission.
    On August 30, 1994, the Trial Court remanded the cause to the City Council for
    findings of fact. On November 2, 1994, the City Council filed findings of fact.
    -4-
    The Trial Judge filed a comprehensive Memorandum in which he disposed of 15
    specific issues raised by petitioners, dismissed the petition and affirmed the actions of the
    City Council and Planning Commission. A judgment was entered accordingly.
    Appellant’s issues and arguments are based upon the premise that legislative action
    was required to eliminate the provision in the plan of Village Green Planned Unit
    Development forbidding “major department or discount stores and gasoline stations
    specifically.”
    This Court respectfully disagrees.
    In 1984, when the subject land was zoned for planned unit developments, a planned
    unit development of the land was duly approved which permitted commercial activity within
    the development limited only by the quoted exclusion. The removal of that exclusion was
    properly accomplished by amendment of the plan of the planned unit development, without
    any amendment of the zoning ordinance. The state zoning statute and the Gallatin General
    Zoning Ordinance authorize this procedure.
    T.C.A. Sections 13-7-201, et seq. confer power upon municipal legislative bodies to
    establish zoning policies within their territorial jurisdiction and prescribe the procedures for
    exercising the power.
    In 1979, the Gallatin City Council adopted a Zoning Ordinance for the City of
    Gallatin.
    Article VIII of said ordinance is entitled “Planned Unit Development District
    Regulations.” It prescribes the requirements and procedure for obtaining approval of planned
    unit developments.
    -5-
    Pertinent portions of the Zoning Ordinance are:
    81-101 Intent and Purpose.
    The purposes of these Planned Unit Development District
    Regulations are as follows:
    a. To promote flexibility in design and permit planned
    diversification in the location of structures;
    b. To promote the efficient use of land in order to facilitate a
    more economic arrangement of buildings; circulation systems,
    land use, and utilities;
    c. To preserve to the greatest extent possible the existing
    landscape features and amenities and to utilize such features in
    a harmonious fashion;
    d. To encourage the total planning of tracts of land consistent
    with pertinent long-range plans.
    ....
    82-103 Application, Review, Public Hearing and Official
    Action       of a Planned Unit Development
    The provisions of this Section set forth the requirements for
    the application, official review and action for all planned unit
    developments provided for by this article.
    ....
    82-103.4 Planning Commission Action on Preliminary
    Application for Planned Unit Development
    Within 45 days after initial submission to the Planning
    Commission, the Commission shall take action on the
    preliminary application by any one of the following:
    a. Unconditional preliminary approval.
    b. Conditional preliminary approval, in which the Planning
    Commission expressly denotes modifications which must be a
    part of the preliminary approval.
    c. Disapproval.
    ....
    82-103.402 City Council Approval of Preliminary Plan
    Any approval of a preliminary application by the Planning
    Commission shall be transmitted to the Gallatin City Council
    for their concurrence.
    -6-
    ....
    82-103.5 Final Approval of the Planning Commission of the
    Proposed Planned Unit Development
    The concurrence of the City Council with the preliminary
    approval of a planned unit development shall authorize and
    form the basis for the Planning Commission final approval of
    said development. The final approval of the Gallatin Planning
    Commission of the planned unit development shall be subject
    to the procedures and requirements of this section.
    ....
    82-103.505 Final Planning Commission Action
    Upon receipt of the application for final approval of a planned
    unit development, the Planning Commission shall examine
    such application including the plan and determine whether it
    substantially conforms to all applicable criteria and standards
    and whether it substantially conforms in all respects to the
    previously approved preliminary master development plan.
    The Commission may impose such conditions of approval as
    are in its judgment necessary to ensure conformity to the
    applicable criteria and standards. In so doing, the Commission
    may permit the applicant to revise the plan and resubmit it as a
    final master development plan within 30 days.
    82-103.506 Planned Unit Development and the Official Zoning
    Map
    The boundary of a planned unit development having a
    preliminary approval by the Gallatin City Council shall be
    placed by the Zoning Administrator directly on the Official
    Zoning Map overlaying the existing zoning districts just prior
    to preliminary approval and identified by the ordinance number
    providing the preliminary approval. Likewise, as a result of
    Planning Commission and City Council action, when the
    planned unit development is canceled, the planned unit
    development shall be removed from the Official Zoning Map
    by the Zoning Administrator, and the district which was shown
    on the map immediately prior to the mapping of the planned
    unit development shall appear thereon, unless an alternative
    district is recommended by the Planning Commission and
    enacted by the City Council.
    There is no requirement for concurrence of the City Council in the final Planning
    Commission action prescribed by 82-103-505.
    -7-
    Under the existing zoning, a single commercial activity was not authorized, but a
    Commercial Planned Unit Development was authorized, provided its internal structure
    (including the precise designation of various commercial activities) was duly approved under
    the above provisions of the General Zoning Ordinance.
    On May 21, 1984, the Planning Commission approved a “Final Master Plan” for the
    subject property under the name, Village Green. Proportions of the property were designated
    as follows:
    Tract A II - Office/Commercial Site 8.0 acres
    Tract A III - Shopping Village 5.9 acres
    Tract A IV - Convenience Commercial 3.4 acres
    The plan map also contains the following notations:
    Tract A II - To become retail (General Retail Sales and Services Food
    Services, Commercial)* to a maximum of 100,000 GAF and with minimum of
    137 cars (1:800 GAF)
    * To exclude major department or discount stores, major grocery stores and
    gasoline stations specifically.
    Under the above quoted provision, the City Council approval of the Preliminary Plan was
    required. No approval by the Council of the Final Master Plan was required.
    The minutes of the Planning Commission for May 24, 1994, contain the following:
    11. L.A. Green 3-5-94: Represented by Brown and Dedman,
    Inc. The applicant is requesting to amend the final master plan
    regarding commercial general planned unit development.
    Subject property is located on Highway 31 E at Belvedere
    Drive, is on tax map 126I/A/001.00 and is zoned MRO -
    Commercial PUD - General. Dean Carlson with Brown and
    Dedman Inc. came forward to present this request. Mr. Allers
    stated that the applicant is requesting an amendment to the final
    master development plan. Currently the plan allows for
    299,700 square feet of commercial use in the PUD. The
    applicant would like to amend the PUD as to the location of
    200,000 square feet of density of the PUD will remain the
    same. The applicant also requested that the PUD plat be
    amended to delete the exclusions on Tract A-II. These
    exclusions do not allow major department or discount stores,
    -8-
    major grocery stores and gasoline stations. If the Planning
    Commission approves these amendments then its action will be
    to send this case to the City Council, for concurrence, with an
    approval recommendation. The staff recommends approval. . .
    .
    On June 1, 1994, the Planning Commission approved the amended PUD.
    On July 5, 1994, City Council by Ordinance No. 094-98D concurred in the action of
    the Planning Commission.
    On July 25, 1994, the Planning Commission finally approved the PUD in accordance
    with Section 82-103.5 of the Zoning Ordinance quoted above.
    The foregoing proceedings perfected the right of the owners to develop the subject
    land in accordance with the amendment to the PUD approved by the Planning Commission
    and City Council, without any change of zoning. Any zoning change by the City Council was
    surplusage and irrelevant to the present controversy.
    In this view of the case, it is unnecessary to discuss appellant’s arguments asserting
    the invalidity of Ordinance 094-981 which undertook to change the zoning classification of
    the subject property.
    Appellant’s first issue relates entirely to Ordinance No. 094-981 which changed
    zoning. It will therefore not be discussed.
    Appellant’s Second Issue
    Appellant’s argument in support of this issue is directed solely at Ordinance No. 094-
    981 which changed zoning designation and which this Court has determined to be irrelevant
    to the determination of this appeal. Appellant’s argument on this issue concludes as follows:
    -9-
    Based upon its ruling that the requisite findings of fact were
    not made, the Chancery Court should have granted petitioners a
    declaratory judgment, declaring Ordinance 094-981 to be void
    and of no effect. Instead, in violation of the Tennessee
    Constitution, the Chancery Court directed the Gallatin City
    Council to make certain findings of fact while acting in its
    legislative capacity. . . . This is clear error for which the
    Chancery Court’s opinion should be reversed.
    In respect to Ordinance No. 094-980, the approval of the PUD, the actions were
    administrative, required findings of fact, and were reviewable by common law certiorari.
    State, ex rel Spence v. Metropolitan Government, etc., Tenn. 1971, 
    469 S.W.2d 777
    .
    In response to an order of the Trial Court, both the Planning Commission and the City
    Council filed written findings of fact. This satisfies lack of findings of fact in respect to
    Ordinance No. 094-980.
    Appellant’s third issue also relates only to Ordinance No. 094-981 which changed the
    zoning. For the reasons already stated, it need not be discussed.
    Appellant’s fourth issue complains that the plan of the PUD was approved without the
    certificate of a design professional as required by Section 81-103 of the Zoning Ordinance.
    Section No. 81-102 of the Zoning Ordinance provides:
    No application for a PUD zoning shall be considered unless a
    master plan of the development meeting requirements set forth
    in Section 82-103.2 is submitted therewith. (Emphasis added)
    The present controversy does not relate to an application for PUD zoning. That
    procedure took place in 1984, when the original Green Acres PUD was presented and
    approved. The original, 1984, application is not included in this record, so that it cannot be
    determined whether it bore the required certificate.
    -10-
    The present proceeding was for approval of an amendment of a previously existing
    (1984) PUD. The requirement for certification does not apply to an application for
    amendment of a pre-existing PUD. Nevertheless, the maps presented to the Commission and
    Council show plainly that they were prepared by professionals, even though they do not bear
    an express certificate to this effect.
    The transcript of proceedings before the Commission contains ample testimony that
    necessary professionals were involved in planning the amendment.
    Appellant’s fifth issue complains of the denial of her motion to supplement the record
    with the minutes of the Commission and Council when their findings of fact were approved.
    Essentially, this is a complaint of the exclusion of evidence. The record contains no tender of
    the excluded evidence or of its contents. In the absence of an offer of evidence and
    preservation of it in the record, no error can be predicated upon its exclusion. Cohen v. Cook,
    
    62 Tenn. App. 292
    , 
    462 S.W.2d 502
    , affd., 
    224 Tenn. 729
    , 
    462 S.W.2d 499
    .
    Since the use of the subject property is strictly limited by the details of the planned
    unit development, it is difficult to conceive how the change of its zoning classification could
    enable its use outside the limits of the planned unit development. However, this court makes
    no determination of the validity of Ordinance No. 094-981 so that question may be open for
    decision in a case in which the validity of the ordinance is determinative.
    The judgment of the Trial Court is modified to delete any determination of the
    validity of Ordinance No. 094-981. As modified, the judgment of the Trial Court is affirmed.
    Costs of this appeal are taxed against the appellant. The cause is remanded to the Trial Court
    for any necessary further proceedings.
    -11-
    Modified, Affirmed and Remanded.
    _______________________________________
    HENRY F. TODD
    PRESIDING JUDGE, MIDDLE SECTION
    CONCUR:
    _____________________________________
    SAMUEL L. LEWIS, JUDGE
    _____________________________________
    WILLIAM C. KOCH, JR., JUDGE
    -12-
    

Document Info

Docket Number: 01A01-9508-CH-00383

Judges: Presiding Judge Henry F. Todd

Filed Date: 3/8/1996

Precedential Status: Precedential

Modified Date: 2/1/2016