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

05/23/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
April 10, 2019 Session
JACK R. OWEN REVOCABLE TRUST v. CITY OF GERMANTOWN
TENNESSEE ET AL.
Appeal from the Chancery Court for Shelby County
No. CH-18-1095-1 Walter L. Evans, Judge
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No. W2018-01662-COA-R3-CV
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Appellee Germantown Planning Commission voted to change the zoning designation of
property held by Appellant trust. In response, Appellant filed a petition for common law
writ of certiorari seeking review of the Planning Commission’s decision. Appellees
moved for dismissal of Appellant’s petition for writ of certiorari under Tennessee Rule of
Civil Procedure 12.02(1). Following a hearing on Appellant’s request for temporary
injunction to halt Appellee City of Germantown from taking any action on the Planning
Commission’s recommendation for rezoning, the trial court granted Appellees’ motion to
dismiss finding that it lacked subject-matter jurisdiction because the Planning
Commission’s recommendation did not constitute a final judgment for purposes of
review under Tennessee Code Annotated Section 27-9-101. On appeal, Appellant argues
that the trial court’s adjudication of the motion to dismiss was premature because
Appellant had no opportunity to respond to the motion. Appellant also contends that the
grant of the motion to dismiss was error because, under Tennessee Code Annotated
sections 13-7-203(b) and 13-7-204, the Planning Commission’s decision was a final
approval of the rezoning as opposed to a mere recommendation. Discerning no error, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed
KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Richard L. Winchester and Robin W. Webb, Memphis, Tennessee, for the appellant, Jack
R. Owen Revocable Trust.
Edward J. McKenney, Jr. and William Joseph Wyatt, Memphis, Tennessee, for the
appellees, City of Germantown, TN, and The Germantown Planning Commission.
OPINION
I. Background
Appellant Jack R. Owen Revocable Trust (the “Trust”) is the owner of a 13.65
acre parcel of real estate located in Germantown, Tennessee (the “Property”). The
Property is part of a larger 19.77 acre area (the “Triangle”). In 2007, the City of
Germantown (the “City”) and the Germantown Planning Commission (the “Planning
Commission,” and together with the City, “Appellees”) adopted a redevelopment plan for
the City’s commercial core. This plan was called the Germantown Smart Growth Plan
(“Plan”). In conjunction with the adoption of the Plan, the City developed a set of
ordinances, which it called the Germantown Smart Code (“Smart Code”). As part of the
Plan, the City assigned zoning classifications of “T5,” “T4,” or “T3” to properties located
within the “Smart Growth” areas. The Triangle, including Appellant’s Property, was
located within the “Smart Growth” area and was assigned a T4 zoning classification. The
Smart Code permits the development of mixed uses, including retail establishments,
restaurants, and residential units, within a T4 zoned area.
The Property remained a T4 zoned property until approximately January 2018. At
that time the City’s Board of Mayor and Aldermen (the “Board”) discussed rezoning the
Triangle from T4 to R, which designation would permit only the building of single family
residences on the Property. By letter dated June 6, 2018, the City Mayor, on behalf of the
Board, requested that the City and the Planning Commission rezone the Triangle from T4
to R. On June 10, 2018, the Planning Commission held a public meeting to consider the
rezoning request. The Planning Commission ultimately voted to recommend removal of
the Triangle from the “Smart Growth” area and rezoning of the Triangle to R.
On July 24, 2018, Appellant filed a petition for common law writ of certiorari and
complaint for declaratory judgment in the Shelby County Chancery Court (“trial court”).
Appellant sought review of the June 10, 2018 decision by the Planning Commission to
recommend that the Board approve an amendment to the Smart Code that would remove
the Triangle from the commercial portion of the “Smart Growth” area and rezone it for
single family residential use. Specifically, Appellant asserted that the Planning
Commission did not follow the required procedure and reached an incorrect result. As
part of Appellant’s request for relief, it asked the trial court to issue a temporary
injunction enjoining the City from proceeding with the process of rezoning the Triangle
pending review by the trial court. A hearing on Appellant’s request for temporary
injunction was set for August 9, 2018.
On August 3, 2018, Appellees filed a response to Appellant’s request for
declaratory judgment, and a motion to dismiss. Appellees moved for dismissal of
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Appellant’s petition for writ of certiorari on the ground that the trial court lacked subject
matter jurisdiction because the Planning Commission’s recommendation was not a “final
order or judgment” for purposes of review under Tennessee Code Annotated section 27-
9-101, infra. Concerning Appellant’s request for declaratory judgment, Appellees sought
dismissal on the additional ground that Appellant’s original claim for declaratory
judgment could not be joined with its petition for writ of certiorari. The trial court did
not rule on this question. Rather, on August 8, 2018, Appellant filed an amended petition
for writ of certiorari striking its complaint for declaratory judgment leaving only the
petition for writ of certiorari and request for injunctive relief.
On August 9, 2018, at the conclusion of the hearing on Appellant’s request for
temporary injunction, the trial court found that it lacked subject matter jurisdiction over
the petition for writ of certiorari because the Planning Commission’s recommendation
was not a final order or judgment. Appellant’s counsel responded that “the only thing on
the agenda today was the temporary injunction,” to which the Chancellor replied, “The
Court is of the opinion that [it] has no jurisdiction to hear the matter and because of that
fact, the Court is dismissing the action at this point.” Appellant appeals.
II. Issue
Appellant raises five issues for review; however, we perceive that there is one
dispositive issue, to-wit: Whether the trial court erred in granting Appellees’ motion to
dismiss for lack of subject matter jurisdiction
III. Standard of Review
This case was decided on grant of Appellees’ motion to dismiss. The resolution of
a Tennessee Rule of Civil Procedure 12.02 motion to dismiss is determined by an
examination of the pleadings alone. Leggett v. Duke Energy Corp., 308 S.W.3d 843,
851 (Tenn. 2010); Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696
(Tenn. 2002). A defendant who files a motion to dismiss “‘admits the truth of all of the
relevant and material allegations contained in the complaint, but . . . asserts that the
allegations fail to establish a cause of action.’” Brown v. Tenn. Title Loans, Inc., 328
S.W.3d 850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co.,
172 S.W.3d 512, 516 (Tenn. 2005)).
In considering a motion to dismiss, courts “must construe the complaint liberally,
presuming all factual allegations to be true and giving the plaintiff the benefit of all
reasonable inferences.” Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007)
(citing Trau-Med., 71 S.W.3d at 696). A trial court should grant a motion to dismiss
“only when it appears that the plaintiff can prove no set of facts in support of the claim
that would entitle the plaintiff to relief.” Crews v. Buckman Labs Int’l, Inc., 78 S.W.3d
852, 857 (Tenn. 2002); see also Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007). We
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review the trial court’s legal conclusions regarding the adequacy of the complaint de
novo with no presumption that the trial court’s decision was correct. Webb v. Nashville
Area Habitat for Humanity, Inc., 346 S.W.3d 422, 429 (Tenn. 2011).
IV. Analysis
Subject matter jurisdiction refers to a court’s “lawful authority to adjudicate a
controversy brought before it.” Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.
2000). A court’s subject matter jurisdiction is derived—“either explicitly or by necessary
implication”—from the state constitution or statute. Benson v. Herbst, 240 S.W.3d 235,
239 (Tenn. Ct. App. 2007). The existence of subject matter jurisdiction depends on “the
nature of the cause of action and the relief sought.” Landers v. Jones, 872 S.W.2d 674,
675 (Tenn. 1994). If subject matter jurisdiction is lacking, the court must dismiss the
case. Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999).
Whether a court lacks subject matter jurisdiction presents a question of law, which we
review de novo. Chapman v. DaVita, Inc., 380 S.W.3d 710, 712–13 (Tenn. 2012).
Appellant first contends that the trial court’s grant of Appellees’ motion to dismiss
for lack of subject matter jurisdiction was premature. Specifically, Appellant’s brief
states that Appellees’ “written motion to dismiss was granted by the court with no setting,
notice of setting, or opportunity of counsel to brief and argue [Appellant’s] legal
position.” In support of its position, Appellant cites Tennessee Rule of Civil Procedure
6.04, which requires that “[a] written motion, other than one which may be heard ex
parte, and notice of the hearing thereof shall be served not later than five days before the
time specified for the hearing.” Tenn. R. Civ. P. 6.04(1). “Opposing affidavits may be
served not later than one day before the hearing . . . .” Tenn. R. Civ. P. 6.04(2).
Appellant also cites Rule 10.01(i) of the local Rules of the Chancery Court of Shelby
County, which provides, in relevant part, that
[a]ll motions . . . to dismiss shall be filed at least thirty (30) days before
hearing of same . . . attorneys for the respondent shall deliver copies of
memorandum briefs to the Court . . . at least ten days prior to the hearing of
the motion. No motion shall be heard unless there is compliance with this
rule.
The sole ground for Appellees’ motion to dismiss Appellant’s petition for writ of
certiorari (which was the only cause of action left after Appellant filed its amended
petition, see supra) was that the trial court lacked subject matter jurisdiction over the
case. Tenn. R. Civ. P. 12.02(1). Appellant’s argument fails to acknowledge that the
issue of subject matter jurisdiction may be raised at any time during the proceedings, by
the parties or by the court. McQuade v. McQuade, No. M2010-00069-COA-R3-CV,
2010 WL 4940386, at *4 (Tenn. Ct. App. Nov. 30, 2010). “A court may raise the issue
of subject-matter jurisdiction sua sponte, even where no party objects.” Wilken v.
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Wilken, No. W2012-00989-COA-R3-CV, 2012 WL 6727197, *11 (Tenn. Ct. App. Dec.
27, 2012) (citing Ruff v. State, 978 S.W.2d 95, 98 (Tenn. 1998); McQuade, 2010 WL
4940386, at *4; In re Estate of Boykin, 295 S.W.3d 632, 635 (Tenn. Ct. App. 2008);
Tenn. R. App. P. 13(b)). Not only must a court determine its subject matter jurisdiction,
but “[a] trial court must [also] dismiss an action whenever it appears that it lacks
jurisdiction of the subject matter.” Tenn. R. Civ. P. 12.08 (“[W]henever it appears by
suggestion of the parties or otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.”). As explained by the Tennessee Supreme
Court:
Because the orders and judgments entered by courts without jurisdiction
over the subject matter of a dispute are void, Brown v. Brown, 198 Tenn. at
610, 281 S.W.2d at 497, issues regarding a court’s subject matter
jurisdiction should be considered as a threshold inquiry, Redwing v.
Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn.
2012), and should be resolved at the earliest possible opportunity.
In re Estate of Trigg, 368 S.W3d 483, 489 (Tenn. 2012) (emphases added). Here, the
trial court was initially asked to grant injunctive relief, which was the subject of the
August 9, 2018 hearing. In the absence of subject matter jurisdiction, the trial court
would not have had the authority to grant the requested relief. As such, whether the trial
court was acting on Appellees’ Tenn. R. Civ. P. 12.02(1) motion, or was acting sua
sponte, it was correct to make a jurisdictional determination as a “threshold inquiry” prior
to granting or denying Appellant any relief. Accordingly, the timing of the trial court’s
ruling is not reversible error.
Concerning the substantive finding of lack of subject matter jurisdiction, as noted
above, a court’s subject matter jurisdiction is derived—“either explicitly or by necessary
implication”—from the state constitution or statute. Benson v. Herbst, 240 S.W.3d 235,
239 (Tenn. Ct. App. 2007). Tennessee Code Annotated section 27-9-101 is the
applicable statute in this case and provides, in relevant part, that
[a]nyone who may be aggrieved by any final order or judgment of any
board or commission functioning under the laws of this state may have the
order or judgment reviewed by the courts . . . .
(Emphasis added). Concerning section 27-9-101’s use of the words “final order or
judgment,” this Court has explained:
The language “final order or judgment” in Tenn. Code Ann. § 27-9-101
must also be construed in the context of Tenn. Code Ann. § 27-8-101,
which creates another requirement for the writ, by providing that,
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The writ of certiorari may be granted whenever authorized by
law, and also in all cases where an inferior tribunal, board, or
officer exercising judicial functions has exceeded the
jurisdiction conferred, or is acting illegally, when, in the
judgment of the court, there is no other plain, speedy, or
adequate remedy. (emphasis added ).
The requirement that, to be subject to review by the common law writ of
certiorari, a board’s decision must be the result of its exercise of judicial
functions explains the use of the words “order” and “judgment” in Tenn.
Code Ann. § 27-9-101 . . . . Those terms are, of course, generally used to
describe actions by courts.
Walker v. Metro Bd. of Parks & Rec., No. 2007-01701-COA-R3-CV, 2009 WL
5178435, *9 (Tenn. Ct. App. Dec. 30, 2009), perm. app. denied (Tenn. June 30, 2010). A
decision or action by a board or commission that is not final is “not subject to judicial
review under the common law writ of certiorari.” Id. (citing State Dep’t. of Commerce
v. FirstTrust Money Servs., 931 S.W.2d 226, 228–29 (Tenn. Ct. App. 1996)). Rather,
such decisions or actions are merely advisory in nature. Id. Accordingly, the question of
the trial court’s jurisdiction over the subject matter of this case rests on a determination of
whether the Planning Commission’s action constitutes a “final order or judgment,” or
whether its recommendation was interlocutory in the sense that it required further action
on the part of the City’s Board of Mayor and Aldermen. Tenn. Code Ann. § 27-9-101.
The role of the Planning Commission in rezoning is set out at Tennessee Code
Annotated sections 13-7-203(b) and 13-7-204. Section 13-7-203(b) provides:
No change in or departure from the text or maps as certified by the planning
commission shall be made, unless such change or departure be first
submitted to the planning commission and approved by it, or, if
disapproved, shall receive the favorable vote of a majority of the entire
membership of the chief legislative body.
Tennessee Code Annotated section 13-7-204 provides:
The zoning ordinance, including the maps, may from time to time be
amended; but no amendment shall become effective unless it is first
submitted to and approved by the planning commission or, if disapproved,
receives the favorable vote of a majority of the entire membership of the
chief legislative body.
It is undisputed that the rezoning of the Triangle did not take place as a direct
result of the June 10, 2018 decision of the Planning Commission. Rather, as discussed
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above, the Planning Commission merely recommended that the Board enact the proposed
ordinance removing the Triangle from the commercial portion of the Smart Growth Plan
and returning it to its previous single family residential zoning classification.
Nonetheless, on appeal, Appellant argues that the Planning Commission’s decision to
recommend such action was “final” because it established that the rezoning could be
accomplished by a majority of the quorum of the Board, who were present at the meeting
when the final vote was taken, as opposed to the majority of the entire Board, which
would be required if the Commission had recommended that the Board not enact the
proposed ordinance. In furtherance of its argument, Appellant cites the case of Depot
Property, LLC v. Town of Arlington, No. W2010-01448-COA-R3-CV, 2011 WL
334472 (Tenn. Ct. App. Jan. 31, 2011), for the proposition that “the result of a rezoning
application was decided, in essence, not by the Board of Mayor and Aldermen, but rather,
by the action of the Planning Commission.” Respectfully, Appellant misconstrues the
holding in Depot.
In Depot, the planning commission recommended that the board of mayor and
aldermen deny plaintiff’s application to rezone his property. 2011 WL 334472, at *5. At
the board of mayor and aldermen meeting, plaintiff’s application received three favorable
votes and two unfavorable votes, with two members of the seven-person board recusing
themselves. Id. at *7. The town attorney advised the board that because the commission
recommended denial of plaintiff’s application, under Tennessee Code Annotated section
13-7-204 (supra), for plaintiff’s application to pass, it needed a favorable vote by a
majority of the entire seven-person board. Id. at *8. Because the plaintiff’s application
received only three favorable votes, it failed. Id.
Plaintiff then filed a petition for common law writ of certiorari asking the Shelby
County Chancery Court to approve the rezoning application based on the favorable vote
of the majority of board members who participated in the meeting where the application
was heard. Id. at *1. Plaintiff argued that that his application had, in fact, received a
majority vote of the board because, pursuant to Tennessee Code Annotated section 12-4-
101(c)(3)(B), the votes of the abstaining members “shall not be counted for purpose of
determining a majority vote.” Id. at *12. The trial court granted the writ and deemed the
rezoning application approved. Id. at *1. On appeal, this Court reversed the trial court.
The Depot Court held that Tennessee Code Annotated sections 13-7-203(b) and
13-7-204 are specific statutes and, as such, control the case. Id. at *7. As set out above,
these statutes identify the Planning Commission’s role in rezoning actions and specify the
number of votes required by the board based on whether the Planning Commission
recommends approval or denial of the rezoning. Contrary to Appellant’s argument, the
Depot Court did not hold that the planning commission’s action under these statutes
constitutes a final order or judgment for purposes of a section 27-9-101 appeal under a
common law writ of certiorari. Rather, the Depot Court treated the case as one of
statutory construction, i.e., how many board member votes are required, under sections
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13-7-203(b) and 13-7-204, for approval of a zoning application following an unfavorable
recommendation by the planning commission. In fact, the Depot Court discussed, in
detail, the separate role of the planning commission in zoning decisions, to-wit:
This Court has observed that the statutes in this Chapter address both
zoning and planning by municipalities:
The state enabling legislation places the authority to plan and
the authority to zone with different local governmental
entities. Planning is entrusted to appointed municipal or
regional planning commissions. See T.C.A. §§ 13-3-101, 13-
4-101 (1992 & Supp.1996). In contrast, the zoning power is
squarely placed in the hands of the local legislative bodies
because the power to zone is viewed as essentially a
legislative exercise of the government’s police power. See
Holdredge v. City of Cleveland, 218 Tenn. 239, 247-48, 402
S.W.2d 709, 712 (1966); Brooks v. City of Memphis, 192
Tenn. 371, 375, 241 S.W.2d 432, 434 (1951). Local
legislative bodies may enact zoning plans recommended by
planning commissions, but they are not obligated to. See
T.C.A. § § 13-7-102, 13-7-202. Local legislative bodies may
also amend zoning ordinances; however, they must submit
proposed changes to the planning commission for review. If
the planning commission disapproves of a proposed change, a
majority of the “entire membership” of the local legislative
body must approve the proposed change in order for it to be
valid. See T.C.A. §§ 13-7-105(a), 13-7-203(b), 13-7-204.
Accordingly, the state enabling legislation vests the local
legislative bodies with the prerogative to make financial
decisions on all zoning matters. See State ex rel. SCA Chem.
Servs., Inc. v. Sanidas, 681 S.W.2d at 564; E.C. Yokley, The
Place of the Planning Commission and the Board of Zoning
Appeals in Community Life, 8 Vand. L. Rev. 794, 795
(1955).
Family Golf of Nashville, Inc. v. The Metropolitan Government of
Nashville and Davidson County, 964 S.W.2d 254, 258 (Tenn. Ct. App.
1997). Thus, the statutes note the different roles of the municipal planning
commission and the municipal legislative body in the zoning process. Id. at
257-58.
Section 13-7-204, in particular, alludes to the function of a
municipality’s planning commission and the municipality’s legislative body
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with respect to the amendment of the municipal zoning ordinance. It states:
The zoning ordinance, including maps, may from time to time
be amended; but no amendment shall become effective unless
it is first submitted to and approved by the planning
commission or, if disapproved receives the favorable vote of
a majority of the entire membership of the chief legislative
body.
T.C.A. § 13-7-204 (2005). Thus, it provides that an amendment to the
zoning ordinance must first be presented to the planning commission. This
requirement has been found to be mandatory. See Holdredge v. City of
Cleveland, 218 Tenn. 239, 402 S.W.2d 709, 712 (Tenn. 1966). Reflecting
the “division of power” intended in the statutory scheme, the statute also
provides that if the planning commission disapproves of a proposed
amendment to the municipality’s zoning ordinance, adoption of the
amendment by the legislative body requires a “super-majority” of sorts, i.e.,
the amendment “shall not become effective unless it ... receives the
favorable vote of a majority of the entire membership of the chief
legislative body.” See Family Golf, 964 S.W.2d at 258 (stating that a
similar provision in the metro charter “mirrored” the “division of power
evident in the state enabling legislation”).
Depot, 2011 WL 334472, at * 7. Contrary to Appellant’s argument, Depot stands for the
proposition that there is a clear “division of power” between the Planning Commission
and the local legislative body (here, the City’s Board of Mayor and Aldermen). Id.
Concerning zoning designations, the role of the Planning Commission involves planning
and making recommendation to the local legislative body. Tenn. Code Ann. §§ 13-7-
203(b) and 13-7-204. However, the Planning Commission has no authority concerning
final approval of the zoning classification. While the Planning Commission’s
recommendation informs the number of votes required for final approval of a zoning
application, the final decision is left to the legislative body. As noted above, “[l]ocal
legislative bodies may enact zoning plans recommended by planning commissions, but
they are not obligated to.” Id. (citation omitted) (emphases added). However, where a
planning commission’s recommendation requires further action by a legislative body, it is
not a final order or judgment. See Walker v. Metro Bd. of Parks & Rec., 2009 WL
5178435, at *10 (“The Parks Board’s recommendation was not final in that it was not the
decisive governmental act authorizing or taking any specific action.”).
The facts and legal issues presented in the instant appeal are very similar to those
presented in Historic Sylvan Park, Inc., et al. v. Metropolitan Government of Nashville,
Davidson County, Tennessee, et al., No. M2014-02254-COA-R3-CV, 2015 WL
5719771 (Tenn. Ct. App. Sept 29, 2015). In Sylvan Park, the Metropolitan Planning
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Commission recommended that the Metropolitan Council not approve an ordinance that
would expand the historic conservative overlay district of the Sylvan Park neighborhood
in Nashville. 2015 WL 5719771, at *1. Residents of the neighborhood filed a petition
for common law writ of certiorari under Tennessee Code Annotated section 27-9-101
seeking review of the planning commission’s recommendation. Id. The planning
commission moved for dismissal on the ground that its decision “was only a
recommendation and not a ‘final order’ from which an appeal may be taken with a writ of
certiorari.” Id. The trial court granted the motion finding that it lacked subject matter
jurisdiction because the planning commission’s recommendation was not a final order as
required under section 27-9-101. Id. at *3.
On appeal to this Court, the residents argued that the planning commission’s
recommendation that the council deny the proposed amendment to the neighborhood’s
historic overlay triggered a requirement, under the Metropolitan Code, that upon
disapproval by the planning commission, no zoning change could become effective
“unless it shall be adopted by a two-thirds majority of the whole membership of the
council and also then be approved by the metropolitan mayor, with a three-fourths
majority of the whole membership of the council required to override a veto.” Sylvan
Park, 2015 WL 5719771, at *2. Like the Appellant here, the residents in Sylvan Park
argued that “because there is no mechanism by which to appeal the two-thirds voting
requirement, the [p]lanning [c]ommission’s decision ‘is a final order, subject to review by
certiorari.’” Id. at *3. This Court disagreed explaining that “[i]n light of the specific role
assigned to the [p]lanning [c]ommission, and because, as set forth in Metropolitan
Charter § 18.02, further action by the Council is needed in order for the proposed
ordinance to be enacted, the [p]lanning [c]ommission’s recommendation cannot be
considered ‘a final order or judgment.’” Id. Accordingly, the Sylvan Park Court held
that “[b]ecause the recommendation by the [p]lanning [c]ommission was not a final
order, the trial court did not have authority to review the [p]lanning [c]ommission’s
decision by certiorari, and it properly dismissed the petition for lack of subject matter
jurisdiction.” Id. In view of its holding that the planning commission’s recommendation
was not a final order, the Sylvan Park Court pretermitted appellants’ argument that the
planning commission’s “vote was ‘arbitrary, capricious, unreasonable, illegal, and
exceeded its jurisdiction;’ that it violated due process, the law of the land, and Tenn.
Code Ann. § 13-4-304; and that it ‘lacked substantial and material evidence’” Id. We
conclude that the holding in Sylvan Park is controlling in this case. As in Sylvan Park,
here, the Planning Commission’s recommendation does not constitute a final order or
judgment so as to confer subject matter jurisdiction on the trial court under section 27-9-
101. Rather, the Planning Commission’s action is interlocutory in the sense that the
Planning Commission has no authority to actually order the rezoning. The power to
make a final decision concerning the rezoning of the Appellant’s Property rests with the
Board. As such, we conclude that the trial court did not err in dismissing Appellant’s
petition for writ of certiorari for lack of subject matter jurisdiction.
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V. Conclusion
For the foregoing reasons, we affirm the trial court’s order dismissing Appellant’s
petition for writ of certiorari. Costs of the appeal are assessed to the Appellant, Jack R.
Owen Revocable Trust, for all of which execution may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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