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Jack R. Owen Revocable Trust v. City of Germantown

Court of Appeals of Tennessee, Jackson

May 23, 2019

JACK R. OWEN REVOCABLE TRUST
v.
CITY OF GERMANTOWN TENNESSEE ET AL.

          Session April 10, 2019

          Appeal from the Chancery Court for Shelby County No. CH-18-1095-1 Walter L. Evans, Judge

         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

          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.

          Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         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 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. ...


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