JACK R. OWEN REVOCABLE TRUST
CITY OF GERMANTOWN TENNESSEE ET AL.
Session April 10, 2019
from the Chancery Court for Shelby County No. CH-18-1095-1
Walter L. Evans, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Richard L. Winchester and Robin W. Webb, Memphis, Tennessee,
for the appellant, Jack R. Owen Revocable Trust.
J. McKenney, Jr. and William Joseph Wyatt, Memphis,
Tennessee, for the appellees, City of Germantown, TN, and The
Germantown Planning Commission.
Armstrong, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J.,
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.
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.
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.
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.
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.