Wiley Hutcherson v. Rozell Carter ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
______________________________________________
WILEY HUTCHERSON,
WESTERN TENNESSEE ENTERPRISES,
INC., and LANDFILL, INC.,
Plaintiffs-Appellants,
Lauderdale Chancery No. 9953
Vs. C.A. No. 02A01-9807-CH-00216
ROZELL CRINER, LAUDERDALE
COUNTY EXECUTIVE, and the
LAUDERDALE COUNTY
FILED
COMMISSION, acting on behalf
of Lauderdale County, July 12, 1999
Defendants-Appellees. Cecil Crowson, Jr.
Appellate Court Clerk
____________________________________________________________________________
FROM THE LAUDERDALE COUNTY CHANCERY COURT
THE HONORABLE WIL V. DORAN, CHANCELLOR
Jerry D. Kizer, Jr., William C. Bell, Jr.;
Rainey, Kizer, Butler, Reviere & Bell, P.L.C. of Jackson
For Appellants
J. Thomas Caldwell of Ripley
Kemper B. Durand, Michael E. Keeney;
Thomason, Hendrix, Harvey, Johnson & Mitchell of Memphis
For Appellees
AFFIRMED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
Plaintiffs-Appellants, Wiley Hutcherson, Western Tennessee Enterprises, Inc., and
Landfill, Inc., appeal the final decree of the trial court dismissing the complaint for declaratory
judgment and injunctive relief against Defendants-Appellees, Rozelle Criner, Lauderdale County
Executive, and the Lauderdale County Commission.
This case arises from Mr. Hutcherson’s attempt to construct and operate a commercial,
sanitary landfill on a portion of his 322 acre farm known as the Love Farm in Lauderdale
County, Tennessee.
In 1984, the Lauderdale County Commission (County Commission) adopted a
comprehensive zoning resolution for Lauderdale County. The 1984 Zoning Resolution provided
that sanitary landfills were a “use permitted on appeal” in both FAR districts and I districts.1 A
“use permitted on appeal” means that a use is permitted in that district, however, in order to
establish such a use, a landowner must submit an application to the Lauderdale County Board
of Zoning Appeals (BZA) to obtain approval.2 At the time of the passage of the 1984 Zoning
Resolution, Mr. Hutcherson’s farm was zoned FAR, and the only landfill within Lauderdale
County was zoned FAR.3
Mr. Hutcherson has been involved in the scrap metal business for several years. As part
of this business, Mr. Hutcherson utilizes a shredder which processes cars by breaking them into
fist-size pieces. This process generates a waste product known as “shredder fluff.” Because of
a need to dispose of this waste, Hutcherson decided to construct a landfill on his farm. In
November 1986, Hutcherson Scrap Company, Inc. was granted a permit from the State of
1
The FAR district is for forestry, agricultural and residential uses, and the I district is
for industrial uses.
As for “uses permitted on appeal,” the 1984 Zoning Resolution provides in pertinent part:
D. Uses Permitted on Appeal - In the (FAR) Forestry-
Agricultural-Residential District, the following uses and their
accessory uses may be permitted subject to approval by the
Lauderdale County Board of Zoning Appeals.
* * *
8. Sanitary landfill operations, subject to approval of
Tennessee Department of Public Health, but not to include
hazardous waste or chemical waste landfills. . . .
The same is provided for in I districts.
2
With regard to the BZA, the 1984 Zoning Resolution provides in pertinent part:
SECTION 4. Powers. The Board of Zoning Appeals shall have
the following powers:
* * *
B. Uses Permitted on Appeal - To hear and decide applications
for uses permitted on appeal as specified in this resolution. . . .
3
This landfill is currently owned by Lauderdale County.
2
Tennessee to build this landfill, and, in January 1987, a permit was obtained from the BZA.
Shortly thereafter, Mr. Hutcherson constructed this landfill on about 3 to 4 acres of the farm.
Neither the State permit nor the BZA permit placed any restrictions on the size of the landfill.
In 1989, Mr. Hutcherson deeded a 9.8 acre parcel of his farm, which encompassed the
3 to 4 acre landfill, to Landfill, Inc., a closely held corporation owned by Mr. Hutcherson and
his wife. In 1990, Mr. Hutcherson commenced the process of obtaining a State permit in the
name of Western Tennessee Enterprises, Inc. (WTE)4 for a 184 acre sanitary landfill on the Love
Farm. This proposed landfill would be a commercial landfill as opposed to the existing landfill
which is a private landfill for shredder fluff.
In August 1991, the County Commission passed an amendment to the 1984 Zoning
Resolution. The 1991 Amendment divided the I classification into two districts -- I-1 and I-2.5
The 1991 Amendment also permitted sanitary landfills as a “use permitted on appeal” in I-2
districts, added the definitions of “Sanitary Landfill - Commercial” and “Sanitary Landfill -
Public” to the “Definitions” section, and added standards for sanitary landfills. Furthermore, the
County Landfill was rezoned to I-2 by the 1991 Amendment and constituted the only I-2 district
in Lauderdale County while Mr. Hutcherson’s farm remained zoned as FAR. The County
Commission submits that the 1991 Amendment was also intended to remove landfills from FAR
districts but that such language was inadvertently omitted.
In December 1991, during Mr. Hutcherson’s attempt to obtain a State permit for the 184
acre landfill, the County Commission passed a resolution adopting the “Jackson Law.”6 The
4
WTE is a closely-held corporation formed by Mr. Hutcherson in 1992 to obtain a
permit for and to operate the proposed landfill.
5
I-1 is a light industrial district, and I-2 is a restricted industrial district.
6
T.C.A. § 68-211-701 (1996), known as the “Jackson Law,” was amended in 1995 and
provides as follows:
No construction shall be initiated for any new landfill for solid
waste disposal or for solid waste processing until the plans for
such new landfill have been submitted to and approved by:
(1) The county legislative body in which the proposed landfill is
located, if such new construction is located in an unincorporated
area;
(2) Both the county legislative body and the governing body of
the municipality in which the proposed landfill is located, if such
new construction is located in an incorporated area; or
(3) Both the county legislative body of the county in which such
proposed landfill is located and the governing body of any
3
“Jackson Law” at this time was a state law that allowed counties without county-wide zoning
to control landfill development by requiring county approval.7 Shortly thereafter, the State put
WTE’s permit application on hold because according to the State’s procedure, once the State is
put on notice that a county had adopted the “Jackson Law,” the State could not review the permit
application until the State received notice of county approval.
In an attempt to receive county approval, Mr. Hutcherson was notified by the Lauderdale
County Planning Commission (Planning Commission) that he would need to have the 184 acres
rezoned to I-2 in order to operate a landfill on such property. In reliance, Mr. Hutcherson
submitted an application to the Planning Commission to have this property rezoned. The
Planning Commission subsequently voted to recommend denial of the rezoning request to the
County Commission. The County Commission then notified Mr. Hutcherson that it would not
review his rezoning request until he received a State permit. Thus, Mr. Hutcherson withdrew
his rezoning request, and the State subsequently resumed its review of WTE’s permit
application.
In November 1992, the County Commission passed another amendment to the 1984
Zoning Resolution. The 1992 Amendment removed sanitary landfills from FAR districts as a
“use permitted on appeal.” As a result, sanitary landfills were only allowed in I-2 districts.
On November 14, 1994, the State issued a permit to WTE for construction and operation
of a sanitary landfill on the 184 acre parcel of Love Farm. Following the receipt of the permit,
Mr. Hutcherson applied again to the Planning Commission requesting that the 184 acres be
rezoned. The Planning Commission once again voted to recommend denial of the rezoning
request. Mr. Hutcherson then submitted his request to the County Commission. In October
1995, after a public meeting, the County Commission voted to deny Mr. Hutcherson’s rezoning
request.
municipality which is located within one (1) mile of such
proposed landfill.
The County Commission later, on April 10, 1995, adopted the 1995 version of the
“Jackson Law.” However, the 1995 version is not applicable to Mr. Hutcherson because it is
applicable to all permit applications pending on March 15, 1995, and all permit applications filed
on or after March 15, 1995. Mr. Hutcherson received his State permit on November 14, 1994.
7
This earlier version of the “Jackson Law” was not applicable to Lauderdale County
because the county had a county-wide zoning scheme at this time.
4
On December 7, 1995, Mr. Hutcherson and WTE filed the subject complaint against Mr.
Criner and the County Commission alleging that the actions and omissions by the defendants
amounted to unreasonable, arbitrary, and capricious conduct that infringed upon Mr.
Hutcherson’s and WTE’s federal and state constitutional rights.8 The defendants subsequently
filed an Objection to Jurisdiction and Motion to Dismiss based upon a lack of subject-matter
jurisdiction. The defendants also filed a motion for summary judgment on grounds that no
genuine issue of material fact existed in the case. Concomitantly, the defendants filed an answer
to the complaint. Subsequently, Mr. Hutcherson and WTE filed an amended complaint wherein,
inter alia, the entire zoning scheme of Lauderdale County was alleged to be invalid due to
procedural defects. The defendants then filed an answer to the amended complaint.
In the interim between the filing of the suit and the hearing on the matter, the County
Commission, on May 13, 1996, “reaffirmed” the 1984 Zoning Resolution as amended.
On March 9, 1998, a non-jury trial commenced. On June 26, 1998, the trial court entered
a final decree denying the injunctive relief that would have permitted Mr. Hutcherson to proceed
with his proposed landfill. The decree stated:
1. The Plaintiff, Wiley Hutcherson, by conveying a
portion of the Love Farm, including the existing landfill, to a
separate entity, Landfill, Inc., set out the limits of the original
landfill permit. Based on the Plaintiff’s delineation, the current
application for a permit for the proposed landfill is not a valid
extension of a pre-existing use. It is ordered that said use is
confined to that property currently titled in the name of Landfill,
Inc.
2. Both the 1991 Amendment and the 1992 Amendment
which took landfills out of the FAR zoning classification and
placed landfills into the new I-2 zoning district, had no rational
basis in this case. The Defendants’ only purpose in passing the
1991 Amendment and creating the I-2 zoning district was to
thwart Mr. Hutcherson in his attempt to obtain approval for his
proposed landfill. The creation of the I-2 zoning district was
done to affect one specific person -- Mr. Hutcherson. The
Defendants’ act of placing only the county landfill into the I-2
zoning district is spot zoning and resulted in the fact that
Lauderdale County was the only entity allowed to have a landfill
in Lauderdale County. In these and other regards, the similarly-
situated county landfill was treated differently from Mr.
Hutcherson’s landfill. Under the facts of this case, the 1991
Amendment violates Article XI, Section 8 of the Tennessee
Constitution and the Equal Protection Clause of the United States
Constitution; and therefore, the 1991 Amendment is void. Under
the facts of this case, the 1992 Amendment, to the extent it took
8
Landfill, Inc. was added by the plaintiffs as a party plaintiff on March 16, 1998.
5
landfills out of the FAR zoning district, also violates Article XI,
Section 8 of the Tennessee Constitution and the Equal Protection
Clause of the United States Constitution; and therefore, the 1992
Amendment, to the extent it took landfills out of the FAR zoning
district, is void. The effect of this finding is that landfills are
deemed to be placed back into the FAR zoning district.
3. The 1984 Zoning Resolution is not invalid due to
failure to comply with notice, public hearing, and publication
requirements or due to the makeup of the Lauderdale County
Regional Planning Commission.
4. The 1991 Amendment and the 1992 Amendment are
invalid for failure to comply with applicable notice, public
hearing, and publication requirements. The 1991 Amendment
and 1992 Amendment are not rendered invalid due to the makeup
of the Lauderdale County Regional Planning Commission.
5. The 1996 Zoning Amendment and Reaffirmation, to
the extent it removed landfills out of the FAR District and placed
landfills in the I-2 District, is invalid due to this Court’s findings
as to the invalidity of the 1991 and 1992 Amendments and due to
failure to comply with applicable notice and public hearing
requirements.
6. The “Jackson Law” as amended in 1995 and adopted
by the Lauderdale County Commission on April 10, 1995, is not
applicable to Mr. Hutcherson’s proposed landfill.
7. The Lauderdale County Commission’s denial of Mr.
Hutcherson’s rezoning request violated Mr. Hutcherson’s
constitutional substantive due process rights under the federal and
Tennessee constitutions in the following aspects: (a) failure to
give proper notice in some instances; (b) failure to give Mr.
Hutcherson adequate time at the hearing on the rezoning request
to present his case; (c) members of the Lauderdale County
Commission had decided against Mr. Hutcherson’s rezoning
request for personal or political reasons unrelated to the merits of
such request even before the hearing was held; (d) several voting
members of the Lauderdale County Commission and the
Lauderdale County Regional Planning Commission lived near the
site of the proposed landfill and had a personal interest in the
same; (e) members of the Lauderdale County Commission
testified that they voted against the landfill because their
constituents did not want a landfill; (f) one member of the
Lauderdale County Commission testified that he voted against the
landfill because of his personal belief that Mr. Hutcherson had
entrapped certain county commission members; (g) it was
obvious from the testimony that Mr. Hutcherson never had a
chance with regard to his proposed landfill; (h) some members of
the Lauderdale County Commission contributed money to a
campaign to oppose Mr. Hutcherson’s proposed landfill; (i)
although they were de facto officers, the makeup of the
Lauderdale County Planning Commission violated the
requirements of state statutes; and (j) the Lauderdale County
Commission did not observe Mr. Hutcherson’s rights to the free
use and enjoyment of his property.
8. The only valid impediment to this Court’s allowing
Mr. Hutcherson to build his landfill is the issue of the roads.
There was testimony at trial that the roads leading to the landfill
were too narrow and winding to accommodate a number of
heavily-loaded, large trucks without causing a risk of injury to
other motorists. This court finds that the prospect of damage to
the road surfaces is not a valid concern or a valid impediment to
6
Mr. Hutcherson’s landfill as the Court finds that it is the county’s
duty to repair and maintain the roads. However, the Court finds
that straightening and widening the existing roads in essence
would entail building new roads which the county is under no
obligation to do. However, due to the testimony about potential
danger to other motorists, this Court denies Mr. Hutcherson’s
request for injunctive relief and declines to allow Mr. Hutcherson
to proceed to construct a landfill. Had there been no testimony
about danger to other motorists, and the only testimony had been
that the roads were unable to withstand the damage done by the
trucks, this Court probably would have held differently, except
for the previously described issue concerning the roads which is
fairly debatable. . . .
This appeal ensued, and the appellants present the following issues for review as stated
in their brief:
1. Whether the trial court erred in failing to hold that the
Plaintiffs’ proposed landfill expansion would be either a valid,
non-conforming use or a valid extension of a conforming use.
2. Whether the trial court erred in failing to hold that the
1984 Zoning Resolution is invalid due to failure to comply with
applicable public hearing and publication requirements and/or due
to the illegal makeup of the Lauderdale County Planning
Commission.
3. Whether the trial court erred in failing to hold that
certain amendments to the 1984 Zoning Resolution are invalid
due to the illegal makeup of the Lauderdale County Planning
Commission.
4. Whether the trial court erred in failing to grant
Plaintiffs any relief where the trial court held that Defendants
violated Plaintiffs’ substantive due process and equal protection
constitutional rights.
Because of the nature of the trial court proceedings and the findings of the chancellor,
we believe a more logical way to dispose of the issues is collectively.
Since this case was tried by the trial court sitting without a jury, we review the case de
novo upon the record with a presumption of correctness of the findings of fact by the trial court.
Unless the evidence preponderates against the findings, we must affirm, absent error of law.
T.R.A.P. 13(d).
Mr. Hutcherson submits several different arguments for us to consider in finding that the
trial court erred by not granting his requested relief. First, Mr. Hutcherson submits that if we
affirm the trial court’s finding that the 1991 Amendment and the 1992 Amendment are void thus
placing sanitary landfills back into FAR districts, his proposed landfill is an extension of a valid,
pre-existing, conforming use. Alternatively, he submits that if we reverse the trial court and find
that the 1991 Amendment and the 1992 Amendment are valid, then his proposed landfill is a
7
valid, pre-existing, non-conforming use.
From a review of the record, the evidence does not preponderate against the trial court’s
finding that Mr. Hutcherson’s conveyance to Landfill, Inc. of the 9.8 acre parcel which
encompassed the original landfill established the limits of the original landfill permit. Therefore,
the proposed landfill in this litigation is not a valid extension of a pre-existing use but is an
attempt by Mr. Hutcherson to establish, not expand, a landfill.9 Thus, with regard to the
proposed landfill, the proper procedures must be followed for establishing a new landfill.
Mr. Hutcherson asserts that he was under the impression through the enactment of the
amendments and information provided that his property must be rezoned in order to construct
the proposed landfill. As such, we must consider Mr. Hutcherson’s attacks toward the validity
of the entire zoning scheme as established in Lauderdale County. First, he asserts that the 1984
Zoning Resolution is invalid because the proper statutory requirements were not followed with
regard to public hearing and publication. Moreover, he contends that the 1984 Zoning
Resolution is invalid due to the illegal makeup of the Planning Commission. Thus, according
to Mr. Hutcherson, he may construct a landfill on his property since he is not subject to any
zoning restriction because there are no zoning districts in Lauderdale County regulating the use
of one’s property. Second, Mr. Hutcherson argues that the 1991 Amendment and the 1992
Amendment are invalid due to the failure of the County Commission to give proper notice in
accordance with the requirements of both the Tennessee Code Annotated and the 1984 Zoning
Resolution. He also asserts that the makeup of the Planning Commission was illegal. Therefore,
if there is a valid 1984 zoning ordinance, landfills are within FAR districts thereby allowing Mr.
Hutcherson to construct his proposed landfill on his property. Finally, Mr. Hutcherson asserts
that the 1996 Reaffirmation is invalid for failure to comply with applicable notice, public
hearing, and publication requirements and, therefore, the procedural deficiencies of the foregoing
enactments were not cured.
The right of a county to enact or amend zoning regulations is based upon powers
delegated to it by the state legislature by specific enabling acts. State ex rel. Browning-Ferris
9
It is important to note that the original landfill was constructed and operated for use as
a fluff site for Mr. Hutcherson to dispose of waste generated by his scrap metal business. The
proposed landfill is a commercial landfill which will receive waste from several different areas
and entities.
8
Indus. v. Board of Comm’rs, 806 S.W.2d 181, 187 (Tenn. App. 1990) (citing Henry v. White,
194 Tenn. 192, 250 S.W.2d 70 (1951); State ex rel. Lightman v. City of Nashville, 166 Tenn.
191, 60 S.W.2d 161 (1933)). There is a presumption in favor of the validity of an ordinance and
those questioning its validity have the burden of proof. Town of Surgoinsville v. Sandidge, 866
S.W.2d 553, 555 (Tenn. App. 1993) (citing Balsinger v. Town of Madisonville, 222 Tenn. 272,
435 S.W.2d 803, 805 (Tenn. 1968); S & P Enters. v. City of Memphis, 672 S.W.2d 213, 217
(Tenn. App. 1983)).
T.C.A. § 13-7-101 (1992) provides in pertinent part:
(a)(1) The county legislative body of any county is empowered,
in accordance with the conditions and the procedure specified in
this part, to regulate, in the portions of such county which lie
outside of municipal corporations, the location, height and size of
buildings and other structures, the percentage of lot which may be
occupied, the sizes of yards, courts, and other open spaces, the
density and distribution of population, the uses of buildings and
structures for trade, industry, residence, recreation or other
purposes, and the uses of land for trade, industry, residence,
recreation, agriculture, forestry, soil conservation, water supply
conservation or other purposes. . . .
T.C.A. § 13-7-102 (1992) provides in pertinent part:
[T]he county legislative body may, by ordinance, exercise the
powers granted in § 13-7-101 and, for the purpose of such
exercise, may divide the territory of the county which lies within
the region but outside of municipal corporations into districts of
such number, shape or area as it may determine and within such
districts may regulate the erection, construction, reconstruction,
alteration and uses of buildings and structures and the uses of
land. . . .
Procedures for the enactment of zoning regulations are statutorily prescribed. As for the
enactment of the 1984 Zoning Resolution, T.C.A. § 13-7-104 (1980) provided in pertinent part:
13-7-104. Method of procedure after certification of plan
from commission. -- After the certification of a zone plan from
the regional planning commission and before the enactment of
any such zoning ordinance, the county legislative body shall hold
a public hearing thereon, the time and place of which at least
thirty (30) days’ notice shall be given by one (1) publication in a
newspaper of general circulation in the county. . . . Any such
ordinance shall be published at least once in the official
newspaper of the county or in a newspaper of general circulation
in the county, and shall not be in force until it is so published.
With regard to the 1991 Amendment and the 1992 Amendment, T.C.A. § 13-7-105
(Supp. 1990) and (1992) provided in pertinent part:
13-7-105. Amendments of zoning ordinance provisions --
9
Procedure. -- (a) The county legislative body may from time to
time amend the number, shape, boundary, area or any regulation
of or within any district or districts or any other provision of any
zoning ordinance; but any such amendment shall not be made or
become effective unless the same be first submitted for approval,
disapproval or suggestions to the regional planning commission
of the region in which the territory covered by the ordinance is
located, and, if such regional planning commission disapproves
within thirty (30) days after such submission, such amendment
shall require the favorable vote of a majority of the entire
membership of the county legislative body.
(b)(1) Except as provided in subdivision (b)(2), before finally
adopting any such amendment, the county legislative body shall
hold a public hearing thereon, at least thirty (30) days’ notice of
the time and place of which shall be given by at least one (1)
publication in a newspaper of general circulation in the county.
Any such amendment shall be published at least once in the
official newspaper of the county or in a newspaper of general
circulation in the county. . . .
In addition, the 1984 Zoning Resolution provides as follows with regard to amendments:
SECTION 1. Amendments to the Resolution. The regulations
and the number, or boundaries of districts established by this
resolution, may be amended, supplemented, changed, modified,
or repealed by the Lauderdale County Commission; but, in
accordance with the Tennessee enabling legislation, no
amendment shall become effective unless it is first submitted to
and approved by the Lauderdale County Regional Planning
Commission or, if disapproved, shall receive a majority vote of
the entire membership of the Lauderdale County Commission.
Before finally adopting any such amendment, the county court
shall hold a public hearing thereon, at least thirty (30) days notice
of the time and place of which shall be given by at least one (1)
publication in a newspaper of general circulation in the county;
and any such amendment shall be published at least once in the
official newspaper of the county or in a newspaper of general
circulation in the county.
Finally, with regard to the makeup of planning commissions, T.C.A. § 13-3-101 (Supp.
1998) provides in pertinent part:
(c)(2) The commissioner may designate, as members of a
regional planning commission, persons who are members of
county legislative bodies or of boards of aldermen or
commissioners or other municipal legislative bodies; provided,
that the members of the regional planning commission so
designated from county and municipal legislative bodies shall be
less in number than a majority of the commission and that not less
than a majority of the members of the commission shall hold no
salaried public office or position whatever excepting offices or
faculty memberships of a university or other educational
institution.
“The procedural steps which the legislatures have put in place in the form of enabling
statutes governing the enactment of zoning ordinances usually are regarded as mandatory, and
10
a failure substantially to comply with such requirements renders . . . the zoning ordinance
invalid.” 83 Am. Jur. 2d Zoning and Planning § 581 (1992). In State ex rel. SCA Chemical
Services, Inc. v. Sanidas, 681 S.W.2d 557 (Tenn. App. 1984), this Court stated:
“Procedural requirements are considered by the courts to be
safeguards against arbitrary exercise of power. Failure to comply
with such procedural requirements has been regarded not only as
an ultra vires act on the part of municipal legislators, but also as
a denial of due process of law. Indeed, a statute or ordinance
which fails to require legislative notice and a hearing prior to the
enactment of a zoning ordinance may be regarded as invalid for
failure to require procedure which comports with due process of
law.”
Id. at 564 (quoting 1 Anderson, American Law of Zoning § 4.03 (1976)).
“The requirements as to the giving of such notices of a hearing upon a petition for an
amendment or a change in the zoning regulations must be substantially complied with.” Clapp
v. Knox County, 197 Tenn. 422, 273 S.W.2d 694, 698 (1954). The same is true with regard to
the publication requirement. Id. at 699.
With regard to the 1984 Zoning Resolution, we agree with the trial court’s finding that
the 1984 Resolution is not invalid due to failure to comply with the statutory requirements. The
evidence does not preponderate against the trial court’s findings in this regard. Moreover, “after
long public acquiescence in the substance of an ordinance, public policy does not permit such
an attack on the validity of the ordinance because of procedural irregularities.” Trainor v. City
of Wheat Ridge, 697 P.2d 37, 39 (Colo. App. 1984) (citing Edel v. Filer Township, 49 Mich.
App. 210, 211 N.W.2d 547 (1973); Taylor v. Schlemmer, 353 Mo. 687, 183 S.W.2d 913 (1944);
Struyk v. Samuel Braen’s Sons, 17 N.J. Super. 1, 85 A.2d 279 (1951)); see also 83 Am. Jur. 2d
Zoning and Planning § 581 (1992). In Trainor, the zoning ordinance under attack had been in
effect for over ten years before the plaintiffs filed their complaint. Thus, the court held that
given the extensive public reliance on the ordinance, such was immunized from a belated attack
on various procedural grounds. The same holds true for the 1984 Zoning Resolution that is
under attack on procedural grounds by Mr. Hutcherson. The 1984 Zoning Resolution has been
in effect for over ten years and has been relied on extensively by the residents of Lauderdale
County including Mr. Hutcherson. As such, the 1984 Zoning Resolution is immunized from an
attack on procedural grounds.
An analysis of the 1991 amendment is irrelevant due to the fact that the 1991
11
Amendment did not affect Mr. Hutcherson. The 1991 Amendment only established two new
districts within the I classification and did not remove landfills from FAR districts.
However, the same cannot be said about the 1992 Amendment. The 1992 Amendment
effectively removed landfills as a “use permitted on appeal” in FAR districts. As a result,
landfills were only permitted as a use on appeal in I-2 districts. If the 1992 Amendment was
properly enacted, Mr. Hutcherson’s efforts were proper in seeking to have his property rezoned
in order to construct the proposed landfill on such.
From a review of the record, we concur in the trial court’s finding that the 1992
Amendment was not properly enacted due to failure to provide proper notice as required by
statute. The notice provided in the local newspaper of the public hearing for the 1992
Amendment stated as follows:
Pursuant to Tennessee Code Annotated Section 13-7-105
notice is hereby given of a public hearing to be held by the
Lauderdale County Legislative Commission on Monday, the 9th
day of November, 1992 at 9:00 a.m. in the Lauderdale County
Courthouse. The purpose of the hearing is to receive public input
into a proposed amendment to the Lauderdale County Zoning
Resolution concerning planned residential developments. The
amendment applies to residential development on a single tract of
land more than 25 acres, developed in conjunction with scenic
bluffs, lakes and waterways. The requirements include
submission of a site plan to the Lauderdale County Planning
Commission before any building permits for construction will be
issued. The regulations set forth minimum requirements for
density, setbacks, height of structures, access to county roads, and
utilities. A copy of the proposed amendment may be viewed in
the Office of the Lauderdale County Executive during regular
business hours. All interest persons are invited to attend and
comment.
As evident from the above-quoted passage, the published notice did not mention that the
proposed amendment concerned landfills and the removing of landfills as “uses permitted on
appeal” in FAR districts. This notice was misleading and failed to give the necessary
information to the interested parties. The publication of a notice of hearing of an amendment
for rezoning need not set out the amendment if the publication sets out substantially the time and
place of the hearing and a description of the property to be rezoned. Clapp, 197 Tenn. 422, 273
S.W.2d 694. Thus, given the contents of the above-quoted notice, the 1992 Amendment is
invalid.
We further find that the 1996 Reaffirmation did not cure the procedural deficiencies that
12
accompanied the 1992 Amendment. Where a zoning resolution has been adopted without proper
procedure, the procedural defects can be cured by re-enactment of the resolution by proper
procedure. 83 Am. Jur. 2d Zoning and Planning § 583 (1992). What the County Commission
attempted to do was to cure any previous procedural deficiencies by re-enacting and re-adopting
the entire zoning resolution as amended. However, to properly re-enact the resolution, the
procedures as prescribed by T.C.A. § 13-7-104 must be followed which, in pertinent part,
requires the county legislative body to a “hold a public hearing thereon, the time and place of
which at least thirty (30) days’ notice shall be given.” Notice of publication and notice of public
hearing was published on April 25, 1996 in a newspaper of general circulation in Lauderdale
County for a public hearing to be held on May 13, 1996. As evident from the time notice was
given and the time the hearing was held, the requisite thirty days’ notice was not given. “‘Where
the enabling act prescribes the time which must elapse between notice and hearing, failure to
comply renders a zoning ordinance invalid.’” Town of Surgoinsville, 866 S.W.2d at 556
(quoting 83 Am. Jur. 2d Zoning and Planning § 589 (1992)). The eighteen days’ notice given
by the County Commission is insufficient under T.C.A. § 13-7-104 and thus the 1996
Reaffirmation is invalid. In addition, the County Commission’s actions with regard to the 1996
Reaffirmation are questionable to say the least given that the timing of such action occurred
several months after Mr. Hutcherson filed his complaint.
As a result of the foregoing, sanitary landfills remain a “use permitted on appeal” in FAR
districts as provided for in the 1984 Zoning Resolution and as such, Mr. Hutcherson’s proposed
landfill is a “use permitted on appeal” on his farm. Thus, having already received his permit
from the State, Mr. Hutcherson is required to follow the proper procedures to obtain approval
from the BZA as provided by the 1984 Zoning Resolution since landfills are a “use permitted
on appeal” in FAR districts.
Since no rezoning was necessary, this Court will not review the proceedings that occurred
with regard to the County Commission’s hearing concerning Mr. Hutcherson’s rezoning request.
The trial court denied injunctive relief to plaintiffs and apparently was considering the
case as an appeal involving a denial of rezoning. As previously noted, plaintiff’s property was
properly zoned for such “use permitted on appeal,” but plaintiff did not proceed with the required
appeal to the BZA. We agree with the trial court’s decision to deny injunctive relief but for a
13
different reason. This Court will affirm a decree correct in result but rendered upon different,
incomplete, or erroneous grounds. Gamblin v. Town of Bruceton, 803 S.W.2d 690, 693 (Tenn.
App. 1990). As noted, Hutcherson is required under the existing zoning resolution to proceed
with the BZA to obtain a permitted use.
Accordingly, the decree of the trial court is affirmed, and the case is remanded to the trial
court for such further proceedings as may be necessary. Costs of the appeal are assessed against
the appellant.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE
14