Turnbull Preservation Group, L.L.C. v. Dickson County, Tennessee ( 2022 )

05/27/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 2, 2022 Session
TURNBULL PRESERVATION GROUP, L.L.C. ET AL. V. DICKSON
COUNTY, TENNESSEE ET AL.
Appeal from the Chancery Court for Dickson County
No. 2020-CV-202 Laurence M. McMillan, Jr., Chancellor
No. M2021-00542-COA-R3-CV
This is an Open Meetings Act case regarding the Dickson County Planning Commission’s
approval and subsequent denial of a site plan for the construction and operation of a fuel
terminal. A non-profit and two Dickson County residents filed a petition for writ of
certiorari, arguing that the Planning Commission acted in violation of the Open Meetings
Act when it held an unpublicized meeting and initially approved the site plan. The trial
court found the case was moot because the Dickson County Planning Commission
overturned its approval of the site plan at a subsequent meeting. We agree and affirm the
trial court’s dismissal of the case as moot.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Rodger Dale Waynick, Jr., Dickson, Tennessee, for the appellants, Turnbull Preservation
Group, L.L.C., Charles W. Spann, and Margaret Sullivan.
Timothy Valton Potter and Andrew Eldridge Mills, Dickson, Tennessee, for the
appellees, Dickson County, Tennessee, Dickson County Planning and Zoning Office, and
Dickson County, Tennessee Regional Planning Commission.
Thomas V. White and George Arthur Dean, Nashville, Tennessee, for the appellee, Titan
Partners, L.L.C.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
The Dickson County Planning Commission (“the Planning Commission”) held
regular meetings on the second Thursday of every month at 7:00 p.m. In April 2020, the
regularly scheduled Planning Commission meeting was set for April 9; however, on April
9, David Darnell, the Dickson County Planning & Zoning Director, sent a memorandum
to the members of the Planning Commission notifying them that the April Planning
Commission meeting was being rescheduled to April 23. The memorandum stated, in
relevant part:
RE: April Meeting
The Dickson County Planning Commission will meet in session on
Thursday, April 23, 2020. . . .
If social distancing rules are still in effect, we will meet outside under the
open air big top tent. Please dress accordingly and bring your loud speaking
voices.
Enclosed is the agenda and the information on the items that will be before
you for your consideration. It is important for all members to attend. The
site plan enclosed is a very large project, that has been in the works for a long
time. If you should have any questions or comments, please feel free to call
the office at the number listed above.
The “site plan” referenced in Mr. Darnell’s memorandum was submitted by Titan Partners,
L.L.C. (“Titan Partners”) and was referred to as “Project DV.” Project DV was for the
“construction of a +/-34 Acre Petroleum Products / Bulk Fuel Storage and Distribution
Terminal on a +/- 146 Acre parcel of land in southeast Dickson County, near access to
Interstates I-40 and I-840.” The public was not notified of the change in the Planning
Commission’s meeting date.
On April 23, 2020, the Planning Commission held its rescheduled meeting on three
substantive agenda items, including Project DV. Fifteen people attended the Planning
Commission meeting, including Margaret “Missy” Sullivan. According to the April 23
Planning Commission meeting minutes, the Planning Commission heard a lengthy
discussion about Project DV as well as discussion regarding two other substantive items
on the agenda. The Planning Commission approved the proposed site plan for Project DV
by a margin of 7 to 3.
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On June 19, 2020, Turnbull Preservation Group, L.L.C., a non-profit neighborhood
association promoting environmental responsibility, Ms. Sullivan and a fellow Dickson
County resident, Charles W. Spann (collectively “Petitioners”), filed a Petition for Writ of
Certiorari in the Dickson County Chancery Court requesting the court to “declare Dickson
County, Tennessee Regional Planning Commission’s actions on April 23, 2020 to be void
and of no effect” because the Planning Commission violated the Open Meetings Act.1
After the petition was filed, Project DV was placed back on the Planning Commission’s
agenda for the July 23 meeting. At the July 23 meeting, the Planning Commission
overturned its prior approval of the plan.2
Chancellor Laurence McMillian, sitting by interchange3 in the Dickson County
Chancery Court, held a hearing on the petition for writ of certiorari on March 9, 2021. On
April 21, 2021, he ruled:
This Court finds the Planning Commission failed to provide any public notice
for the April 23, 2020 meeting, and therefore all action taken in that meeting
was void.
In its July 23, 2020 meeting, the Dickson County Planning Commission
overturned its April 23, 2020 approval of the site plan at issue in this case.
See Titan Partners, LLC v. Dickson County, Dickson County Chancery No.
2020-CV-312. This case is therefore moot. See Lynch Family Purpose LLC
v. Putnam County, 301 S.W.3d 196, 204 (Tenn. 2009) (“A case will be
considered moot if it no longer serves as a means to provide some sort of
judicial review to the prevailing party.”)
Petitioners appeal from this holding and articulate the following issue on appeal: “Did the
trial court abuse its discretion in ruling the Commission’s violation of the Open Meetings
Act was moot, notwithstanding the Commission’s ratifying act failed to meet the
requirements of the Cure Doctrine?”
1
Tennessee’s Open Meetings Act requires that meetings be open to the public and that “adequate public
notice” be given of the regular and special meetings of government bodies, among other things. See Tenn.
Code Ann. §§ 8-44-102; 8-44-103. Actions taken in violation of the Open Meetings Act are void: “Any
action taken at a meeting in violation of this part shall be void and of no effect; provided that this
nullification of actions taken at such meetings shall not apply to any commitment, otherwise legal, affecting
the public debt of the entity concerned.” Tenn. Code Ann. § 8-44-105.
2
We note that the meeting minutes from the July 23, 2020 Planning Commission do not appear in the
record. This oversight is not fatal to the appeal, however, because the parties agree that the Project DV site
plan was placed on the Planning Commission’s July 23 agenda and was voted down at that same Planning
Commission Meeting.
3
Three Dickson County judges recused themselves from hearing the case.
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STANDARD OF REVIEW
Judicial review of an action by an administrative body, such as the Dickson County
Planning Commission, is accomplished through the common law writ of certiorari. See
Roten v. City of Spring Hill, No. M2008-02087-COA-R3-CV, 2009 WL 2632778, at *1
(Tenn. Ct. App. Aug. 26, 2009); B & B Enters. of Wilson Cty., LLC v. City of Lebanon, No.
M2003-00267-COA-R3-CV, 2004 WL 2916141, at *2 (Tenn. Ct. App. Dec. 16, 2004).
When reviewing a certiorari proceeding, appellate courts apply a very limited standard of
review. State ex rel. Moore & Assocs., Inc. v. West, 246 S.W.3d 569, 574 (Tenn. Ct. App.
2005). Specifically, judicial review of a common-law writ of certiorari consists of
determining whether “the decision maker exceeded its jurisdiction, followed an unlawful
procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence
to support its decision.” Id. (citing Petition of Gant, 937 S.W.2d 842, 844-45 (Tenn.
1996)); see also Tenn. Code Ann. § 27-8-101. “At the risk of oversimplification, one may
say that it is not the correctness of the decision that is subject to judicial review, but the
manner in which the decision is reached.” Powell v. Parole Eligibility Rev. Bd., 879
S.W.2d 871, 873 (Tenn. Ct. App. 1994).
A trial court must make written findings of fact and conclusions of law in support
of its decision to either grant or deny the relief requested in the writ of certiorari. B & B
Enters. of Wilson Cty., 2004 WL 2916141, at *2 (citing Tenn. Code Ann. § 27-9-111(c)).
The trial court’s findings of fact must be based on the preponderance of the evidence;
therefore, on appeal, we review the trial court’s findings under the Tenn. R. App. 13(d)
standard of review which “requires us to defer to the trial court’s factual findings as long
as the evidence does not preponderate against them.” Id. As to issues of law, like a
determination of whether a case is moot, we review the trial court’s holding de novo, with
no presumption of correctness. Alliance for Native Am. Indian Rights in Tenn., Inc. v.
Nicely, 182 S.W.3d 333, 338-39 (Tenn. Ct. App. 2005).
ANALYSIS
As a threshold matter, we must determine whether this case has been rendered moot.
City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013) (“This Court must first
consider questions pertaining to justiciability before proceeding to the merits of any
remaining claims.”). Our Supreme Court has held that, “[t]he role of our courts is limited
to deciding issues that qualify as justiciable, meaning issues that place some real interest
in dispute.” Id. (citing Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838 (Tenn.
2008)). “A case is not justiciable if it does not involve a genuine continuing controversy
requiring the adjudication of presently existing rights.” All. for Native Am. Indian Rights
in Tenn., 182 S.W.3d at 338. The concept of mootness means that the case has “lost its
justiciability either by court decision, acts of the parties, or some other reason occurring
after commencement of the case.” Norma Faye Pyles Lynch Family Purpose LLC v.
Putnam Cty., 301 S.W.3d 196, 204 (Tenn. 2009). “Where a matter has been resolved, that
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claim must be dismissed as moot.” Person v. Bd. of Comm’rs of Shelby Cty., No. W2007-
01346-COA-R3-CV, 2009 WL 30746116, at *11 (Tenn. Ct. App. Sept. 28, 2009) (citing
Cty. of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996)).
The Planning Commission voted to approve the site plan for Project DV at an
unpublicized meeting held on April 23, 2020. On June 19, 2020, Petitioners filed their writ
of certiorari arguing that the Planning Commission violated the Open Meetings Act during
their April 23 meeting and requested the court to declare the Planning Commission’s
“actions on April 23, 2020 to be void and of no effect.” On July 23, 2020, the Planning
Commission took a second vote on Project DV and voted against the project. Because the
Planning Commission nullified its April 23 decision by overturning its prior approval of
the project on July 23, Petitioners received the relief they were requesting. See Tenn. Code
Ann. § 8-44-105 (requiring actions taken in violation of the Open Meetings Act to be “void
and of no effect.”).
We find the scenario presented here to be analogous to the case of Cathey v. City of
Dickson, No. M2001-02425-COA-R3-CV, 2002 WL 970429 (Tenn. Ct. App. May 10,
2002). In Cathey, the plaintiff opposed an annexation ordinance that the City of Dickson
passed; she claimed, among other things, that the City of Dickson discussed the ordinance
in private meetings in violation of the Open Meetings Act. Id. at *1. After the plaintiff
filed suit, the City of Dickson repealed the annexation ordinance. Id. On appeal, this Court
cited Tenn. Code Ann. § 8-44-105 and held that “repeal of the annexation ordinance would
have been the statutory remedy had the Open Meetings Act been violated.” Id. at *5. We
further held that the City of Dickson’s repeal of the annexation ordinance rendered the
plaintiff’s Open Meetings Act claims moot. Id. Similarly, in Person v. Board of
Commissioners of Shelby County, No. W2007-01346-COA-R3-CV, 2009 WL 3074616, at
*1 (Tenn. Ct. App. Sept. 28, 2009) a juvenile court judge filed suit alleging the Shelby
County Board of Commissioners passed a resolution in violation of the Open Meetings
Act. After the suit was filed, the Shelby County Board of Commissioners unanimously
rescinded the resolution at issue. Id. at *2. The trial court found that rescission of the
resolution rendered the Open Meeting Act claims moot. Id. at *13. This Court agreed that
the Open Meetings Act claims were moot, noting that, “where, as here, the governmental
body acts quickly and decisively to correct any mistake in its procedure, the primary goal
of the Open Meetings Act has been accomplished.” Id. at *14.
Petitioners point out that litigation between Titan Partners and Dickson County
ensued following the July 23 meeting, and that as a result of that separate litigation, there
were settlement negotiations between Titan Partners and Dickson County which ultimately
led to an extensive settlement agreement that included an approval of Project DV, among
other things. We explore the Planning Commission’s adoption of the settlement agreement
in detail in a companion case, Gray v. Dickson County, Tennessee, No. M2021-00545-
COA-R3-CV (released simultaneously with this opinion). Petitioners argue that the
settlement of Titan Partners’ litigation was an attempt to “cure” the April 23 violation of
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the Open Meetings Act that did not comport with the Cure Doctrine discussed in
Neese v. Paris Special Sch. Dist., 813 S.W.2d 432, 436 (Tenn. Ct. App. 1990). However,
the Planning Commission’s vote denying Project DV at the July 23 meeting effectively
cured the prior violation and resolved the claim. See Person, 2009 WL 30746116, at *11
(“Where a matter has been resolved, that claim must be dismissed as moot.”). Regardless
of Titan Partners’ litigation and resultant settlement negotiations, Petitioners’ Open
Meetings Act claim, relating to the lack of public notice for the April 23, 2020 meeting,
became moot on July 23, 2020 when the Planning Commission voted against the Project
DV site plan. Therefore, in accordance with our holdings in Cathey and Person, we find
that the Planning Commission’s actions on July 23 rendered Petitioner’s Open Meetings
Act claim related to the April 23 Planning Commission meeting moot, and we affirm the
trial court’s dismissal of the case.
CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are assessed against
the appellants, Turnbull Preservation Group, L.L.C., Charles W. Spann, and Margaret
Sullivan, for which execution may issue if necessary.
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
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