Phyllis Hovenden, Bill Hovenden, Ellen Wemyss, Patricia Highers, Richard Rouch, and Citizens for and Orderly Development of Gallatin v. City of Gallatin, Galatin Planning Commission

PHYLLIS HOVENDEN, )
Petitioner/Appellant, )
BILL HOVENDEN, ELLEN WEMYSS, )
PATRICIA HIGHERS, RICHARD )
ROUCH, and CITIZENS FOR AN )
ORDERLY DEVELOPMENT OF )
GALLATIN, )
Petitioners, ) Sumner Chancery
) No. 94C-243
VS. ) Appeal No.
) 01-A-01-9508-CH-00383
CITY OF GALLATIN, GALLATIN )
PLANNING COMMISSION, GALLATIN )
CITY COUNCIL, L.A. GREEN, III, )
TRUSTEE, L.A. GREEN, III and )
FILED
CALVERT GREEN CLEVENGER, )
March 8, 1996
Respondents/Appellees, )
and WAL-MART STORES, INC., )
Cecil W. Crowson
Intervenor/Appellee. )
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CHANCERY COURT OF SUMNER COUNTY
AT GALLATIN, TENNESSEE
HONORABLE IRVIN H .KILCREASE, JR., BY INTERCHANGE

RALPH W. MELLO
101 Westpark Drive, Suite 250
Brentwood, Tennessee 37027
ATTORNEY FOR PETITIONER/APPELLANT

C.L. Rogers
Joe H. Thompson
ROGERS & MOORE
119 Court Square
Gallatin, Tennessee 37066
ATTORNEYS FOR RESPONDENTS/APPELLEES
CITY OF GALLATIN, GALLATIN PLANNING COMMISSION,
AND GALLATIN CITY COUNCIL

Paul C. Ney, Jr.
DORAMUS & TRAUGER
222 Fourth Avenue, North
Nashville, Tennessee 37219
ATTORNEY FOR RESPONDENTS/APPELLEES
L.A. GREEN, III and GREEN & LITTLE, A PARTNERSHIP

Robert E. Parker
George A. Dean
PARKER, LAWRENCE, CANTRELL & DEAN
200 Fourth Avenue, North - Suite 500
Nashville, Tennessee 37219
ATTORNEYS FOR INTERVENOR/APPELLEE WAL-MART STORES, INC.

MODIFIED, AFFIRMED AND REMANDED

HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
CONCUR: SAMUEL L. LEWIS, JUDGE and WILLIAM C. KOCH, JR., JUDGE
PHYLLIS HOVENDEN, )
Petitioner/Appellant, )
BILL HOVENDEN, ELLEN WEMYSS, )
PATRICIA HIGHERS, RICHARD )
ROUCH, and CITIZENS FOR AN )
ORDERLY DEVELOPMENT OF )
GALLATIN, )
Petitioners, )
) Sumner Chancery
) No. 94C-243
VS. )
) Appeal No.
) 01-A-01-9508-CH-00383
CITY OF GALLATIN, GALLATIN )
PLANNING COMMISSION, GALLATIN )
CITY COUNCIL, L.A. GREEN, III, )
TRUSTEE, L.A. GREEN, III and )
CALVERT GREEN CLEVENGER, )
Respondents/Appellees, )
and WAL-MART STORES, INC., )
Intervenor/Appellee. )

OPINION

The captioned petitioners filed their “Petition for Writ of Certiorari and Verified

Complaint” seeking review of the action of the City Council of Gallatin in regard to the

zoning of certain property and for injunctive relief. From an adverse judgment in the Trial

Court, one of the petitioners, Phyllis Hovenden, has appealed, presenting the following issues

for review:

1. Whether the appropriate analysis for reviewing the actions
of the Gallatin City Council in passing an ordinance to rezone
property should be declaratory judgment?

2. Whether the Chancery Court erred in failing to award
petitioners a declaratory judgment after determining that the
Gallatin Planning Commission and Gallatin City Council did
not make the requisite findings of fact?

3. Whether the Gallatin Planning Commission and Gallatin
City Council violated the Gallatin Zoning Ordinance by
considering and granting a rezoning request before a
preliminary master plan was submitted?

4. Whether the Gallatin Planning Commission and the Gallatin
City Council violated the Gallatin Zoning Ordinance by
considering a proposed master plan that did not include a
certification that the services of one or more design
professionals were utilized in the preparation of the master
plan?

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 5. Whether the Chancellor erred in denying petitioner's motion
to supplement the record with the minutes of the Gallatin
Planning Commission and the Gallatin City Council?

Petitioners are owners of property in the vicinity of a 23 acre tract which is the subject

of zoning action by the Gallatin Planning Commission and the Gallatin City Council for the

purpose of permitting the construction of a shopping complex for the use of the intervenor,

Wal-Mart Stores, Inc.

Prior to the present proceeding, the subject property was zoned “MRO-PUD,” which

means “Multiple Residential Office-Planned Unit Development.” Within this area multiple

residences, offices and planned unit developments were allowed. A “Planned Unit

Development” is a planned use which includes uses not ordinarily allowed in the zone if they

are included in a plan for development of a particular tract which specifies the particular use

to which each part of the tract is to be devoted. If approved by the City Council, the planned

unit development is binding upon the developer and any change in the designated use of any

part of the development must be approved by the Council.

On May 21, 1984, the “Final Master Plan” of a planned unit development of the

subject property under the name “Village Green,” was approved and included in the planning

records of the City of Gallatin. The plan designated various sections of the tract for

“Office/Commercial, to become retail (General Retail Sales and Services Food Services

Commercial) to a maximum of 100,000 GAF and with minimum of 137 cars (1:800 GAF).

To exclude major department or discount stores and gasoline stations specifically.”

(Emphasis supplied.)

The emphasized words excluded the use of the land for the proposed Wal-Mart Store.

The purpose of this proceeding is to amend the plan of Village Green Planned Unit

Development to remove the above emphasized exclusion so that the Wal-Mart Store could be

built.

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 There was a difference of opinion as to the proper manner of removing the exclusion.

Some thought that it could be removed by simply amending the provisions of the 1984 Plan

of Village Green Planned Unit Development. Others thought that a change of the basic

zoning classification of the property was required. Ultimately both methods were pursued

and consummated, and the results are the subject of this judicial review.

The plan to change the basic zoning was initiated first. On June 1, 1994, the Planning

Commission recommended, and on June 28, 1994, the City Council enacted Ordinance No.

094-981 changing the zoning of Village Green from “MRO-PUD General Commercial” to

“CG-PUD General Commercial.”

On July 5, 1994, the City Council passed Ordinance 094-980 concurring in the action

of the Planning Commission amending the 1984 Plan of Village Green Planned Unit

Development to “Commercial General,” thereby removing the above emphasized exclusions.

On July 25, 1994, the Planning Commission finally approved the amendment of the

plan of Village Green Planned Unit Development as concurred in by the City Council on July

5, 1994.

On July 27, 1994, the captioned petitioners filed their “Petition for Writ of Certiorari

and Verified Complaint” seeking relief from Ordinance No. 094-981 changing the zoning of

the subject property, Ordinance No. 094-980 concurring in the amendment of the plan of

Village Green Planned Unit development, and the July 25, 1994 final approval of the

amendment by the Planning Commission.

On August 30, 1994, the Trial Court remanded the cause to the City Council for

findings of fact. On November 2, 1994, the City Council filed findings of fact.

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 The Trial Judge filed a comprehensive Memorandum in which he disposed of 15

specific issues raised by petitioners, dismissed the petition and affirmed the actions of the

City Council and Planning Commission. A judgment was entered accordingly.

Appellant’s issues and arguments are based upon the premise that legislative action

was required to eliminate the provision in the plan of Village Green Planned Unit

Development forbidding “major department or discount stores and gasoline stations

specifically.”

This Court respectfully disagrees.

In 1984, when the subject land was zoned for planned unit developments, a planned

unit development of the land was duly approved which permitted commercial activity within

the development limited only by the quoted exclusion. The removal of that exclusion was

properly accomplished by amendment of the plan of the planned unit development, without

any amendment of the zoning ordinance. The state zoning statute and the Gallatin General

Zoning Ordinance authorize this procedure.

T.C.A. Sections 13-7-201, et seq. confer power upon municipal legislative bodies to

establish zoning policies within their territorial jurisdiction and prescribe the procedures for

exercising the power.

In 1979, the Gallatin City Council adopted a Zoning Ordinance for the City of

Gallatin.

Article VIII of said ordinance is entitled “Planned Unit Development District

Regulations.” It prescribes the requirements and procedure for obtaining approval of planned

unit developments.

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Pertinent portions of the Zoning Ordinance are:

81-101 Intent and Purpose.

The purposes of these Planned Unit Development District
Regulations are as follows:

a. To promote flexibility in design and permit planned
diversification in the location of structures;

b. To promote the efficient use of land in order to facilitate a
more economic arrangement of buildings; circulation systems,
land use, and utilities;

c. To preserve to the greatest extent possible the existing
landscape features and amenities and to utilize such features in
a harmonious fashion;

d. To encourage the total planning of tracts of land consistent
with pertinent long-range plans.

....

82-103 Application, Review, Public Hearing and Official
Action of a Planned Unit Development

The provisions of this Section set forth the requirements for
the application, official review and action for all planned unit
developments provided for by this article.

....

82-103.4 Planning Commission Action on Preliminary
Application for Planned Unit Development

Within 45 days after initial submission to the Planning
Commission, the Commission shall take action on the
preliminary application by any one of the following:

a. Unconditional preliminary approval.

b. Conditional preliminary approval, in which the Planning
Commission expressly denotes modifications which must be a
part of the preliminary approval.

c. Disapproval.

....

82-103.402 City Council Approval of Preliminary Plan

Any approval of a preliminary application by the Planning
Commission shall be transmitted to the Gallatin City Council
for their concurrence.

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 ....

82-103.5 Final Approval of the Planning Commission of the
Proposed Planned Unit Development

The concurrence of the City Council with the preliminary
approval of a planned unit development shall authorize and
form the basis for the Planning Commission final approval of
said development. The final approval of the Gallatin Planning
Commission of the planned unit development shall be subject
to the procedures and requirements of this section.

....

82-103.505 Final Planning Commission Action

Upon receipt of the application for final approval of a planned
unit development, the Planning Commission shall examine
such application including the plan and determine whether it
substantially conforms to all applicable criteria and standards
and whether it substantially conforms in all respects to the
previously approved preliminary master development plan.
The Commission may impose such conditions of approval as
are in its judgment necessary to ensure conformity to the
applicable criteria and standards. In so doing, the Commission
may permit the applicant to revise the plan and resubmit it as a
final master development plan within 30 days.

82-103.506 Planned Unit Development and the Official Zoning
Map

The boundary of a planned unit development having a
preliminary approval by the Gallatin City Council shall be
placed by the Zoning Administrator directly on the Official
Zoning Map overlaying the existing zoning districts just prior
to preliminary approval and identified by the ordinance number
providing the preliminary approval. Likewise, as a result of
Planning Commission and City Council action, when the
planned unit development is canceled, the planned unit
development shall be removed from the Official Zoning Map
by the Zoning Administrator, and the district which was shown
on the map immediately prior to the mapping of the planned
unit development shall appear thereon, unless an alternative
district is recommended by the Planning Commission and
enacted by the City Council.

There is no requirement for concurrence of the City Council in the final Planning

Commission action prescribed by 82-103-505.

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 Under the existing zoning, a single commercial activity was not authorized, but a

Commercial Planned Unit Development was authorized, provided its internal structure

(including the precise designation of various commercial activities) was duly approved under

the above provisions of the General Zoning Ordinance.

On May 21, 1984, the Planning Commission approved a “Final Master Plan” for the

subject property under the name, Village Green. Proportions of the property were designated

as follows:

Tract A II - Office/Commercial Site 8.0 acres

Tract A III - Shopping Village 5.9 acres

Tract A IV - Convenience Commercial 3.4 acres

The plan map also contains the following notations:

Tract A II - To become retail (General Retail Sales and Services Food
Services, Commercial)* to a maximum of 100,000 GAF and with minimum of
137 cars (1:800 GAF)

* To exclude major department or discount stores, major grocery stores and
gasoline stations specifically.

Under the above quoted provision, the City Council approval of the Preliminary Plan was

required. No approval by the Council of the Final Master Plan was required.

The minutes of the Planning Commission for May 24, 1994, contain the following:

11. L.A. Green 3-5-94: Represented by Brown and Dedman,
Inc. The applicant is requesting to amend the final master plan
regarding commercial general planned unit development.
Subject property is located on Highway 31 E at Belvedere
Drive, is on tax map 126I/A/001.00 and is zoned MRO -
Commercial PUD - General. Dean Carlson with Brown and
Dedman Inc. came forward to present this request. Mr. Allers
stated that the applicant is requesting an amendment to the final
master development plan. Currently the plan allows for
299,700 square feet of commercial use in the PUD. The
applicant would like to amend the PUD as to the location of
200,000 square feet of density of the PUD will remain the
same. The applicant also requested that the PUD plat be
amended to delete the exclusions on Tract A-II. These
exclusions do not allow major department or discount stores,

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 major grocery stores and gasoline stations. If the Planning
Commission approves these amendments then its action will be
to send this case to the City Council, for concurrence, with an
approval recommendation. The staff recommends approval. . .
.

On June 1, 1994, the Planning Commission approved the amended PUD.

On July 5, 1994, City Council by Ordinance No. 094-98D concurred in the action of

the Planning Commission.

On July 25, 1994, the Planning Commission finally approved the PUD in accordance

with Section 82-103.5 of the Zoning Ordinance quoted above.

The foregoing proceedings perfected the right of the owners to develop the subject

land in accordance with the amendment to the PUD approved by the Planning Commission

and City Council, without any change of zoning. Any zoning change by the City Council was

surplusage and irrelevant to the present controversy.

In this view of the case, it is unnecessary to discuss appellant’s arguments asserting

the invalidity of Ordinance 094-981 which undertook to change the zoning classification of

the subject property.

Appellant’s first issue relates entirely to Ordinance No. 094-981 which changed

zoning. It will therefore not be discussed.

Appellant’s Second Issue

Appellant’s argument in support of this issue is directed solely at Ordinance No. 094-

981 which changed zoning designation and which this Court has determined to be irrelevant

to the determination of this appeal. Appellant’s argument on this issue concludes as follows:

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 Based upon its ruling that the requisite findings of fact were
not made, the Chancery Court should have granted petitioners a
declaratory judgment, declaring Ordinance 094-981 to be void
and of no effect. Instead, in violation of the Tennessee
Constitution, the Chancery Court directed the Gallatin City
Council to make certain findings of fact while acting in its
legislative capacity. . . . This is clear error for which the
Chancery Court’s opinion should be reversed.

In respect to Ordinance No. 094-980, the approval of the PUD, the actions were

administrative, required findings of fact, and were reviewable by common law certiorari.

State, ex rel Spence v. Metropolitan Government, etc., Tenn. 1971, 469 S.W.2d 777.

In response to an order of the Trial Court, both the Planning Commission and the City

Council filed written findings of fact. This satisfies lack of findings of fact in respect to

Ordinance No. 094-980.

Appellant’s third issue also relates only to Ordinance No. 094-981 which changed the

zoning. For the reasons already stated, it need not be discussed.

Appellant’s fourth issue complains that the plan of the PUD was approved without the

certificate of a design professional as required by Section 81-103 of the Zoning Ordinance.

Section No. 81-102 of the Zoning Ordinance provides:

No application for a PUD zoning shall be considered unless a
master plan of the development meeting requirements set forth
in Section 82-103.2 is submitted therewith. (Emphasis added)

The present controversy does not relate to an application for PUD zoning. That

procedure took place in 1984, when the original Green Acres PUD was presented and

approved. The original, 1984, application is not included in this record, so that it cannot be

determined whether it bore the required certificate.

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 The present proceeding was for approval of an amendment of a previously existing

(1984) PUD. The requirement for certification does not apply to an application for

amendment of a pre-existing PUD. Nevertheless, the maps presented to the Commission and

Council show plainly that they were prepared by professionals, even though they do not bear

an express certificate to this effect.

The transcript of proceedings before the Commission contains ample testimony that

necessary professionals were involved in planning the amendment.

Appellant’s fifth issue complains of the denial of her motion to supplement the record

with the minutes of the Commission and Council when their findings of fact were approved.

Essentially, this is a complaint of the exclusion of evidence. The record contains no tender of

the excluded evidence or of its contents. In the absence of an offer of evidence and

preservation of it in the record, no error can be predicated upon its exclusion. Cohen v. Cook,

62 Tenn. App. 292, 462 S.W.2d 502, affd., 224 Tenn. 729, 462 S.W.2d 499.

Since the use of the subject property is strictly limited by the details of the planned

unit development, it is difficult to conceive how the change of its zoning classification could

enable its use outside the limits of the planned unit development. However, this court makes

no determination of the validity of Ordinance No. 094-981 so that question may be open for

decision in a case in which the validity of the ordinance is determinative.

The judgment of the Trial Court is modified to delete any determination of the

validity of Ordinance No. 094-981. As modified, the judgment of the Trial Court is affirmed.

Costs of this appeal are taxed against the appellant. The cause is remanded to the Trial Court

for any necessary further proceedings.

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 Modified, Affirmed and Remanded.

_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________
SAMUEL L. LEWIS, JUDGE

_____________________________________
WILLIAM C. KOCH, JR., JUDGE

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