Brown v. Metro. Gov't of Nashville - No. M2011-01194-COA-R3-CV, 2013 Tenn. App. LEXIS 412 (Ct. App. June 21, 2013)

Rule:

An action for declaratory judgment, as provided by Tenn. Code Ann. §§ 29-14-101 — 29-14-113, rather than a petition for certiorari is the proper remedy to be employed by one who seeks to invalidate an ordinance, resolution or other legislative action of county, city, or other municipal legislative authority enacting or amending zoning legislation. However, the remedy of certiorari provided by Tenn. Code Ann. §§ 27-8-101, 27-9-101 - 27-9-113 will continue to be the proper remedy for one who seeks to overturn the determination by a board of zoning appeals as provided by Tenn. Code Ann. § 13-7-106 et seq. and Tenn. Code Ann. § 13-7-205 et seq. This distinction in remedies is made because the determinations made by a board of zoning appeals are administrative determinations, judicial or quasi-judicial in nature, and are accompanied by a record of the evidence produced and the proceedings had in a particular case, whereas, the enactment of ordinances or resolutions, creating or amending zoning regulations, is a legislative, rather than an administrative, action.

Facts:

The plaintiffs in this case are Conoly Brown, David Hood, and Tennessee Quick Cash, Inc. ("TQC") (collectively, "Landowners"). Messrs. Brown and Hood own the property located at 3100 Gallatin Pike, Nashville, Tennessee (the "Property"). Messrs. Brown and Hood are the sole shareholders of TQC, a Tennessee corporation which operates a financial services business on the Property that provides a range of services for its customers including check cashing, consumer loans, electronic payment of bills, telephone payment plans, and check advances, among others. Messrs. Brown and Hood also own property located at 934 Gallatin Road which they purchased in 2007 for the purpose of opening another financial services business providing, inter alia, check cashing, cash advances, and title loans services. The Metropolitan Council adopted a series of three ordinances that (1) created a new zoning classification called Specific Planning (SP); (2) rezoned over 700 parcels of property to SP zoning; and (3) amended permitted uses in SP zones to exclude certain types of financial services, specifically check cashing services not part of a bank. The Landowners’ properties were among those rezoned as SP, in a way that prohibits use of the properties to provide the types of financial services they have provided and intend to provide. The trial court dismissed the Landowners’ declaratory judgment action challenging the ordinance.

Issue:

Did the trial court err in dismissing the Landowners’ declaratory judgment action challenging the ordinance?

Answer:

Yes.

Conclusion:

The court held that the trial court erred in dismissing the Landowners’ declaratory judgment action challenging an ordinance because the enactment of the ordinance that rezoned the homeowners' property and amended the zoning ordinance was a legislative act and was subject to judicial scrutiny through an action for declaratory judgment. The ordinance was invalid because it did not comply with the ordinance creating and authorizing the use of the SP zoning classification. The rezoning ordinance was not directed at a specific site and did not approve a site specific development plan. Lastly, the SP rezoning was not initiated by an applicant pursuant to Metro. Gov't Nashville & Davidson County, Tenn., Code Laws § 17.40.106B, but instead was initiated by members of the council.