Clapp v. Knox County

• Decision Date: 16 December 1954
• Citation: 1 McCanless 422,273 S.W.2d 694,197 Tenn. 422
• Parties: , 197 Tenn. 422 W. L. CLAPP et al. v. KNOX COUNTY, Tennessee, et al.
• Court: Tennessee Supreme Court

Page 694

273 S.W.2d 694

1 McCanless 422, 197 Tenn. 422

W. L. CLAPP et al. v. KNOX COUNTY, Tennessee, et al.

Supreme Court of Tennessee.

Dec. 16, 1954.

Privette & Morton, Knoxville, for appellants.

R. C. Smith, Jr., Ely & Ely, Earl S. Ailor and Charles S. Badgett, Knoxville, for appellees.

NEIL, Chief Justice.

The sole issue on this appeal involves the construction of the County Zoning Act and the proceedings thereunder by the Quarterly County Court of Knox County, Tennessee.

The appellants are challenging certain acts of the Quarterly County Court of Knox County in re-zoning certain lands of one Roy C. Brown, trustee, and located just outside of the City of Knoxville on the four-lane highway leading from Knoxville into the Great Smoky Mountains.

The questions raised by the appellants are important to the particular individuals involved herein as well as to others residing in other counties in the State. Insofar as we have been able to find this is the first time that this Court has had this Act under consideration. The Zoning Act applies to all counties in the State. It was first enacted by the Legislature and appears as Chapter 33 of the Public Acts of 1935. Certain sections of this Act have been subsequently amended by the Legislature. Codifiers of the 1932 Code attached the Act and its various sections to Code Section 10268, which is the last section in the Code specifying the jurisdiction of the County Court. The various sections of the Zoning Act as thus carried into the 1932 Code are Sections 10268.1 through 10268.17.

Pursuant to this Act the Quarterly Court of Knox County in May, 1941, as amended in June, 1950, adopted a resolution establishing Zoning Districts within the unincorporated territory of Knox County by a formal resolution. Since that time Knox County has had Zoning Regulations and a Planning Commission with offices and maps, etc., setting out the various Districts and what they comprise. Under this Resolution establishing Knox County Zoning Regulations, and under Section 3 specifically thereof, it provides for the creation of zones in Knox County. Section 3A1 says:

'The boundaries of the aforesaid zones are hereby established upon the map which is designated as the 'Zoning Map of Knox County, Tennessee,' and is on file in the office of the Knox County Planning Commission. Said Zoning Map of Knox County, Tennessee, consisting of a chart explaining symbols and indications which appear on said map, is hereby made a part of this resolution.'

In conformity with this provision the Planning Commission of Knox County posted this large map in their office. This official map is there and by use of color symbols denotes the different zones under the Zoning Plan.

By Section 3B1, no buildings or premises may be used 'for any purpose other than a use permitted by this resolution in the zone in which such building or premises is located.' The zoning plan of Knox County is based upon the use of this official 'zoning map' which establishes boundaries of the various zones on the map itself, and regulates the use of buildings or premises within these zones.

This is important in the present lawsuit because the basic resolution by word description of boundaries is not used but to the contrary by use of the zoning map and charts and symbols is the way these things are designated and pointed out. These symbols used by the Planning Commission are primarily the use of different colors and denote different zones. Whenever any zoned property is amended by the Quarterly County Court the official zoning map is changed to the color contained in the amending resolution.

These amending resolutions of the zoning plan are not made by altering the language of the basic resolution itself because the various zones of Knox County are established by use of this zoning map rather than by written language in the basic resolution.

The Knox County Planning Commission has established certain forms of regulations so as to conduct that Commission on a businesslike basis. Among the other forms adopted is one styled 'Petition for Rezoning'. This petition then is addressed to the Planning Commission and then follows certain language with various blanks to be interlined by the one desiring a rezoning. In this blank is the class property from which and to which the rezoning is asked and then in addition to that there is a brief description of the property given along with the addresses below of the people who live or own property within a radius of 1,000 feet of the proposed change. Obviously since such forms have been created the Commission naturally, since it is young, expects a great many petitions for rezoning the various properties in the County. The petition in the instant case was filed on one of these forms on October 9, 1953. The secretary of the Planning Commission indicated that this petition was not full enough or was not sufficient and as a result the appellees herein filed a subsequent petition at a later date which apparently did meet the requirements of the Planning Commission.

This amended petition then came on to be heard before the Planning Commission at two separate times and at the last hearing the minutes of the Planning Commission, which are in the record, show that there were some 75 or more people present. After the matter was fully heard before the Planning Commission that Commission had a tie vote on whether the rezoning should be granted or not.

Then it was that the matter was taken before the Quarterly County Court. It is the method in which the matter was taken before the Quarterly County Court and the action thereon that bring this matter before this Court.

Before we go into these questions the matter got into court through a petition for certiorari by the appellants to the Chancellor to bring the action of the Quarterly County Court in rezoning this property before that court. To the petition for certiorari the appellees filed a motion to dismiss coupled with an answer. The Chancellor sustained this motion to dismiss and the present appeal has resulted.

In other words, the Chancellor held that the proceedings concerning the property in question 'were regular and lawful and not arbitrary nor unreasonable'.

The first section of the statute governing county zoning is: 'The quarterly county court of any county is hereby empowered, in accordance with the conditions and the procedure specified in the subsequent sections of this act, 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, watersupply conservation or other purposes.' 1932 Code, Section 10268.1, as amended.

The principal Code Section which is under consideration in the instant case is Section 5 of the Act, of Code Section 10268.5, and is: 'Amendments.--The county court 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 court. 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 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.' (Emphasis ours.)

It will be observed by reading the statute, Chapter 33 of the Public Acts of 1935, that all through these various sections of this Act the Legislators provided that the counties 'may, by ordinance' exercise the various powers under the Act. The Act though does not use the word 'shall', but it 'may, by ordinance' do these things. The County Court of Knox County has consistently, since they attempted to come under the Act, done what they have done by 'resolution' rather than by ordinance. We heretofore outlined the fact that by a formal resolution the county had decided to come under this Act and zone the county in 1941 as subsequently amended. The question of whether or not the acts taken in the instant case by formal motion is sufficient compliance of the Act has been very ably raised here. Another variation in word from the statute, Chapter 33, Public Acts of 1935, has been followed by Knox County and was followed in the instant case. Instead of calling these proposed changes in the zoning of property an amendment, they are called and referred to as a petition rather than an amendment. In other words it seems to have been the practice of the Planning Commission that the petition, a form of which they have sent out for a change, is so brief and well stated that it operates as an amendment of the zoning plan, and we think it should be given the force and effect of an amendment to the zoning plan which it is.

We will discuss these matters later and more at length in this opinion.

Under the italicized portion of the statute, Code Section 10268.5, above quoted did the county court acquire jurisdiction and did they properly exercise that jurisdiction if acquired under the facts of the...