Posted by: Patricia Salkin | February 21, 2011

TN Appeals Court Holds that Board Members Who Recuse Themselves from Rezoning Vote Still are Counted in the Number of Board Members to Meet Majority Voting Requirement

Homeowner sought to have property rezoned for office use.  A majority of the legislative body voting on the application did not support the rezoning, particularly because several members had recused themselves. Homeowner filed a petition asking the trial court to deem the application approved even though a majority had not been achieved. The court approved the application and the town appealed.

The Town argued that amending the rezoning ordinance required an affirmative vote by a majority of the membership of the Board.  The Town maintained that its decision was not arbitrary or capricious.  The Court agreed with the Town and determined that the applicable statutory language was clear and unambiguous; a vote by the majority of the entire Board was required to enact plaintiff’s amendment.  Further, the Court determined that the record contained sufficient basis for the Board’s denial of plaintiff’s application and as such, the Board’s decision was not arbitrary or capricious. The trial court’s order was reversed.

Depot Property LLC v. Town of Arlington, 2011 WL 334472 (Tenn. Ct. App. 2011)

The opinion can be accessed at:

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