Posted by: Patricia Salkin | June 15, 2015

TN Appeals Court Finds Commission did not Exceed Its Jurisdiction or Act Illegally in Its Consideration of an Urban Design Overlay Application

On February 13, 2014, Green Hills Mixed Use, LLC submitted an application to the Metropolitan Nashville Planning Department for approval of a proposed 2.67 acre mixed-use development in Nashville. The property was located in a Shopping Center Regional (“SCR”) base zone and included an urban design overlay designated as the Green Hills Urban Design Overlay (“Green Hills UDO”). Andrew Collins, a Planner II for the Department, presented the request for approval, stating that the project met “all of the standards of the UDO and base zoning” and that it was developed under the property’s existing entitlements; the Commission voted unanimously to approve the request. On April 21, 2014, the Green Hills Neighborhood Association and Cecelia Smith (“Petitioners”) filed a petition for a writ of certiorari in Davidson County Chancery Court seeking review the Commission’s approval of the plan. The court entered an order affirming the Commission’s action and dismissing the writ with prejudice. Petitioners appealed, contending that the Commission illegally delegated its authority to approve the final site plans to the Executive Director, that the staff misinterpreted and misapplied the UDO standards when it approved the development, and that the 17–story tower violates the Metro Zoning ordinance. 

The court first noted that Tenn.Code Ann. § 13–4–103 grants planning commissions broad authority to effectuate municipal planning; there is no explicit prohibition on the delegation of authority to the Commission’s staff or employees. Thus, the procedure set forth in the rule constituted an administrative function; as such, it did not contravene the general rule against the delegation of functions which involve the exercise of discretion and judgment. Accordingly, the court held that the plan was presented to and approved by the Commission, and the procedure followed was lawful. The court then addressed Petitioners’ contention that the 17–story tower violated Section B.5 of the Green Hills UDO, which sets a 60–foot maximum building height at the “build-to line” of Hillsboro Pike. Here, the court discussed that the UDO contained guidelines for mixed use developments “constructed in accordance with the ‘build-to’ line”, which stated, “as an incentive, the UDO regulations should provide a bonus for mixed use development”; one such incentive encouraged by the UDO is the inclusion of residential space. The effect of the incentives, as noted by the Commission in its brief, could result in “taller buildings being built.” Since the UDO allows the height limitation to be exceeded provided that each floor above the height limit is “set back at least 10 feet from the floor below it”, the Green Hills plan accomplished this by moving the tower more than 130 feet back from the “build-to-line. 

For the aforementioned reasons, the court found the Commission did not exceed its jurisdiction or act illegally in its consideration of the Green Hill application, and the approval of the application was supported by material evidence. Accordingly, the judgment of the trial court was affirmed. 

Green Hills Neighborhood Assoc. v Metropolitan Government of Nashville and Davidson County TN, 2015 WL 2393977 (TN App. 5/18/2015)

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