The state Court of Appeals has ruled in favor of the City of Germantown and its Planning Commission dismissing a complaint over the disputed rezoning of the Cordova Triangle.

Rezoning of Cordova Triangle in Germantown returns to court with updated complaint

The decision was issued last Thursday in Jackson, Tennessee after arguments by both sides in April regarding the rezoning of the almost 20-acre site across Germantown Road from the suburb's Performing Arts Center and Great Hall.

The city's planning commission recommended the rezoning back to residential – allowing homes instead of apartments – July 10, 2018. Based on the decision, members of the Owen family, who own the majority of the disputed land, filed a complaint challenging the recommendation. Shelby County Chancellor Walter Evans ruled against the family's complaint in August, saying he could not interfere with the city’s legislative process.

The state Court of Appeals heard the case April 10.

“Facts will show it was a kangaroo court-type of hearing before the planning commission. It was absurd,” Rick Winchester, attorney for the Owen family, told the panel of judges in Jackson.

The nearly 20-acre tract – bordered by Germantown Road to the east, Neshoba Road on the north and Cordova Road to the west – was owned by Jack Owen until his death in 2016. He left the land to his daughters, Catherine Owen Wilcheck and Agnes Owen Brooks, according to the register of deeds.

The land was designated T4 urban zoning in Germantown’s Smart Growth plan. In January 2018, the suburb implemented its 18-month apartment moratorium and considered removing the Smart Growth overlay from the property, returning it to its residential designation similar to bordering neighborhoods to the west and north.

The Owen family owns more than 13 acres and opposed the rezoning since it limited ideas for the property. Family members said they were considering a potential development for the tract, although city staff said plans were never formally submitted.

Winchester argued the city’s change devalued the land $7.2 million, which “aggrieved his clients.”

The Board of Mayor and Aldermen had not considered final action on the rezoning. However, Winchester contended the planning commission action was enough to appeal the vote to Chancery Court.

“(The judge) ruled that he felt like what I was trying to do was convince him to substitute his judgment for the judgment of the board of mayor and aldermen,” Winchester said, adding aldermen had not reviewed the rezoning at that time.

Winchester said the commission’s review “set the rules” for the board of mayor and aldermen. Since the commissioners voted in favor of the zoning change, the aldermen could rezone the property with a simple majority. If the commissioners had done otherwise, it would have required a super majority – four votes from the five aldermen.

“The hearing (by the planning commission) was replete with fundamental violations of due process,” Winchester said, adding the only way to challenge the commission’s “up or down vote” was through Chancery Court.

Ed McKenney, the city's attorney in the case, argued Chancellor Evans “got it right," regarding the planning commission recommendation to the mayor and aldermen.

McKenney defended his position with the case of Sylvan Park Inc. v. Metro Government of Nashville. The court ruled Metro Nashville's planning commission recommended against rezoning the property – not a final judgment. Because of that sequence, the court could not interfere during the process.

He said in Germantown’s case, the rezoning recommendation required a simple majority vote by the board of mayor and aldermen. In October, the change passed 3-0, with Alderman Forrest Owens absent and Alderman Rocky Janda abstaining. However, the board's final decision was not a part of the argument.

“State law determines the rules,” McKenney said, adding the commission is an advisory body to the board of mayor and aldermen.

“The planning commission recommendation cannot be considered a final order or judgment,” McKenney said. “That’s absolutely what this court is being asked to rule on today.”

Winchester rebutted, saying the Sylvan case McKenney brought up was wrong and “misinterprets the statute.” He also noted what he considered other problems with the planning commission's action.

“The hearing before the planning commission was full of misrepresentations, failure to follow the law, denial of due process, conflicts of interests and on and on,” Winchester said.

However, the judges decided the action was not final, and it could not interfere.

“Rather, the Planning Commission’s action is interlocutory in the sense that the Planning Commission has no authority to actually order the rezoning,” the opinion states, noting that decision lies with the aldermen. 

The Owen family has a similar lawsuit against Germantown in Chancery Court, baed on the final 3-0 by aldermen regarding rezoning of the triangle.