1 Act of May 30, 1991, ch. 118, 1991 Tenn. Pri

v. Acts 315. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE July 2000 Session
HOME BUILDERS ASSOCIATION OF MIDDLE TENNESSEE, ET AL 

### . v.

MAURY COUNTY, TENNESSEE, ET AL


### . Appeal from the Circuit Court for Maury County No. 8595 Stella L. Hargrove, Judge

No. M1999-02383-COA-R3-CV - Filed August 31, 2000

W ILLIAM C. K OCH , J R ., J., concurring.

I co ncur with Section I

II of the court’ s opinion. However , I decline to join in

Sectio n I I because the plaintiffs in this case do not have standing to challenge the constitutionality of the Maury County Ad eq uate Facilities Tax 1 on the ground that it interferes with

a person’s “natu

ral right” to erect “shelter from the elements . . . upon his own real property.”

Courts s hould decline to grant relief in cases that do not involve a genuine, existing controversy. State ex

rel Lewis v. State , 208 Tenn. 534, 537, 347 S.W.2d 47, 48 (1961); McIntyre

v. Traughber , 884 S.W.2d 134, 137 (Tenn. Ct. App. 1994). We routinely decline to render advisory opinions, Super Flea Market of Chattanooga, Inc. v. Olsen , 677 S .W .2d 449, 451 (Tenn. 1984); Parks v. Alexander
, 608 S.W.2d 881, 892 (Tenn. Ct. App. 1980), or to decide abstract legal questions. State ex rel. Lewis v . State
, 208 Tenn. at 538, 34 7 S.W.2d at 48-49; Eyring v. East Tenn. Baptist Hosp. , 950 S.W.2d 354, 359 (Tenn. Ct. A pp. 1997). Accor

dingly, the courts

should refrain from deciding constitut

ional issues in

the absence of a

n actual controve

rsy requiring the

m to address the question. West v. Carr , 212 Tenn. 367, 382, 370 S.W.2d 469, 475 (1963).

In order to have an actual, live controversy, the parties must have a sufficiently personal stake in the resolution of the dispute to warr ant the exercise of the court’s power. Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov’t , 842 S.W.2d 611, 615 (Tenn. Ct. App. 1992); Browning-Ferris

Indus., Inc. v. City of Oak Ridge , 644 S.W.2d 400, 40 2 (Tenn. Ct. App. 1982). Parties may establish that they have a personal stake in a dispute by demonstrating that they have sustained some actual or threatened injury to one of their rights, that the injury was caused by the challenged

conduct, and

that the injury is one for which a judicial remedy of some sort is available. In re Petition of Youngblood , 895 S.W.2d 322, 326 (Tenn. 1995); Tennessee Envtl. Council v. Solid Waste Disposal Control Bd. , 852 S.W.2d 893, 896 (Tenn. Ct. App. 1992).-2-

The primary focus of a standing inquiry is on the party seeking relief and on the nature of

the party’s claims. Allen v. Wright , 468 U.S. 737, 752, 10 4 S. Ct. 3315, 3325 (19 84); Fifteenth Judicial D ist. Unified Bar Ass’n v. Glasgow , No. M1996-00020- COA-R3-CV, 1999 WL

1128847, at * 2 (Tenn. Ct. App. Dec. 10, 1999) (No Tenn. R. App. P. 11 application filed). While we do not inquire into the likelihood that the claim will succeed, we examine the substance of the claim to determine whether the plain

tiff has articula

ted an injury-in-

fact.

The plaintiffs in this case are two real estate developers and a contractors’ trade associa tion. Their constitutional challenge to the Maury County Adequate Facilities Tax is based solely on th eir assertion that the improvement of property and the erection of shelter by a property owner on his or her own property is a “natural right” that cannot be taxed as a privilege. Assuming for the sake of argume nt t hat this Whitman-esque claim has some substance, the plaintiffs have not, and when questioned during oral arg ument could not, demonstrate any dire ct connection be tween their busine

ss activities and the right they assert. Plainly stated, they ar e in the business of building houses for resale at a profit; they a

re not building shel ter for themselves on their own property. The lack of connection between the plaintiffs’ activ ities and the asse

rted constitutiona

l interest deprive them of standing.

It might also be argue

d that even though t

he contractors a

nd their trade association have

not asserted a right which they

themselves posses s, they should be pe rmitted to assert th

e rights of third persons who do possess th e righ t. This argument lik ewise has no merit

. They cannot bas

e their standing on the rights of third parties because they have suffered no direct constitutional injury-infact. Craig v. Boren , 429 U.S. 190, 195, 97 S. Ct. 451, 455-56 (1976 ). In addition, the trade associati on cannot demonstrate that its members have standing to sue in their own right. C urv e Elementary

Sch. Parent & Teach

er’s Org. v. Laude

rdale Count

y Sch. Bd. , 608 S.W.2d 855, 858 (Tenn. Ct. App. 1980).

Because of the plaintiffs’ lack of standing, I would decline to address the substance of

their claim that home construction is a natural right that cannot be taxed as a privilege. However, I concur completely

withthe analysis in Section III of the court’s opinion co ncluding that the Ma

ury County Adequate Facilities Tax is not an impact fee.

____________________________ WILLIAM C. KOCH, JR., JUDGE