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Act of May 30, 1991, ch. 118, 1991 Tenn. Priv. 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

WILLIAM C. KOCH, JR., J., concurring.

I concur with Section III of the court’s opinion. However, I decline to join in Section II

because the plaintiffs in this case do not have standing to challenge the constitutionality of the Maury

County Adequate Facilities Tax1

 on the ground that it interferes with a person’s “natural right” to

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

Courts should 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, 347 S.W.2d at 48-49; Eyring v. East Tenn.

Baptist Hosp., 950 S.W.2d 354, 359 (Tenn. Ct. App. 1997). Accordingly, the courts should refrain

from deciding constitutional issues in the absence of an actual controversy requiring them 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 warrant 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, 402 (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).
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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, 104 S. Ct. 3315, 3325 (1984); Fifteenth Judicial

Dist. 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 plaintiff has articulated an injury-in-fact.

The plaintiffs in this case are two real estate developers and a contractors’ trade association.

Their constitutional challenge to the Maury County Adequate Facilities Tax is based solely on their

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

argument that this Whitman-esque claim has some substance, the plaintiffs have not, and when

questioned during oral argument couldnot, demonstrateany direct connection between their business

activities and the right they assert. Plainly stated, they are in the business of building houses for

resale at a profit; they are not building shelter for themselves on their own property. The lack of

connection between the plaintiffs’ activities and the asserted constitutional interest deprive them of

standing.

It might also be argued that even though the contractors and their trade association have not

asserted a right which they themselves possess, they should be permitted to assert the rights of third

persons who do possess the right. This argument likewise has no merit. They cannot base 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

association cannot demonstrate that its members have standing to sue in their own right. Curve

Elementary Sch. Parent & Teacher’s Org. v. Lauderdale County 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 with the analysis in Section III of the court’s opinion concluding that the Maury County

Adequate Facilities Tax is not an impact fee.

____________________________

WILLIAM C. KOCH, JR., JUDGE