# FILED

July 12, 1999 Cecil Crowson, Jr. Appellate Court Cle rk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ WILEY HUTCHERSON, WESTERN TENNESSEE ENTERPR ISES, INC., and LANDFILL, INC., Plaintiffs-Appel

lants, Lauderdale Chancery No. 9953 Vs. C.A. No. 02A01-9807-CH-00216 ROZELL CRINER, LAUDER DALE COUNTY EXECUTIVE, an d the LAUDERDALE COUNTY COMMISSION, acting

on behalf of Lauderdale County, Defendants-Ap

pellees.

____________________________________________________________________ ________ FROM THE LAUDERDAL E COUNTY CHANCERY C OURT THE HONORABLE WIL V. DORAN, CHANCELLOR

Jerry D. Kizer, Jr., William C. Bell, Jr.; Rainey, Kizer, Butler, Reviere & Bell, P.L.C. of Jackson

For Appellants J. Thomas Caldwell of Ripley Kemper B. Durand, Michael E. Keeney; Thomason, Hendri

x, Harvey, Johnso

n & Mitchell of Memph

is For Appellees

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S. CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE Plaintiffs-Ap pellants, Wiley Hutcherson, Wester n Tennessee Ente

rprises, Inc., an d Landfill, Inc., appeal the final decree of the trial court dismissing the complaint for declaratory judgment an d injunctive relief against Defendants-Appellees, Rozelle Criner, Lauderdale Count y1 The FAR district is for forestry, agricultural and residential uses, and

the I district is for industrial use

s. As for “uses permitted on appeal,” the 1984 Zoning Resolution provides in p ertin ent part: D. Uses P ermitted on Appeal - In the (FAR) ForestryA gricultural-Residential District, the following uses and thei r accessory uses may be permit te d sub ject to approval by the Lauderdale Coun

ty Board of Zoning A

ppeals. * * * 8. Sanitary landfill operations, subject to appr oval of Tennessee Department of Public Health, but not to includ e hazardous waste or chemical waste landfills. . . . The same is provide

d for in I districts

. 2 With regard to the

BZA, the 1984 Zoning

Resolution provide

s in pertinent par

t: SECTION 4. Powers

. The Board of Zonin g Appeals shall

have the following powe

rs: * * * B. Uses Permitted on Appeal - To hear anddecide applications for uses permitted on appeal as specified in this resolution. . . .

3 This landfill is currently owned by Lauderdale County. 2 Executive, and the Lauderdale County Commission. This case arises from Mr. Hutcherson’s attempt to construc t and operate a c

ommercial, sanitary landfill on a portio n of his 3 22 acre farm k nown as the Love Fa

rm in Lauderdale County, Tennessee. In 1984, the Lauderdale County Commission (Cou nt y Commission) adopted a comprehensive zoning resolution for Lauderda le County. The 1984 Zoning Resolution provided that sanitary landfills were a “use permitted on appeal” in both FAR

districts and I dist

ricts. 1 A “use permitted on appe

al” means that a use is permitted in that di strict, however,

in order to establish such a use, a landowner must submit an applicationto the Lauderdale County Board of Zoning Appeals (BZ

A) to obtain appro

val. 2 At the time of th e passage of the 1984 Zoning Resolution, Mr. Hutcherson’s farm was zoned FAR, and the only l an dfill within Lauder dale County was zoned FA

R. 3 Mr. Hutcherson has been involved in the scrap metal business for several years. As part of this business, Mr. Hutcherson utilizes a shredder which processes cars by breaking them into fist-size pieces. This process generates a waste product known as “shredder fluff.” Because of

a need to dispose of this waste, Hutcherson d ecide d to construct a landfill on his farm. In November

1986, Hutcherson Scrap Company, Inc. w as granted a permit from the State of4 WTE is a closely-held corporation formed by Mr. Hutcherson in 1992 t o obt ain a permit for and to o

perate the propo

sed landfill.

5 I-1 is a light industrial district, and I-2 is a restricted industrial district.

6 T.C.A. § 68-211-701 (1996), known as the “Jackson Law,” was amended in 1995 and provides as follow

s: No construc tion sh all be initiated fo r any new landfil

l for solid waste di spos al or for solid waste processing until the plans for such new landfill have been submitted to and approved by: (1) The county legisla

tive body in which th

e proposed landf

ill is located, if such new construction is loc ated in an unincorporated area; (2) Both the county legislative body and the governing body of the municipality

in which the proposed landfill is located, if such new construction is located in an incorporated area; or (3) Both the county legislative body of the county in which such proposedland f

ill is located and the governing body of any

3 Tennessee to build this landfill, and, in January 1987, a permit was obtained from the BZA. Shortlythereafter, Mr. Hutche rson constructed this landfill on abou

t 3 to 4 acres of the

farm. Neither the State

permit nor the BZA p

ermit placed any

restrictions on the

size of the landf

ill. In 1989, Mr. Hutcher

son deeded a 9.8 a

cre parcel of h

is f arm, which encompassed the 3 to 4 acrelandfill, to Landfill, Inc., a closely held corporation owned by Mr. Hutcherson and his wife. In 1990, Mr. Hutcherson commenced the p rocess of obtaining a State permit in the

name of Western Tennessee Enterprises, Inc. (WTE) 4 for a 184 acre

sanitary landfill on the Love Farm. This proposed landfill would be a commercial landfill as oppose

d to the existing landf

ill which is a private landfill for shredder fluff. In August 1991, the County Commission passed an amend ment t o the 1984 Zoning Resolution. The 1991 Amendment dividedthe I classification into two districts -- I-1 and I-2. 5 The 1991 Amendment als o permi tted san itary landfills as a “use permitted on appeal” in I-2 districts, added the definitions of “Sanitary Landfill - C ommercial” and “

Sanitary Landfill

- Public” to the “Definition s” section, and added standards for sanitary landfills. Furthermore, the CountyLandfill was rezoned to I-2 by the 1991 Amendment and constitutedthe only I-2 district in Lauderdale County while Mr. Hutcherson’ s farm rem ained zoned as FA R. The County Commission submits that the 1991 Amendment was also intended to remove landfills from FAR districts but that such language was inadvertently omitted. In December 1991, during Mr. Hutcherson’s attempt to obtain a St ate permit for the 184

acrelandfi ll, the Co unty Commission passed a resolution adopting the “Jackson Law.” 6 Themunicipality which is located within one (1) mile of such proposed landfill

. The County Commission later, on Ap ril 10, 1995 , adopted the 1995 version of the “JacksonLaw.” However, the 1995 version is not applicable to Mr. Hutch erson because i t is applicable

to allpermit applicatio

ns pending on Marc

h 15, 1995, and all

permit applications filed on or after March 15, 1995. Mr. Hutcherson received his State permit on November 14, 1994.

7 This earlier version of t he “Jackson Law” w

as not applicable

to Lauderdale Cou

nty because the county had a county-wide zoning scheme at this time. 4 “JacksonLaw” at this time wa s a state law that allowed counties without county-wide zoning to control landfill development by requiring county a pproval. 7 Shortlythereafter, the State put WTE’s permit applicatio

n on hold because

according to the S

tate’s procedur

e, once the State

is puton notice that a county had adopted the “Jackson Law,”the State could not r eview the permit application until th

e State receive

d notice of county

approval. In an attempt to receive county approval, Mr. Hutcherson was notified by the Lauderdale CountyPlanning Commission (Planning Commission) that he would need to have the 184 acres rezoned to I- 2 in order to

operate a landfill on such property. In reliance, Mr. Hutcherson submitted an application to the Planning Commission to have this property rez oned. The Planning Commission subsequently voted to recommend denial of the rezoning request to the CountyCommission. The County Commission then notified Mr. Hutcherson that it would not review his rezoning requ

est u ntil he received a State permit. Thus, Mr. Hutcherson withdrew his rezoning re quest, and the State subsequently resu

med its review of W

TE’s permit application. In Nove mbe r 1992, the County Commission passed another amendment to the 1984 Zoning Resolution. The 1992 Amendment removed sanitary landfills from FAR districts

as a “use permitted on

appeal.” As a re

sult, sanitary land

fills were only al

lowed in I-2 distri

cts. On November

14, 1994, the State issued a permit to WTE for construction and operation of a sanitary landfill on the 184 acre parcel of Love Fa

rm. Following the rece

ipt of the permit, Mr. Hutcherson applied again to the Planning Commission r eques ting that the 184 acres be

r ezoned. The Planning Commission once again voted to recommend denial of the rezon in g request. Mr . Hutch erson then submitted his request to the County Commission. In October 1995, after a public me

eting, the County Comm

ission voted to

deny Mr. Hutcherson’s rezoning request.8 Landfill, Inc. was added by the plaintiffs as a party plaintiff on March 16, 1998. 5 On December 7, 1995, Mr. Hutcherson and WTE filed the subject complaint against Mr. Criner and the County Commiss ion alleging that the

actions and omissio

ns by the defenda

nts amountedto unreasonable , arbitrary, and

capricious cond

uct that infrin

ged up on Mr. Hutcherson’s and WTE’s feder al and state

constitutional righ

ts. 8 The defendants subse quently filed an Objection to Jurisdiction and Motion t o Dismiss b ased upon a lack of subject-matter jurisdiction. T he defendants also filed a motion for summary judgment on grounds that no genuine issue of material

fact existed in

the case. Concomitantly, the defendants filed an answer to the complaint. Subsequently, Mr. Hutchersonand WTE filed an amended complaint wherein, interalia , the entire zoning scheme of Lauderd ale County was alleged to be invalid due to procedural def

ects. The defen

dants then filed a

n answer to the am

ended complaint. In the interim betwe en the filing of the sui t and the hearing o

n the matter, the Co

unty Commission, on May 13, 1996, “reaffirmed” the 1984 Zoning Resolution as amended. On March 9, 1998, a non-jury trial commenced. On June 26, 1998, the trial court entered

a final decree

denying the injunctive relief that would have permitted Mr. Hutcherson to proceed with his proposed la

ndfill. The decre

e stated: 1. T he Plaintiff, Wiley Hutcherson, by conveying a portion of the Love Farm, in cluding the existing landfill, to a separate entity, Landfill, I

nc., set out th

e limits of the original landfill permit. Based on t he Plaintiff’s delineation, the current application for a permit for the proposed landfill is not a val i d extension of a pre -exist

ing use. It is order

ed that said use is confinedto that property c urrently titled in the name of Landfill, Inc. 2. Boththe 1991 Amendment and the 1992 Amendment which took landfills out of the FAR zoning clas s ifica tion and placed land fills in to the new I-2 zoning district, had no rational basis in this ca se. The Defendants’ only purpose in passing the 1991 Amendment and creating the I

- 2 zoning district wa s to thwart Mr. Hutcherson in

his attempt to obta

in approval for his proposedlandfill. The creation of the I-2 zoning district was done to affect one specific person - - Mr. Hut cherson. The Defendants’ act of placin g onl y the county landfill into the I-2 zoning distric t is spot zoning and resulted in the fact that Lauderdale

Countywas the only entity allow ed to have a landf

ill in Lauderdale Coun

ty. In these and oth

er regards,

the similarlysituated county landfill was treated differently from Mr. Hutcherson’s landfill. Under th e facts of this c ase, the 1991 Amendment

violates Article XI, Section 8 of the Tennessee Constitution and the Equal Prote ction Clause

of the UnitedStates Constitution; and therefore, the 1991 Amendment is void. Under the facts of

this case, the 1992 Amendment, to the extent it took6 landfillsout of the FAR zoning district, also violates Article XI, Section 8 of the Tennessee Constitution and the Equal Protection Clause of the United States Constitution; and therefore, the1992 Amendment, to the extent it took landfills out of the FAR zoning district, i s voi d. The effect of this finding is that landfills are deemed to be plac

ed back into the FAR

zoning district. 3. The 1 98 4 Zoning Resolution is not invalid due to failure to comply with notice, public h earing, and publication requ irementsor due to the makeup of the Lauderdale Count y Regional Planning Commission. 4. The 1991 Amendmen t and the 1992 Amendment are in val id for failure to co mply with applicabl

e notice, public hea ring, and publication requirements. The 1991 Amendment and1992 Amendment ar

e not rendered in

valid due to the makeup of the Lauderdale County Regional Planning Commission. 5. The 1996 Zoning Amendment and R eaffir mation, to the extent it removed landfills out of the FARDistrict and placed landfillsin the I-2 District , is invalid due to this Court’s findings as to the invalidity of the 1991 and 1992 Amendments and due to failure to comply with applicable notice and public hea ring requirements. 6. The “Jackson Law” as amended in 1995 and adopted by the Lauderdale County Commission on April 10, 1995, is not applicable to Mr.

Hutcherson’s pr

oposed landfill. 7. The Lauderdale County Commission’s denial of Mr. Hutcherson’s rezoning request violated Mr. Hutcherson’s constitutional su bstantive due process rights under the federal and Tennessee constitutions in the following a spects : (a) failure to give proper notice in some instances; (b) failure to give Mr. Hutchersonadequate time at the hearing on the rezoning request to pr ese nt his case; (c) me mbers of the Laud

erdale County C ommission had decided against Mr. Hutcherson’s rezonin g request for personal or political reasons unrelated to the m erits of such request even before the hearing was held; (d) severalvoting me m bers of the Lauderdale County Commission and the Lauderd ale County Region al Planning Commission lived near the site of t he proposed landfill and had a personal interest in the same; (e) members of the Lauderdale County Commission testified that they voted against the lan dfil l because their constituents

did not want a land fill; (f) one member of the Lauderdale

County Commissio

n testified that he voted against the landfill because of his personal belief that Mr. Hutcherson ha d entrapped cert ain county commission members; (g) it was obvious from the testimony t hat Mr . Hut cherson never had a chancewith regard to

his proposed landfill; (h) some members of the Lauderdale County Commission contributed money to a campaign to oppose Mr. Hutch erson’s p ro posed landfill; (i) although they were de facto officers, the makeup of the Lauderdale

County Planning Commission violated the req uirements

of state statutes; and (j) the Lauderdale Coun t y Commission did not observe Mr. Hutcherson’s rights to the free use and enjoyment of his property. 8. The onl y v alid impediment to this Court’s allowing Mr. Hutcherson to buil

d his landfill is the is sue of the roads. There was testimony at tri al that the roads le

ading to the landfi

ll were too narrow and winding to accommodate a numbe r of heavily-loaded, large trucks with out causing a r isk of injury to other motorists. This court finds thatthe prospect of damage to the road surfaces i

s not a valid conce

rn or a valid imped

iment to7 Mr. Hutcherson’s landfill as the Court finds that it is the county’s duty to repair

and maintain the roads. However, the Court finds that straightening and widening the existing roads in e ssence would entail building new roads which the county is under no obligation to do. However, due to the testimony about potential danger to other motorists, this Cou rt denies Mr. Hutcherson’s request for injunctive relief

and declines to allow Mr. Hutcherson to pro ceed to co nstruct a landfill. Had there been no testimony about danger to other motorists, and the only testimony had been that the roads were unab le to withstand the damage done by the trucks, this Court probabl y wou ld have held differently, except for the previously des

cribed issue conc

erning the roads w

hich is fairly debatable. . . . This appeal ensued, and the appellants present the following issuesfor review as stated in their brief: 1. Whether the trial court erred in failing to hold that the Pl ai ntiffs’ proposed landfill expansion would be either a valid, non-conforming use or a valid extension of a conforming use. 2. Whether the trial court erred in failing to hold thatthe 1984 Zoning Resolution is invalid due to failure to compl y with applicable public hearing and publication r equirements and/or due to the illegal makeup of the Lauderdale County Planning Commission. 3. Whether the tria

l court erred in failing to hold that certain amendm ents to the 1984 Zoning Re solution are inval

id due to the illegal make

up of the Lauderd

aleCo unty Planning Commission. 4. Whether the t

rial cou rt erred in failing to grant Plaint iffs any relief where the trial court held that Defendan t s violated Plaintiffs’ substantive due process and equal protection constitutional righ

ts. Because of the nature of the trial court proceedings and t he findi ngs of the chancellor, we believe a more logical way to dispose of the issues is collectively. Since this case was tried by the trial court sitting without a jury, we review the case de

novo upon the record with a presumption of correctness of the findings of fact by the trial court. Un less the e vidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d). Mr. Hutcherson submits several different arguments for us to consider in finding that the trial court erred by n

ot granting his req

uested relie

f. First, Mr. Hutcherson submits that if we affirm the trial court’s finding that the 1991 Amendment and the 1992 Amendment are void thus placing sanitary landfills back into FAR districts, his proposed landfill is an extension of a valid, pre-existing, conforming use. Alternatively, he submits that if we reverse the trial court and find that the 1991 Amendment and the 1992 Amendment are valid, then his proposed lan dfill is a9 It is important to note that the original landfill was constructed and operated for use as

a fluff site for Mr. Hutcherson to dispose of waste generated by his scrap metal business. The proposedlandfill is a commercial landfill which will receive waste from several different areas and entities. 8 valid, pre-existing, non-conforming use. From a review of the record, the evidence does not preponderate against the trial court’s finding that Mr. Hutcherson’s conveyance to Landfill, Inc. of the 9 .8 acre parcel which encompassed

the original landf

ill established the

limits of the origina

l la nd fill permit. Therefore, the propo sed landfill in this litigation is not a valid extension of a pre-existing use but is an attempt by Mr. Hutcherson

to establish, not ex

pand, a landfill. 9 Thu s, with regard to the proposed landfill

, the proper proc

edures must be fol

lowed for establi

shing a new landfi

ll. Mr. Hutcherson asserts that he was under the impression through the enactment of the amendments

and information provided that his property must be rezoned in order to construct the proposed landfill. As such, we must consider Mr. Hutcherson’ s attacks toward t he validity of the entire zoning scheme as established in Lauderdale County. First, he asserts that the 1984 Zoning Resolution is invalid because the proper statutory requirements were not followed with regard to public hearing and publication. Moreover, he contends tha t the 1984 Zoning Resolution is invalid due to the illegal makeup of the Planning Commission. Thus, according to Mr. Hutcherson, he may construct a landfill

on his property since he is not subject to any zoning restriction because there are no zoning distr

icts in Lauderdal

e County regulating th

e use of one’ s proper ty. Second, Mr. Hutcherson argues that the 1991 Amendment and the 1992 Ame ndment

are invalid due to the failure of the County Commission to give proper no tice i n accordance

with the requirements of both the Tennessee Code Annotated and the 1984 Zoning Resolution. He also asserts that themakeup of the Planning Commission was illegal. Therefore, if there is a valid 1984 zoning ordinance, landfills are within FAR districts thereby allowing Mr. Hutchersonto construct his pr oposed landfill on h

is property. Finall

y, Mr. Hutcherson

asserts that the 1996 Reaffirmation is i nvalid for failur

e to comply with app

licable notice, p

ublic hearing, and public ation requirements and, the refore, the procedural deficiencies of the foregoing enactments were not cured. The right of a coun ty to enact or amend zoning regulations is based upon powers delegated to it by the state legislature by specific enabling acts. State ex rel. Browning-Ferris9

Indus. v. Board of Comm’rs , 806 S.W.2d 181, 187 (Tenn. App. 1990) (citing Henry v. White , 194 Tenn. 192, 250 S.W.2d 70 (1951); State ex rel. Lightman v. City of Nashville , 166 Tenn. 191, 60 S.W.2d 161 (1933) ). There is a

presumption in favor

of the validity of an ordinance and those questioning its

validity have the burden of proof. Town of Surgoinsville v. Sandidge , 866 S.W.2d 553, 555 (Tenn. App. 1993) (citing Balsinger v. Town of Madisonvill e , 222 Tenn. 272, 435 S.W.2d 803, 805 (Te nn. 1968); S & P Enters. v. City of M emphis , 672 S.W.2d 21 3, 217 (Tenn. App. 1983)). T.C.A. § 13-7-101 ( 1992) provides in p ertinent part: (a)(1) The cou

nty legislative body of

any county

is empowered, in accordance with the conditions and the procedure specified in this part, to

regul ate, in the portion

s of such county wh

ich lie outside of municipal corporations, the location, height and size of buildings and other

structures, the percentage of lot which may be occupied, the sizes of yards, courts, and ot her op en spaces, the density and distribution of population, the uses of buildings and structures for trade, industry, residence, recreat ion or other purposes, and the uses of land for trade, i ndust ry, residence, recreation, agriculture, forestry, soi l con servation, wate r supply conservation or other purposes. . . . T.C.A. § 13-7-102 ( 1992) provides in p ertinent part: [T]he county legislative body may, by ordi nan ce, exercise the powers granted in § 13-7-101 and, for the purpose of such exercise, may divide the ter ritory of the coun

ty which lies within the region but outside of municipal corporations into districts of such number, shapeor area as it may determine and within such districtsmay regula

t e the erection, construction, reconstruction, alteration and uses of building s and structu

res and the uses of land. . . . Procedures for the enactment of zoning regulations are statutorily prescribed. As for the enactment

of the 1984 Zoning Resolution, T.C.A. § 13-7-104 (1980) providedin pertinent part: 13-7-104. Meth o d of procedure after certification of plan from commission. -- After the certification of a zone plan from the regional planning commi ssion and before the enactment of any such zoning ordinance , the county legisla

tive body shall hold a publi c hearing thereon

, the time and plac

e of which at lea

st thirty(30) days’ notice shall be given by one (1) publication in a new spaper

of general circulation in the county. . . . Any suc h ordinance shall be published at least oncein t he official newspaper

of the county

or in a newspaper of general circulation in the county, and shall not be in force until it is so published. With regard to the 1991 Amendment and t he 199 2 Amendment, T.C.A. § 13-7-105 (Supp. 1990) and ( 1992) provided in p ertinent part: 13-7-105. Amendments o f zon ing ordinance provisions --10 Procedure. -- (a) The county legislative body may from time to time amend the number, shape, boundary, area or any regulation of or within any district o

r districts or any other provision of any zoning ordinance; but any such amendment shall not be made or become effective unless the same be first submitted for

approval, disapproval or suggestions to the regional planning commission of the region in w hic h the territory co vered by the ordi

nance is located, and, if such regional planning com mission disapproves within thirty (30) da ys aft er such submission, such amendment shallreq u ire the favorable vote of a majority of the entire membership of the county legislative body. (b)(1) Except as provided in subdivision (b)(2), be fore finally adopting any such amendment, thecounty legislative body shall hold a public hearing thereon, at least thirty (30) days’ notice of the time and place of which shall be given by at lea st one (1) publication in a newspaper of general circulation in the county. Any such ame ndment shall be published at least once in the official newspaper of the county or i n a newspaper of general circulation in the county. . . . In addition, the 1984 Zoning Resolution provides as follow s with regard to am

endments: SECTION 1. Amendments to the Resolution . The regul a tions andthe number, or bou

ndaries of distric

ts establis he d by this resolution, may be amended, supplemented, changed, modified, or repealed by the Lauder dale Co unty Commission; but, in acco rdancewith the Tennessee enabling legislation, no amendment

shall become eff

ective unless it

is first submitted to andapproved by the Lauderd ale County Regional Planning Commission or, if disapproved, shall receive a ma jority vote of the entire membership of the Lauderdale County Commission. Bef ore finally adopting any such amendment, the county court shallhold a public hear

ing thereon, at le

ast thirty (30) days notice of the time an d place of which shall be given by at least one (1) publication in a newspaper of genera l circulation in the county; andany such amendme

nt shall b e published at least once in the off ic ial newspaper of the county or in a newspaper of general circulation in the county. Finally, with regard to

the makeup of planning commissions, T.C.A. § 13-3-101 (Supp. 1998) provides in p

ertinent part: (c)(2) The commissioner may designate, as members of a regional p lanning commission, persons who are members of county legislative bodies or of boards of alde rmen or commissioners orother municipal legislative bodies; provided, that the members of the

regional planning

commissi o n so designatedfrom county and municipal legislative bodies shall be less in number than a majority of the commission and that not less than a majority of the members of the commission shall hold no salaried public office or position whate ver excepting offices or faculty memberships of a university or other edu cat ional institution. “The procedural steps which the l e gislatures have put in place in the form of enabling statutes governing the enactment of zoning ordinances usually are regarded as mandatory, and11

a failure substantially to comply with such requ irement s renders . . . the zoning ordinance invalid.” 83 Am. Jur. 2d Zoning and Planning § 581 (1992). In State ex rel. SCA Chemical Services, Inc. v. Sanidas , 681 S.W.2d 557 (Tenn. App. 1984), this Court stated:

“Proceduralrequirements ar e considered by t

he courts t

o be safeguards against arbitrary exercise of power. Failure to comply withsuch procedural requirements has been regarded not only as an ultra vires act on the part of municipallegislators, but also as a denial of due process of law. Inde ed, a statute or ordinance which fails to require legislative notice and a hearing prior t

o the enactment

of a zoning ordinance may be regarded as inv

alid for failure to require procedure which comports wit

h due process

of law.” Id. at 564 (quoting 1 Anderson, American Law of Zoning § 4.03 (1976)). “Th e requirements as to the giving of such notices of a hearing upon a petition for an amendment

or a change in the zoning regulations must be substantially complied with.” Clapp

v. Knox County , 197 Tenn. 422, 273 S.W.2d 694, 698 (1954). The same is true w ith regard to the publication requirement. Id. at 699. With regard to the 1984 Zoning Resolution, we agree with the trial court’s finding that the 1984 Resolution is not inva lid due to failure to comply with the statutory requirements. The evidence does not preponde rate against the

trial court’s fin

dings in this regard. Moreover, “after long public acquiescence in the substance of an ordinance, public policy does not permit such

an attack on the validity of the ordinance because of procedural irregularities.” Trainor v. City of Wheat Ridge , 697 P.2d 37, 39 (Colo. App. 1984) (citing Edel v. Filer Township , 49 Mich. App. 210, 211 N.W.2d 547 (1973); Taylor v. Schlemmer , 353 Mo. 687, 183 S.W.2d 913 (1944); Struyk v. Samuel Braen’s Sons , 17 N.J. Super. 1, 85 A.2d 279 (1951)); see also 83 Am. Jur. 2d Zoning and Planning

§ 581 (1992). In Trainor , the zoning ordinance under attack had been in effect for over ten years before the plaintiffs fil ed their complaint. Thus, the court held that given the extensive public reliance on the ordinance, such was immunized from a belated attack

on various procedur al grounds. The sa me holds true for th

e 1984 Zoning Resolu

tion that is under attack on procedural grounds by Mr. Hutcherson. The 1984 Zoning Resolution has been in effect for over ten years and has been relied on extensively b y the residents of L

auderdale Countyincluding Mr. Hutcherson. As such, the 1984 Zoning Resolution is immunized from an attack on proce

dural grounds. An analysis of the 199 1 amendment is irre levant due to the f

act t hat the 199112

Amendment

did not affect Mr

. Hutcherson. The

1991 Amendment only

est ablished two new districts within the I classification and did not remove landfills from FAR districts. However, the same cannot be said about the 1992Amendment. The 1992 Amendment effectively removed landfills as a “use permitte

d on appeal” in FAR d

istricts. As a resu

lt , landfillswere only permitted as a u se on appeal in I-2 districts. If the 1992 Amendment was properly enacted, Mr. Hut

cherson’s effo

rts were proper

in seeking to

have his property rezoned in order to construct the proposed landfill on such. From a review of the r

ecord, we conc

ur in the trial cour

t’s finding that t

he 1992 Amendment was not properly enacted due to failure to provide proper notice as require d b y statute. The notice provided in the local news paper of the public hearing for the 1992 Amendment stated a

s follows: Pursuant to Tennessee Code Annotated Section 13-7-105 notice is hereby given of a public hearing to be held by the Lauderdale

County Legislative Commission on Monday, the 9th day of November, 1992 at 9:00 a.m. in the Laud er dale County Courthouse. The purpose of the hearing is to receive public input int o a proposed amendment to the Lauderdale County Zo nin g Resolution co ncerning planned residential developments. The amendment

applies to residential development on a single tract

of land more than 25 acres, develop ed in conjunction with sc enic bluffs, lakes and waterways. The requiremen ts i nclude submission of a site plan to the Lauderda le County Planning Commission before any building permits for construction will be issued. The regulations set forth minimum requirements for density, setbacks, height o f structures, ac

cess to county roads,

and ut ili ties. A copy of the prop osed amendment ma

y be viewed in the Office of the La

uderdale County E

xecutiv e du ring regular business hours. All inter es t persons are invited to attend and comment. As evident from the above-quoted pa ssage, the publishe

d notice did

not mention that the proposedamendment concerned landfills and the removing of landfills as “uses permitted on appeal” in FAR districts. This notice was misleading and failed t o give the ne cessary information to the interested parties. The publicat ion of a notice of hearing of an amendment for rezoning need not set out the amendment if the publication sets out substantially the time and place of the hearing and a description of the property to be rezoned. Clapp , 197 Tenn. 422, 273 S.W.2d 694. Thus, given the contents of the above-qu oted notice , the 1992 Amendmen t is invalid. We further find that the 1996 Reaffirmation did not cure the procedural deficiencies that13

accompanied

the 1992 Amendment. Where a zoning resolution has been adopted without proper procedure, the procedural def ects can be cured by re-enactment of the resolution by proper procedure

. 83 Am. Jur. 2d Zoning and Planning § 583 (1992). Wha

t the County

Commission attemptedto do was to cure any previous procedural deficiencies by re-enacting and re-adopting the entire zoning re

solution as amende

d. However, to pr

operly re-enac

t th e resolutio n, the procedures as prescribed by T.C.A. § 13-7 -104 must be followe d which, in pertine

nt part, requires the county legislative body to a “hold a publ ic hearing thereon, the time and place of which at least thirty

(30) days’ notice shall be given.” Notice of publication and no

tice of public hearing w as published on April 2 5, 1996 in a newspa

per of general c

irculation in Laud

erdale County for a public hearing to be held on May 13, 1996. As evident from the time notice was given andthe time the hearing was held, therequisite thirty days’ notice was not given. “‘Where the enabling act prescribes the time which must elapse between notice and hea ri ng, failure to complyrenders a zoning ordinance invalid.’” Town of Surgoinsville , 866 S.W.2d at 556 (quoting 83 Am. Jur. 2d Zoning and Planning § 589 (1992)). The eighteen days’ notice given by the County Commission is insuf fic ient under T.C.A. § 13-7-104 and thus the 1996 Reaffirmationis invalid. In addition, the County Commission’s actions with regard to the 1996 Reaffirmationare questionable to say the least given that the timing of such action occurred several months after Mr. Hutcherson filed his complaint. As a result

of the foregoing, sanitary landfills remain a “use permitted on appeal” in FAR districtsas provided for in the 1984 Zoning Resolution and as such, Mr. Hutcherson’s proposed landfill is a “use permitted on appeal” on his farm. Thus, having alre ady received his per mit fro mthe State, Mr. Hutcherson is required to follow the proper procedures to obtain approva l from the BZA as provided by the 1984 Zoning Resolution since landfills are a “use permitted on appeal” in FAR di

stricts. Si nce no rezoning was necessary, this Court will not review the proceedings that occurred withregard to the County Commission’s hearing concerning Mr. Hutcherson’s rezoning r eque st. The trial court denied injunctive relief to plaintiffs and apparently was consideringthe

case as an appeal involving a denial of rezoning. As previously noted, plaintiff’s property was properly zoned for such “use permitted on appeal,” but plaintiff did not proceed with the required appeal to the BZA. We agree wit h the trial court’s decision to deny injunctive relief but for a14

different reason. This

Court will

affirm a decre

e correct in re

sult but rendered

upon different, incomplete, or erroneous grounds. Gamblin v. Town of Bruceton , 803 S.W.2d 690, 693 (Tenn. App. 1990). As noted, Hutcherson is required under

the existing zoning resolution to proceed with the BZA to obtain a permitted use. Accordingly, the decree of the trial court is affirmed, and the case is remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are assessed

against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE