FILED

July 12, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

 ______________________________________________

WILEY HUTCHERSON,

WESTERN TENNESSEE ENTERPRISES,

INC., and LANDFILL, INC., 

Plaintiffs-Appellants,

Lauderdale Chancery No. 9953

Vs. C.A. No. 02A01-9807-CH-00216

ROZELL CRINER, LAUDERDALE

COUNTY EXECUTIVE, and the

LAUDERDALE COUNTY 

COMMISSION, acting on behalf

of Lauderdale County, 

Defendants-Appellees.

____________________________________________________________________________

FROM THE LAUDERDALE COUNTY CHANCERY COURT

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, Hendrix, Harvey, Johnson & Mitchell of Memphis

For Appellees

AFFIRMED AND REMANDED

Opinion filed: 

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE

 Plaintiffs-Appellants, Wiley Hutcherson, Western Tennessee Enterprises, Inc., and

Landfill, Inc., appeal the final decree of the trial court dismissing the complaint for declaratory

judgment and injunctive relief against Defendants-Appellees, RozelleCriner,LauderdaleCounty
1

 The FAR district is for forestry, agricultural and residential uses, and the I district is

for industrial uses.

As for “uses permitted on appeal,” the 1984 Zoning Resolution provides in pertinent part:

D. Uses Permitted on Appeal - In the (FAR) ForestryAgricultural-Residential District, the following uses and their

accessory uses may be permitted subject to approval by the

Lauderdale County Board of Zoning Appeals.

* * *

8. Sanitary landfill operations, subject to approval of

Tennessee Department of Public Health, but not to include

hazardous waste or chemical waste landfills. . . .

The same is provided for in I districts.

2

 With regard to the BZA, the 1984 Zoning Resolution provides in pertinent part:

SECTION 4. Powers. The Board of Zoning Appeals shall have

the following powers:

* * *

B. Uses Permitted on Appeal - To hear and decide 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 construct and operate a commercial,

sanitary landfill on a portion of his 322 acre farm known as the Love Farm in Lauderdale

County, Tennessee.

In 1984, the Lauderdale County Commission (County Commission) adopted a

comprehensive zoning resolution for Lauderdale County. The 1984 Zoning Resolution provided

that sanitary landfills were a “use permitted on appeal” in both FAR districts and I districts.1

 A

“use permitted on appeal” means that a use is permitted in that district, however, in order to

establish such a use, a landowner must submit an application to the Lauderdale County Board

of Zoning Appeals (BZA) to obtain approval.2

 At the time of the passage of the 1984 Zoning

Resolution, Mr. Hutcherson’s farm was zoned FAR, and the only landfill within Lauderdale

County was zoned FAR.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 decided to construct a landfill on his farm. In

November 1986, Hutcherson Scrap Company, Inc. was granted a permit from the State of
4

 WTE is a closely-held corporation formed by Mr. Hutcherson in 1992 to obtain a

permit for and to operate the proposed 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 follows:

No construction shall be initiated for any new landfill for solid

waste disposal or for solid waste processing until the plans for

such new landfill have been submitted to and approved by:

(1) The county legislative body in which the proposed landfill is

located, if such new construction is located 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

proposed landfill 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.

Shortly thereafter, Mr. Hutcherson constructed this landfill on about 3 to 4 acres of the farm.

Neither the State permit nor the BZA permit placed any restrictions on the size of the landfill.

In 1989, Mr. Hutcherson deeded a 9.8 acre parcel of his farm, which encompassed the

3 to 4 acre landfill, to Landfill, Inc., a closely held corporation owned by Mr. Hutcherson and

his wife. In 1990, Mr. Hutcherson commenced the process 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 opposed to the existing landfill

which is a private landfill for shredder fluff. 

In August 1991, the County Commission passed an amendment to the 1984 Zoning

Resolution. The 1991 Amendment divided the I classification into two districts -- I-1 and I-2.5

The 1991 Amendment also permitted sanitary landfills as a “use permitted on appeal” in I-2

districts, added the definitions of “Sanitary Landfill - Commercial” and “Sanitary Landfill -

Public” to the “Definitions” section, and added standards for sanitary landfills. Furthermore, the

County Landfill was rezoned to I-2 by the 1991 Amendment and constituted the only I-2 district

in Lauderdale County while Mr. Hutcherson’s farm remained zoned as FAR. 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 State permit for the 184

acre landfill, the County Commission passed a resolution adopting the “Jackson Law.”6 The
municipality which is located within one (1) mile of such

proposed landfill.

The County Commission later, on April 10, 1995, adopted the 1995 version of the

“Jackson Law.” However, the 1995 version is not applicable to Mr. Hutcherson because it is

applicable to all permit applications pending on March 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 the “Jackson Law” was not applicable to Lauderdale County

because the county had a county-wide zoning scheme at this time.

4

“Jackson Law” at this time was a state law that allowed counties without county-wide zoning

to control landfill development by requiring county approval.7

 Shortly thereafter, the State put

WTE’s permit application on hold because according to the State’s procedure, once the State is

put on notice that a county had adopted the “Jackson Law,” the State could not review the permit

application until the State received notice of county approval.

In an attempt to receive county approval, Mr. Hutcherson was notified by the Lauderdale

County Planning 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 rezoned. The

Planning Commission subsequently voted to recommend denial of the rezoning request to the

County Commission. The County Commission then notified Mr. Hutcherson that it would not

review his rezoning request until he received a State permit. Thus, Mr. Hutcherson withdrew

his rezoning request, and the State subsequently resumed its review of WTE’s permit

application. 

In November 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 result, sanitary landfills were only allowed in I-2 districts.

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 Farm. Following the receipt of the permit,

Mr. Hutcherson applied again to the Planning Commission requesting that the 184 acres be

rezoned. The Planning Commission once again voted to recommend denial of the rezoning

request. Mr. Hutcherson then submitted his request to the County Commission. In October

1995, after a public meeting, the County Commission 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 Commission alleging that the actions and omissions by the defendants

amounted to unreasonable, arbitrary, and capricious conduct that infringed upon Mr.

Hutcherson’s and WTE’s federal and state constitutional rights.8

 The defendants subsequently

filed an Objection to Jurisdiction and Motion to Dismiss based upon a lack of subject-matter

jurisdiction. The 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. Hutcherson and WTE filed an amended complaint wherein,

inter alia, the entire zoning scheme of Lauderdale County was alleged to be invalid due to

procedural defects. The defendants then filed an answer to the amended complaint.

In the interim between the filing of the suit and the hearing on the matter, the County

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 landfill. The decree stated: 

1. The Plaintiff, Wiley Hutcherson, by conveying a

portion of the Love Farm, including the existing landfill, to a

separate entity, Landfill, Inc., set out the limits of the original

landfill permit. Based on the Plaintiff’s delineation, the current

application for a permit for the proposed landfill is not a valid

extension of a pre-existing use. It is ordered that said use is

confined to that property currently titled in the name of Landfill,

Inc.

2. Both the 1991 Amendment and the 1992 Amendment

which took landfills out of the FAR zoning classification and

placed landfills into the new I-2 zoning district, had no rational

basis in this case. The Defendants’ only purpose in passing the

1991 Amendment and creating the I-2 zoning district was to

thwart Mr. Hutcherson in his attempt to obtain approval for his

proposed landfill. The creation of the I-2 zoning district was

done to affect one specific person -- Mr. Hutcherson. The

Defendants’ act of placing only the county landfill into the I-2

zoning district is spot zoning and resulted in the fact that

Lauderdale County was the only entity allowed to have a landfill

in Lauderdale County. In these and other regards, the similarlysituated county landfill was treated differently from Mr.

Hutcherson’s landfill. Under the facts of this case, the 1991

Amendment violates Article XI, Section 8 of the Tennessee

Constitution and the Equal Protection Clause of the United States

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

the facts of this case, the 1992 Amendment, to the extent it took
6

landfills out 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, the 1992

Amendment, to the extent it took landfills out of the FAR zoning

district, is void. The effect of this finding is that landfills are

deemed to be placed back into the FAR zoning district.

3. The 1984 Zoning Resolution is not invalid due to

failure to comply with notice, public hearing, and publication

requirements or due to the makeup of the Lauderdale County

Regional Planning Commission.

4. The 1991 Amendment and the 1992 Amendment are

invalid for failure to comply with applicable notice, public

hearing, and publication requirements. The 1991 Amendment

and 1992 Amendment are not rendered invalid due to the makeup

of the Lauderdale County Regional Planning Commission.

5. The 1996 Zoning Amendment and Reaffirmation, to

the extent it removed landfills out of the FAR District and placed

landfills in 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 hearing

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 proposed landfill.

7. The Lauderdale County Commission’s denial of Mr.

Hutcherson’s rezoning request violated Mr. Hutcherson’s

constitutionalsubstantive due process rights under the federal and

Tennessee constitutions in the following aspects: (a) failure to

give proper notice in some instances; (b) failure to give Mr.

Hutcherson adequate time at the hearing on the rezoning request

to present his case; (c) members of the Lauderdale County

Commission had decided against Mr. Hutcherson’s rezoning

request for personal or political reasons unrelated to the merits of

such request even before the hearing was held; (d) several voting

members of the Lauderdale County Commission and the

LauderdaleCountyRegional Planning Commission lived near the

site of the proposed landfill and had a personal interest in the

same; (e) members of the Lauderdale County Commission

testified that they voted against the landfill because their

constituents did not want a landfill; (f) one member of the

Lauderdale County Commission testified that he voted against the

landfill because of his personal belief that Mr. Hutcherson had

entrapped certain county commission members; (g) it was

obvious from the testimony that Mr. Hutcherson never had a

chance with regard to his proposed landfill; (h) some members of

the Lauderdale County Commission contributed money to a

campaign to oppose Mr. Hutcherson’s proposed landfill; (i)

although they were de facto officers, the makeup of the

Lauderdale County Planning Commission violated the

requirements of state statutes; and (j) the Lauderdale County

Commission did not observe Mr. Hutcherson’s rights to the free

use and enjoyment of his property.

8. The only valid impediment to this Court’s allowing

Mr. Hutcherson to build his landfill is the issue of the roads.

There was testimony at trial that the roads leading to the landfill

were too narrow and winding to accommodate a number of

heavily-loaded, large trucks without causing a risk of injury to

other motorists. This court finds that the prospect of damage to

the road surfaces is not a valid concern or a valid impediment to
7

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 essence

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 Court denies Mr. Hutcherson’s

request for injunctive relief and declines to allow Mr. Hutcherson

to proceed to construct a landfill. Had there been no testimony

about danger to other motorists, and the only testimony had been

that the roads were unable to withstand the damage done by the

trucks, this Court probably would have held differently, except

for the previously described issue concerning the roads which is

fairly debatable. . . .

This appeal ensued, and the appellants present the following issues for review as stated

in their brief: 

1. Whether the trial court erred in failing to hold that the

Plaintiffs’ 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 that the

1984 Zoning Resolution is invalid due to failure to comply with

applicablepublichearing and publication requirements and/or due

to the illegal makeup of the Lauderdale County Planning

Commission.

3. Whether the trial court erred in failing to hold that

certain amendments to the 1984 Zoning Resolution are invalid

due to the illegal makeup of the Lauderdale County Planning

Commission.

4. Whether the trial court erred in failing to grant

Plaintiffs any relief where the trial court held that Defendants

violated Plaintiffs’ substantive due process and equal protection

constitutional rights.

Because of the nature of the trial court proceedings and the findings 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.

Unless the evidence 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 not granting his requested relief. 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 landfill is a
9

 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

proposed landfill 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 landfill established the limits of the original landfill permit. Therefore,

the proposed landfill in this litigation is not a valid extension of a pre-existing use but is an

attempt by Mr. Hutcherson to establish, not expand, a landfill.9

 Thus, with regard to the

proposed landfill, the proper procedures must be followed for establishing a new landfill.

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 the 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 that 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 districts in Lauderdale County regulating the use

of one’s property. Second, Mr. Hutcherson argues that the 1991 Amendment and the 1992

Amendment are invalid due to the failure of the County Commission to give proper notice in

accordance with the requirements of both the Tennessee Code Annotated and the 1984 Zoning

Resolution. He also asserts that the makeup of the Planning Commission was illegal. Therefore,

if there is a valid 1984 zoning ordinance, landfills are within FAR districts thereby allowing Mr.

Hutcherson to construct his proposed landfill on his property. Finally, Mr. Hutcherson asserts

that the 1996 Reaffirmation is invalid for failure to comply with applicable notice, public

hearing, and publication requirementsand,therefore, the procedural deficiencies of the foregoing

enactments were not cured.

The right of a county 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-Ferris
9

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 Madisonville, 222 Tenn. 272,

435 S.W.2d 803, 805 (Tenn. 1968); S & P Enters. v. City of Memphis, 672 S.W.2d 213, 217

(Tenn. App. 1983)). 

T.C.A. § 13-7-101 (1992) provides in pertinent part:

(a)(1) The county legislative body of any county is empowered,

in accordance with the conditions and the procedure specified in

this part, to regulate, in the portions of such county which 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 other open spaces, the

density and distribution of population, the uses of buildings and

structures for trade, industry, residence, recreation or other

purposes, and the uses of land for trade, industry, residence,

recreation, agriculture, forestry, soil conservation, water supply

conservation or other purposes. . . .

T.C.A. § 13-7-102 (1992) provides in pertinent part:

[T]he county legislative body may, by ordinance, exercise the

powers granted in § 13-7-101 and, for the purpose of such

exercise, may divide the territory of the county which lies within

the region but outside of municipal corporations into districts of

such number, shape or area as it may determine and within such

districts may regulate the erection, construction, reconstruction,

alteration and uses of buildings and structures 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) provided in pertinent part:

13-7-104. Method of procedure after certification of plan

from commission. -- After the certification of a zone plan from

the regional planning commission and before the enactment of

any such zoning ordinance, the county legislative body shall hold

a public hearing thereon, the time and place of which at least

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

newspaper of general circulation in the county. . . . Any such

ordinance shall be published at least once in the 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 the 1992 Amendment, T.C.A. § 13-7-105

(Supp. 1990) and (1992) provided in pertinent part:

13-7-105. Amendments of zoning 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 or 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 which the territory covered by the ordinance is

located, and, if such regional planning commission disapproves

within thirty (30) days after such submission, such amendment

shall require the favorable vote of a majority of the entire

membership of the county legislative body.

(b)(1) Except as provided in subdivision (b)(2), before finally

adopting any such amendment, the county 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 least one (1)

publication in a newspaper of general circulation in the county.

Any such amendment shall be published at least once in the

official newspaper of the county or in a newspaper of general

circulation in the county. . . .

In addition, the 1984 Zoning Resolution provides as follows with regard to amendments:

SECTION 1. Amendments to the Resolution. The regulations

and the number, or boundaries of districts established by this

resolution, may be amended, supplemented, changed, modified,

or repealed by the Lauderdale County Commission; but, in

accordance with the Tennessee enabling legislation, no

amendment shall become effective unless it is first submitted to

and approved by the Lauderdale County Regional Planning

Commission or, if disapproved, shall receive a majority vote of

the entire membership of the Lauderdale County Commission.

Before finally adopting any such amendment, the county court

shall hold a public hearing thereon, at least thirty (30) days notice

of the time and place of which shall be given by at least one (1)

publication in a newspaper of general circulation in the county;

and any such amendment shall be published at least once in the

official 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 pertinent part:

(c)(2) The commissioner may designate, as members of a

regional planning commission, persons who are members of

county legislative bodies or of boards of aldermen or

commissioners or other municipal legislative bodies; provided,

that the members of the regional planning commission so

designated from 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 whatever excepting offices or

faculty memberships of a university or other educational

institution.

“The procedural steps which the legislatures have put in place in the form of enabling

statutes governing the enactment of zoning ordinances usually are regarded as mandatory, and
11

a failure substantially to comply with such requirements 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:

“Procedural requirements are considered by the courts to be

safeguards against arbitrary exercise of power. Failure to comply

with such procedural requirements has been regarded not only as

an ultra vires act on the part of municipal legislators, but also as

a denial of due process of law. Indeed, a statute or ordinance

which fails to require legislative notice and a hearing prior to the

enactment of a zoning ordinance may be regarded as invalid for

failure to require procedure which comports with due process of

law.”

Id. at 564 (quoting 1 Anderson, American Law of Zoning § 4.03 (1976)).

“The 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 with 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 invalid due to failure to comply with the statutory requirements. The

evidence does not preponderate against the trial court’s findings 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 filed their complaint. Thus, the court held that

given the extensive public reliance on the ordinance, such was immunized from a belated attack

on various procedural grounds. The same holds true for the 1984 Zoning Resolution 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 by the residents of Lauderdale

County including Mr. Hutcherson. As such, the 1984 Zoning Resolution is immunized from an

attack on procedural grounds.

An analysis of the 1991 amendment is irrelevant due to the fact that the 1991
12

Amendment did not affect Mr. Hutcherson. The 1991 Amendment only established two new

districts within the I classification and did not remove landfills from FAR districts. 

However, the same cannot be said about the 1992 Amendment. The 1992 Amendment

effectively removed landfills as a “use permitted on appeal” in FAR districts. As a result,

landfills were only permitted as a use on appeal in I-2 districts. If the 1992 Amendment was

properly enacted, Mr. Hutcherson’s efforts were proper in seeking to have his property rezoned

in order to construct the proposed landfill on such.

From a review of the record, we concur in the trial court’s finding that the 1992

Amendment was not properly enacted due to failure to provide proper notice as required by

statute. The notice provided in the local newspaper of the public hearing for the 1992

Amendment stated as 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 Lauderdale County

Courthouse. The purpose of the hearing is to receive public input

into a proposed amendment to the Lauderdale County Zoning

Resolution concerning planned residential developments. The

amendment applies to residential development on a single tract of

land more than 25 acres, developed in conjunction with scenic

bluffs, lakes and waterways. The requirements include

submission of a site plan to the Lauderdale County Planning

Commission before any building permits for construction will be

issued. The regulations set forth minimum requirements for

density, setbacks, height of structures, access to county roads, and

utilities. A copy of the proposed amendment may be viewed in

the Office of the Lauderdale County Executive during regular

business hours. All interest persons are invited to attend and

comment.

As evident from the above-quoted passage, the published notice did not mention that the

proposed amendment concerned landfills and the removing of landfills as “uses permitted on

appeal” in FAR districts. This notice was misleading and failed to give the necessary

information to the interested parties. The publication 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-quoted notice, the 1992 Amendment is

invalid.

We further find that the 1996 Reaffirmation did not cure the procedural deficiencies that
13

accompanied the 1992 Amendment. Where a zoning resolution has been adopted without proper

procedure, the procedural defects can be cured by re-enactment of the resolution by proper

procedure. 83 Am. Jur. 2d Zoning and Planning § 583 (1992). What the County Commission

attempted to do was to cure any previous procedural deficiencies by re-enacting and re-adopting

the entire zoning resolution as amended. However, to properly re-enact the resolution, the

procedures as prescribed by T.C.A. § 13-7-104 must be followed which, in pertinent part,

requires the county legislative body to a “hold a public hearing thereon, the time and place of

which at least thirty (30) days’ notice shall be given.” Notice of publication and notice of public

hearing was published on April 25, 1996 in a newspaper of general circulation in Lauderdale

County for a public hearing to be held on May 13, 1996. As evident from the time notice was

given and the time the hearing was held, the requisite thirty days’ notice was not given. “‘Where

the enabling act prescribes the time which must elapse between notice and hearing, failure to

comply renders 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 insufficient under T.C.A. § 13-7-104 and thus the 1996

Reaffirmation is invalid. In addition, the County Commission’s actions with regard to the 1996

Reaffirmation are 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

districts as 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 already received his permit

from the State, Mr. Hutcherson is required to follow the proper procedures to obtain approval

from the BZA as provided by the 1984 Zoning Resolution since landfills are a “use permitted

on appeal” in FAR districts.

Since no rezoning was necessary, this Court will not review the proceedings that occurred

with regard to the County Commission’s hearing concerning Mr. Hutcherson’s rezoning request.

The trial court denied injunctive relief to plaintiffs and apparently was considering the

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 with the trial court’s decision to deny injunctive relief but for a
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different reason. This Court will affirm a decree correct in result 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