IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 18, 2008 Session

FRANKIE LEWIS, ET AL. v.

CLEVELAND MUNICIPAL AIRPORT AUTHORITY, ET AL.

Appeal from the Circuit Court for Bradley County

No. V-06-857 John B. Hagler, Jr., Judge

No. E2007-00931-COA-R3-CV - FILED SEPTEMBER 11, 2008

This lawsuit challenges actions by the Cleveland Municipal Airport Authority (the “Airport

Authority”) and the Bradley County Commission (the “Commission”) involving the rezoning by the

Commission of certain property located in Bradley County from Forestry Agricultural Residential

to Special Impact Industrial. The Airport Authority intends to relocate the Cleveland Municipal

Airport to the rezoned property. Frankie Lewis originally filed this lawsuit and Herbert Haney was

added later as a plaintiff. As pertinent to this appeal, the Trial Court determined that Lewis lacked

taxpayer standing to bring this lawsuit against the Airport Authority and granted the Airport

Authority’s motion to dismiss. Lewis appeals the dismissal of his lawsuit against the Airport

Authority. As to the Commission, both plaintiffs allege statutory and procedural violations

surrounding notice of the requested rezoning and the conduct of the Commission in eventually

granting the request for rezoning. The Trial Court granted the Commission’s motion for summary

judgment after concluding that there were no genuine issues of material fact and the Commission

was entitled to a judgment as a matter of law. Both Lewis and Haney appeal that summary

judgment. We conclude that the Trial Court did not err in granting the Airport Authority’s motion

to dismiss and the Commission’s motion for summary judgment. The judgment of the Trial Court

is, therefore, affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the

Circuit Court Affirmed; Case Remanded

D.MICHAEL SWINEY,J., delivered the opinion of the court, in which HERSCHEL P.FRANKS,P.J., and

CHARLES D. SUSANO, JR., J., joined.

Richard A. Fisher, Cleveland, Tennessee, for the Appellants, Frankie Lewis and Herbert J. Haney,

on behalf of themselves and others similarly situated. 

Ronald D. Wells and Stacy Lynn Archer, Chattanooga, Tennessee, for the Appellee, Cleveland

Municipal Airport Authority.

Robert S. Thompson, Cleveland, Tennessee, for the Appellee, Bradley County Commission.
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OPINION

I. Background

This appeal involves a challenge to the relocation of the municipal airport in

Cleveland, Tennessee. On October 19, 2006, Plaintiff Lewis filed a “Petition for Writ of Certiorari,

Declaratory Judgment and Injunctive Relief” against the Airport Authority and the Commission.

According to the petition, as amended:

The Airport Authority is attempting to relocate the Cleveland

Municipal Airport from the current location within the Cleveland city

limits (Hardwick Field) to a new location on Michigan Avenue Road,

Dry Valley Road and Tasso Road in Bradley County and outside the

Cleveland city limits (the “Tasso Site”). The proposed new location

must be rezoned from Forestry Agricultural Residential District

(“FAR”) to Special Impact Industrial District (“I-2") for use as an

airport.

* * *

Plaintiff will be adversely affected by the rezoning of the

Tasso Site from Forestry Agricultural Residential District (“FAR”)

to Special Impact Industrial District (“I-2") for use as an airport. He

is filing this lawsuit on behalf of himself and others similarly situated,

that is, homeowners and residents adjacent to or in the immediate

vicinity of the Tasso Site who will be damaged by the construction

and operation of an airport, including plane noise pollution, increased

traffic congestion, depressed property value and loss of the quiet and

peaceful enjoyment of their homes and the additional tax burden that

will be imposed on the citizens of Bradley County, the State of

Tennessee, and the United States government.

Plaintiff and others have been denied due process by failure

of the Airport Authority to follow statutory procedure, rules and

regulations on their selection of the Tasso Site for a new municipal

airport and by failure of the Bradley County Commission to follow

statutory requirements and mandatory procedural prerequisites

necessary to change zoning of the Tasso Site.... Plaintiff avers he

and other citizens have been denied the opportunity to fairly present

their objections to rezoning of the Tasso Site for an airport. 

Plaintiff Lewis also claimed that the Airport Authority entered into invalid option

contracts with the landowners of the Tasso site because the amount of money to be paid for the land

was excessive. In summary, Plaintiff Lewis claimed that the Airport Authority and the Commission

violated local, state, and federal statutes, regulations, and procedures for rezoning the subject
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property. Plaintiff Lewis sought, among other things, to enjoin the Airport Authority and

Commission from proceeding with construction of the new airport until there was compliance with

all federal, state, and local laws.

The Trial Court eventually granted the Airport Authority’s motion to dismiss and,

thereafter, granted the Commission’s motion for summary judgment. Because the allegations against

the defendants were dismissed on different types of motions and because the issues are different with

respect to the two defendants, we will discuss the pertinent facts and issues as to the two defendants

separately.

A. The Airport Authority.

In December of 2006, the Airport Authority filed a motion to dismiss claiming

Plaintiff Lewis lacked standing to prosecute the petition and that Plaintiff Lewis failed to state a

claim upon which relief could be granted. The Airport Authority asserted that the rezoning bore a

reasonable relation to the public health, safety and morals and must be sustained as a valid exercise

of the police power. The Airport Authority further claimed that Plaintiff Lewis lacked standing to

challenge the validity of the option contracts and that Tenn. Code Ann. §§ 42-3-102 and 42-3-

108(a)(3) authorized the Airport Authority to enter into those option contracts. The Airport

Authority then claimed that the petition failed to identify any state or federal regulations that

allegedly were violated and that Plaintiff Lewis failed to establish that any of those unidentified

regulations created a private cause of action. As to Plaintiff Lewis’ claim that taxpayer funds were

improperly used, the Airport Authority maintained that he could not establish taxpayer standing

enabling him to go forward with his various claims because he did not reside within the Cleveland

city limits. 

Following a hearing on the motion to dismiss, the Trial Court issued its ruling from

the bench which later was incorporated into an order dismissing the Airport Authority. The Trial

Court stated:

I do find from the pleadings that are now before the Court and

the briefs in support of those pleadings, except to the extent that those

briefs might state anything which is not in the pleadings, that the

complaint fails to state a cause of action against the airport authority

and that the plaintiff has no standing with respect to the airport

authority....

Despite extensive questioning ... by the Court, I have no

concept in my mind that would allow the matter to go forward on

determination of whether the airport authority has acted improperly

in any way either from a constitutional standpoint or from a state

statutory standpoint. And I don’t know about the standpoint of the

FAA, that would be between the FAA and the airport authority, and

I certainly would not deal with that.
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Over and over the plaintiff says that the airport authority has

violated statutes and regulations, but all we have is a lot of forest and

no trees pointed out that the Court can grasp and understand where it

might properly exercise jurisdiction with respect to looking into the

motivations of the airport authority. There is no – there’s not even a

general allegation of fraud; there is simply a – the word is used a

couple of times. But there is nothing in the pleadings at all, no

allegations whatsoever which would cause the Court to think that the

case should go forward against the airport authority on some ground

of fraud.

And certainly the funds paid for options, the amount of those

options, those don’t support anything, not anything that the Court

should be looking into absent specific allegations of wrongdoing

because the Court would not even be able to make a judgment about

that. And if that were the case, anytime a public entity purchases land

as opposed to exercising the power of eminent domain, which

apparently was not available to the airport authority, we would be

getting into cost of the price of land and that’s not appropriate except

for specific allegations of fraud or arbitrary action or capricious

action on behalf of the governmental entity. 

I cannot imagine that the Court could decide that the airport

authority was in error in not specifically considering different areas

of the county for the airport and then making some kind of large deal

about that. I cannot see how that would be an appropriate way to act,

but that’s not for me to judge. But what I say is the way the airport

authority has acted according to the allegations that are before the

Court is totally appropriate. I don’t think the airport authority has to

consider certain tracts of land or certain areas before making a

decision. I think that’s a matter within the judgment of the airport

authority. 

With respect to Mr. Lewis ... it’s my opinion that as the

complaint is now framed he is without standing to bring this lawsuit.

He is not a city taxpayer. There’s nothing in the complaint that

would indicate that he is a landowner in Bradley County. He has

alleged no specific injury to himself. He has, as I’ve said before,

alleged no specific illegality on behalf of the airport authority and he

made no prior demand which could be corrected by the airport

authority, that is, demand to correct an illegality. 

In fact, he said several times in the brief filed on his behalf

that he was bringing this [lawsuit] strictly as a state and federal

taxpayer. Well, that would mean that anybody literally, based on that
 As discussed more fully later in this Opinion at footnote 3, by the time the Trial Court granted the 1

Commission’s motion for summary judgment, Herbert J. Haney had been added as an additional named plaintiff.

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premise, in the state of Tennessee could file a lawsuit against the

airport authority. So as to the complaint as framed at this time, I

think that Mr. Lewis has no standing to bring the lawsuit against the

airport authority.... 

And in summation, I’ll just say that this Court has no

authority to conduct its own study or to substitute its judgment for a

duly-appointed statutory airport authority. Whether this site is

appropriate is for the airport authority to decide in conjunction with

state and federal officials, and this Court has no jurisdiction to

interfere with that whatsoever based on the allegations which are not

before the Court. 

So, therefore, the action against the airport authority is

dismissed....

B. The Bradley County Commission.

The Commission filed a motion for summary judgment which was granted by the

Trial Court. As pertinent to this appeal, Plaintiffs claim the Trial Court erred in several respects. 1

Plaintiffs claim summary judgment was inappropriate because there were material factual issues as

to whether: (1) Plaintiffs were given proper statutory notice of the hearing on the rezoning request;

(2) the rezoning request was properly before the Commission; (3) the Commission violated internal

procedures when a substitute motion to approve the rezoning request was passed by a majority of

the Commission; (4) the Commission violated the Open Meetings Act; and (5) the hearing wherein

the rezoning request was approved was conducted lawfully. Based on all of these specific attacks,

Plaintiffs’ final issue is a general claim that summary judgment was not appropriate. 

When granting the Commission’s motion for summary judgment, the Trial Court

stated, in part, as follows:

It’s important to bear in mind here the role that the judiciary

plays in issues such as this. The Court has authority to declare invalid

an action by the County Commission only if it is clearly arbitrary,

unreasonable, capricious, or is plainly contrary to the zoning laws,

and that is not the case here. The Court also has other authority, and

that is that a resolution by a legislative body, any legislative body,

including the general assembly, can be declared invalid if it’s contrary

to due process or if it violates other constitutional provisions. And

the Court can certainly declare invalid the action of the County
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Commission if it violates a state statute. But other than that, the

Court does not sit in judgment of the action of the County

Commission, or in judgment of the internal procedures it establishes

to conduct the people’s business. And anybody can see that there are

good reasons for that.... [The] determination to expand or build a

new airport and then the location of a new airport has been one of the

really great public issues in this county for some time, and it is one

which has received appropriate media coverage.... And only

someone who would not notice any kind of public notice could have

failed to be aware of the progress of this matter.

There’s no question in this case but that the two plaintiffs here

in court received far greater notice that due process requires and the

statute requires. They both admit they had actual notice.... And I

find no facts, that is, known facts, which would justify a finding that

there was any railroading of this project or that anything was done

other than what the public interest required, knowing that there will

always be people who would be against the project ... based on their

location. That is just the nature of a public project such as this. 

After finding that the undisputed material facts established that Plaintiffs received

proper notice as required by the rezoning statutes and due process, the Trial Court concluded that

the rezoning request properly was before the Commission. According to the Trial Court:

The rezoning request was forwarded to the Bradley County

Commission without a recommendation from the Planning

Commission. The objection to that is it was submitted without

approval, and that’s a question of law. The Court finds it as a matter

of law that ... the action was appropriate and within the authority of

both the staff of the Planning Commission and the County

Commission to accept and consider the rezoning request in

accordance with the requirements of the law.... Bradley County

Commission has the authority to [approve] a rezoning request, which

has been reviewed but not approved by the Bradley County Regional

Planning Commission....

As to the remaining issues, the Trial Court concluded that the Commission had

properly followed its internal policies when a substitute motion was passed by the Commission.

Finally, the Trial Court determined that the Open Meetings Act had not been violated, and that the

meeting on August 21, 2006, was conducted lawfully.

II. The Issues
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There are several issues raised on appeal with respect to each of the defendants. The

issues raised by one or both of the plaintiffs, which we quote, are as follows:

A. The Airport Authority.

1. Did the trial court err in granting [the Airport Authority’s]

Motion to Dismiss for Lack of Standing?

2. Did the trial court err in granting [the Airport Authority’s]

Motion to Dismiss because the complaint fails to state a claim upon

which relief can be granted?

3. Did the trial court err in granting [the Airport Authority’s]

Motion to dismiss on the basis of immunity?

4. Did the trial court err in granting [the Airport Authority’s]

Motion to Dismiss because no allegations of misconduct were made

with particularity?

B. The Bradley County Commission.

1. Did the trial court err in granting summary judgment to the

Bradley County Commission?

2. Did the Court commit error in finding compliance with the

notice requirements of the rezoning statutes?

3. Did the Court commit error in finding that the rezoning

request was properly before the County Commission?

4. Did the Court errit its interpretation of the procedural rules of

the Bradley County Commission that a vote to substitute a motion is

a vote on the original, pending motion?

5. Did the Court err in finding no violation of the Open Meetings

law?

6. Did the Court err in finding that the conduct of the public

hearing by the Bradley County Commission on August 21, 200[6],

was a lawful public hearing?

III. Discussion

A. The Airport Authority.
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Our standard of review as to the granting of a motion to dismiss is set out in Stein v.

Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997). In Stein, our Supreme Court explained:

A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for

failure to state a claim upon which relief can be granted tests only the

legal sufficiency of the complaint, not the strength of a plaintiff’s

proof. Such a motion admits the truth of all relevant and material

averments contained in the complaint, but asserts that such facts do

not constitute a cause of action. In considering a motion to dismiss,

courts should construe the complaint liberally in favor of the plaintiff,

taking all allegations of fact as true, and deny the motion unless it

appears that the plaintiff can prove no set of facts in support of her

claim that would entitle her to relief. Cook v. Spinnaker’s of

Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). In considering

this appeal from the trial court’s grant of the defendant’s motion to

dismiss, we take all allegations of fact in the plaintiff’s complaint as

true, and review the lower courts’ legal conclusions de novo with no

presumption of correctness. Tenn. R. App. P. 13(d); Owens v.

Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996); Cook,

supra.

Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997). 

As indicated in the Trial Court’s opinion, Plaintiff Lewis’ lawsuit against the Airport

Authority is premised on his standing as a taxpayer. In City of New Johnsonville v. Handley, No.

M2003-00549-COA-R3-CV, 2005 WL 1981810 (Tenn. Ct. App. Aug. 16, 2005), perm. app. denied

Feb. 6, 2006, this Court discussed at length the issue of taxpayer standing. We stated:

“A citizen’s standing to sue a governmental entity is a

threshold issue that should be resolved before addressing the merits

of the case.” Ragsdale v. City of Memphis, 70 S.W.3d 56, 62 (Tenn.

Ct. App. 2001). As our supreme court previously stated in a similar

case:

The initial question is whether our courts will entertain a

taxpayer suit contesting the legality of payments made to

county officials from public funds; that is, whether a

taxpayer/citizen has standing to litigate the issue presented in

the complaint.

It is not at this point appropriate to examine the merits of the

ultimate question. The Court should determine whether a

party may litigate the legality of a public officer’s payments

to himself, without first deciding whether those payments are,

in fact and law, illegal. Because citizen suits do burden the
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conduct of public affairs, a defendant entity or officer should

not be obliged to defend on the merits if he is entitled to a

dismissal for lack of standing. Nor should the court critique

the conduct of public officials if the cause is not justiciable.

Cobb v. Shelby County Bd. of Commissioners, 771 S.W.2d 124, 125

(Tenn. 1989). Standing is a judge-made doctrine used by the courts

of this state “‘to refuse to determine the merits of a legal controversy

irrespective of its correctness where the party advancing it is not

properly situated to prosecute the action.’” Phillips v. County of

Anderson, No. E2000-01204-COA-R3-CV, 2001 Tenn. App. LEXIS

308, at *9, 2001 WL 456065 (Tenn. Ct. App. Apr. 30, 2001) (quoting

Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976)).

Accordingly, we will begin by addressing the Taxpayers’ first issue

- whether they have standing to challenge the conveyance of real

property from the municipality to an elected official of that

municipality.

“The rule in Tennessee is well established that citizens and

taxpayers are without standing to maintain a lawsuit to restrain or

direct governmental action unless they first allege and establish that

they will suffer some special injury not common to citizens and

taxpayers generally.” LaFollette Med. Ctr. v. City of LaFollette, 115

S.W.3d 500, 503 (Tenn. Ct. App. 2003) (citing Patton v. City of

Chattanooga, 108 Tenn. 197, 65 S.W. 414, 420-21 (Tenn. 1901));see

also Badgett v. Rogers, 222 Tenn. 374, 436 S.W.2d 292, 294 (Tenn.

1968); Reams v. Bd. of Mayor & Alderman of McMinnville, 155

Tenn. 222, 291 S.W. 1067, 1068 (Tenn. 1927). As a policy

justification for this general rule, the Tennessee Supreme Court has

stated as follows:

On the one hand, it is undeniably the right of a

taxpayer to know that his taxes are expended properly and are

not unlawfully diverted or misused. On the other hand, the

courts have long recognized the necessity of allowing

municipal officials to perform their duties without

interference from frequent and possibly frivolous litigation

and the inexpedience of putting municipal officers at hazard

to defend their acts whenever any member of the community

sees fit to make the assault, whether for honorable motives or

not. The courts have been commensurately reluctant to usurp

or supersede the discretion of municipal authorities to

determine which municipal undertakings are necessary and

appropriate.
 In the Lafollette Medical Center case referenced by this Court in City of New Johnsonville, the fraud 2

exception was used by the plaintiffs in an attempt to circumvent the requirement that there be a special injury. Lafollette

Medical Center, 115 S.W.3d at 504. We do not think that the fraud exception can be used to circumvent the requirement

that a plaintiff have taxpayer status. In other words, as applied to the present case, the fraud exception could not be used

by non-city taxpayers to challenge the use of city taxes. As the Trial Court correctly noted, to hold otherwise would

“mean that anybody literally, based on that premise, in the state of Tennessee could file a lawsuit against the airport

authority.” 

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Badgett, 436 S.W.2d at 293-94; see also Parks v. Alexander, 608

S.W.2d 881, 885 (Tenn. Ct. App. 1980) (“The generally

acknowledged purpose of this requirement of special damage or

private harm to the individual rests in the public policy of protecting

public corporations from a profusion of suits.”).

However, the general rule regarding taxpayer standing is not

without exception. “[T]he courts have recognized an exception to the

general rule where it is asserted that the assessment or levy of a tax

is illegal orthat public funds are misused or unlawfully diverted from

stated purposes.” Badgett, 436 S.W.2d at 294; see also LaFollette

Med. Ctr., 115 S.W.3d at 504. The Taxpayers in the instant case,

being unable to establish any specific injury not sustained by the

citizens of the City in general, rely on this exception to assert they

possess standing to contest the land transaction between the City and

Councilman Handley. Specifically, the Taxpayers seek to establish

that the land transaction at issue constituted an illegal use of “public

funds.”

In order for a taxpayer to have standing to challenge the

legality of the expenditure of public funds, the following elements

must be found to exist: (1) the plaintiff/taxpayers have taxpayer

status; (2) the taxpayers allege a specific illegality in the expenditure

of public funds; and (3) the taxpayers have made a prior demand on

the governmental entity asking it to correct the alleged illegality.

Cobb v. Shelby County Bd. of Commissioners, 771 S.W.2d 124, 126

(Tenn. 1989); Ragsdale v. City of Memphis, 70 S.W.3d 56, 62 (Tenn.

Ct. App. 2001).

City of New Johnsonville, 2005 WL 1981810, at *12-13.2

In his brief on appeal, Plaintiff Lewis states the following with respect to his claimed

taxpayer standing:

[Plaintiff] has filed this lawsuit on behalf of himself and

others who are similarly situated. That is, homeowners and residents

adjacent to or in the immediate vicinity of the Tasso Site. [Plaintiff]
 Whenever the Trial Court indicated that there were significant problems with the petition, Plaintiff would seek 3

to amend the petition. After the Trial Court announced from the bench that it was granting the Airport Authority’s

motion to dismiss, Plaintiff filed a second motion to amend the petition, this time seeking to add a new plaintiff, Mr.

Herbert J. Haney (“Haney”). The second amended petition does not specifically allege that Haney lives in the Cleveland

municipal city limits. The residential addresses for Lewis and Haney show that both plaintiffs live on Old Charleston

Road. Although the Trial Court allowed the petition to be amended yet again, the Trial Court nevertheless concluded

that Haney also did not have standing as to the Airport Authority. The Plaintiffs’ brief on appeal does not differentiate

between Lewis and Haney with regard to their argument that there is standing and there is no claim on appeal that either

Plaintiff lives in the Cleveland city limits or pays city taxes. The Airport Authority argues on appeal that Haney is not

a proper party to the appeal as to the Airport Authority because the order dismissing the Airport Authority was entered

prior to the Trial Court’s order allowing Lewis to amend the petition a second time and add Haney as a party. Because

Plaintiffs’ brief does not differentiate in any way between the two plaintiffs, it is difficult to determine if Haney actually

is appealing as to the Airport Authority. In the standing argument of Plaintiffs’ brief, only one “Appellant” is referred

to, and we assume that “Appellant” is Lewis. For example, the brief states: “Appellant has standing to sue MAA ...”

(emphasis added) “Appellant” is referred to in the singular throughout the section of the brief addressing standing.

Because the brief seems to indicate that only Lewis is appealing as to the Airport Authority, we agree with the Airport

Authority that Haney should not be considered a party to the appeal as to the Airport Authority. Accordingly, we will

refer to Lewis as “Plaintiff” in this opinion when referring to the claims against the Airport Authority. We will refer

to both Lewis and Haney as “Plaintiffs” when discussing the claims against the Commission.

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alleges that he and they will be damaged by[,] among other things,

depressed property value, loss of quiet and peaceful enjoyment of

their homes and “the additional tax burden that will be imposed on

the citizens of Bradley County....”

As stated above, this Court in City of New Johnsonville acknowledged that the

Supreme Court in Cobb required three elements to establish taxpayer standing: (1) taxpayer status;

(2) specific illegality in the expenditure of public funds; and (3) the taxpayer has made a prior

demand on the governmental entity asking it to correct the claimed illegality. In the present case,

the Airport Authority is a governmental entity created not by Bradley County but by the City of

Cleveland. Plaintiff Lewis does not allege that he is a taxpayer in the City of Cleveland. Rather,

he alleges that he is a taxpayer from Bradley County. The tax revenue spent by the Airport

Authority was from city funds, as opposed to county funds. Therefore, Plaintiff cannot establish 3

the first of the three elements that must be met in order for him to proceed as a taxpayer in a lawsuit

against the Airport Authority. Likewise, Plaintiff has not alleged that he made a prior demand on

the Airport Authority, as required by the third element discussed by our Supreme Court in Cobb v.

Shelby County Bd. of Comm’rs, 771 S.W.2d 124 (Tenn. 1989). In discussing this third element, our

Supreme Court stated:

Taxpayers have a sufficient interest in the disposition of public funds

to present the issue in an adversary fashion, but due consideration for

the conduct of public affairs requires that plaintiffs first have notified

appropriate officials of the illegality and given them an opportunity

to take corrective action short of litigation. The complaint must

allege a specific legal prohibition on the disputed use of funds or

demonstrate that it is outside the grant of authority to the local

government. It has always been recognized that a taxpayer/citizen
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has standing to challenge “illegal” uses of public funds but not

“improvident” ones - “the wisdom, policy, injurious tendency, or

mischievous consequences of a statute or ordinance are not open to

inquiry.” Soukup v. Sell, 171 Tenn. 437, 441, 104 S.W.2d 830, 831

(1937).

Cobb, 771 S.W.2d at 126.

We further conclude that because Plaintiff’s taxpayer dollars are not being spent by

the Airport Authority, he cannot establish a “special injury” not common to the body of citizens as

a whole. In fact, he cannot show any injury at all by the use of city funds when he is not a city

taxpayer. 

Based on the foregoing, we conclude that the Trial Court did not err in granting the

Airport Authority’s motion to dismiss because Plaintiff lacked taxpayer status and otherwise failed

factually to allege compliance with all three of the required elements discussed by this Court in City

of New Johnsonville, supra, and referenced by the Supreme Court in Cobb, supra, all of which are

necessary to have taxpayer standing. Because we affirm the Trial Court’s decision that Plaintiff

lacked standing, Plaintiff’s remaining issues with respect to the Airport Authority are pretermitted.

B. The Bradley County Commission.

The Trial Court dismissed Plaintiffs’ claims against the Commission on summary

judgment. In Teter v. Republic Parking System, Inc., 181 S.W.3d 330 (Tenn. 2005), our Supreme

Court reiterated the standards applicable when appellate courts are reviewing a motion for summary

judgment. The Court stated: 

The purpose of summary judgment is to resolve controlling

issues of law rather than to find facts or resolve disputed issues of

fact. Bellamy v. Fed. Express Corp., 749 S.W.2d 31, 33 (Tenn.

1988). Summary judgment is appropriate only when the moving

party demonstrates that there are no genuine issues of material fact

and that he or she is entitled to judgment as a matter of law. See

Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181,

183 (Tenn. 2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).

In reviewing the record, the appellate court must view all the

evidence in the light most favorable to the non-moving party and

draw all reasonable inferences in favor of the non-moving party.

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). And

because this inquiry involves a question of law only, the standard of

review is de novo with no presumption of correctness attached to the

trial court's conclusions. See Mooney v. Sneed, 30 S.W.3d 304, 306

(Tenn. 2000); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Teter, 181 S.W.3d at 337.
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Plaintiffs’ first argument as to their claims against the Commission is that they were

not given the statutorily required 15 days notice before the zoning regulation could be amended. As

pertinent to this appeal, Tenn. Code Ann. § 13-7-105(b)(1) (1999) provides that before a county

legislative body can amend a zoning ordinance, “the county legislative body shall hold a public

hearing thereon, at least fifteen (15) 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....” In Plaintiffs’

brief on appeal, they state:

On August 6, 2006, a notice was published in the Cleveland

Daily Banner of a “public hearing” to hear “public comment

concerning the request to rezone from Forestry/Agricultural (FAR) to

Special Impact Industrial (I-2) located on Michigan Avenue and Dry

Wall Road within fifteen days, specifically on August 21, 2006, at

10:00 a.m.” 

Plaintiffs argue that this was not fifteen days notice. We are unclear how a notice

published on August 6 giving notice of a hearing on August 21 can be deemed anything less than

fifteen days notice. If August 7 was the first day after publication of the notice, which it was, then

August 21 would be the fifteenth day after publication of the notice. We therefore reject Plaintiffs’

argument that they were given less than the statutorily required 15 days notice.

Plaintiffs further challenge the sufficiency of letters sent to abutting property owners

as well as whether Article VII of the Bradley County Zoning Resolution was complied with by the

Commission. Article VII requires that a “rezoning sign with the pertinent information” be posted

on the property where the rezoning is requested. The undisputed evidence shows that three such

signs were posted on the property subject to the rezoning request and these signs notified the public

that an application to rezone the property had been filed and further provided a telephone number

to call if there were questions about the rezoning request.

In addition to the three signs that were placed on the property, the adjoining

landowners received notices in the mail stating that:

The Bradley County Regional Planning Commission has received a

request to rezone the following property:

Michigan Ave

Tax Map 35 Parcels 47.0, 40.0, 41.0, 11.02, 59.0, 11.04, 12.0, 60.0

&

Map 35J Group B Parcel 2

(See enclosed map)

Present Zoning Classification: Forestry, Agricultural and 

Residential (FAR)
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Proposed Zoning classification: Special Impact Industrial (I-2)

This notification is sent to all property owners adjoining and all

property owners directly across the street from the property.

The Bradley County Regional Planning Commission will consider

this request on Tuesday, July 11, 2006 at 6:00 PM. The meeting will

be held at the Bradley County Courthouse.

The grey area in the attached map shows the location of the proposed

rezoning.

If you have any questions, please call Corey Divel at (423) 728-7108.

The notice was mailed to approximately 36 adjoining or across the street landowners.

Plaintiffs claim the notices are fatally deficient because they did not expressly state that if rezoned,

the land would be used for an airport. Our Supreme Court addressed a similar argument in Clapp

v. Knox County, 273 S.W.2d 694 (Tenn. 1954) wherein it was argued that notice was insufficient

because it merely stated that certain property would be rezoned from one classification to another.

The Court disagreed, stating:

The notice that was published was that ‘the following amendment to

the Knox County zoning regulations’ would be presented, etc., to the

Quarterly County Court at the next meeting after 30 days from the

date, and the notice set forth whose property would be rezoned and

where it was situated. This is a substantial compliance with the

provisions of the statute. It is shown on the face of this notice that it

is on the petition of Roy Brown, and it shows the change in the

zoning classification that he desires and gives a complete description

of his property and also notifies the people where they can go, the

room number of the Planning Commission, and see how this works

out on the map and it is really on this map that the changes are made.

Thus it seems that there is a sufficient publication of the amendment

desired....

Id. at 699. 

Although the notices did not explicitly state that the land was being considered for

rezoning as an airport, the notices did provide, along with other information, the requested rezoning

classification. There was sufficient information provided for the individuals receiving the notice to

make further inquiry if they wished to do so. See Irene Neighborhood Ass’n v. Quality Life, LLC,

No. W2001-00474-COA-R3-CV, 2002 WL 1050264, at *7 (Tenn. Ct. App. May 24, 2002), no appl.

perm. appeal filed (“[W]here circumstances are such that a reasonably prudent person should make

inquiries, that person is charged with knowledge of the facts reasonable inquiry would have

revealed.”)(quoting Bennett v. City Council of Las Cruces, 973 P.2d 871, 874 (N.M. Ct. App. 1998).
 As a response to the Commissions’s motion for summary judgment, Plaintiffs filed a motion for partial 4

summary judgment. Plaintiffs filed no affidavits with their motion or in response to the Commissions’s motion.

Although the depositions of the Plaintiffs were filed, the depositions were not germane to most of the issues on appeal.

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The sufficiency of the notice is further established by the fact that a petition containing 456

signatures from citizens opposing the rezoning was given to the Commission at the August 21, 2006,

meeting, at which numerous members of the public addressed the Commission regarding the

proposed rezoning. We conclude that the notices were sufficient.

Plaintiffs’ next issues surround whether the rezoning request properly was before the

Commission and whether the Commission’s August 21, 2006, meeting was a lawful public hearing.

In support of its motion for summary judgment, the Commission filed fifteen affidavits, including

the affidavit of Corey Divel (“Divel”), a County Planner employed by Bradley County. According 4

to Divel:

1. My name is Corey Divel and I am over eighteen years

of age and make this affidavit based upon my personal knowledge.

I am employed by Bradley County and serve as the County Planner.

I have been employed in this capacity since August, 2005. As a part

of my duties as County Planner I process property rezoning request

applications. 

2. It is the usual and customary procedure in the rezoning

process for an applicant to apply for a building permit after the

property has been rezoned. A site plan is prepared and submitted

with the application for a building permit. It is not necessary for a

site plan to be tendered and attached to a rezoning application. The

Cleveland Municipal Airport Authority was not required to submit a

site plan with its rezoning application. 

3. The Cleveland Municipal Airport Authority was not

required to submit a screening plan with its rezoning application.

4. It is the usual and customary procedure for the Bradley

County Regional Planning Commission to review rezoning

applications and recommend approval, disapproval or suggestions to

the County legislative body. It is not a requirement that the BCRPC

render a favorable opinion prior to submitting the rezoning request to

the Bradley County Commission. 

5. The Cleveland Municipal Airport’s Rezoning Request

was considered for approval, disapproval or suggestion to the Bradley

County Regional Planning Commission on two separate occasions;

July 11, 2006 and August 1, 2006. 
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6. It is standard procedure for the staff of the Bradley

County Planning Office to place on the County Commission agenda

a request for rezoning after the presentation to the BCRPC.

7. The staff of the Bradley County Regional Planning

Office attempted to identify all property owners who owned property

either adjacent to or across the street from the property requested to

be rezoned. 

8. I prepared and mailed the notice of rezoning to the

adjoining property owners and property owners located across the

street from the Tasso site identified in Exhibit 2 of the Transcript of

Proceedings. As part of the notice I attached the map identified in

Exhibit 2.

9. As part of my duties regarding the rezoning request of

the Tasso site I posted three rezoning signs notifying the public at

large that a rezoning application had been filed regarding the subject

property. Two of the rezoning signs were placed on the subject

property on or about June 26, 2006. The third sign was placed on the

property on or about July 3, 2006.

10. I appeared before the Bradley County Regional

Planning Commission on July 11, 2006 and August 1, 2006. I

reported to the BCRPC that [the] land use plan designates the subject

property as future industrial and I recommended that the rezoning be

approved.

11. It is standard procedure for staff of the Bradley County

Regional Planning Office to place on the agenda of the Bradley

County Commission rezoning applications regardless of the

BCRPC’s decision.

12. Exhibit 1 ofthe Transcript of Proceedingsfiled herein

is a true and accurate copy of the rezoning application dated June 26,

2006 and signed by Lou Patten.

13. Exhibit 2 of the Transcript of Proceedings is a true and

accurate copy of the notice sent to the adjoining and across the street

property owners.

14. Exhibit 3 of the Transcript of Proceedings is a true and

accurate copy of the certificate of mailing of the notice of the

rezoning to adjoining and across the street property owners dated July

3, 2006.
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15. Bradley County Planning Office posted three rezoning

signs on the tract of property which was subject to the rezoning

request.

16. Exhibit 4 of the Transcript of Proceedings is a map

which reflects the approximate location of the rezoning signs which

were posted. 

17. Exhibit 5 of the Transcript of Proceedings is a true and

accurate copy of the agenda of the Bradley County Regional Planning

Commission’s meeting for July 11, 2006.

18. The Bradley County Regional Planning Commission

(hereafter “BCRPC”) held a public hearing on July 11, 2006. The

Cleveland Municipal Airport Authority’s request to rezone the

property on Michigan Avenue and Dry Valley Road from FAR to I-2

was on the agenda and discussed at length.

19. Exhibit 6 of the Transcript of Proceedings is a true and

accurate copy of the minutes of the Bradley County Regional

Planning Commission meeting of July 11, 2006.

20. Exhibit 7 of the Transcript of Proceedings is a true and

accurate copy of the agenda of the Bradley County Regional Planning

Commission’s meeting for August 1, 2006.

21. Exhibit 8 of the Transcript of Proceedings is a true and

accurate copy of the minutes of the Bradley County Regional

Planning Commission meeting of August 1, 2006.

22. Bradley County Commission has the authority to

approve a rezoning request which has been reviewed but not

approved by the Bradley County Regional Planning Commission.

23. Exhibit 9 of the Transcript of Proceedings is a true and

accurate copy of the legal publication notice regarding the rezoning

hearing on Monday, August 21, 2006 at 10:00 am. 

24. Exhibit 15 of the Transcript of Proceedings is a true

and accurate copy of the Bradley County Land Use Plan.

25. Exhibit 17 of the Transcript of Proceedings is a true

and accurate copy of the Zoning Resolution of Bradley County,

Tennessee.
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26. It is Bradley County’s usual and customary procedure

in the rezoning process for an applicant to apply for a building permit

after the property has been rezoned. A site plan is prepared and

submitted with the application for a building permit. It is not

necessary for a site plan to be tendered and attached to a rezoning

application.

27. The rezoning request was submitted for approval,

disapproval or suggestion to the Bradley County Regional Planning

Commission on two separate occasions; July 11, 2006 and August 1,

2006. It was discussed at length by both proponents and opponents.

28. It is usual and customary procedure for the staff of the

Bradley County Planning Office to place on the County Commission

agenda a request for rezoning after the presentation to BCRPC.

The Commission also filed the affidavits ofseveral Bradley County Commissioners

who were serving during the relevant time frame. The affidavit of Commissioner Bill Varnell

provides, in relevant part:

3. It has been the usual and customary procedure for a

commissioner to make a “substitute motion”. If the vote passes by a

majority vote the action requested for in the substitute motion is

enacted. The commission does not hold a second vote on the action

requested for in the substitute motion.

4. I never deliberated in private with any other members

of the Bradley County Commission toward a decision or made a

decision regarding the rezoning of the Tasso site in violation of the

open meetings act.

The Commission also filed a virtually identical affidavit of Commissioner Matthew Brown. 

The Commission also filed the affidavit of Keith Holloway, who was the Chairman

of the Bradley County Regional Planning Commission at the relevant time. According to Holloway:

3. On July 11, 2006 after proper public notice the

rezoning request of the Tasso site came before the Planning

Commission. Public debate was held regarding the issue and the

Planning Commission continued the request until the next meeting of

August 1, 2006 to obtain further public comment.

4. On August 1, 2006 the rezoning request, after proper

public notice, was again placed on the agenda and discussed at the

public meeting of the Bradley County Planning Commission. At the
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conclusion of the discussion a motion was made by then secretary

Tony Young to approve the rezoning request of the Cleveland

Municipal Airport Authority. The motion did not receive a second

and I announced that the matter would be forwarded without a

recommendation from the Planning Commission to the Bradley

County Commission for action for the Monday, August 21 10:00 am st

meeting.

5. It is the usual and customary procedure for the Bradley

County Regional Planning Commission to review rezoning

applications and forward the applications to the Bradley County

Commission irregardless (sic) of whether the BCRPC recommended

approval, disapproval or made suggestions to the County legislative

[body]. It is not a requirement that the BCRPC render a favorable

opinion prior to submitting the rezoning request to the Bradley

County Commission.

Plaintiffs claim that the request for rezoning never was acted upon by the Bradley

County Regional Planning Commission and, therefore, was not properly before the Commission.

Tenn. Code Ann. § 13-7-105(a) (1999) provides as follows:

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.

Initially, we note Plaintiffs do not contend that the rezoning request was passed by

the Commission with less than a majority vote. In Westland West Cmty. Ass’n v. Knox County, 948

S.W.2d 281 (Tenn. 1997) the Supreme Court stated that pursuant to Tenn. Code Ann. § 13-7-105(a),

“[a] proposed amendment to a zoning scheme must first be submitted to the regional planning

commission. If a proposed zoning amendment is not first presented to the regional planning

commission, the county commission is devoid of jurisdiction to act upon the proposal.” Id. at 283.

We conclude that the rezoning request was submitted first to the Regional Planning

Commission. The Regional Planning Commission fully considered the request on two different

occasions with public input. The statute provides that if a regional planning commission denies the

request within thirty days, the county legislative body can consider the request and grant approval

by a majority vote. Even thought the Regional Planning Commission in the present case did not
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explicitly approve or reject the request, it nevertheless was given due consideration. A motion was

made by a member of the Regional Planning Commission to approve the rezoning, but the motion

died after there was no second. At that point, there was nothing else for the Regional Planning

Commission to do and its purpose was served. The lack of a formal approval or denial equates to

a denial and cannot be considered any differently than an express denial for purposes of proceeding

to the next step in the process. Therefore, we conclude that the Commission had jurisdiction because

the requirements of Tenn. Code Ann. § 13-7-105(a) were met.

Plaintiffs also challenge the internal procedure by which the vote passing the rezoning

was accomplished. We conclude that the procedure utilized by the Commission was entirely

consistent with the Commission’s Rules of Procedure. The minutes from the August 21, 2006,

Commission meeting were authenticated through affidavits and show that an original motion to deny

the rezoning was made and then seconded. Thereafter, a substitute motion to approve the rezoning

was made and seconded. A vote then took place on the substituted motion which passed by a vote

of 10 to 4 in favor of rezoning. Because the substitute motion was passed by a clear majority, the

minutes provide that “therefore no vote was taken on the original motion.” The Commission’s Rules

of Procedure provide as follows:

Rule 5 - MOTIONS

5A. INTRODUCTION AND DEBATE: members may only make

Motions. No motion shall be debated until the same is seconded and

stated by the Chairperson.

5B. MOTIONS IN WRITING: When a motion is made and

seconded, it shall be reduced to writing by the Clerk, and read by the

Chairperson prior to any debate or vote.

5C. REQUIRED ROLL CALL: Motions shall be put to the Board

for a roll call.

5D. AMENDMENTS TO A MOTION: Amendments require a second.

Debate may follow an amended motion. No action shall be taken on

the original motion until the amended motion has been voted upon.

(emphasis in the original).

The undisputed material facts demonstrate that after the original motion was made

and seconded, a substitute motion then was made and seconded. Because the substitute motion

approving the requested rezoning was passed by a vote of 10 to 4 in favor of the amendment, there

was no need to take a vote on the original motion. Plaintiffs’ argument that the Commission having

passed the substituted motion approving the requested amendment should then have voted on the

original motion to deny the requested rezoning is not mandated either by the Commission’s Rules

or common sense. The Commission’s actions were in compliance with its Rules.
 It also appears that several questions from members of the general public were answered. The names of the 5

presenter and members of the Commission were identified when they spoke. Other persons, presumably members of

the public, were identified as “Man 1" and “Man 2".

 The problem of Plaintiffs not citing to the record is compounded by a brief filed by Plaintiffs with the Trial 6

Court in response to the Commission’s motion for summary judgment. In this brief, Plaintiffs state it was the August

14, 2006, work session where a representative allegedly was not allowed to speak, as opposed to the August 21, 2006,

meeting. The brief filed with the Trial Court likewise does not contain a citation to the record. 

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Plaintiffs also claim that the Commission violated the Open Meeting Act at its work

session on August 14, 2006. The County claims that the work sessions are regularly scheduled on

the second and fourth Monday of each month and that they are open to the public. Plaintiffs do not

claim otherwise, but rather claim there was a violation of the Open Meetings Act because no agenda

was published in the newspaper. Tenn. Code Ann. § 8-44-101 (2002) provides that “[t]he general

assembly hereby declares it to be the policy of this state that the formation of public policy and

decisions is public business and shall not be conducted in secret.” The minutes from the August 14th

work session reveal that a representative from the Municipal Airport Authority was present and

answered several questions from the Commission about the proposed airport.

5

Plaintiffs further state in their brief:

The Petition alleges, on information and belief, that ‘certain

members’ of the County Commission violated the Open Meetings

law by meeting and committing to support the rezoning.

As set forth previously, the Commission filed several affidavits from members of the Commission

denying that the Open Meetings Act was violated. Plaintiffs offered no affidavits, or any other

evidence for that matter, that creates a genuine issue of material fact as to whether the Commission

violated the Open Meetings Act. Unsupported allegations in a petition are insufficient to withstand

a properly supported motion for summary judgment.

There is nothing in the record to suggest that the August 14, 2006, meeting was

anything other than a meeting that was open to the public. The Commission gathered information

at this regularly scheduled public meeting about the proposed airport, and Plaintiffs have offered

neither the Trial Court nor this Court anything indicating that this information gathering meeting was

not open to the public. Further, Plaintiffs have not created a genuine issue of material fact as to

whether the Open Meetings Act was violated at any other time. The Trial Court did not err as to this

issue as the public’s business was not conducted in secret.

Plaintiffs’ final issue is their claim that a spokesperson for certain interested parties

was not allowed to speak at the August 21, 2006, public hearing. Plaintiffs claim this rendered that

meeting unlawful. In the “Facts” section of Plaintiffs’ brief, they state that a spokesperson was not

allowed to speak, but cite us to nowhere in the record where that allegation is substantiated.

Plaintiffs merely cite to the amended complaint. The Commission claims that the Chairman of the 6
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Commission properly set a five minute time limit with respect to public comments. On this

particular issue, the Trial Court found:

As for the limitation of the five minutes per person to speak

to the County Commission, the County Commission has the right to

set a reasonable limitation on persons who address the County

Commission. If it could not do that, the meetings would be chaotic.

A limitation of five minutes in not even close to being unreasonable

or capricious. The transcript shows that this was a very appropriate

public hearing. Citizens made comments. They were very good

comments. It appeared to the Court to be a very well-run meeting.

The Commission cannot hear everything that everyone would like to

say, by that’s – that’s not the issue. The issue is whether the County

Commission provided a forum for a public hearing, and they certainly

did.

In Whittemore v. Brentwood Planning Comm’n, 835 S.W.2d 11 (Tenn. Ct. App.

1992), this Court noted that:

The Sunshine Law gives citizens the statutory right to attend

the meetings of state and local governmental boards and agencies.

However, it does not give citizens the right to participate actively in

all public meetings nor does it require public officials to depart from

their agenda or to interrupt their business to accommodate the

public’s demands to be heard.

* * *

We do not find that the manner in which the planning

commission permitted public comment was illegal, arbitrary, or

capricious. The forceable removal of a lawyer from one of the

planning commission’s meetings in 1986 simply does not taint the

entire process. The neighboring residents’ dissatisfaction with the

planning commission’s conduct calls for a political rather than a

judicial remedy.

Id. at 18; Accord, Souder v. Health Partners Inc., 997 S.W.2d 140, 150 (Tenn. Ct. App. 1998)

(“While the Act requires all meetings of entities subject to the Act be open to the public, it does not

guarantee all citizens the right to participate in the meetings.”). 

Returning to the present case, Plaintiffs have failed to create a genuine issue of

material fact as to whether the challenged meeting, taken as a whole, was an open meeting for

purposes of the Open Meetings Act. It clearly was. This is even more apparent when considering

Plaintiffs failed to cite us to anything in the record supporting what they claim happened at the

meeting. See Tenn. R. App. P. 27(a)(6) (requiring a brief to contain “[a] statement of facts, setting
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forth the facts relevant to the issues presented for review with appropriate references to the record.”)

(emphasis added).

In summary, as to the six issues raised by Plaintiffs regarding their claims against the

County Commission, we conclude: (1) the undisputed material facts demonstrate that the

Commission complied with applicable notice requirements; (2) the undisputed material facts

demonstrate that the rezoning request properly was before the Commission; (3) the undisputed

material facts demonstrate that the Commission complied with its procedural rules pertaining to

substitute motions; (4) the undisputed material facts demonstrate that there was no violation of the

Open Meetings Act; (5) the undisputed material facts demonstrate that the Commission meeting on

August 21, 2006, complied with the requirements of the Open Meetings Act; and (6) the undisputed

material facts demonstrate that the Commission was entitled to summary judgment as a matter of

law.

IV. Conclusion

The judgment of the Trial Court is affirmed and this cause is remanded to the Trial

Court for collection of the costs below. Costs on appeal are taxed to the Appellants, Frankie Lewis

and Herbert Haney, and their surety.

__________________________________

D. MICHAEL SWINEY, JUDGE