# FILED Dec. 31, 1998 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT O

F APPEALS AT KNO XVILLE

KENNETH CULB

ERT ) CARTER COUNTY ) 03A01-9801-CV-00018 Plaintiff-Appellant ) ) ) v. ) HON. G. RICHARD JOHNSON, ) CHANCELLOR ) (Sitting by Interchange) CARTER COUNTY, TEN NESSEE, et al. )

) Defendants-Appellees ) AFFIRMED AND REMANDED

LOIS B. SHULTS OF ERWI N FOR APPELLANT GEORGE F. DUGGER, JR., OF ELIZABETHTON ; JAMES H. EPPS, III, OF JOHNSON CITY; ROBERT L. ARRINGTON and ANG ELA R. KELLEY OF KI

NGSPORT FOR APPELLEES

O P I N I O N

Goddard, P.J.

The appellant, Mr. Kenneth Culbert, appeals from an order of the Circuit Court of Carter County granting Carter County ’s motion to dismiss or for summary judgment of Mr. Culbert’s appea

l of a decision of t

he Carter County

Planning Commission b

y a writ of c

ertiorari.

Mr. Cul bert is o ne o f se vera l ow ners of a t ract of l and in C art er C oun ty, Tennessee. Mr. C

ulbert’s applica

tion to build the Rolan

d Acres Mobile Hom

e Park upon this land was denied by the Planning Commission.2 Prior to June 20, 1994, Mr. Culbert submitted a preliminary plan for Roland Acres Mobile Home Park to the Planning Staff for consideration by the Planning Commission. Consideration of the plan for the this mobile home park first appeared on the Planning Commission’s agenda on June 20, 1994. At this meeting, the Commission noted Mr. Culbert’s use of this property would not be permitted by the proposed zoning ordinance for Carter County. The original draft for this zoning ordinance was submitted by the Planning Commission to the Carter County Board of Commissioners in October of 1993. A map display ing the proposed zoning districts was posted, and thereafter amended as necessary , in the County Planning Office. The property at issue in this case was consistently zoned for single family residences, excluding mobile homes. At the

time of Mr. Culbert’ s application, the proposed ordinan

ce was nearing

its final form. The Planning Commission certified the ordinance in its final form on July 14, 1994, and submitted the ordinance to the Carter County Board of Commissioners. This proposed ordinance was adopted on September 29, 1994.

The Planning Commission took no action on Mr. Culbert’s proposal in the meeting of June 20,

1994. On July 18 , 1994, the Commission established a subc

ommittee to study Mr. Culb

ert’s proposal a

nd report its findin

gs at the next commis sion meeting. On A ugust 15, the Commission sta

ted several def

ects in the plan sub

mitted by Mr. C

ulbert, and once

again noted that the use of the land sought by Mr. Culbert was inconsistent with the pending ordinance. The Commission postpo

ned consideratio

n of Plat approval u

ntil August 22, 1994, in order to obtain an opinion from the county attorney on whether approval could be denied based on the “pending ordinance” doctrine. On August 22, 1994, the Commission denied approval of the plan for the following

reasons: There is pending before the Carter County Commission a zoning resolution or ordinance, which resolution for zoning has been recommended by the planning com

mission. If this zo

ning resolution is

passed by th

e county commission of Carter County, the 91-lot mobile home park will be in violation thereof.3 The approval of the proposed 91-lot mobile home park would not pro mot e th e pu bli c hea lth , sa fet y, mo ral and gene ral wel fare of C art er C oun ty.

Also, approval of

the proposal of the

proposed 91-lot mob

ile home is denied because the developer, Kenneth Culbert, has failed to comply with other rules and regulations of this planning commission. On March 23, 1995,

after the Committe

e denied approva

l of the mobile home park, Mr. Culbert filed suit in the Circuit Court for Carter County in Elizabethton against Carter County, membe

rs of the Carter Co

unty Planning

Commission, and membe rs of the Carter Co

unty Board of Commissioners. In his complaint, Mr. Culbert sought the issuance of a common law writ of certiora

ri by the Tri

al Court. Carter Co

unty answer

ed the complaint, a

nd filed a motion to dismiss or for summa

ry judgmen

t as to all of Mr. Culb

ert’s claims alle

ging that he ha

d failed to state a claim for which relief could be granted or had not raised a ge nuine issue of material fact for trial.
On October 28, 1995, the Circuit Court issued the writ of certiorari. On November 12, 1996, the Circuit Court heard Carter County’s motion. At the conclusion of the hearing, the Chancellor granted the motion on all grounds asserted. The Court entered a judgment dismissing all claims on December 18, 1996.

On January 16, 1997, Mr. Culbert filed a motion for a new trial, amendment of order, rehearing or issuance of the permit sought. In this motion, Mr. Culbert asked only that the Circuit Court change its ruling on the dismissal of his petition to overturn the Commission’s denial of approval for the Roland Acres Mobile Home Park pursuant to the writ of certiorari. The Chancellor he

ard, and denied M

r. Culbert’s motion

on June 18, 1997. An or der denyin

g this motion was entered on August 6, 1997. Mr. Culbert filed his notice of appeal on September 4, 1997.4 Even though we question the timeliness of the plaintiff’s application for certiorari to the Carter County Circuit Court, we find it necessary to only address the following issue presented by

Mr. Culbert: Whether the Planning Commission’s denial of Mr. Culbert’s plan for the Roland Acres Mobile Home Park was supported by material evidence.

Under the record developed in this case, our scope of review under common law writ of certiorari is limited to determining whether the administrative commission has acted without material evidence to support its decision. See Watts v. Civil Serv. B d. for Columbia , 606 S.W.2d 274 (Tenn. 1980); Houston v. Memphis a nd Shelby Coun

ty Bd. of Ad

justments , 488 S.W.2d 387 (Tenn.Ct.A

pp.1972); Hoover Motor Expre ss Co. v. Railroad an

d Pub. Util. Comm’n , 195 Tenn. 593, 261 S.W.2d 233 (1953). Where there is material evidence to support the administrative board or commission’s determination and it has not exceeded its jurisdiction, then the result must be affirmed. Houston , 488 S.W.2d at 388.

Furthermore, summary judgment is appropriate only when it is shown that "there is no genuine issu

e as to any ma

terial fact and t

hat the moving pa

rty is entitle

d to a judgment as a matter of law." T.R.C.P. 56.03 (1984). In ruling on a motion for summary judgment, all the evidence must be v

iewed in the ligh

t most favorable to

the opponent of the

motion and all legitimate conclusions of fact must be drawn in favor of the opponent. See Graves v. Anchor Wire Corp. of Tennessee , 692 S.W.2d 420, (Tenn.App.1985); Bennett v. Mid-Sou th Terminals Corp. , 660 S.W.2d 799, (Tenn.App.1983). Further, if reasonable minds can differ on the inferences which can be drawn from undisputed facts, summary judgment is inappropriate.
Neither party disputes that Mr. Culbert was the sole applicant to appear before the Planning Commission w

hen seeking to e

stablish the Roland A

cres Mobile Home P

ark. It is also undisputed that Mr. Culbert pursued the application for the park in his own name. Upon5

examination of the record, Mr. Culbert was clearly not the sole owner of the proper ty on which the Roland Acres Mobile Home Park was to be built. Cora Culbert, Mr. Culbert’s wife, and Brian Culbert, his son, also possessed interests in this property. Section 4(a) of Chapter 198 of the Private Acts of

the State of Tenne

ssee of 1992 requ

ires that “[t]he owner of the land parcel proposed for a mo

bile home park sha

ll submit a plan for d

evelopment to the Ca

rter County Planning Commission. . . .” Section 9 of the same Private Act states “[t]he provisions of this act shall supersede any less stringent provisions of any ordinance of Carter County.” While the subdivision regu

lations for Carte

r County inclu

ded in Chapter 360 o

f the Tennessee

Private Acts of 1972 allows any owner of a plat to submit a proposal for the establishment of a subdivision, Mr. Culbert’s proposal for the establishment of a mobile home park must meet the stricter guidelines of Chapter 198 of the Private Acts of Tennessee of 1992.

Mr. Culbert asked the trial court to allow any owner of a tract submit a plan for a mobile home park even though the act required submission by “the owner.” T he Trial Court responded b y stating: I can’t -- I

have no authority

to add something to

the act or to rea

d something into it that isn’t there. It’s my obligation to read the words of the a ct in their common, everyday meaning

and not to add or detract from anything that the act say s from it’s plain, obvious meaning. For this reason, the Trial Court properly found that, under the undisputed facts, there was evidence presented to support the Commission’s denial of the proposal of the Roland Acres Mobile Home Park for failure to comply with rules and regulations of the planning commission.
We agree that the undisputed facts support the Commission’s denial of Mr. Culbert’s application. The undisputed facts show that Mr. Culbert’s application to the Commission was faci

ally imprope

r according to

Section 4(a) of Ch

apter 198 of the Pr

ivate Acts of the State of Tennessee of 1992 for failure to include Cora Culbert and Brian Culbert, both of whom have an interest in the property in question. We believe that material evidence existed6

enabling the Commission to find the plaintiff’s application facially improper. As a result of the facially improper application, the Commission had no duty to act upon or eve n consider Mr. Culbert’s application.

From the facts pr

esented in the re

cord, we find tha

t the Commission had a

mple material evidence to support its decision to reject Mr. Culbert’s facially improper application for failure to comply with the rules and regulations of the planning commission.

For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remande

d for collection o

f costs below. Costs

of appeal are a

djudged again

st Mr. Culbert.

_______________________________ Houston M. Goddard, P.J.
CONCUR:

________________________________ Hersc hel P. F ranks, J.

________________________________ William H. In man, Sr .J.