October 8, 2003
Re: Requiring Additional Conditions after Tentative Plat Approval before Final Subdivision Plat
Approval
Dear City Planner:
You asked whether the Planning Commission may add additional conditions to a
tentatively approved subdivision plat before it can be given final approval by the Commission.
Because of the language of applicable statutes, it appears that the legislative intent is that the
conditions for tentative approval are the same conditions that must apply relative to final
approval of the plat. Therefore, it is doubtful that additional conditions may be added. In my
opinion, however, the Planning Commission can obtain the same result by rescinding the
tentative approval and then granting a new tentative approval that includes the additional
conditions. This assumes that the thirty (30) day period in ' 13-4-304(a) requiring approval or
disapproval in that time has not run or that the applicant has consented to an extension.
Your City has a municipal planning commission that is governed by Tennessee Code
Annotated, ' 13-4-101, et seq. Section 13-4-303 authorizes the planning commission to adopt
subdivision regulations. Subsection (b) of this section provides in pertinent part as follows:
Such regulations may include requirements of the extent to which and the manner in
which streets shall be graded and improved, and water, sewer, and other utility mains,
piping, connections or other facilities shall be installed as a condition precedent to the
approval of the plat. The regulations or practice of the commission may provide for the
tentative approval of the plat previous to such improvements and installation, but any
such tentative approval shall not be entered on the plat. Such regulations may provide
that, in lieu of the completion of such work previous to the final approval of the plat, the
commission may accept a bond ... providing for and securing to the municipality the
actual construction and installation of such improvements ....
I think there are several conclusions that can be drawn from this and other language in the
applicable statutes. First is that the thirty (30) day period for approval of the plat required by '
13-4-304(a) must apply to the tentative approval, rather than final approval, if there is such a
procedure provided for in the subdivision regulations. This is because the above statutory
language indicates that final approval would not be available until the subdivision is built if a
bond is not required. Second is that tentative approval seems to be a procedure that allows
conditions to be set so the developer will know what work must be done and allowing the
commission to set the bond amount and conditions. Third is that the conditions set in the
tentative approval seem to be those for which the bond is set. The language quoted above speaks
of “conditions precedent to the approval of the plat” and then authorizes a tentative approval
procedure “previous to such improvements and installation.” The statute then continues to refer
to “such improvements,” which apparently refers to those “conditions precedent” set in the
tentative approval.
Thus the conditions set in the tentative approval become the criteria for final approval. As
the Court said in Byram v. City of Brentwood, 833 S.W.2d 500 (Tenn. App. 1991) at 504,
“Conditional approval is not equivalent to final approval of the plat without the modifications
proposed by the Planning Commission.” The inverse of this statement, of course, is that with the
modifications proposed by the planning commission, conditional approval becomes final
approval (when the bond is provided). This being the case, simply adding other conditions to the
tentative approval would probably be of doubtful validity. The better procedure probably would
be for the planning commission to rescind its previous tentative approval and enact a new
tentative approval with the additional conditions.
Although there are no Tennessee cases directly on this point, recission of subdivision
approvals is not unknown here. In Foley v. Hamilton, 603 S.W.2d 151 (Tenn. App. 1980), the
Court said, “When a subdivision plan has been approved upon conditions, the failure to comply
with those conditions will result in recission of the approval.” Id. at 153. Courts in other states
have also upheld the authority of planning commissions to rescind conditional or tentative
approvals. In State ex rel. Harpley Builders, Inc. v. City of Akron, 584 N.E.2d 724 (Ohio, 1992),
the Ohio Supreme Court held:
We have previously held that administrative agencies have inherent authority to
reconsider their own decisions, unless they are otherwise limited by statute.
***
We hold that it is this inherent authority that the Planning Commission exercised when it
voted to rescind its preliminary approval of Eaton Place. Id., 535.
Similarly, in Kloski v. Matecumbe Marina, Inc., 598 So.2d 275 (Fla. App. 1992), the planning
commission preliminarily approved a plat with eight (8) conditions. The developer complied
with all conditions and asked final approval. The planning director recommended approval.
According to the facts as stated by the Court:
[T]he Planning Commission considered the final development plan submitted by
Matecumbe and rejected the Director’s recommendation, voting instead to rescind the
conditional approval which had been granted five months earlier. Id.
The Court in effect upheld the planning commission’s action. The marina asked for a writ of
mandamus to compel the final approval. The Court held that it could not order the writ issued
because “the reviewing court may not instruct the tribunal, by mandamus, how to rule.” Id.
Tennessee courts also recognize that state statutes invest much discretion in the planning
commission and are deferential in allowing them to exercise it. In the Brentwood case noted
above, the plaintiffs were also asking for a writ of mandamus against the planning commission to
compel the final approval of a plat. In rejecting this request, the Court states:
Here, the Brentwood Subdivision Regulations clearly set forth the detailed procedures
and numerous factors that the defendants must follow and consider in deciding whether to
approve subdivision plat proposals for certification. It is clear that a considerable amount
of discretion is required to balance the respective rights and interests of present and future
owners of property proposed for subdivision, present and future neighbors to such
property, as well as the health, safety and general welfare of the City of Brentwood. We
must, as did the trial court, reject the Byrams’ invitation to attempt to control the
judgment and the discretion of the defendants in this instance. 833 S.W.2d at 505.
It is significant in this case that the Court found that the developer did not comply with the
conditions set in the preliminary approval. It is significant in your situation, though, that your
subdivision regulations make it clear that there are no vested rights created in a tentative
approval. This prevents creating expectations of property rights on the part of developers and lets
them know that modifications are possible. It also comports with the planning statutes that
require the plat to be signed before it is recorded and prohibit the transfer of lots in unapproved
subdivisions.(T.C.A. '' 13-4-302(a) and 306).
I hope this answers your question. Call us if you have others or need clarification.
Sincerely,
Dennis Huffer
Legal Consultant