When a city's planning commission also serves as the regional planning commission for the city's urban growth area, can it require developers in that area to post performance bonds and submit to city inspection?

Subject

Opinion No. 13-31, Regional Planning Commission's Authority in Urban Growth Areas, April 18, 2013

Plain-English summary

Tennessee's growth-plan framework (Public Chapter 1101 of 1998, codified at Tenn. Code Ann. §§ 6-58-101 et seq.) lets a city define an "urban growth boundary" beyond its actual corporate limits, in territory the city plans to annex over time. The county-level planning question this opinion addresses: when the same body serves as both the municipal planning commission (for the city itself) and the regional planning commission (for the urban growth area outside city limits), what authority does that body have over development in the urban growth area?

The AG answered: full regional-planning-commission authority. When the Department of Economic and Community Development designates the municipal planning commission as the regional planning commission for the urban growth area, the commission gets all the powers in §§ 13-3-101 to -304 and the platting/regulatory authority in §§ 13-3-401 to -413. Within the urban growth area, the commission can require a developer to provide a performance bond or letter of credit, can require municipal inspections of work, and can adopt regulations governing road grading, water/sewer installation, and utility connections. § 13-3-403(b) is the key authority, and it's explicit.

That broad authority is consistent with the General Assembly's intent to let a growth-planning municipality plan and regulate development in its anticipated future territory. The AG had earlier opined in Op. 99-281 that this extraterritorial planning authority operates without county consent, even with §§ 6-58-106(d) on the books.

On the second question, the AG concluded that once the Commissioner of Economic and Community Development and the Local Government Planning Advisory Committee have granted the dual designation, the municipality cannot unilaterally divest itself of the regional planning commission role. The grant is by the Commissioner and Committee under § 13-3-102. To remove it requires the same actors. Law Guarantee & Trust Co. v. Jones (1900) noted that "every power of appointment is, strictly speaking, a power of revocation," but the revocation has to come from the appointing authority.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee's growth-plan framework remains active. Specific subsection numbering in §§ 13-3-101 et seq., 13-4-101 et seq., and the growth-plan statutes at §§ 6-58-101 et seq. has been amended periodically. Anyone advising on current urban-growth-area authority should pull the current statutes and check the latest case law on the scope of extraterritorial planning power.

Background and statutory framework

Two planning frameworks. Tennessee has a parallel structure of municipal and regional planning commissions.

• Municipal planning commission. Created by municipal legislative body under Tenn. Code Ann. §§ 13-4-101 to -105. Required members include the mayor (or designee) and a member of the city's legislative body. Adopts and enforces subdivision regulations for land within the city under §§ 13-4-301 to -310.
• Regional planning commission. Created by the Department of Economic and Community Development under § 13-3-101. Adopts and enforces subdivision regulations for the region. Generally these regions are outside city boundaries. §§ 13-3-401 to -413 set out the regional commission's platting and regulatory authority.

The dual-designation provision. Under § 13-3-102, the Department, with the approval of the Local Government Planning Advisory Committee, can create a planning region consisting of a single municipality plus the territory within its urban growth boundary, and can designate the municipal planning commission as the regional planning commission for that region. The commission then has "all the powers" of a regional planning commission under §§ 13-3-101 to -304 and any other relevant statute, including § 13-3-403's broad authority over subdivision regulation.

Urban growth boundaries. Defined by Tenn. Code Ann. §§ 6-58-101(a), -104, -106. They are areas outside the municipality's territorial limits but contiguous to them and designated under a growth plan that has been approved as required by the statute.

The subdivision regulatory authority. § 13-3-402(a)(1) requires regional-commission approval of any subdivision plat within the region (excluding land inside city boundaries). § 13-3-403(a) gives the commission authority to adopt regulations. § 13-3-403(b) explicitly authorizes:

• Requirements as to road grading and improvement
• Water, sewer, and other utility mains, piping, connections, or facilities as conditions precedent to plat approval
• Acceptance of a performance bond in lieu of completing the work before plat approval
• Enforcement of the bond by the county attorney
• Assessment or alternative method to fund the work in the LEA's name

Criminal penalty for unrecorded subdivisions. § 13-3-410(a) makes it a Class C misdemeanor to transfer land by reference to an unapproved subdivision plat. The county attorney may enjoin such sales. The AG had previously opined in Op. 81-71 that a municipality whose planning commission has been designated a regional planning commission may bring this enforcement action against transfers in its urban growth area if the county fails to act.

Zoning vs. planning distinction. § 13-7-302 addresses extraterritorial zoning authority for municipal planning commissions designated as regional planning commissions. The opinion noted this is a separate issue from the subdivision platting authority addressed here. Subdivision (platting) is regulated under § 13-3-401 et seq. by the planning commission. Zoning is ultimately legislated by the city or county legislative body under §§ 13-7-101 et seq. (counties) and §§ 13-7-201 et seq. (municipalities).

Revocation analysis. Once the dual designation is granted under § 13-3-102, the only way to remove it is by going back to the Commissioner of Economic and Community Development and the Local Government Planning Advisory Committee. The municipality cannot unilaterally divest itself. Law Guarantee & Trust Co. v. Jones, 103 Tenn. 245, 58 S.W. 219 (1900), articulated the appointment/revocation symmetry: the authority to grant the designation is also the authority to revoke it.

Common questions

What is an urban growth boundary?

An area outside a city's actual corporate limits, contiguous to them, designated as the city's anticipated future expansion zone under a growth plan adopted under Tenn. Code Ann. §§ 6-58-101 et seq. Once adopted, the city has planning and (in many cases) zoning authority in that area before it actually annexes the land.

What is the difference between a municipal and a regional planning commission?

A municipal planning commission covers the city itself. A regional planning commission covers a broader region, usually outside city boundaries. Tenn. Code Ann. § 13-3-102 lets a single body wear both hats: the municipal planning commission, when designated by the Commissioner of Economic and Community Development, can serve as the regional planning commission for the city's urban growth area.

What can the dual-designation commission require from developers in the growth area?

Under § 13-3-403(b): road grading and improvement; water, sewer, and utility installation; performance bonds in lieu of pre-approval completion; full assessments or alternative funding methods. The municipality (acting through its dual-designated commission) can require any of these things from a developer in the urban growth area as conditions on subdivision plat approval.

Does the developer need the county's consent?

No. The AG had concluded in Op. 99-281 that the dual-designation regional planning commission can exercise its authority in the urban growth area without county consent, notwithstanding Tenn. Code Ann. § 6-58-106(d).

What happens if a developer transfers land without an approved plat?

Under § 13-3-410(a), it's a Class C misdemeanor. The county attorney (or, per Op. 81-71, the municipality if the county doesn't act) can enjoin the transfer.

Can the city give up the regional planning role?

Not unilaterally. The designation was made by the Commissioner of Economic and Community Development with the approval of the Local Government Planning Advisory Committee. To undo it requires going back to those same actors.

Citations

Statutes: Tenn. Code Ann. §§ 13-3-101 to -304 (regional planning commissions); § 13-3-102 (dual designation); § 13-3-104 (coordination); §§ 13-3-401 to -413 (subdivision regulation, especially §§ 13-3-402, -403, -410); §§ 13-4-101 to -310 (municipal planning commissions); §§ 6-58-101, -104, -106 (urban growth boundaries); § 13-7-302 (extraterritorial zoning). Case: Law Guarantee & Trust Co. v. Jones, 103 Tenn. 245, 58 S.W. 219 (1900). Prior AG opinions: Op. 81-71 (Feb. 2, 1981); Op. 99-281 (Nov. 4, 1999).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-031.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

April 18, 2013

Opinion No. 13-31

Regional Planning Commission's Authority in Urban Growth Areas

QUESTIONS

1. Is a municipality, whose planning commission has been designated a regional planning commission with extraterritorial authority in the municipality's urban growth boundaries, authorized to enforce subdivision regulations, including requiring a developer to provide a bond or letter of credit and requiring municipal inspection of work performed on the property, for property located within the municipality's urban growth boundaries?

2. Can a municipal planning commission divest itself of its authority as a regional planning commission with respect to areas within the municipality's urban growth boundaries?

OPINIONS

1. Yes, where the municipal planning commission acts as the regional planning commission with respect to territory within the municipality's urban growth boundaries, the planning commission is authorized to adopt and enforce subdivision regulations under Tenn. Code Ann. §§ 13-3-401 to -413. These regulations may require a developer to provide a bond or letter of credit in favor of the municipality and also require municipal inspection of work performed on the property.

2. Any request by a municipal planning commission to remove its authority as a regional planning commission would have to be reviewed and approved by the Commissioner of the Tennessee Department of Economic and Community Development and the Local Government Planning Advisory Committee before the request could become effective.

ANALYSIS

1. A municipal planning commission is created by the municipal legislative body under Tenn. Code Ann. §§ 13-4-101 to -105. Members of a municipal planning commission must generally include the mayor of the municipality, or a person designated by the mayor, as well as a member of the chief legislative body of the municipality selected by that body. Tenn. Code Ann. § 13-4-101(a)(1). Municipal planning commissions adopt and enforce regulations governing the subdivision of land within the municipality. Tenn. Code Ann. §§ 13-4-301 to -310.

The Department of Economic and Community Development ("the Department") has the authority under Tennessee law to create and establish planning regions and regional planning commissions. Tenn. Code Ann. § 13-3-101. Regional planning commissions generally adopt and enforce regulations governing the subdivision of land within the region other than land located within the boundaries of a municipal corporation. Compare Tenn. Code Ann. §§ 13-3-401 to -413 (setting forth regional planning commissions' platting and regulatory authority) with Tenn. Code Ann. §§ 13-4-101 to -310 (authorizing the creation by a municipality of a municipal planning commission and defining the powers of the commission). See also Tenn. Code Ann. § 13-3-104 (stating that one of the duties of a regional planning commission is "to promote the mutual cooperation of the planning commissions of municipalities within the region, and the coordination of the plans of such municipalities with the plan of the region").

The Department, acting under this authority, could provide a municipal planning commission designated as a regional planning commission extraterritorial jurisdiction over property located within the municipality's "urban growth boundaries." See Tenn. Code Ann. § 13-3-102. Such "urban growth boundaries," which are outside the municipality's territorial limits, are contiguous to the existing boundaries of the municipality and have been designated and approved as part of a growth plan for the municipality. See Tenn. Code Ann. §§ 6-58-101(a), -104 & -106(a). Thus, under Tenn. Code Ann. § 13-3-102, where the Department creates a planning region composed of the territory of a single municipality together with territory adjoining but outside the municipality and within the municipality's urban growth boundaries, the Department, with the approval of the Local Government Planning Advisory Committee, may designate the municipal planning commission as the regional planning commission of the region. When so designated, the commission, when acting as a regional commission for such region, has all the powers and is governed by the provisions in Tenn. Code Ann. §§ 13-3-101 to -304, "or in any other statutory provision relating to regional planning commissions." Tenn. Code Ann. § 13-3-102. The membership requirements for such a planning commission are set forth at Tenn. Code Ann. § 13-3-102.

With respect to property in the urban growth boundaries outside the territorial limits of the municipality, the municipal planning commission designated as a regional planning commission would exercise the subdivision authority given to regional planning commissions under Tenn. Code Ann. §§ 13-3-401 to -413. Under Tenn. Code Ann. § 13-3-402(a)(1), once a regional planning commission has adopted a regional plan, no plat of a subdivision of land within such region, other than land located within city boundaries, may be filed or recorded until it has been approved by the regional planning commission. In exercising the powers granted under this statute, the regional planning commission must adopt regulations governing the subdivision of land within its jurisdiction. Tenn. Code Ann. § 13-3-403(a). The scope of these regulations is described as follows:

Such regulations may include requirements as to the extent to which and the manner in which roads 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. . . . Such regulations may provide that, in lieu of the completion of such work and installations previous to the final approval of a subdivision plat, the commission may accept a bond, in form and amount and with conditions and surety satisfactory to it, providing for and securing to the public the actual construction and installations of such improvements and utilities within a period specified by the commission and expressed in the bond. The attorney for the county in which the subdivision is located is hereby granted the power and duty to enforce any such bond by all appropriate legal and equitable remedies, and moneys collected on such bond shall be paid into the state treasury and, upon the order of the regional planning commission, shall be applied to the construction and installation of the improvements and utilities. The regulations may provide, in lieu of the completion of the work previous to the final approval of a plat, for an assessment or other method whereby the county, municipality or metropolitan government served by the regional planning commission at the location of the platted property is put in an assured position to do the work and make the installations at the cost of the owners of the property within the subdivision.

Tenn. Code Ann. § 13-3-403(b) (emphasis added).

The broad regulatory authority granted by these statutory provisions allows a municipal planning commission designated as a regional planning commission to, within the urban growth area, enforce its subdivision requirements, require a developer to provide a bond or letter of credit and conduct municipal inspections on work performed on property located within the urban growth area. The authority granted specifically includes adopting various road and utility requirements, accepting a bond satisfactory to the commission and taking all necessary steps to ensure the property being developed complies with the commission's regulations. See Tenn. Code Ann. § 13-3-403(b). For property located within the territorial limits of the municipality, the municipal planning commission would exercise the planning and platting authority granted by Tenn. Code Ann. §§ 13-4-301 to -310.

This analysis is supported by the provisions of Tenn. Code Ann. § 13-3-410(a), which prescribes penalties if an owner or agent of an owner transfers lots in unrecorded subdivisions. This statute provides:

Whoever, being the owner or agent of the owner of any land, transfers or sells or agrees to sell or negotiates to sell such land by reference to or exhibition of or by other use of a plat of subdivision of such land without having submitted a plat of such subdivision to the regional planning commission and obtained its approval as required by this part and before such plat is recorded in the office of the appropriate county register, or who falsely represents to a prospective purchaser of real estate that roads or streets will be built or constructed by a county or other political subdivision, commits a Class C misdemeanor. . . . The owner or agent shall post bond in form and amount and with conditions and surety satisfactory to the regional planning commission, providing for and securing to the public the actual construction and installation of such improvements and utilities within a period specified by the regional planning commission and expressed in the bond. The county, through its county attorney or other official designated by the county legislative body, may enjoin such transfer or sale or agreement by action or injunction.

Tenn. Code Ann. § 13-3-410(a) (emphasis added). See also Tenn. Att'y Gen. Op. 81-71 (Feb. 2, 1981) (this Office opining that a municipality whose planning commission has been designated a regional planning commission can bring suit to enjoin the sale or transfer of land outside its boundaries where the sale or transfer is in violation of Tenn. Code Ann. § 13-3-401 if the county fails to bring suit).

2. The Commissioner of the Tennessee Department of Economic and Community Development, with the approval of the Local Planning Development Advisory Committee, confers the authority for a municipal planning commission to act as a regional planning commission. Tenn. Code Ann. § 13-3-102. Thus, once such authority is granted, any request by a municipal planning commission to remove its authority as a regional planning commission would have to be reviewed and approved by the Commissioner and the Committee before that request could become effective. See generally Law Guarantee & Trust Co. v. Jones, 103 Tenn. 245, 251-52, 58 S.W. 219, 220 (1900) (observing that "every power of appointment is, strictly speaking, a power of revocation").

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Sheila Butt
State Representative
106 War Memorial Building
Nashville, Tennessee 37243