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The Board of Mayor and Aldermen (BoMA) approved an amendment to the Tullahoma Code of Ordinances, dismantling the Board of Zoning Appeals and establishing the Board of Appeals.

By amending Title 14 (zoning and land use control), Chapter 2 (zoning ordinance), Section 202, (Board of Zoning Appeals) by deleting it in its entirety and substituting a new Section 202, Board of Appeals, the board lessened the authority and efficacy of the Planning Commission, placing that authority within the BoMA.

Prior to the passing of this motion and alteration to the city code, the Planning Commission presided over the Board of Zoning Appeals, wherein members perform administrative reviews and hears variance requests made by citizens who file through the city planning director. The items appealed are not simply decisions made by the Planning Commission brought back for review.

When the item was presented at the May 22 BoMA meeting, Mayor Ray Knowis shared that legal opinion had been sought out in regards to the process for doing what Alderman Jenna Amacher was suggesting in her motion. City Attorney Stephen Worsham was not available during the time of the item’s discussion, and the Municipal Technical Advisory Service (MTAS) had not responded as of the meeting.

Michael Giffin, a partner with Robertson, Worsham, Gregory & Giffin, was representing the city attorney at the BoMA meeting, and Knowis invited him to speak, as well as recommending that the board postpone voting on the motion until legal opinion had been sought.

“I don’t think it’s appropriate for Mr. Giffin to give his opinion on it, given the short notice,” Amacher protested. “I understand that we have a contract with Mr. Giffin sitting in for Mr. Worsham, but an attorney’s opinion and MTAS’s opinions are just that: they are opinions.”

She went on to say that the wording of her motion was taken “verbatim” from the state statute.

Giffin offered his legal opinion, stating that the ordinance recommended by Amacher was redundant, “attempting to repeal an ordinance that had already been repealed.” He shared the statute and law on the matter, stating that Tennessee Code Annotated 13-7-205, there are two ways to create a Board of Zoning Appeals.

“The law provides that the chief legislative body, that being the Board of Mayor and Aldermen, can create it by a board of three or five members and specify their service in terms of staggering their time,” he said. “Or the other way is for the Board of Mayor and Aldermen to designate the Planning Commission of the municipality as the Board of Zoning Appeals.”

Giffin went on to explain decisions made by prior boards of the mayor and aldermen, stating that a decision made in 2009 provided the board with the steps to make amendments to the ordinance establishing the Board of Zoning Appeals. He stated that the board would need to make an appointment with the Director of Planning and Codes, provide proper notice to citizens and advertise a public hearing with the Planning Commission.

“Again, I think you can do this,” he said. “If you’re wanting to get rid of the Board of Zoning Appeals or replace it, there is a mechanism for doing it, but you have to do it under the current zoning ordinance.”

He clarified that the ordinance that Amacher was recommending the board delete from the city code and replace had already been repealed and replaced in 2009, and that the board would have to replace the 2009 ordinance by the measures laid out in said ordinance.

Alderman Daniel Berry shared the history of the recommended motion, as related to discussions and items that passed through the Planning Commission and the BoMA since March.

“On March 20, Greater Faith [Baptist Church] requested a setback variance,” he said. “The outcome is that the board postponed, so that we could get a legal opinion before we made any decision. On March 27, at the Board of Mayor and Aldermen, Alderman Amacher, in an attempt to stunt the Planning Commission introduced a motion that we now know is an invalid resolution. After we heard it all again, we got opinions from MTAS and [Michael Giffin], who is the attorney for the state planner’s association I believe, and we had our own city attorney come back and say that [we] were outside of our authority to [pass the motion.]”

The motion that Berry referenced would create an exemption for setback requirements applicable to structures on property owned/actively used by churches and/or religious institutions. The current city setback requirements were established by ordinance to affect the city’s zoning ordinances.

The motion had passed against the city attorney’s recommendation 5-2, with Knowis and Berry against.

“Based off of the material evidence, the Planning Commission denied that application,” Berry continued. “There were exchanges, and it got heated. That’s what I apologized for earlier. At that time, Alderman Amacher walked off the stage and walked right out to the applicant and said ‘I’ll take care of this.’ What we have right here is Alderman ‘taking care of this.’ Since we’ve done this, this board has continued to consolidate power. One of the first things that we did is get rid of the policies and procedures. Now we’re saying, ‘We don’t like what the Board of Zoning Appeals does and that we don’t agree with the Planning Commission, so let’s get rid of it!’ What we’ve done since September is we have tried to – there’s a gentleman in 1933 Germany who did the same thing, consolidating all this power.”

Knowis directed Berry to stop speaking and began his own comments.

“My motion to postpone this is because we do have significant differing opinions on how to do this,” Knowis said. “It’s not about not doing this; it’s about going through the proper process for doing it.”

Amacher reiterated her stance that the opinions of attorneys, including the attorney general in her statement, were “merely advisory.”

“The final say-so should never come to a subsidiary board who is not elected by the people,” she said of the Planning Commission. “The people choose their representatives, and we should be the authority that ultimately grants or does not grant any exceptions, rights or privileges to our ordinances, whether it be by our charter or our municipal code. I was appalled at the insubordination of a subsidiary board. What happened was completely inappropriate. It did prompt me to think that it was unjust that a subsidiary board can be insubordinate and disobey a resolution that the Board of Mayor and Aldermen passed. I am tired of every time I put something on the agenda, somebody calling an attorney to see if it’s okay.”

“I just want to put on the record that Alderman Amacher did just say that this is, in effect, because there was a disagreement with the Planning Commission, and so because of that disagreement, we want to dissolve the Board of Zoning Appeals,” Berry clarified. “She is going to get you guys in trouble. I’m not going to try to talk you out of it, but I am more than happy to hold that nail there for you.”

Knowis reminded the board that the purpose of the BoMA is to set the goals for the city and practice for implementation of those goals, rather than to have their hand in the everyday operations of the city.

A motion to postpone a vote on the ordinance failed 2-5, with Berry and Knowis in favor. The ordinance was approved 5-2, with Berry and Knowis against.