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Highway routing challenged.

In Englewood Citizens for Alternate B, et al. vs. Town of Englewood, et al, the Englewood Citizens for Alternate B appealed the decision of the McMinn County Chancery Court to dismiss their complaint against the town of Englewood, its mayor, and three of its commissioners, to the Tennessee Court of Appeals at Knoxville. The citizens group sought to challenge the town commission's selection of a route for a highway construction project.

In 1996 the Englewood Board of Commissioners agreed to endorse Alternate A in a letter to be sent to the Tennessee Department of Transportation. The town commission chose the existing route through Englewood fora construction project to widen U.S. 411 from two lanes to four lanes. A route that would bypass the town completely was proposed as the better route by the Englewood Citizens for Alternate B.

Two votes were taken on the motion to send the letter endorsing Alternate A. Because two commissioners own property along Alternate A, the mayor believed their ownership could cause a conflict of interest if they were to receive money from the state for their property. In both votes, the commission approved Alternate A with the two commissioners abstaining in the second vote.

After the vote, the Englewood citizens group filed suit against the town and its commissioners for declaratory and injunctive relief contending: 1) the town violated the Tennessee Open Meetings Act with its December 12, 1996, meeting; 2) the mayor and certain town commissioners have an impermissible conflict of interest in the selection of the route for a state highway; and 3) the selection of that route by the town commissioners was arbitrary, capricious, and against the public interest.

On December 29, 1997, the Chancery Court dismissed the Englewood Citizens' first cause of action with respect to the violation of the Tennessee Open Meetings Act. The Englewood Citizens group claimed that the notice given by the mayor and the commissioners was inadequate. The Chancellor thought differently, ruling that the notice provided by the town was reasonable under the circumstances.

The Chancery Court dismissed the Englewood Citizens' second and third causes of action on February 5, 1998. The court ruled that there was nota conflict of interest sufficient enough to keep the commission from making its determination. As for the third cause of action, the Chancery Court felt it was without authority to challenge the town commission's act because it was a legislative process. The Chancery Court found that the selection of the existing route for the improvements was reasonable because that is where the road is now located.

The Englewood Citizens group filed their notice of appeal on February 26, 1998, raising three issues on appeal: 1) whether the town of Englewood, its mayor, and commissioners violated and continue to violate the open meetings law by refusing to give adequate public notice of their meetings; 2) whether the town of Englewood, its mayor, and commissioners violated the conflict of interest statutes by their interest in real property indirectly involved in contracts necessary to their official action; and 3) whether the Chancellor erred in dismissing the third count of the appellants' complaint without providing appellants an opportunity to be heard.

The town added two issues of its own for this appeal: 1) whether the plaintiff has standing to bring an action; and 2) whether there exists a justiciable controversy entitling plaintiffs to seek relief.

To qualify as adequate public notice, the appeals court found that the notice given by the town must satisfy a three-prong test. First, the notice must be posted in a location where a member of the community could become aware of such notice. Second, the contents of the notice must reasonably describe the purpose of the meeting or the action proposed to be taken. Third, the notice must be posted at a time sufficiently in advance of the actual meeting to give citizens both an opportunity to become aware of and to attend the meeting.

The proof in the record shows that the town posted notice of the meeting in three locations: city hall, the post office, and Valley Bank. The three locations were adequate under the totality of the circumstances because they afforded the members of the community an opportunity to see the notice.

The Englewood Citizen's group complains in its brief that the notice is inadequate because it is not conspicuous, and the three public locations chosen are not accessible at all hours over the weekend. Additionally, it argues that several community members were unaware of the posted notices. The court found, however, that for purposes of this prong of the adequate notice inquiry, the town can provide adequate notice simply by choosing reasonable public locations and posting notices at those public locations on a consistent basis.

For the notice given by the town to meet the second prong of the adequate notice inquiry, the contents of the notice must reasonably describe the purpose of the meeting or the action proposed to be taken. In this instance, the contents of the notice read: "Letter to State concerning HWY 411." The court found that a person of reasonable intelligence would not adequately be informed by the cryptic statement "Letter to State concerning HWY 411." Instead, a more substantive pronouncement stating that the commission would reconsider which alternative to endorse for Highway 411 should have been given.

To meet the third prong of the adequate public notice inquiry, the notice must be posted at a time sufficiently in advance of the actual meeting to give citizens both an opportunity to become aware of and to attend the meeting. The town contends that two days advance posting is sufficient to meet the adequate notice requirement. The appeals court, however, did note that two days' notice is sufficient to fairly inform the public under these circumstances.

Based on the inadequate content of the notice provided and the lack of a sufficient time for the posting to be observed by the community members, the appeals court held that the town did not provide adequate public notice, and any action taken by the town commission at that meeting was invalid.

The second issue raised by the Englewood Citizens group is whether the town of Englewood, its mayor, and commissioners violated the conflict of interest statutes by their interest in real property indirectly involved in contracts necessary to their official action. Under the facts presented, the appeals court found no evidence of a contract between the commissioners of the town of Englewood, or an indirect interest in a contract between the commissioners and the town of Englewood.

The Englewood Citizens group argues that because two commissioners own property along Alternate A, they will indirectly benefit by the construction project. However true this may be, their benefit does not rise to the level of an indirect interest in a contract with the town. Both governing statutes specifically require a contract interest to exist for a conflict of interest to arise. The appeals court held, therefore, that the Chancellor was correct in dismissing the citizens group's conflict of interest claim because no contract interest is at stake in the selection of Alternate A for the highway construction project.

The Englewood Citizens' final issue for appeal is whether the Chancery Court erred by not allowing the group to go forward with its claim that the action of the town commissioners in selecting Alternate A was arbitrary, capricious, and against the public interest. The town counters this third cause of action by noting that as a prerequisite for maintaining an action under the Declaratory Judgment Act, the Englewood citizens group must show that a justiciable controversy exists. Without a justiciable controversy, the town contends that the Chancery Court's decision to dismiss this cause of action should be upheld.

The appeals court found that the town is correct to note that the Declaratory Judgment Act requires that a justiciable controversy must exist to pursue a claim under the act. Regardless of whether a justiciable interest exists, however, it is the accepted law in this state that a trial court within its discretion, may decline to issue a declaratory judgment. "Numerous cases have stated that the making or refusing of a declaratory judgment is discretionary with the trial court." Additionally, "The action of the trial court in refusing a declaration will not be disturbed on appeal unless such refusal is arbitrary."

On this third issue, the appeals court found that "the Chancellor properly exercised his discretion by declining to issue a declaratory judgment on the matter at hand. The Chancellor's decision was not arbitrary and, in fact, showed extreme sensitivity to the decision making process that is entrusted to the town commission and its mayor. Based on our review of this record, we find that the Chancellor's decision was not arbitrary and as to this issue should be upheld.

"In conclusion, we hold that the December 12, 1996, special meeting of the Englewood Town Commissioners was in violation of the Sunshine Act of the State of Tennessee. The Chancellor's decision to dismiss that cause of action is reversed, and judgment is hereby entered in favor of the Englewood Citizens for Alternate B on their first cause of action. The second and third causes of action involving the alleged conflict of interest and the review of the town commission's decision were properly dismissed, and the Chancery Court's decision with respect to those two issues is affirmed."
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Publication:Public Works
Date:Sep 1, 1999
Words:1567
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