                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                              NOVEMBER 20, 2000 Session

        MYRON ZIMMERMAN, ET AL. v. CITY OF MEMPHIS, ET AL.

                Direct Appeal from the Chancery Court for Shelby County
        Nos. 110024-3 & 98-0795-2; The Honorable D. J. Alissandratos, Chancellor



                     No. W2000-01369-COA-R3-CV - Filed April 5, 2001


This appeal involves the determination of whether the City of Memphis properly levied a special
assessment upon the property owners within the Central Business Improvement District in downtown
Memphis. The affected property owners allege that the levy in question was not a special
assessment. They allege that the levy was a tax in violation of section 7-84-501 et seq. of the
Tennessee Code as well as Article 2, Section 29 of the Tennessee Constitution. For the following
reasons, we affirm the decision of the trial court.

    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

John McQuiston, II, David Scruggs, Andrew Raines, for Appellants

Robert L. J. Spence, Jr., for Appellees


                                            OPINION

                                 Facts and Procedural History

         Pursuant to section 7-84-501 et seq. of the Tennessee Code, the City of Memphis established
a Central Business Improvement District (“CBID”). The object of the CBID was the improvement
and development of the business environment in downtown Memphis. The City of Memphis has
powers pursuant to section 7-84-501 et seq. of the Tennessee Code to levy special assessments on
all of the property owners in the CBID for the costs and expenses for all improvements within the
CBID. These special assessments are enacted by ordinances passed by the City Council in
cooperation with the Center City Commission. Each of the Plaintiffs owns property in the CBID.
       The Center City Commission was established by ordinance to “manage and coordinate the
comprehensive and coordinated redevelopment of the center city area. . . .” Memphis Code § 7-13.
The Center City Commission is authorized to pay its own staff and counsel and to conduct all
business necessary to manage and operate the business within the CBID.

        The Memphis Central Business Improvement District II (CBID II) was created by Ordinance
4468 enacted January 7, 1997, pursuant to the Central Business Improvement District Act of 1990
codified at section 7-84-501 et seq. of the Tennessee Code. A public hearing regarding the passage
of Ordinance 4468 was held on January 7, 1997, at the Memphis City Council meeting. Although
notice was given to 6,295 property owners, only twelve members of the public appeared and spoke
at the public hearing. None of the plaintiffs in this case appeared prior to or during the final hearing
to protest the CBID II creation, rate of assessment, method of apportionment, the delegation of
powers, or stated purposes of the Center City Commission as the district management corporation
or the CBID II.

        Ordinance 4468 levied an assessment of $.65 per $100.00 of assessed value, with the first
$25,000.00 of value being exempt from the special assessment.1 The city treasurer annually
collected such costs and expenses upon the properties located within the CBID II in tax years 1997,
1998, 1999, for fiscal years 1998, 1999 and 2000, respectively. The Center City Commission
annually determined the total costs and expenses to be paid from the special assessments. The City
Council annually approved the proposed budget of the Center City Commission. Ordinance 4468
provided that the special assessment burden should be borne in proportion to the gross assessed value
of the properties in the District, so that as each parcel appreciates, its special assessment levy
increases according to the benefit received.

        The special assessment rate of .65/$100.00 has remained unchanged since it was adopted in
January 1997. The treasurer levied and collected the following special assessments under CBID II
for the tax years as follows:

            Tax Year           For FY            Levied                     Collected
            1997               FY98              $1,292,628.89              $1,257,662,42
            1998               FY99              $2,047,613.65              $1,938,525.13
            1999               FY00              $2,109,692.63              $1,786,546.23

Each month, the City remits the special assessment collections to the Center City Commission by
bank wire. Pursuant to section 7-84-519 of the Tennessee Code and section 7-91 of the Memphis
Code, the Center City Commission is the district management corporation for the Central Business
Improvement District II. Accordingly, as District Manager Corporation, the Center City Commission
has authority under the CBID Act of 1990.



            1
                Residen tial property and go vernm ent own ed prop erty within the distric t were completely exempted from
the levy.

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      The court below granted summary judgment to the City of Memphis, finding that the City
of Memphis had “substantially complied” with the requirements of section 7-84-501 et seq. of the
Tennessee Code. Furthermore, the court below ordered the Memphis City Council to “review and
approve the Central Business Improvement District apportionment on an annual basis to ensure
compliance with the statutory requirements of T.C.A. § 7-84-501, et. seq.”

        These two consolidated suits were filed by the property owners for themselves and for a
proposed class of all property owners in the CBID II who were subjected to the levy. Appellants
herein seek a refund of the special assessments as well as interest and attorney’s fees. Specifically,
Appellants present the following issues, as we perceive them, for our review:

        1)      Whether the levy by the Memphis City Council was a valid special assessment or an
                unlawful tax in violation of § 7-84-501 et seq. of the Tennessee Code and/or Article
                2, Section 29 of the Tennessee Constitution.
        2)      Whether the property owners in the Memphis CBID were deprived of due process of
                law under the Fourteenth Amendment of the United States Constitution.
        3)      Whether the property owners in the Memphis CBID were subjected to unlawful
                action under color of state law in violation of section 42 U.S. Code § 1983.
        4)      Whether the City of Memphis’ failure to reduce the tax rate following a general
                reappraisal of property was a violation of section 67-5-1701 of the Tennessee Code.
        5)      If the case is reversed, whether the case should be remanded with directions to certify
                the class and award interest and attorney’s fees.

We will address each issue in turn.

                                         Standard of Review

        We measure the propriety of the trial court’s grant of summary judgment against the standard
of Rule 56.04 of the Tennessee Rules of Civil Procedure, which provides that summary judgment
is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.

       When reviewing a grant of summary judgment, an appellate court must decide anew if
judgment in summary fashion is appropriate. See Cowden v. Sovran Bank/Central South, 816
S.W.2d 741, 744 (Tenn. 1991); Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44-45 (Tenn. Ct.
App. 1993). Since this determination involves a question of law, there is no presumption of
correctness as to the trial court’s judgment. See id.

                                               Analysis

       First, the Appellants allege that the levy by the Memphis City Council was not a valid special
assessment, but an unlawful tax in violation of section 7-84-501 et seq. of the Tennessee Code and


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Article 2, Section 29 of the Tennessee Constitution. First, it is important to note the distinction
between a tax and a special assessment. In Obion County v. Massengill, 151 S.W.2d 156 (Tenn.
1941), our supreme court explained the difference as follows:

               There is a clear and manifest distinction between a tax and a special
               assessment. A tax is imposed for a general or public purpose. It is
               levied for the purpose of carrying on the government. It is a charge
               on lands and other property which lessens its value, and in the
               proportion in which the owner is required to pay is his pecuniary
               ability diminished. . . On the other hand, a special assessment
               contains none of the distinctive features of a tax. It is assessed or
               levied for a special purpose, and not for a general purpose. It is not
               a charge on property which reduces its value. The assessment is
               made in the ratio of advantages accruing to the property in
               consequence of the improvement. . . .

Id. At 159 (quoting De Clercq v. Barber Asphalt Paving Co., 47 N.E. 367 (Ill. 1897)).
         In order to resolve the case before us, our task is one of statutory construction. There are a
number of principles of statutory construction, among which is the most basic rule: “to ascertain and
give effect to the intention and purpose of the legislature.” Gleaves v. Checker Cab Transit Corp.,
Inc., 15 S.W.3d 799, 802 (Tenn. 2000) (quoting Carson Creek Vacation Resorts, Inc. v. State Dep’t
of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993)). However, the court must ascertain the intent “without
unduly restricting or expanding the statute’s coverage beyond its intended scope.” State v. Sliger,
846 S.W.2d 262, 263 (Tenn. 1993). See also Gleaves, 15 S.W.3d at 802; Worley v. Weigels, Inc.,
919 S.W.2d 589, 593 (Tenn. 1996); Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). “The
legislative intent and purpose are to be ascertained primarily from the natural and ordinary meaning
of the statutory language, without a forced or subtle interpretation that would limit or extend the
statute’s application.” State v. Blackstock, 19 S.W.3d 200, 210 (Tenn. 2000) (citing State v. Pettus,
986 S.W.2d 540, 544 (Tenn. 1999)). When statutory provisions are, as in this case, enacted as part
of a larger Act, “we examine the entire Act with a view to arrive at the true intention of each section
and the effect to be given, if possible, to the entire Act and every section thereof.” Bible & Godwin
Constr. Co. v. Faener Corp., 504 S.W.2d 370, 371 (Tenn. 1974).

        The Appellants argue that the statutes at issue here providing for special assessments are to
be strictly construed and strictly applied in favor of the owners of the property assessed. See e.g.,
West Tennessee Flood Control & Soil Conservation Dist. v. Wyatt, 247 S.W.2d 56, 62 (Tenn. 1952).
In contrast, section 7-84-508 of the Tennessee Code states that “[t]his part. . . shall be liberally
construed to effectuate its purposes.” TENN. CODE ANN . § 7-84-508 (1998). The purpose of the act
is stated in section 7-84-502 as follows: “elimination of urban blight and decay and the
modernization and general improvement of such central business districts by governmental action
is considered necessary to promote the public health, safety, and welfare of such communities. . . .”
TENN. CODE ANN . § 7-84-502 (1998). Moreover, section 7-84-509 provides that “[i]n the event of
a conflict between the provisions of this part and any other laws or parts of laws governing the state


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of Tennessee, the provisions of this part shall govern.” TENN. CODE ANN . § 7-84-509 (1998). Based
on the foregoing, we find that, due to the plain language of the aforementioned sections of the
Tennessee Code, the statutes in question must be liberally construed to effectuate their purpose.

        The main thrust of Appellants argument concerns section 7-84-522(a) of the Tennessee Code.
Section 7-84-522(a) states that “[t]he governing body of the municipality shall determine annually
the total costs and expenses to be paid from the special assessments, and annually apportion such
costs and expenses upon the various properties located within the district in accordance with the
benefits conferred upon the various properties.” TENN. CODE ANN . § 7-84-522(a) (1998).
“Governing body” is defined in section 7-84-503 of the Tennessee Code as “the council,
commission, board or other body exercising general legislative power in the municipality.” TENN.
CODE ANN . § 7-84-503(5).

        Appellants argue that the Memphis City Council, as the governing body, did not comply with
section 7-84-522(a). First, Appellants argue that the Memphis City Council did not annually
determine “the total costs and expenses to be paid from the special assessments.” Instead,
Appellants argue, the city council simply passed a rate of $.65 per $100.00 of value. We disagree.
The city council approves the proposed budget of the Center City Commission on an annual basis.
The budget of the Center City Commission represents the total costs and expenses to be paid from
the special assessments. We find that, by its annual review and approval of the proposed budget of
the Center City Commission, the Memphis City Council determined the total costs and expenses to
be paid by the special assessments and thereby complied with section 7-84-522(a) of the Tennessee
Code.

         Next, the Appellants argue that the Memphis City Council did not review and approve the
apportionments as required by 7-84-522(a) to determine if the assessments were apportioned among
the various properties in proportion to the benefits conferred upon them. Instead, Appellants argue,
this was done by the city treasurer. We disagree. Upon review of the record, it is clear to us that the
city treasurer does not fix the rate of the special assessment. The city treasurer merely collects the
assessment after the Memphis City Council annually apportions the costs and expenses upon the
various properties in accordance with the benefits conferred upon them. Section 7-84-522(b)
provides that “[i]n determining the benefits to each lot or parcel of property within the district, the
governing body may consider any of the following factors: square footage, front footage, assessed
value, type of use, business classification, property location, zones of benefit, or a combination of
such factors.” TENN. CODE ANN . § 7-84-522(b) (1998) (emphasis added). As emphasized above,
section 7-84-522(b) specifically lists “assessed value” as an appropriate factor to determine the
benefit to each parcel of property within the district. The Memphis City Council complied with 7-
84-522(a) by using “assessed value” to determine the benefits conferred upon each property in the
district when it set a rate of $.65 per $100.00 of assessed value.

         Appellants also point to section 7-84-522(c) of the Tennessee Code to argue that the
Memphis City Council did not properly apportion the special assessment. Section 7-84-522(c) states
that “[t]he fact that assessments may be spread uniformly over a large area within the district shall


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not be conclusive that such assessment was arbitrarily made.” TENN. CODE ANN . § 7-84-522(c)
(1998). Appellants argue that a uniform assessment over an entire district such as the district in
question is conclusive evidence that such assessment was arbitrarily made. We do not agree with
Appellants’ interpretation of the statute. The overall purpose and tenor of the Central Business
Improvement District Act of 1990 is to improve local business climates. The Act itself grants broad
discretion to municipalities to establish programs most consistent with their local needs. See TENN.
CODE ANN . § 7-84-502(2) (1998). Moreover, as previously stated, section 7-84-508 emphasizes that
the statutes in the Act shall be liberally construed to effectuate their purposes. We find that the
uniform assessments over the properties in the district were not arbitrarily made by the Memphis
City Council. Assessed value is an authorized method for determining the benefits to property in
a district. See TENN. CODE ANN . § 7-54-522(b) (1998). Furthermore, we do not interpret the
language of 7-84-522(c) for the proposition that a uniform assessment over a district is per se
conclusive that such assessment was arbitrarily made.

         The Appellants rely on West Tennessee Flood Control & Soil Conservation Dist. v. Wyatt,
247 S.W.2d 56 (Tenn. 1952) to support their argument. In Wyatt, the Board of Commissioners
undertook to levy a special assessment of fifty cents per acre upon the lands of property owners in
a certain flood control district in Lake County, Tennessee. See id. at 57. The court struck down the
attempted special assessment as violative of Article 2, Section 29 of the Tennessee Constitution. See
id. at 62. Wyatt, however, is distinguishable from the case at bar. In Wyatt, the caption of the Act
expressly stated that the levy is “to provide revenue for the operation of said District.” Id. at 59
(emphasis added). The Act did not provide that the assessment be levied for any particular purpose.
The court stated that, “if the money collected . . . is used for some purpose other than as a direct
benefit to the land assessed, it is a tax.” Id. at 58. Furthermore, the court stated that “there is a
general provision as to the purposes for which the funds may be used. The Act does not provide that
the assessment to be levied for any particular purpose.” Id. at 58. The court also stated that “the Act
itself did not define the improvements to be made, nor does it provide for. . . any procedure
specifying in detail any planned improvements.” Id. at 59. As a result, the Act was held to be
unconstitutional because the assessment could have been used for general purposes or for a purpose
which bore no relation to projects designated to benefit property within the district.

        In the instant case, however, the constitutionality of the statutory scheme is not at issue. It
is also clear to us upon the record that the money collected from the special assessments is being
used solely to benefit the properties in the CBID II. The “1999 Strategic Plan for the Continued
Redevelopment of the Memphis Central Business Improvement District” lists eight redevelopment
goals and 13 projects that are currently being driven by the Center City Commission. The special
assessment funds are not paid into the general public treasury, and they are in no way used for
general public expenses. All of these goals and projects specifically benefit the downtown properties
within the CBID. As a result, for all of the aforementioned reasons, we find that the levy in question
was a lawful special assessment in compliance with section 7-84-522 of the Tennessee Code as well
as Article 2, Section 29 of the Tennessee Constitution.




                                                 -6-
        Next, Appellants also contend that they were deprived of due process of law under the
Fourteenth Amendment to the United States Constitution. Appellants posit that they never had the
opportunity to be heard regarding the assessment and the benefits conferred upon the properties. We
disagree. Before the assessment was implemented, the Memphis City Council sent notice to all
property owners in the district and a hearing was held regarding the proposed assessment. The
property owners within the district could have appeared and protested anything regarding the
proposed district or assessment at the January 7, 1997 hearing. However, none of the Appellants
appeared at the hearing to protest the proposed district or the proposed assessment. As a result, we
find that Appellants due process rights were not violated.

        Finally, Appellants alternatively argue that the failure of the City of Memphis to reduce the
tax rate following a general reappraisal of property violated section 67-5-1701 et seq. of the
Tennessee Code. Appellants point to section 67-5-1701(3) of the Tennessee Code, which states in
relevant part that “in the event of a general reappraisal as determined by the state board, [the
governing body] shall determine and certify a tax rate which will provide the same ad valorem
revenue for that jurisdiction as was levied during the previous year.” TENN. CODE ANN . § 67-5-
1701(3) (1999) (emphasis added). Section 67-5-1701 et seq. pertains to taxes and is wholly
inapplicable to special assessments. Since the City of Memphis levied a special assessment and not
a tax upon the property owners within the district, we find that this issue is without merit.

       We decline to address Appellant’s remaining issues as they are inapplicable since we have
determined that the levy in question was a valid special assessment.

                                            Conclusion

       For the aforementioned reasons, the judgment of the trial court granting summary judgment
to the City of Memphis is affirmed. Costs on appeal are taxed against the Appellants, Myron
Zimmerman, et al and J. F. Canepari Corp., et al, for which execution may issue if necessary.




                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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