                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   July 29, 2014 Session

          RICHARD W. GIBBS ET AL. v. CLINT GILLELAND ET AL.

                 Appeal from the Circuit Court for Rutherford County
                     No. 66580     Ben H. Cantrell, Senior Judge


                No. M2014-00275-COA-R3-CV - Filed August 13, 2014


Plaintiffs brought this action against Rutherford County when the county prohibited them
from building a home on undeveloped property because the property was below the Base
Flood Elevation requirements established by the county. Plaintiffs contend the county had
an affirmative duty under Article XIX, Section 19, of the Rutherford County Zoning
Resolution to notify them, prior to their purchase of the property, that the property was below
the Base Flood Elevation requirements, and the county breached that duty. In response to the
complaint, the county filed a motion to dismiss for failure to state a claim based on the
immunity provisions under the Tennessee Governmental Tort Liability Act, specifically
Tennessee Code Annotated § 29-20-205(1), (3)-(4). The trial court granted the county’s
motion to dismiss for failure to state a claim based on governmental immunity. Having
determined that the county’s alleged acts or omissions were discretionary, not operational,
the county has immunity; thus, we affirm the dismissal of this action.

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

F RANK G. C LEMENT, J R., P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, J.J., joined.

Loyd Gilbert Anglin, Murfreesboro, Tennessee, for the appellants, Richard W. Gibbs and
Kathryn S. Gibbs.

Josh A. McCreary, Murfreesboro, Tennessee, for the appellees, Clint Gilleland, Kim
Gilleland, Rutherford County, Rutherford County Planning and Engineering Department, and
Rutherford County Regional Planning Commission.
                                                 OPINION

        Richard and Kathryn Gibbs (“Plaintiffs”) bought undeveloped real estate in
Rutherford County, Tennessee, on April 20, 2012, from Clint and Kim Gilleland, upon which
Plaintiffs wanted to construct a home. Over the next ten months, Plaintiffs developed
building and site plans for their new property. In February 2013, Mike Parker, Plaintiffs’
contractor, obtained a Zoning Compliance Certificate from the Rutherford County Regional
Planning Commission and a building permit from the Rutherford County Building and Codes
Department. Mr. Parker started construction on the property immediately after obtaining both
the certificate and permit.

        A week after construction commenced, the Director of the Rutherford County
Building Codes Department, David Jones, sent an email to Mr. Parker notifying him of the
property’s Base Flood Elevation (“BFE”) requirements as set by Rutherford County, and that
Plaintiffs’ property was substantially below the required BFE. This was the first time
Plaintiffs became aware that the property was below a BFE requirement or located in a
floodprone area. Mr. Parker halted construction and hired engineer Robert Warren to
determine the modifications needed to comply with the BFE requirements. Mr. Warren
determined that the modifications would cost Plaintiffs the same amount as Plaintiffs paid
for the property and may subject Plaintiffs to future liability due to the displacement of water
onto neighbors’ property. Plaintiffs have yet to resume construction on the property.

        Soon thereafter, Plaintiffs filed a complaint against Rutherford County, its Planning
and Engineering Department and County Regional Planning Commission (collectively “the
county”) alleging, inter alia, that the county knew as early as 2004 that the property was
below the BFE, that the county had an affirmative duty to notify Plaintiffs of the property’s
location before Plaintiffs purchased the property, and that the county breached that duty by
failing to notify Plaintiffs prior to purchasing the property.1 Plaintiffs filed a motion to amend
their complaint to specifically allege that the county violated Article XIX, Section 19, of the
Rutherford County Zoning Resolution (“the Resolution”), which lists as an “objective” that
potential homebuyers are notified that property is located in a floodprone area. Plaintiffs
claimed that the county’s failure to timely notify them was a breach of the county’s duty and
that Plaintiffs sustained damages as a result of this breach because they purchased property
on which they may not construct their home.




        1
          Clint and Kim Gilleland, who sold the property to Plaintiffs, were also named as defendants along
with Rutherford County. Plaintiffs claims against the Gillelands were not dismissed and are pending in the
trial court; thus, because those claims are not at issue in this appeal, they are not addressed in this opinion.

                                                      -2-
        The county responded to the complaint by filing a Tenn. R. Civ. P. 12.02(6) motion
to dismiss for failure to state a claim based on the governmental immunity provisions under
the Tennessee Governmental Tort Liability Act (“GTLA”), codified at Tennessee Code
Annotated § 29-20-205(1), (3)-(4). Immediately thereafter, Plaintiffs filed a motion to amend
their complaint to additionally alleged that the county violated Chapter 10, Section 1001, of
the Rutherford County Zoning Ordinance, which had been enacted on January 1, 2013, eight
months after Plaintiffs purchased the property.2 The trial court granted the motion to amend.

        Following a hearing on December 18, 2013, the trial court granted the county’s
motion to dismiss the complaint; the order was entered on January 10, 2014. In its order, the
trial court stated that Plaintiffs’ claims against the county were barred under Tennessee Code
Annotated § 29-20-205(1)-(4); the court also directed entry of final judgment as to the county
pursuant to Tenn. R. Civ. P. 54.02.

       On appeal, Plaintiffs contend the Resolution created an affirmative duty for the county
to timely notify them that the property they intended to purchase was below the BFE. They
also contend the county’s failure to timely notify them of this fact constituted the negligent
performance of an operational duty, not a discretionary duty, for which the county does not
have immunity under Tennessee Code Annotated § 29-20-205(1). Accordingly, Plaintiffs
contend the trial court erred in dismissing their complaint pursuant to a Tenn. R. Civ. P.
12.02(6) motion.

                                                A NALYSIS

                       I. T HE R UTHERFORD C OUNTY Z ONING R ESOLUTION

      We begin our analysis by reviewing the Resolution to determine whether the
enactment of the Resolution created the affirmative operational duties alleged in the
complaint.

       The rules and principles that we apply to construe statutes are likewise applicable to
the construction of zoning resolutions and zoning ordinances. See Steppach v. Thomas, 346
S.W.3d 488, 504 (Tenn. Ct. App. 2011); Loggins v. Lightner, 897 S.W.2d 698, 702 (Tenn.
Ct. App. 1994) (citing Tenn. Manufactured Hous. Ass’n v. Metro. Gov’t, 798 S.W.2d 254,


        2
          The Rutherford County Zoning Ordinance referenced in the amendment became effective January
1, 2013. See Rutherford County Zoning Ordinance, http://www.rutherfordcountytn.gov/planning/documents/
zoning05152014.pdf (last visited Aug. 1, 2014). The Resolution and the Rutherford County Zoning
Ordinance are identical. Plaintiffs only referred to the Resolution in their brief; thus, we only refer to the
Resolution.

                                                     -3-
260 (Tenn. Ct. App. 1990). When the language of a zoning resolution is clear, courts will
enforce the resolution as written. See Lions Head Homeowners’ Ass’n v. Metro. Bd. of
Zoning Appeals, 968 S.W.2d 296, 301 (Tenn. Ct. App. 1997). Courts construe zoning
resolutions as a whole and give their words their natural and ordinary meaning unless the
resolution requires otherwise. Id. (internal citations omitted). A proper construction of the
resolution furthers the resolution’s general purposes, but prevents the resolution from being
applied to circumstances beyond its scope. Id. (internal citations omitted). A resolution or
ordinance must also be read “in conjunction with [its] surrounding parts.” See City of
Chattanooga v. Davis, 54 S.W.3d 248, 265 (Tenn. Ct. App. 2001) (quoting State v. Turner,
913 S.W.2d 158, 160 (Tenn. 1995)). We construe zoning resolutions and ordinances with
some deference towards a property owner’s right to the free use of his property, and
ambiguities in a zoning resolution are resolved in favor of a property owner’s unrestricted
use of his or her property. Lions Head, 968 S.W.2d at 301.

        The Resolution’s Statutory Authorization section provides that Rutherford County
residents are eligible to participate in the National Flood Insurance Program (“NFIP”), which
reads as follows: “The Legislature of the State of Tennessee has in Sections 13-7-101
through 13-7-115, Tennessee Code Annotated delegated the responsibility to the county
legislative body to adopt floodplain regulations designed to minimize danger to life and
property and to allow its citizens to participate in the [NFIP]. . . .” See Rutherford County
Zoning Resolution § 19.00(A). The stated purpose of the Resolution was to maintain
Rutherford County residents’ eligibility in the NFIP, to restrict or prohibit uses which result
in damaging increases in erosion and flood heights, and to control the alteration of natural
floodplains and stream channels that are involved in the accommodation of floodwaters. See
id. at §19.00(B)-(C). The Resolution also lists eight “Objectives” for its enactment, which
includes protecting human life and property, minimizing the expenditure of public funds for
costly flood control projects, minimizing the need for rescue and relief efforts associated with
flooding and generally undertaken at the expense of the general public, ensuring that
potential homebuyers are notified that property is in a floodprone area, and maintaining
Rutherford County residents’ eligibility for participation in the NFIP. See id. at § 19.00(D),
entitled “Objectives.”

        Plaintiffs insist that the Resolution’s objective to ensure that potential homebuyers are
notified that property is located in a floodprone area established the county’s duty to notify
Plaintiffs of the property’s location prior to Plaintiffs’ purchase of the property. Neither the
Objectives nor the Resolution as a whole establishes any such duty. The Resolution’s
introduction makes clear that the county enacted the Resolution for the sole purpose of
allowing Rutherford County residents to participate in the NFIP. Moreover, nothing in the
Resolution establishes an affirmative duty on the county to give prospective purchasers of
property notice that the property is below the BFE standards established solely by the county,

                                               -4-
and the issues in this case do not deal with whether Plaintiffs are eligible to participate in the
NFIP. The overarching purpose of the Resolution is to comply with the eligibility
requirements to allow Rutherford County residents to participate in the NFIP.

        The Resolution’s other provisions also support our determination that the Resolution
was enacted only to maintain Rutherford County residents’ eligibility in the NFIP. For
example, in the Resolution’s Definitions section, the definition of “Map” includes only those
maps issued by the Federal Emergency Management Agency (“FEMA”). See id. at § 19.01.
A “Special Hazard Area” is defined as an area having special flood hazards and identified
on a FEMA-issued map. See id. Under Section 19.02 of the Resolution, only the areas of
special flood hazard established by FEMA are incorporated into the Resolution; the
Resolution makes no mention of incorporating the county’s floodprone area determinations
not issued by FEMA. See id. at § 19.02(B). We could continue to reproduce the Resolution
in its entirety and state how the Resolution’s provisions are related only to the NFIP and
FEMA’s floodprone area determinations, but the end result is that floodprone area
determinations made solely by the county and not reproduced within a FEMA document are
not within the scope of the Resolution.

       Plaintiffs’ complaint fails to establish that the Resolution applies to Plaintiffs and their
property. Plaintiffs do not allege that any part of their property is located within a FEMA
zone to which the Resolution applies, nor do Plaintiffs allege that they are wrongfully
excluded from eligibility in the NFIP. Plaintiffs reliance on the Objectives section to
establish that the county had a duty to notify all potential Rutherford County homebuyers of
any property subject to flooding fails in light of the Resolution’s purpose of maintaining
Rutherford County residents’ eligibility in the NFIP. We now turn to whether the GTLA’s
immunity provisions bar Plaintiffs’ claims.

                    II. T ENNESSEE G OVERNMENTAL T ORT L IABILITY A CT

       The Tennessee legislature enacted the GTLA to codify the general common law rule
that “all governmental entities shall be immune from suit for any injury which may result
from the activities of such governmental entities wherein such governmental entities are
engaged in the exercise and discharge of any of their functions, government or proprietary.”
Tenn. Code Ann. § 29-20-201(a) (2008). This general grant of immunity is subject to specific
statutory waivers of immunity contained within the GTLA, including the removal of a
governmental entity’s immunity for injuries proximately caused by the negligent acts or
omissions of any employee within the scope of his employment. Tenn. Code Ann. § 29-20-
205 (2012); Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 79 (Tenn. 2001). The GTLA will
reinstate a governmental entity’s immunity, however, if the injury arises from the
governmental entity’s discretionary decision, regardless of whether the discretion is abused.

                                                -5-
Tenn. Code Ann. § 29-20-205(1) (2012); Giggers v. Memphis Hous. Auth., 363 S.W.3d 500,
507 (Tenn. 2012). “The rationale behind this ‘discretionary function exception’ is to prevent
courts from questioning decisions of governmental entities that are primarily legislative or
administrative.” Giggers, 363 S.W.3d at 507 (quoting Limbaugh, 59 S.W.3d at 85).

       We apply the “planning-operational test” to determine whether a governmental entity
is entitled to immunity for a discretionary decision. Id.; see also Bowers v. City of
Chattanooga, 826 S.W.2d 427, 430 (Tenn. 1992). A governmental entity is immune from suit
for actions involving “planning or policy-making.” Giggers, 363 S.W.3d at 507 (quoting
Helton v. Knox Cnty., 922 S.W.2d 877, 885 (Tenn. 1996)). When the act is merely
“operational,” the entity is not immune. Id. (quoting Helton, 922 S.W.2d at 885).

      Our Supreme Court recently analyzed the distinction between a planning decision and
an operational one. In Giggers v. Memphis Housing Authority, the court explained:

       [A] planning decision usually involves consideration and debate regarding a
       particular course of action by those charged with formulating plans or policies.
       Bowers, 826 S.W.2d at 431; see also Helton, 922 S.W.2d at 885. A planning
       decision frequently requires a governmental entity to create policies or plans,
       formulate specifications or schedules, allocate resources, or determine
       priorities. Bowers, 826 S.W.2d at 431. Planning or policy-making decisions are
       not subject to tort liability, and a review of these decisions requires judicial
       restraint. Limbaugh, 59 S.W.3d at 85.

       Operational decisions, however, implement “preexisting laws, regulations,
       policies, or standards” that are designed to guide the actions of the
       governmental entity. Bowers, 826 S.W.2d at 431. An operational decision
       requires that the decision-maker act reasonably when implementing preexisting
       policy. Limbaugh, 59 S.W.3d at 85. Unlike a planning or policy-making
       decision, an operational decision does not involve the formulation of new
       policy.

Giggers, 363 S.W.3d at 507-508.

       After reviewing the “planning-operational test” as explained by Giggers, we find that
the county’s decision to refrain from notifying Plaintiffs that the property was located in a
floodprone area was a discretionary decision entitled to immunity. Id. at 507. The Resolution
did not create a duty on the county or require the county to implement any “preexisting laws,
regulations, policies, or standards” to inform Plaintiffs that the property was located in a
floodprone area. Id. Thus, it was discretionary for the county to decide whether to notify

                                             -6-
Plaintiffs that the property was located in a floodprone area. Since the GTLA reinstates a
governmental entity’s immunity for a discretionary decision, Tenn. Code Ann. § 29-20-
205(1) (2012), the county was immune from Plaintiffs’ suit.

                                III. T ENN. R. C IV. P.12.02(6)

       Plaintiff challenges the propriety of granting the county’s Tenn. R. Civ. P.12.02(6)
motion to dismiss for failure to state claims upon which relief can be granted. The standards
by which Tennessee courts are to assess a Rule 12.02(6) motion to dismiss are well
established. “A Rule 12.02(6) motion challenges only the legal sufficiency of the complaint,
not the strength of the plaintiff’s proof or evidence.” Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). “The resolution of a 12.02(6) motion to
dismiss is determined by an examination of the pleadings alone.” Id. By filing a motion to
dismiss the defendant “admits the truth of all of the relevant and material allegations
contained in the complaint, but . . . asserts that the allegations fail to establish a cause of
action.” Id. (citations omitted).

        When a complaint is challenged by a Rule 12.02(6) motion, the complaint should not
be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set
of facts in support of his or her claim that would warrant relief. Doe v. Sundquist, 2 S.W.3d
919, 922 (Tenn. 1999) (citing Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997)). Making
such a determination is a question of law. Our review of a trial court’s determinations on
issues of law is de novo, with no presumption of correctness. Id. (citing Stein v. Davidson
Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)).

       Based on our assessment of the legal issues presented and the facts alleged in the
complaint, we have determined that Plaintiffs can prove no set of facts upon which relief can
be granted against the county. Therefore, we affirm the trial court’s decision to dismiss all
claims against the county.

                                      I N C ONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against Plaintiffs.


                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




                                              -7-
