Case Summaries 
of Importance to Counties

2011 Zoning

  • 411 Partnership v. Knox County, 36 TAM 50-6—The Knox County Board of Zoning Appeals denied a use on review application for a shopping center and the applicant appealed to the circuit court.  The circuit court affirmed the denial of the application and the applicant appealed.  The Court of Appeals reversed the trial court finding that there was no material substantial evidence to support the decision of the Board of Zoning Appeals.  The opponents of the shopping center argued before the Board of Zoning Appeals that the proposed shopping center would increase flooding in the area and would further degrade a nearby creek.  The Court found the opponents of the application submitted only opinions to support their beliefs regarding the increased flooding and creek damage.  The Court found that the opponents submitted no actual facts or evidence to support their claims.  According to the Court, beliefs, opinions and fears do not constitute material substantial evidence; therefore, the decision was reversed (November 16, 2011). 
  • Town of Smyrna v. Bell, 36 TAM 48-6—Town annexed property which included a furniture store.  Furniture store kept trucks on property to store inventory and several years after the annexation, the Town cited the owner for violating an ordinance which regulated parking tractor-trailers on commercially-zoned property.  The lower court found that the ordinance was a zoning regulation and the current uses on the property were grandfathered pursuant to T.C.A. § 13-7-208.  The Court of Appeals reversed this decision.  The Court found that the ordinance was enacted pursuant to the Town’s general police powers and not as part of the Town’s zoning.  According to the Court, the Tennessee Supreme Court has addressed how to differentiate between building regulations and zoning regulations, which is necessary in deciding whether one’s use of property is entitled to the grandfathering protections found in T.C.A. § 13-7-208.  The key question is whether the regulation “substantially affects the property owners’ use of land” and if so, the regulation is a zoning regulation and thus T.C.A. § 13-7-208 could be applicable.  Under this analysis, the Court of Appeals found that complying with the Town’s regulations on tractor-trailers would not substantially interfere with the property owner’s furniture store.  The regulations may affect the manner in which the furniture store is operated, but they would not cause it to go out of business.  Thus, the regulations were not zoning regulations and the property owner could not avail himself of the grandfathering statute (October 31, 2011).
  • Cornish v. City of Memphis, 36 TAM 42-6—City issued special use permit for home for the aged to be located within a single family residential district.  A neighboring landowner filed declaratory judgment action seeking to have the special use permit be declared invalid.  The Court found that the plaintiff had filed the wrong action.  According to the Court, a decision made pursuant to a resolution or ordinance currently in force is an administrative decision that must be challenged by petition for writ of certiorari.  In contrast, the enactment of a new law or regulation is a legislative act and must be challenged by filing an action for declaratory judgment.  The Court also found that the plaintiff was outside of the time period to be able to file the proper action to address his claims.  A petition for writ of certiorari must be filed within 60 days from entry of order or judgment.  According to the Court, the 60-day period does not begin to run at the time the vote is taken, but rather, the time period begins to run on the date of “entry” of the decision (September 7, 2011).
  • Ready Mix USA LLC v. Jefferson County, 36 TAM 31-11—County adopted zoning ordinance in 1998 classifying property at issue as A-1 agricultural forestry.  Company continued to use property until it was issued a stop work order from the county zoning official.  Company requested hearing before the BZA to appeal the stop work order but then requested that the hearing be postponed.  Company then filed a declaratory judgment action seeking a determination that the company had a nonconforming use pursuant to T.C.A. 13-7-208 and pursuant to the county’s zoning ordinance.  County argued that the company’s suit should be dismissed because the company failed to exhaust its administrative remedies by not seeking review of the stop work order by the BZA.  According to the court, the issue was whether it is mandatory to appeal to the BZA prior to filing suit in chancery court.  Court found that since company was not seeking review of ordinance itself or of the statutes, but rather, review of the zoning official’s interpretation of the ordinance, the company was required to exhaust administrative remedy of appealing to the BZA prior to filing suit in chancery court (September 9, 2011).
  • Depot Property LLC v. Town of Arlington, 36 TAM 11-10—Property owner submitted rezoning application requesting that parcel be rezoned from single family residential to office space.  The planning commission recommended against rezoning and thus application went before the municipal legislative body.  Under 13-7-204, because the planning commission recommended against approval, the application could only be approved with a favorable vote of the entire membership of the legislative body.  Counting three favorable votes, two negative votes, and two abstentions, the application failed.  The property owner filed petition for certiorari and the trial court found that the application had been approved by a 3-2 vote.  The Court of Appeals reversed.  The Court found that 13-7-204 controls over 6-2-102 and 12-4-101 (which would have reduced the counted votes to five).  According to the Court, when statutes conflict, the more specific statute, in this case, 13-7-204, applies.  Because 13-7-204 states that a favorable vote of the full membership is required to approve rezoning applications when the planning commission issues a negative recommendation, it controls in this situation.  [Note:  The statute applicable to county zoning, 13-7-105, contains the same voting requirement as in 13-7-204.] (January 31, 2011).

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