Can a municipality charge a fee for a building permit on agricultural land

Ability of Municipalities to Charge a Fee for Building Permits for Agricultural (AG January 28, 2010)

Tenn. Code Ann. 6-54-126 does not prohibit a municipality from charging a fee for building permits on agricultural land. It is only concerned with a municipality's power to regulate use of the land and not with it's ability to require a building permit.

The full text of this opinion may be found on the TBA website at:
 http://www.tba2.org/tba_files/AG/2010/ag_10_12.pdf

Appeals court affirms trial court ruling of failure to state a claim

LEONARD PORTER, JR. ET AL. v. CITY OF CLARKSVILLE ET AL. (Tenn. Ct. App. January 25, 2010)

This action arises from the issuance of stop work orders that prevented the plaintiffs from completing the construction of their new residence. The plaintiffs brought this action against the City of Clarksville and the Clarksville Building and Codes Department under the Governmental Tort Liability Act (GTLA) asserting numerous and varied claims, including claims for false statements, fraud, deception, conspiracy, discrimination, malicious harassment, coercion, and violation of due process, and requested financial damages, emotional damages, and punitive damages. The defendants filed a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss on the grounds that the action was a de facto appeal of the administrative hearing on the stop work orders and that the defendants were immune under the GTLA. The trial court granted the motion to dismiss finding that the plaintiffs failed to state a claim upon which relief could be granted. We affirm.

The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2010/porterl_012610.pdf

Court examines whether chancery court has subject matter jurisdiction; whether defendant is required to exhaust administrative remedies before trial

CHEATHAM COUNTY by and through its Floodplain Administrator, A. M. Armstrong v. JAMES KONG, ET AL. (Tenn. Ct. App. June 30, 2009)

Appellee was issued a building permit for a carport by Appellant, County. County subsequently revoked the permit and ordered demolition of the carport claiming the structure exceeded that permitted. Appellee failed to demolish the structure, and County sued in the chancery court. Appellee moved to dismiss for lack of subject matter jurisdiction, claiming that he should be allowed to exhaust his administrative remedies-an appeal to the Board of Zoning Appeals-before the chancery court could assume jurisdiction. The trial court granted Appellee's motion to dismiss. We find the chancery court had subject matter jurisdiction over the case, and thus, reverse and remand to the chancery court for a trial on the merits.

Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/cheathamcounty_070109.pdf

Court of Appeals examines permit granting issue

WIRELESS PROPERTIES, LLC, v. THE BOARD OF APPEALS FOR THE CITY OF CHATTANOOGA, ET AL. (Tenn. Ct. App. June 25, 2009)

The plaintiff filed a petition challenging the grant of a building permit to Verizon Wireless. The decision of the City was affirmed by the Board. After the trial court conducted a hearing, it affirmed and dismissed the petition. The plaintiff appeals. We affirm.

The full text of this opinion may be found on the TBA Website at:
http://www.tba2.org/tba_files/TCA/2009/wireless_092509.pdf

Court holds that easement was abandoned by predecessor-in-interest who had other direct access

DONNIE VAUGHT, ET AL. v. ALAN JAKES, SR. and wife DEBORAH JAKES, ET AL. (Tenn. Ct. App. May 27, 2009)

A group of Rutherford County landowners whose property abutted one side of a private road which they maintained at their own expense filed a suit for trespass against a neighbor and developer who used the same road for access to houses he was building on the other side. Their suit also included a due process claim against the County for erroneously granting building permits for those houses. 

The trial court agreed that the building permits were granted in error, but ruled that the county's action was an innocent error rather than a due process violation. The trial court also dismissed the plaintiffs' claims against the developer, holding that he was entitled to use the road because of a permanent easement he had acquired from his predecessors-in-interest. We affirm the trial court's dismissal of the due process claim, but reverse its dismissal of the trespass claim because the evidence shows that the individual who sold the property to the defendant had abandoned the easement and, thus, that the defendant had no right to use the road.

Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/vaughtd_052709.pdf

"The record indicates that the County correctly informed Mr. Baltz that he was not entitled to sell tracts of his land that did not adjoin Trimble Road, and that the building permits obtained by Mr. Jakes were granted in error. We cannot infer, however, from his acceptance of the Planning Director’s decision that the land could not be subdivided in the way he wished that Mr. Baltz did not know or believe that he could use Bowen Road for other purposes. We conclude on the basis of our examination of the entire record, including the testimony of Henry Parsley and Ronald Baltz, that the Parsleys and Mr. Baltz did know that they could use Bowen Road if they needed to or wanted to, but that they used it only sparingly because they had better access to their property by way of their entrances on Trimble Road. We therefore hold that any easement on Bowen Road enjoyed by the Parsleys or Mr. Baltz was abandoned prior to the sale to Mr. Jakes and that his use of the road amounted to a trespass. We accordingly remand this case to the trial court for further proceedings to determine the damages arising from the defendants’ trespasses which should be awarded to the plaintiffs." Id.