MOORE & ASSOCIATES, INC. v. METROPOLITAN BOARD OF ZONING APPEALS (Tenn.Ct.App. August 25, 2008).
Zoning administrator denied a waiver of the Metropolitan Zoning Code's landscape buffer requirement and the Board of Zoning Appeals upheld the administrator's interpretation of the ordinance. Plaintiff contractor appealed to the circuit court, which determined that the zoning administrator's interpretation of the ordinance was incorrect and granted the waiver. The Board of Zoning Appeals appealed. The trial court's interpretation of the ordinance is affirmed, but the decision to grant the waiver is vacated, and the case is remanded to the trial court with instructions to return the matter to the board for further action.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/moore_assoc_082508.pdf
"During construction, a mud seam was discovered which, Moore and Associates claim, made the planned vertical wall “unsafe and impractical.” With the apparent approval of the building inspector and without seeking any approval from the zoning authorities to amend the original plans, Moore and Associates constructed a wall that begins by sloping slightly toward the adjacent property. About halfway to its height of approximately 39 feet, the wall turns and makes a gentler slope to the top, ending near the property line. In September 2001, Moore and Associates requested a waiver of the landscape buffer requirement. The zoning administrator, Mr. West, denied the request." Id.
"The trial court granted the waiver because of the Board of Zoning Appeal’s error in approving Mr. West’s interpretation. Doing so was a natural reaction in which the court sought to end litigation that had gone on far too long. We, however, must disagree with the trial court’s action. Under § 17.24.240G, a waiver is not automatic even if there is a demonstration of unusual site-grade conditions which would clearly negate the effects of the required yard. ... Therefore, we vacate the trial court’s issuance of the waiver and remand the case to the trial court with instructions to return the case to the Board of Zoning Appeals for further action consistent with this opinion." Id.
