READY MIX, USA, LLC v. JEFFERSON COUNTY, TENNESSEE (Tenn. August 30, 2012)
The plaintiff, a producer of construction aggregates, acquired property with proven reserves for mining and quarrying operations. Afterward, Jefferson County enacted a comprehensive zoning ordinance limiting the use of the property to agricultural purposes. Before the passage of the ordinance, the plaintiff undertook various activities designed to establish business operations.
When the county issued a stop work order, the plaintiff, without first receiving a decision from the county’s board of zoning appeals, filed a declaratory judgment action arguing that the portion of the property not previously subject to zoning qualified as a pre-existing non-conforming use, protected by Tennessee Code Annotated section 13-7-208 (1992).
After concluding that the plaintiff was not required to exhaust its administrative remedies, the trial court ruled that the business activities on the property were “in operation” at the effective date of the ordinance for purposes of grandfather protection under section 13- 7-208. Because the Court of Appeals held that the plaintiff had failed to exhaust its administrative remedies, the judgment was set aside.
We hold that the trial court, under these circumstances, did not err by ruling that the plaintiff was not required to exhaust the administrative remedies. We further hold that the evidence does not preponderate against the trial court’s finding that the plaintiff had established operations sufficient to qualify for protection under Tennessee Code Annotated section 13-7-208.
Opinion available at:
https://www.tba.org/sites/default/files/readymix_083012.pdf
Justice Koch’s concurring opinion:
https://www.tba.org/sites/default/files/readymix_CON_083012.pdf
Showing posts with label zoning ordinances. Show all posts
Showing posts with label zoning ordinances. Show all posts
December 07, 2012
March 09, 2010
Attorney General Reviews Fees and Regulations for Construction of Schools in Special School Districts
Fees and regulations for construction of schools in special school districts (TN Attorney General Opinion 10-27, March 9, 2010)
The attorney general reviews two questions:
1. Can a city require a special school district to pay building permit and plan review fees for construction and/or renovation of a school located within the city limits?
2. Does a special school district have to conform to planning and zoning regulations of the city for school district-owned property located within the city limits?
He concludes that the answers to both questions depend on the provisions of the private act creating the special school district and the local planning and zoning regulations, because special school districts are created by the Tennessee General Assembly.
Opinion may be found at:
http://www.tba2.org/tba_files/AG/2010/ag_10_27.pdf
The attorney general reviews two questions:
1. Can a city require a special school district to pay building permit and plan review fees for construction and/or renovation of a school located within the city limits?
2. Does a special school district have to conform to planning and zoning regulations of the city for school district-owned property located within the city limits?
He concludes that the answers to both questions depend on the provisions of the private act creating the special school district and the local planning and zoning regulations, because special school districts are created by the Tennessee General Assembly.
Opinion may be found at:
http://www.tba2.org/tba_files/AG/2010/ag_10_27.pdf
September 30, 2008
Court review of zoning ordinance limited to whether decision has a rational or justifiable basis; Compliance with land use plan not legally required
DENNIS B. GANN, ET AL. v. THE CITY OF CHATTANOOGA, ET AL (Tenn.Ct.App. September 30, 2008).
The plaintiffs, Chattanooga residents whose homes are adjacent to a tract of land that was rezoned to make way for the construction of a grocery store, sought a declaratory judgment that the zoning amendment was illegal. The City of Chattanooga, the Chattanooga City Council, and the developer, Wilwat Properties, Inc., were named as defendants. Plaintiffs argue that the rezoning did not comply with the Hixson-North River Land Use Plan; that the City Council's approval of the application is arbitrarily inconsistent with the council's prior denial of a similar application; and that the council impermissibly relied upon the recommendation of the Hixson North River Leadership Committee - a recommendation that was made at an informal meeting of which the plaintiffs claim to have had no notice. The trial court dismissed the case at the close of the plaintiffs' proof, finding that the plaintiffs had failed to prove that the zoning decision lacked a rational basis or was arbitrary, capricious or unconstitutional. Plaintiffs appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/gannd_093008.pdf
"When a municipal governing body acts under its delegated police powers either to adopt or amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review of such action is quite restricted. [] In fact, legislative classification in a zoning law, ordinance or resolution is valid if any possible reason can be conceived to justify it.” [] Put another way, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational or justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination. [] The courts should not interfere with the exercise of the zoning power ... unless the enactment ... is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare, or is plainly contrary to the zoning laws. ... The law deliberately makes the plaintiffs’ burden high, out of deference to the legislative power over zoning matters." Id. (citations and quotations omitted).
"[T]he plaintiffs’ extensive elucidation of the action’s non-compliance is ultimately a non-sequitur, because compliance with the Land Use Plan is not legally required. It is a plan, not a law. The City Council is allowed to deviate from it, and did so here." Id.
"The notion that we would invalidate the City Council’s 2006 action because of a perceived inconsistency with the council’s stated rationale for an action on a similar matter, four years prior, totally misconceives our role in cases such as this. ... If we can find any rational basis –
or, stated even more broadly, “any possible reason” – to uphold the council’s decision, we must do so, absent evidence of arbitrary, capricious, or illegal action by the council." Id.
The plaintiffs, Chattanooga residents whose homes are adjacent to a tract of land that was rezoned to make way for the construction of a grocery store, sought a declaratory judgment that the zoning amendment was illegal. The City of Chattanooga, the Chattanooga City Council, and the developer, Wilwat Properties, Inc., were named as defendants. Plaintiffs argue that the rezoning did not comply with the Hixson-North River Land Use Plan; that the City Council's approval of the application is arbitrarily inconsistent with the council's prior denial of a similar application; and that the council impermissibly relied upon the recommendation of the Hixson North River Leadership Committee - a recommendation that was made at an informal meeting of which the plaintiffs claim to have had no notice. The trial court dismissed the case at the close of the plaintiffs' proof, finding that the plaintiffs had failed to prove that the zoning decision lacked a rational basis or was arbitrary, capricious or unconstitutional. Plaintiffs appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/gannd_093008.pdf
"When a municipal governing body acts under its delegated police powers either to adopt or amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review of such action is quite restricted. [] In fact, legislative classification in a zoning law, ordinance or resolution is valid if any possible reason can be conceived to justify it.” [] Put another way, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational or justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination. [] The courts should not interfere with the exercise of the zoning power ... unless the enactment ... is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare, or is plainly contrary to the zoning laws. ... The law deliberately makes the plaintiffs’ burden high, out of deference to the legislative power over zoning matters." Id. (citations and quotations omitted).
"[T]he plaintiffs’ extensive elucidation of the action’s non-compliance is ultimately a non-sequitur, because compliance with the Land Use Plan is not legally required. It is a plan, not a law. The City Council is allowed to deviate from it, and did so here." Id.
"The notion that we would invalidate the City Council’s 2006 action because of a perceived inconsistency with the council’s stated rationale for an action on a similar matter, four years prior, totally misconceives our role in cases such as this. ... If we can find any rational basis –
or, stated even more broadly, “any possible reason” – to uphold the council’s decision, we must do so, absent evidence of arbitrary, capricious, or illegal action by the council." Id.
August 25, 2008
Court endorses zoning board's reading of its zoning ordinances
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.
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.
December 04, 2007
Government need only cure constitutional defects to preclude development of landfill with zoning ordinances
CONSOLIDATED WASTE SYSTEMS, L.L.C. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY (Tenn.Ct.App. November 30, 2007).
The developer of a "construction and demolition" landfill appeals the denial of its application for a permit to construct the landfill. When the developer first applied for a permit in 1999 to develop the landfill, the Metropolitan Government denied the application based upon two zoning ordinances. In the lawsuit that ensued, the trial court found the ordinances unconstitutional.
In the appeal that followed, this Court affirmed the trial court and issued a stay of 150 days to afford the Metropolitan Government the opportunity to cure the constitutional infirmities. The Metropolitan Government timely amended one of the ordinances in 2003, but not the other ordinance, believing the amendment to that ordinance cured the constitutional infirmities identified in the first appeal.
Following the post-remand amendments to the ordinance, the developer renewed its request for a permit to construct the landfill. The Metropolitan Government again denied the permit, this time stating the landfill would violate Section 17.16.110(A)(2) of the Metro Code because the property was zoned in a district that permitted construction and demolition landfills with "conditions" and the proposed landfill did not meet the requisite conditions for two reasons. The landfill was within 100 feet of a property line for a residential area, and it was within 2000 feet of a park. Believing the Metropolitan Government had not cured the constitutional infirmities, the developer filed a motion to compel the Metropolitan Government to issue the twice-requested permit. After analyzing the two relevant ordinances and this court's opinion in the first appeal, the trial court concluded that the Metropolitan Government had cured all constitutional infirmities. It also concluded that the proposed landfill did not meet the requisite conditions for the reasons stated by the Metropolitan Government, and thus, affirmed the denial of the permit.
We have determined, as the trial court did, that the Metropolitan Government cured the constitutional infirmities and find no error with the determination that the plaintiff did not meet the requisite conditions for a construction and demolition landfill. Accordingly, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/consolidatedw_113007.pdf
"The trial court went on to conclude that the Metropolitan Government had corrected the constitutional infirmities in the buffer ordinance and, therefore, was in compliance with the declaratory judgment issued in this case and the mandate of this Court. Moreover, and significant to the second issue, is that the trial court found that '[n]o evidence has been presented that the ‘new’ buffer ordinance, which sets the current conditions that construction and demolition landfills must comply with, has any constitutional defects.' Finally, the trial court found Consolidated’s argument that the Metropolitan Government was out of compliance with its ruling in this case because it is still using the 'table ordinance,' to be without merit because, as the trial court determined, the table ordinance 'did not contain any constitutional defects.'" Id.
The developer of a "construction and demolition" landfill appeals the denial of its application for a permit to construct the landfill. When the developer first applied for a permit in 1999 to develop the landfill, the Metropolitan Government denied the application based upon two zoning ordinances. In the lawsuit that ensued, the trial court found the ordinances unconstitutional.
In the appeal that followed, this Court affirmed the trial court and issued a stay of 150 days to afford the Metropolitan Government the opportunity to cure the constitutional infirmities. The Metropolitan Government timely amended one of the ordinances in 2003, but not the other ordinance, believing the amendment to that ordinance cured the constitutional infirmities identified in the first appeal.
Following the post-remand amendments to the ordinance, the developer renewed its request for a permit to construct the landfill. The Metropolitan Government again denied the permit, this time stating the landfill would violate Section 17.16.110(A)(2) of the Metro Code because the property was zoned in a district that permitted construction and demolition landfills with "conditions" and the proposed landfill did not meet the requisite conditions for two reasons. The landfill was within 100 feet of a property line for a residential area, and it was within 2000 feet of a park. Believing the Metropolitan Government had not cured the constitutional infirmities, the developer filed a motion to compel the Metropolitan Government to issue the twice-requested permit. After analyzing the two relevant ordinances and this court's opinion in the first appeal, the trial court concluded that the Metropolitan Government had cured all constitutional infirmities. It also concluded that the proposed landfill did not meet the requisite conditions for the reasons stated by the Metropolitan Government, and thus, affirmed the denial of the permit.
We have determined, as the trial court did, that the Metropolitan Government cured the constitutional infirmities and find no error with the determination that the plaintiff did not meet the requisite conditions for a construction and demolition landfill. Accordingly, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/consolidatedw_113007.pdf
"The trial court went on to conclude that the Metropolitan Government had corrected the constitutional infirmities in the buffer ordinance and, therefore, was in compliance with the declaratory judgment issued in this case and the mandate of this Court. Moreover, and significant to the second issue, is that the trial court found that '[n]o evidence has been presented that the ‘new’ buffer ordinance, which sets the current conditions that construction and demolition landfills must comply with, has any constitutional defects.' Finally, the trial court found Consolidated’s argument that the Metropolitan Government was out of compliance with its ruling in this case because it is still using the 'table ordinance,' to be without merit because, as the trial court determined, the table ordinance 'did not contain any constitutional defects.'" Id.
Subscribe to:
Posts (Atom)