February 11, 2008
Dear City Recorder:
You have the following question: What are the city’s remedies for the construction by a
property owner of a truck repair business, without a building permit, on property zoned C-1
(general business).
Under the facts you related to me, and my personal view of the building, Ron and Kathy
X’s began construction on the building in question, which is clearly designed to accommodate at
least the tractors of large tractor-trailer type trucks. As will be seen below, the X’s Application
for a Zoning Request, indicates that the use of the property will be for “Auto Sales & Trucking
Co.” The building inspector issued a stop work order at a point where the walls were up, and
some of the trusses were set. There was no sheeting on the roof. However, it appeared to me
when I saw the building in October, 2007, that its exterior was either complete or substantially
complete.
The X’s also built a residence on the property without obtaining a building permit. The
city is not nearly as concerned about the construction of the residence on the property, but what I
say with respect to the construction of a building without a building permit applies to all
buildings. I have also mentioned in the section below suggesting the possibility of the X’s
obtaining a special exception for their truck facility, that the provisions of the city’s zoning
ordinance governing special exceptions also includes the possibility that they can obtain one for
their house as well.
The property upon which the building sits was apparently zoned C-1 (Commercial) by
Zoning ordinance 460, adopted on final reading November 10, 1995. Prior to that time it had
been zoned R-2, and on June 6, 1991, the planning commission granted a special exception to the
VFW to operate a club on the property. That VFW club subsequently burned down. At some
point prior to the time the X’s began construction on the building in question, they inquired of
the city recorder the zoning of the property. The city recorder mistakenly told them it was zoned
R-1. On July 23, 2007, the X’s filed with the city recorder a zoning request. Item 9 of that
request states that CURRENT ZONE is “Resident,” and ZONE REQUESTED states
“Commercial.” Item 10 of that request states that the EXISTING USE is “Resident,” and that the
PROPOSED USE is “to locate auto sales & trucking Co.” In Item 11, it is stated that REASON
FOR REQUEST is “We have been here since 1999 with our business. We thought it was already
zoned Commercial because the VFW Club was on this property before we owned it. We recently
found out that it was not zoned Commercial.” However, apparently construction on the building
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Page 2
in question had already begun, and at no time then or thereafter did the X’s seek to obtain a
building permit from the city to construct the building.
Do the X’s Derive any Rights from the VFW’s Special Exception?
The X’s belief that the property was zoned commercial because the VFW club had been
on the property, is misplaced. As I understand the facts and the documents, the property was
zoned R-2 at the time the VFW obtained a special exception to operate the club. The X’s
obtained no rights under that special exception. Variances “run with the land.” [See 3 Yokley,
Zoning Law and Practice, ' 20-2 and cases cited therein.] However, the extent to which special
exceptions run with the land is not entirely clear, especially in Tennessee where there are no
cases directly on that question. However, Tennessee Attorney General’s Opinion 2001-148
opines that “vested rights” may arise and be passed on to subsequent property owners with
respect to both variances and special exceptions. That opinion is supported by a case arising in
Tennessee’s neighboring state of Missouri. In Ford Leasing Development Co. v. City of
Ellisville, 718 S.W.2d 228 (Mo. 1986). There the Missouri Court of Appeals addressed that
issue in a manner that I think the Tennessee courts would probably follow.
In that case, Bud Anderson Ford owned a nine acre tract of land. In 1983, it obtained
from the city a conditional use permit to operate an AMC Jeep Dealership on four acres. The
plans for the conditional use permit called for Bud Anderson Ford to immediately build a sales
agency building and in the future to build a larger service building. Bud Anderson Ford built the
first building, but never built the second one. Bud Anderson Ford subsequently sold the nine
acres to Ford Motor Company Leasing, which applied for a conditional use permit to operate a
Lincoln-Mercury Dealership on the property. The city denied Ford Leasing’s application for a
conditional use permit. Ford Leasing appealed on the ground that the denial of the conditional
use permit was arbitrary and capricious. Ford Leasing won that case because the Court could see
no reason why the city issued a conditional use permit to Bud Anderson Ford but would not issue
one to Ford Leasing under similar facts.
But before the Court took up Ford Leasing’s argument that the denial of the conditional
use permit was arbitrary and capricious, it considered the question of whether the conditional use
permit issued to Bud Anderson Ford “ran with the land.” The Court observed that in 1983 the
city’s building commissioner had sent Bud Anderson Ford a letter pointing out that under and
ordinance recently passed by the city, conditional use permits “allow[ed] conditional use permits
to go with the land rather than with the operator as in the past. In other words, the use permit is
transferable.” However the Court found no evidence that either the ordinance granting the
cognitional use permit to Bud Anderson ford, or any separate city ordinance, provided for the
transferability of conditional use permits. From there, the Court went on to outline the nature of
special exceptions, which outline I will quote at length:
February 11, 2008
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“A ‘special permit’ or ‘special exception’ designates a species of
administrative permission which allows a property owner to put his
property to a use which the regulations expressly permit under
conditions specified in the zoning regulations themselves. Some
zoning laws or ordinances use the term conditional use permit,... to
refer to this type of administrative permission.” 82 Am.Jur.2d
Zoning and Planning ' 281 at p. 827 (1976). The grant of a
special permit is regarded as personal to the landowner to whom it
is granted. Whereby a variance which “runs with the land” is
distinguished from a mere “permit” which is personal to the
grantee. Balodis v Fallwood Park Homes, Inc., 54 Misc.2d 936,
283 N.Y.S.2d 497, 501 (1967). (emphasis ours) See also, 82
Am.Jur.2d '' 255-257.
The mere issuance of a zoning or building permit gives no vested
rights to the permittee, nor does he acquire a property right in the
permit.... Under or apart from statute, however, a permittee
acquires a property or vested right where he has acted on the faith
of a zoning or building permit or certificate....
101A C.J.A. Zoning and Land Planning ' 222 (1979) (sic) it has
been said a building represents an investment in the improvement
of the land upon which it is erected; and if regard were not had for
the reasonable protection of such investment, then a zoning law,
order, resolution or ordinance would frequently be confiscatory
with respect to its application to particular structures. Not only is a
building erected with a view to its adaptation to a specific form of
use which is to be made of it, but it is often difficult, if not
impossible, to convert it to an entirely different form of use.
Brown v Gambrel, 358 Mo. 192, 213 S.W2d 931, 935 (1948). [At
232]
Bud Anderson Ford was granted a conditional use permit for an AMC Jeep Dealership,
continued the Court, its plans for which included the sales building that it built, and a future
service building. It built the sales building, but did not build the service building. For that
reason, declared the Court, Bud Anderson Ford had
February 11, 2008
Page 4
vested rights only in the continued operation of the sales building
and only this runs with the land and consequently to Ford Leasing.
Because the service building was never built the conditional use
permit for this expansion remained personal to Bud Anderson.
Therefore, the conditional use permit pertaining to the service
building expansion does not run with the land and did not transfer
to Ford Leasing. [At 232]
The VFW apparently built a modest club building, which subsequently burned well
before the X’s bought the property. I find nothing in the resolution giving granting the special
permit to the VFW to use the property in question for a club, nor in the city’s zoning ordinance
indicating that special permits are transferable. Moreover, I will speak more about vested
interests in connection with the X’s construction of the building at issue, but it is doubtful that
whatever vested rights arose in the VFW in its club building passed with the land to the X’s.
That use and the X’s use are entirely different. In any event, the VFW’s building had already
gone up in smoke by the time the X’s bought the land.
Special Exception Possible “Remedy” for X’s and the City
There is surprisingly little law in the United States on the question of what remedies are
available to a local government where a property owner has constructed a building without a
building permit. Apparently, most cases on that question are resolved before they reach the
courts of appeal in the state or federal court systems. Obviously, one of the immediate remedies
is to issue a stop work order pending the property owner’s compliance with the requirement that
he obtain a building permit. That remedy was used by the city, but the question is, what happens
next?
However, before I analyze the remedies available to the city, I am going to analyze the
question of whether the same remedy that was available to the VFW is available to the X’s: a
special exception. The reason I will analyzed that question is that a special exception may
operate as a kind of “remedy” for the city as well. It will be seen below that the remedies for the
city’s problem with the building in question can be expensive and unsatisfying, and that a special
exception is a way to avoid the application of those remedies.
As I understand the facts, the X’s are aware of the possibility of obtaining a special
exception, as evidenced by the fact that a hearing on a special exception was set for their property
was set for them on October 23, 2007, but they did not appear for the hearing.
Article 2, ' 3 of the city’s zoning ordinance provides for a C-1 General Business district
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Page 5
in which a list of uses is permitted [subsection (1)] and a list of uses permitted on appeal
[subsection (2)]. I have attached a copy of Article II, ' 3. A perusal of uses permitted under
subsection (1) clearly indicates that a tractor-trailer truck repair or service business is not
permitted as a matter of right in a C-1 district. However, the uses permitted on appeal in a C-1
district under subsection (2) include:
(b) Automobile repair shops, including but not limited to: brake
and alignment shops, muffler shops, body shops, machine shops,
general repair shops, trim and upholstery shops and any other
automotive service facility, provided however, that in no case shall
any such facility be allowed to store wrecked or disabled vehicles
outdoors.
(c) Auto parts stores.
(d) Auto and truck sales and service lots.
********************************
(m) Any other activity which in the opinion of the Board of Zoning
Appeals is customarily related, or similar in nature, to the above
permitted uses. [Emphasis is mine.]
In addition, with respect to the house constructed by the X’s, Article 2, ' 3(1)(w),
expressly allows a single family residence as a use in a C-1 zone.
Presumably then, putting aside for a moment the legal consequences of the construction
by the X’s of the building without a building permit, the X’s could ask the board of zoning
appeals to grant them a special exception under Article 4, ' 5(2) of the city’s zoning ordinance,
which provides that:
(2) Special Exceptions (Uses Permitted Upon Appeal). The Board
of Zoning Appeals may hear and decide only such Special
exceptions as it is specifically authorized to pass on by the terms of
the “Uses Permitted on Appeal” sections of this ordinance.
Further, the Board of Zoning Appeals is to decide such questions
as are involved in determining whether Special exceptions (Uses
Permitted Upon Appeal) should be granted, to grant special
exceptions with such conditions and safeguards as are appropriate
under this ordinance, or to deny special exceptions when not in
harmony with the purpose and intent of this ordinance.
Article 2, ' 3 (2)(m) also provides that:
February 11, 2008
Page 6
After public notice and hearing, the Board of Zoning Appeals shall
determine the suitability of the above Uses Permitted on Appeal by
evaluating the following:
[There follows the list of things the BZA is supposed to evaluate,
which are attached]
It appears to me that a tractor-trailer repair facility of the kind suggested by the building at
issue would be a permitted special exception under Article 2, ' 3(m). It is an activity similar to
an auto repair facility, perhaps to an auto parts store, and definitely an activity similar to an auto
and truck sales and service lot. It is said in 3 Yokley Zoning Law and Practice, ' 21-1, that:
A board may grant an exception once it finds that all of the
requirements of the ordinance have been satisfied and that the
applicant is willing to comply with any conditions which the board
is empowered to impose. When the requisite facts and conditions
in an ordinance are found to exist, the applicant is entitled to the
Special exception unless there is legally competent evidence to
support a fining that the exception is adverse to the public interest.
Thus, where an ordinance authorized an exception as a matter of
right, on a showing of compliance with the enumerated safeguards,
the board’s function is to decide if the conditions exist that make
the case an appropriate one for an exception. Courts, therefore,
generally agree that if the proposed use meets the standards
prescribed, the board is bound to approve the application subject to
any reasonable conditions that it might impose to mitigate any
harm.
However, in the next paragraph of the same section Yokley says, “Where an ordinance
provides that an exception A may” be granted, it has been held that this merely confers discretion
and that a board may not be compelled to grant the exception.
But the law in Tennessee appears to be that even where the board of zoning appeals has
discretion in granting Special exceptions, that discretion must be exercised within the limits of
what the BZA is entitled to consider under Tennessee Code Annotated, ' 13-7-207, and the
zoning ordinance. Tennessee Code Annotated, ' 13-7-207 says this with respect to the powers
of a board of zoning appeals:
The board of zoning appeals has the power to:
February 11, 2008
Page 7
************************************
(2) Hear and decide, in accordance with the provisions of such
[zoning] ordinance requests for special exceptions or for the
interpretation of the map or for decisions upon other special
questions upon which such board is authorized by any such
ordinance to pass; ....
As already noted above, under Article 2, ' 3(2)(n) the Board of Zoning Appeals shall
determine the suitability of the above uses permitted on appeal by evaluating the following [list
of variables]
Finally, Article 2, ' 5(2)(b) says this about the function of the BZA with respect to
special exceptions:
General Provisions Governing Uses Permitted on Appeal. Before
any special exception shall be issued, the Board of Zoning Appeals
shall certify compliance with the specific rules governing
individual exceptions and that satisfactory provision and
arrangement has been made concerning the following general
requirements:
1. It is so designed, located and proposed to be operated so that the
public health, safety and welfare will be protected;
2. It will not adversely affect other property in the area in which it
is located;
3. It is within the provision of the “Uses Permitted on Appeal” as
set forth in this ordinance; and
4. It conforms to all applicable provisions of this ordinance for the
district in which it is to be located.
The above provisions of the city’s zoning ordinance prescribing the powers and duties of
the BZA undoubtedly limit the discretion of the BZA, and probably obligate it to issue a special
exception where the particular use meets the standards prescribed in the zoning ordinance for
special exceptions.
I am not remotely able to guess whether the BZA will grant a special exception to the X’s
However, I will say here that it appears to me that of the four items the BZA is supposed
February 11, 2008
Page 8
to certify, Item 1, and probably Item 2 immediately above in Article 2, ' 5(2)(b) exceed the
power of the BZA. In Father Ryan High School, Inc. v. City of Oak Hill, 774 S.W.2d 184 (Ct.
App. E.S. 1989), the city’s zoning ordinance authorized the operation of private high schools in
Residential B Districts as a conditional use (special exception), provided that other requirements
of the zoning regulations were satisfied. For some reason I do not understand, apparently the city
manager issued conditional use permits, subject to appeal to the BZA. The city manager refused
to issue a conditional use permit for the high school, and the BZA followed suit. The trial court
said that in denying the special exception, the:
Board [BZA] then, after emphasizing the provision in the
ordinance that requires the board, in reviewing the action of the
city manager to make an affirmative determination A...that the
establishment or operation of such school is consistent with the
general welfare, safety, morals and health of the community after
taking into consideration the letter and spirit of this ordinance said:
The Board is bound by this requirement of the zoning ordinance.
Unless the Board is able to make such a finding, a permit may not
be granted. Accordingly, considerations such as the effect the
proposed school will have on traffic in the neighborhood, whether
safety will be adversely affected, and other impact on the general
welfare of the community are all relevant and appropriate
considerations to be taken into account by the Board.
The Board is unable to determine that construction and operation
of Father Ryan High School on the proposed site is consistent with
the general welfare and safety of the community.... [At 186].
Father Ryan held, among other things, that it was beyond the jurisdiction conferred by
statute for the BZA to determine whether a special exception would be “consistent with the
general welfare, safety, morals and health of the community.” The Court reasoned that “the
legislature, in providing for the establishment of a board of zoning appeals did not confer this
authority upon such boards under the enabling legislation, the exercise of which would be
legislative, as opposed to the quasi-judicial authority vested in the boards of zoning appeals.” [At
188-89]
For that reason, continued the Court:
In the instant case, the board’s action in denying the permit was
based upon considerations beyond its statutory powers and was
February 11, 2008
Page 9
therefore illegal. The board, after correctly observing that a
“private school is permitted in a residential B district, providing
other requirements of the zoning regulations are satisfied”
nevertheless concluded “the board is unable to determine that
construction and operation of Father Ryan High School on the
proposed site is consistent with the general welfare and safety of
the community.” The principal reasons given were “traffic
problems”, “traffic will increase on residential streets” “residents’
concern about safety from the increase in traffic,” “noise level from
traffic” and “fears of diminished property values in the area.”
While these conditions are or may be inherent in construction and
operation of any school, the City of Oak Hill took into account
these considerations when it authorized the construction of schools
in this zoning classification by promulgating the attending
safeguards set forth in its zoning ordinances specifying under what
conditions a private school could be constructed and operated
within the zone. [At 190-91]
The legal issues involved in Father Ryan are somewhat esoteric and difficult to
understand with respect to what is beyond the powers of the BZA to determine. Essentially, what
it does not have the power to determine is what is within the power of the legislative body of the
city to determine.
The City’s Remedy of a Citation to Municipal Court
One of the remedies for the construction of a building without a building permit (or other
building code violations) is to cite the property owner to municipal court. But as will be seen
below, that remedy can have some serious drawbacks. One of those is that the fine for
municipal ordinance violations. The other drawback is that there is a distinction between
“punitive” and “remedial” fines which is difficult to understand and more difficult for
municipalities and municipal courts to apply. The cases below deal with this troublesome
distinction and the pitfalls that it produces in building code violation cases.
The cases that made the “punitive-remedial” fine distinction were City of Chattanooga v.
Davis and its companion case of Barrett v. Metropolitan Government of Nashville and Davidson
County, 54 S.W.3d 248 (Tenn 2001). The second case is the one with which we are concerned.
In that case, the Nashville-Davidson County Metropolitan Court imposed a civil penalty on the
defendant of $500 for each of five civil warrants issued over a period of months for various
building code violations, including the failure to obtain a building permits, and the violation of a
stop work order. Tennessee Code Annotated, ' 7-3-507, authorized Metropolitan Governments
February 11, 2008
Page 10
to impose penalties up to $500 per day for the violation of ordinances. The Court held that under
Article VI, ' 14 of the Tennessee Constitution, the maximum penalty that could be levied by
municipal courts was $50, and that there was a difference between “punitive” and “remedial”
fines. Punitive fines were designed to punish the offender for the ordinance violation, remedial
fines were designed to compel the offender to comply with the ordinance. In this case, said the
Court, the fines were punitive rather than remedial, reasoning that a “monetary penalty” can serve
but a few truly remedial purposes: (1) compensation for loss, (2) reimbursement for expenses,
(3) disgorge ill-gotten gains, (4) restitution for harm, and (5) ensure compliance with an order or
direction through the execution of a bond or through a prospectively coercive fine. [Emphasis is
mine.] In Barrett, said the Court, the purpose of the fine was to punish the offender for his
building code violations, not to accomplish one of those four functions. Note in particular
function No. (4); it turns up in the cases below.
Some building code violations were the subject of Town of Nolensville v. King, 151
S.W.2d 427 (Tenn. 2004). There the municipal court fined a persistent offender $300 per day for
each of 62 days it determined the offender had been in continuing violation of the ordinance at
issue, a total fine of $18, 600. On appeal the Tennessee Supreme Court held that the fines were
punitive, and reduced them to a fine of $50 per day for each of the 62 days the defendant had
violated the ordinance
But City of Johnson City v. Paduch, 224 S.W.3d 686 (Tenn. Ct. App. 2007) is a recent
case that deserves attention for the nightmare land use violations can become. There the city
issued a citation to the Paduchs for constructing a 5,000 square foot addition to a building they
owned, without obtaining a building permit. They had also earlier built a 15,000 square foot
addition to the building without obtaining a building permit. But after the construction of the
15,000 square foot addition, the building had become subject to the building codes sprinkler
requirements. The city court fined each of the Paduchs $50 for the construction of both the
15,000 square foot, and the 5,000 square foot additions without a building permit, but declared
that it would waive the $50 fines if the Paduchs brought the building into compliance with the
building codes, and obtain a building permit, within 60 days. The court also held that beginning
the 61st day following its order, each of the Paduchs would be fined $50 per day for each day that
the buildings were not brought into compliance with the building code.
On appeal to the Circuit Court by the Paduchs, that Court held that the only building code
violation for failing to obtain a building permit applied to the 5,000 square foot addition to the
building, and set one fine of $50 fo that violation, declaring it to be a punitive fine. With respect
to the city court’s order that the Paduchs pay $50 per day for each day their building was not in
compliance with the building code beginning the 61st day after the court’s order, the Circuit
Court noted that: The Paduchs had appealed the city court’s order promptly after it had issued it,
that the Paduchs had made no effort to comply with the building code requirements pursuant to
February 11, 2008
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the City Court’s order; and that after they had appealed the City Court’s judgment to the Circuit
Court, the Circuit Court trial had been set for September 27, 2004, but had been continued “for
months, probably six months” at the Paduch’s request. The Circuit Court fined the Paduchs $50
per day from September 27, 2004 to the initiation of the trial (November 23-24, 2004), and
declared the fine to be remedial. The Circuit Court also gave the Paduchs until February 1, 2005
to come into compliance with the building codes. Apparently the Paduchs did not comply, for on
February 16, 2005, the Circuit Court imposed an accumulated remedial fine on the Paduchs of
$50 per day from December 9, 2004, until February 15, 2005, for a total of $3,400 and ordered
that “the remedial and coercive fine of $50 per day shall continue until the day this Court
concludes and identifies the date the defendant’s building is brought into compliance with the
City’s building codes and ordinances.” [The record showed that the Paduchs achieved
compliance on February 21, 2005.] On June 10, 2005, the Circuit Court awarded the city
$1,589.60 in discretionary costs and eliminated the $50 per day punitive fine which it had
previously imposed, and subsequently awarded the City additional discretionary costs on May 26,
2006.
The Paduchs appealed the Circuit Courts’s decision to the Court of Appeals, on a
multitude of grounds. The only one of those grounds that will be analyzed here is the Paduch’s
argument that the City Court had only the authority to levy a total fine of $50, and for that reason
could not levy a fine of $50 per day for each day the violations at issue continued. The Court of
Appeals agreed that the City Court did not have the authority to levy a fine of over $50, but held
that it had the authority to levy such a fine multiple times in a case, in this one $50 per day for
each day the violation continued because it was coercively remedial. But this case began around
1998, and did not make it through the court system until March, 2007!!!! There is no telling how
many thousands of dollars the city burned in this case on attorney’s fees and time, undoubtedly
far less than it received in remedial fines.
The City’s Remedy of Demolition or Other Alteration or use of the Building
In some Tennessee cases where a building permit has been erroneously issued, and the
permitted has accrued “substantial expense” in reliance on the permit, the permit cannot be
revoked. The question of whether a property owner has accrued “substantial expense” is a
factual one, and will obviously vary from case to case. [See Howe Realty v. City of Nashville,
141 S.W.2d 9094 (1940); Haymon v. City of Chattanooga, 513 S.W.2d 185 (Tenn. App. 1973).]
However the City’s case involves a situation where no building permit was asked for or
obtained. In the case of Chickering Ventures, Inc. v. Metropolitan Government of Nashville &
Davidson County, 1988WL 133527 (Tenn. Ct. App.1988), it was said that the possession of a
valid building permit is a prerequisite in determining whether the builder has a vested interest in
February 11, 2008
Page 12
continuing the particular land use or finishing the particular project at issue. In that case, the
Court pointed out that the developer was not able to place “good faith reliance” upon the building
permit issued by the city because under the facts the permit was invalid. As to the investment the
developer had made in the property under the invalid permit, the Court pointed to Haymon v.
City of Chattanooga:
With respect to the amount expended prior to the revocation of the
building permit, we are not referred to any authority on what
constitutes “substantial expenditures.” In Haymon v. The City of
Chattanooga, 513 S.W.2d 185 (Tenn. Ct. App. 1973), the court
held that the expenditure of $35,000 in the construction of a
foundation for an apartment building was not sufficient to give the
property owner a vested right to continue construction. We find
that case to be persuasive authority.... [At 3]
The 2003 case of Far Tower Sites, LLC v. Knox County, 126 S.W.3d 52 (Tenn. Ct. App.
2003) (Appeal to Tenn. Supreme Court denied January 26, 2004), supports that conclusion, and
appears to go even further by holding that a property owner cannot achieve any vested rights at
all in a building permit issued in violation of the zoning ordinance. I can think of no reason that
case would not apply to a situation involving a builder who did not obtain a building permit.
In that case, Far Tower Sites, LLC, obtained a permit from Knox County to build a
telecommunications tower, renewed the permit several times, and was repeatedly assured by
county officials the permit was valid. It invested $62,000 in improvements to the site. It was
subsequently discovered by both the county and Far Tower that the tower site was in the
Tennessee Technology Corridor, and that as a prerequisite for the issuance of a building permit
by the county, Far Tower was required to obtain a Certificate of Appropriateness under the
Technology Corridor Development Authority Act. Because Far Tower had not obtained that
certificate, Knox County shut down the project.
Far Tower argued that there are only two requirements to establish a vested right in a
building permit; (1) the issuance of the permit by the responsible government agency, (2) making
of contracts and incurring substantial liabilities in reliance on the permit. Far Tower further
argued that, since no case expressly states that the permit must be validly issued, the validity of
the issuance of the permit was immaterial. [At 63] The Court rejected those arguments, and
accepted Knox County’s argument that under Moore v. Memphis Stone & Gravel Co., 47 Tenn.
App. 461, 339 S.W.2d (1959), “a permitted can acquire no vested rights when a permit is issued
in violation of the zoning ordinance.” [At 59]
The Court stuck to that position, rejecting Far Tower’s argument that the Court should
February 11, 2008
Page 13
adopt the Pennsylvania Supreme Court’s position in Petrosky v. Zoning Hearing Bd. of
Township of Upper Chichester, 402 A.2d 1385 (1978). In that case, the property owners, relying
upon a building permit issued to them by the township, built a garage in accordance to plans they
had submitted with their application for a permit. However, it was discovered seven months later
that the garage violated the setback requirements, and the township ordered them to remove it or
alter it to comply with the setback requirements. The Pennsylvania Court declared that, “We
reject the notion that a citizen who does attempt to check the zoning statutes by making inquiry
of the proper officials, who certainly should be expected to have knowledge about zoning, has
not exercised due diligence.” [At 65]
The Tennessee Court of Appeals rejected Pennsylvania’s position:
We decline to adopt, as an absolute proposition, that a citizen can
rely upon the advice and actions of a mid-level local county official
pertaining to a zoning matter within that official’s area of
responsibility in lieu of any independent research. It is certainly
conceivable that such an official might not be well-versed in the
legal intricacies of a thick zoning ordinance. It goes without saying
that such officials are of varying levels of education, training,
intelligence, competence and most importantly knowledge and
comprehension of the law pertaining to their official duties. AThe
ramifications of the broad “due diligence” proposition stated in
Petrosky are too significant to prompt us to depart from the
established precedent in the Moore case. If there is to be a
departure from Moore, we believe it must come from the General
Assembly or the Supreme Court...
In the instant case, as previously noted, Far Tower does not contest
the obviousBall of the permits issued by Knox County in this
case...were issued in violation of the Tech Acts and the Knox
County Zoning Ordinance, i.e. they were all issued prior to the
issuance of a COA.[Certificate of Appropriateness.] [At 66]
For those reasons, concluded the Court, Far Tower had no vested property right in and
under the invalidly issued permit.
Far Tower also attempted to rely on Haymon to claim that the county should be estopped
from denying the validity of the building permit. The Court turned aside that attempt, pointing to
the limitations on estoppel when the person asserting it had equal ability to acquire knowledge
that would have saved him from his damage, declaring that:
February 11, 2008
Page 14
In the case at bar, Far Tower and the defendants both had access to
the Tech Act and the Knox County Zoning Ordinance. Both
documents were in the public domain. As we have previously
noted, when both parties have the same means of ascertaining the
true facts there can be no estoppel. Haymon, 513 S.W.2d at 188.
There is nothing in this case to take it out of the general rule that
“the doctrine of estoppel does not apply to the acts of public
authorities.” Id. At 189. [At 68]
But there is more to Haymon about the question of whether erroneously issued building
permits can be revoked than the cost of the investment the landowner has made in the property in
question. In that case, the court said:
The principle is well established that where both parties have the
same means of ascertaining the true facts that there can be no
estoppel. Crabtree v. Bank 108 en. 483, 67 S.W. 797; Parkey v.
Ramsey, 111 Tenn;. 302, 76 S.W. 812.
AIt is essential, as a general rule, to the application of the principle
of estoppel, that the party claiming to have been influenced by the
conduct of declarations to another to his injury, was himself not
only destitute of knowledge of the state of the facts, but was also
destitute of any convenient and available means of ascertaining
such knowledge, that where the facts are known to both parties, or
both have the same means of ascertaining the truth, there can be no
estoppel. Crabtree v. Bank, supra; Hankins v. Waddell, 26 Tenn.
App. 71, 167 S.W.2d 694.
It is proper to add that, generally, the doctrine of estoppel does not
apply to the acts of public authorities. State v. Williams, 207
Tenn. 695, 343 S.W.2d 857. [At 188-89]
In Haymon the Court pointed out that:
The record suggests...that the building inspector said enough to put
complainants upon inquiry as to the existence of the covenant. In
any event, the instrument creating the covenant and making it run
with the land was of record complainants had constructive notice
February 11, 2008
Page 15
of its existence. It seems to be unquestioned that the narrow buffer
strip would be to the disadvantage of nearby owners of residential
property. We fail to see why they should suffer loss under all the
circumstances of this case. [At 189]
In the City’s case, the X’s state in their APPLICATION FOR ZONING REQUEST, made
on July 23, 2007, that the reason for their request is that “We have been here since 1999 with our
business. We thought it was already zoned commercial because the VFW Club was on the
property before we owned it. We recently found out that it was not zoned commercial.” I am not
sure what the “We have been here since 1999 with our business” means; apparently the X’s were
not on the property in question operating their truck service and repair business in 1999. In any
event, the X’s inquired as to the zoning of the property in question, but regardless of what they
were told as to the zoning of the property, in neither the case of an R-1 zone or a C-1 zone was
the building they constructed authorized, except in a C-1 zone as a special exception. It was in
their means to learn what uses were permitted in both zoning districts. In any case, the salient
point is that they did not obtain a building permit.
I frankly cannot guess what the local courts there will do in this case. Generally, courts
are quite reluctant to order the destruction of buildings already built. But in the Tennessee Courts
of Appeal and the Tennessee Supreme Court, Far Tower is heavy authority supporting the
proposition that if a property owner does an end run around the requirement for a building
permit, even if he does so with no intention to do the end run, he has very little legal traction. In
the X’s case, the end run around the building permit requirement was apparently done
deliberately or negligently.
Hopefully, this letter will help the city to decide what kind, and how much, of a legal
investment it wishes to make in this case Of course, the X’s are in a similar position. Please call
on me if you have any questions about this or any other matter.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/