William H. Thomas, Jr. v. Tennessee Department of Transportation

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 8, 2013 Session

WILLIAM H. THOMAS, JR. v. TENNESSEE DEPARTMENT OF

TRANSPORTATION

Appeal from the Chancery Court for Davidson County

No. 110798-III Ellen H. Lyle, Chancellor

No. M2012-01936-COA-R3-CV - Filed, August 12, 2013

This appeal arises from a petition for judicial review of the decision of the Tennessee

Department of Transportation to deny the petitioner’s application for four billboard

construction permits on I-240 in Memphis, Shelby County, Tennessee. The dispositive issues

concern the zoning classifications of the proposed billboard locations. The Department of

Transportation denied the permits based upon the finding that none of the proposed billboard

locations met the zoning requirements in Tennessee Code Annotated § 54-21-103(4) or Tenn.

Comp. R. & Regs. 1680-2-3-.03(1)(a)1, or the definitions for “Zoned Commercial” or

“Zoned Industrial” in Tenn. Comp. R. & Regs. 1680-2-3-.02(29). The trial court affirmed the

Department’s denial of the permits, finding subsection (d) of 23 C.F.R. § 750.708, which

states, “A zone in which limited commercial or industrial activities are permitted as an

incident to other primary land uses is not considered to be a commercial or industrial zone

for outdoor advertising control purposes” was controlling. The trial court also found the area

was comprehensively zoned for residential, agricultural and flood plain uses, not commercial

or industrial, and that “TDOT acted within its statutory authority in denying the petitioner’s

application for permits,” and thus the court dismissed the petition. We affirm the decision to

deny the permits based upon federal and state law.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which R ICHARD H.

D INKINS, J., joined. P ATRICIA J. C OTTRELL, P.J., M.S., not participating.

William H. Thomas, Jr., Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,

and Larry M. Teague, Deputy Attorney General, Nashville, Tennessee, for the appellee,

Tennessee Department of Transportation.

OPINION

On October 13, 2006, William H. Thomas, Jr. (“Petitioner”), submitted applications

to the Tennessee Department of Transportation (“TDOT”) for four state outdoor advertising

permits; the permits were for two back-to-back billboards to be constructed off of Steve Road

at Log Mile 9.25 (“the West Location”) and Log Mile 9.45 (“the East Location”) on

Interstate 240 in Shelby County, Tennessee (collectively, “the Steve Road Locations”).

Petitioner represented in the applications that each of the four proposed locations were zoned

“PD Commercial.” 1

On October 24, 2006, Robert Shelby, Manager of the TDOT Region 4 Beautification

Office in Jackson, Tennessee began processing the applications. Mr. Shelby first investigated

the zoning and determined the four Steve Road Locations were subject to Shelby County’s

comprehensive zoning ordinance. Specifically, the West Location was zoned R-MM(FP) -

Multiple Dwelling Residential and Flood Plain, and the East Location was zoned AG(FP) -

Agriculture and Flood Plain. Mr. Shelby also determined that the sites were subject to a

Planned Development Overlay, referred to as the “Steve Road PD,” which authorized single-

family residential housing, a daycare center, mini-storage units, and billboards. The Steve

Road PD required that the daycare center, single family residences, and mini-storage units

be developed prior to the construction of billboards.2

After ascertaining the zoning, Mr. Shelby conducted an on-site inspection; he

observed that all of the proposed locations were within 660 feet of I-240, they were

surrounded by homes and apartments on three sides with the fourth side facing I-240, that

beyond the homes and apartments were heavily wooded, undeveloped areas, and that there

was no commercial activity in the area.

Based upon the above findings, Mr. Shelby concluded that none of the proposed

billboard locations met the zoning requirements in Tennessee Code Annotated § 54-21-

103(4) and TDOT Rule 1680-2-3-.03(1)(a)1, both of which require that billboards located

within 660 feet of an Interstate highway be located in areas zoned for industrial or

commercial use. His determination was based on TDOT Rule 1680-2-3-.02(29) which

defines “Zoned Commercial or Zoned Industrial,” as “those areas in a comprehensively

zoned political subdivision set aside for commercial or industrial use pursuant to the state or

local zoning regulations, but shall not include strip zoning, spot zoning, or variances granted

1

As noted later, PD stands for Planned Development.

2

The Steve Road PD was enacted by the City Council of Memphis on May 16, 2006, to cover the

West Location, and amended on October 3, 2006 to include to the East Location.

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by the local political subdivision strictly for outdoor advertising.” Mr. Shelby notified

Petitioner that the applications were denied by letter dated November 17, 2006; Petitioner

timely requested an administrative hearing.

By agreement of the parties, the administrative proceedings were continued pending

the resolution of a related matter in the Shelby County Chancery Court. Following the ruling

by the chancery court, the case was appealed to this court. We dismissed the action upon the

determination the Shelby County Chancery Court lacked subject matter jurisdiction. See State

ex rel. Comm’r of Dept. Of Transp. v. Thomas, 336 S.W.3d 588, 608 (Tenn. Ct. App. 2010).

After the Shelby County Chancery Court case was dismissed, both parties filed

motions and cross motions for summary judgment with the Administrative Law Judge

(“ALJ”). Oral arguments were presented to the ALJ on September 3, 2009. Following the

hearing, the judge granted summary judgment to Petitioner. The ALJ’s decision was based

upon her finding that the proposed locations did meet the definition of “Zoned Commercial

or Zoned Industrial” in TDOT Rule 1680-2-3-.02(29). Specifically, the ALJ found that the

City of Memphis and Shelby County constituted a “comprehensively zoned political

subdivision,” that the Steve Road PD was “set aside” by the City Council of Memphis acting

pursuant to its authority under Section 14 of the Zoning Ordinance of the City of Memphis

and Shelby County, that the Steve Road PD did not constitute “strip zoning” or “spot

zoning,” and that because it contemplated a daycare and mini-storage units in addition to the

billboards, the Steve Road PD was not “strictly for outdoor advertising.” See Tenn. Comp.

R. & Regs. 1680-2-3-.02(29).

TDOT appealed the Initial Order to the Commissioner. The Commissioner agreed

with Mr. Shelby’s findings that the West Location was zoned Multiple Dwelling

Residential/Flood Plain and that the East Location was zoned Agricultural/Flood Plain, and

that neither is a commercial or industrial zoning designation under the Memphis and Shelby

County zoning ordinance. The Commissioner, however, found there were genuine disputes

of material fact regarding whether the Steve Road PD was “granted strictly to allow outdoor

advertising.” Thus, the Commissioner reversed the ALJ’s Initial Order.3

Thereafter, Petitioner timely filed this Petition for Judicial Review of Commissioner’s

Order in the Chancery Court for Davidson County. He asserted, inter alia, that the

Commissioner’s decision violated the separation of powers doctrine and Petitioner’s right

to procedural due process under the Tennessee and United States Constitutions. Petitioner

3

The Commissioner also found that reversing the Initial Order was necessary “in order to maintain

effective control of outdoor advertising as mandated by 23 U.S.C. § 131” and the Tennessee Billboard

Regulation and Control Act, Tennessee Code Annotated §§ 54-21-101 through -123.

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requested the court reverse the Commissioner’s Final Decision and order TDOT to issue the

permits. After the record and responsive pleadings were filed, the parties waived a hearing

and the issues were presented to the trial court. On May 17, 2012, the court entered a

Memorandum and Order dismissing the Petition, finding, inter alia, “TDOT acted within its

statutory authority in denying the petitioner’s application for permits.”

Petitioner then filed a Motion to Alter or Amend and Motion for Clarification of Final

Order pursuant to Rules 52 and 59 of the Tennessee Rules of Civil Procedure. The trial court

subsequently entered a Memorandum and Order Granting Petitioner’s Motion, in part, by

Altering and Amending Reasoning, but Denying it, in part, by Not Changing Outcome

(“August 2012 Order”).

In the August 2012 Order, the trial court examined the relationship between state and

federal law regarding the zoning requirements for billboards located within 660 feet of

Interstates and primary highways. The court first considered United States Code Title 23

Section 131, “Control of outdoor advertising,” which requires states to provide “effective

control” over the erection of billboards in these areas or risk losing federal highway

construction funding. While the statute requires that states limit billboard construction to

commercial and industrial zones, it also provides that “States shall have full authority under

their own zoning laws to zone areas for commercial or industrial purposes, and the actions

of the States in this regard will be accepted for the purposes of this Act.” 23 U.S.C. § 131(d).

The court also considered 23 C.F.R. § 750.708, “Acceptance of state zoning,” which

identifies more specifically what “actions of the States” must be accepted under the federal

scheme. The court focused on two subsections, (b) and (d), which describe two types of State

action that will not be accepted. The trial court held that subsection (b), which provides that

“[a]ction which is not a part of comprehensive zoning and is created primarily to permit

outdoor advertising structures, is not recognized as zoning for outdoor advertising control

purposes,” did not provide a proper basis for TDOT’s denial of the permits. The court

reasoned that the Steve Road PD was not “created primarily to permit outdoor advertising

structures” because it allowed for other commercial uses, namely a daycare and storage units.

The other subsection identified by the trial court, subsection (d), provides that, “[a]

zone in which limited commercial or industrial activities are permitted as an incident to other

primary land uses is not considered to be a commercial or industrial zone for outdoor

advertising control purposes.” (Emphasis added). Relying on an affidavit from Robert

Shelby, the trial court found that the area in question is comprehensively zoned for

residential, agricultural and flood plain uses, and that it “remains heavily wooded in parts and

residential in other parts and undeveloped despite the enactment of the PDO.” As a result,

the court concluded that subsection (d) provides a proper basis for TDOT’s decision to deny

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Petitioner’s permit applications as a matter of law. The trial court further concluded that

Petitioner’s claims that TDOT violated the separation of powers doctrine as well as his

procedural due process rights were without merit. Based upon the foregoing determinations,

the trial court dismissed the Petition. This appeal followed.

A PPELLATE R EVIEW U NDER THE A DMINISTRATIVE P ROCEDURES A CT

Judicial review of decisions of administrative agencies, when those agencies are

acting within their area of specialized knowledge, experience, and expertise, is governed by

the narrow standard contained in Tenn. Code Ann. § 4-5-322(h) rather than the broad

standard of review used in other civil appeals. Willamette Indus., Inc. v. Tennessee

Assessment Appeals Comm’n, 11 S.W.3d 142, 147 (Tenn. Ct. App. 1999) (citing Wayne

County v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 279-80 (Tenn. Ct.

App. 1988)).

The trial court may reverse or modify the decision of the agency if the petitioner’s

rights have been prejudiced because the administrative findings, inferences, conclusions or

decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or

clearly unwarranted exercise of discretion; or

(5)(A) Unsupported by evidence which is both substantial and material in the

light of the entire record.

Tenn. Code Ann. § 4-5-322(h)(1)-(5)(A). However, the trial court may not substitute its

judgment concerning the weight of the evidence for that of the Board as to questions of fact.

Tenn. Code Ann. § 4-5-322(h)(5)(B); see also Jones v. Bureau of TennCare, 94 S.W.3d 495,

501 (Tenn. Ct. App. 2002). The same limitations apply to the appellate court. See Humana

of Tennessee v. Tennessee Health Facilities Comm’n, 551 S.W.2d 664, 668 (Tenn. 1977)

(holding the trial court, and this court, must review these matters pursuant to the narrower

statutory criteria). Thus, when reviewing a trial court’s review of an administrative agency’s

decision, this court is to determine “whether or not the trial court properly applied the . . .

standard of review” found at Tennessee Code Annotated § 4-5-322(h). Jones, 94 S.W.3d at

501 (quoting Papachristou v. Univ. of Tennessee, 29 S.W.3d 487, 490 (Tenn. Ct. App.

2000)).

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I SSUES

Petitioner raises several issues for our consideration.4 We, however, have concluded

that the dispositive issue is whether the proposed billboard locations are zoned commercial

or industrial as required by state and federal law. While this is the dispositive issue, we have

also decided to address additional issues raised by the Petitioner.

A NALYSIS

With the enactment of the Federal Highway Beautification Act of 1965, Congress

established a statutory scheme to control the erection of new billboards and the maintenance

of existing billboards along interstate and primary highways, in order to “protect the public

investment in such highways, to promote the safety and recreational value of public travel,

and to preserve natural beauty.” 23 U.S.C. § 131(a); see also United Outdoor Adver. Co., Inc.

v. Bus. Transp. & Hous. Agency, 746 P.2d 877, 879 (Cal. S. Ct. 1988). To achieve its

purpose, the Highway Beautification Act requires states to provide for “effective control” of

billboard construction and maintenance or risk a ten percent reduction in federal funding for

highway improvements. 23 U.S.C. § 131(a)–(c).

To comply with the Federal Highway Beautification Act and provide for “effective

control” over the erection and maintenance of billboards along interstate and primary

highway systems, Tennessee enacted the Billboard Regulation and Control Act of 1972, now

codified at Tennessee Code Annotated §§ 54-21-101 through -123.

Sections -112 and -116 of the Tennessee Billboard Regulation and Control Act

specifically direct the Commissioner of TDOT to ensure that both the state and federal acts

are carried out. See Tenn. Code Ann. § 54-21-112 (“The commissioner is given full authority

to promulgate and enforce and all regulations as required and necessary to fully carry out this

chapter and 23 U.S.C. § 131.”); see also Tenn. Code Ann. § 54-21-116.

The Commissioner is thus required, by subsection (d) of the federal act, to limit

billboard construction within six hundred sixty feet of interstates or primary highways to

those areas zoned commercial or industrial under state law:

4

The issues as stated by Petitioner are: 1) Whether the Chancery Court of Davidson County lacks

original subject matter jurisdiction. 2) Must TDOT recognize and accept planned developments and does a

planned development constitute a change in the comprehensive zoning? 3) Were appellant’s due process

rights violated? 4) Must TDOT file a declaratory judgment action when it decides a planned development

constitutes spot zoning, strip zoning, or a variance enacted solely for the erection of billboards? 5) Has the

separation of powers doctrine been violated in the current case? 6) Whether the chancery court committed

error when it ruled that 23 C.F.R. 750.708(d) was controlling law in this matter.

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(d) In order to promote the reasonable, orderly and effective display of outdoor

advertising while remaining consistent with the purposes of this section, signs,

displays, and devices whose size, lighting and spacing, consistent with

customary use is to be determined by agreement between the several States and

the Secretary, may be erected and maintained within six hundred and sixty feet

of the nearest edge of the right-of-way within areas adjacent to the Interstate

and primary systems which are zoned industrial or commercial under authority

of State law, or in unzoned commercial or industrial areas as may be

determined by agreement between the several States and the Secretary. The

States shall have full authority under their own zoning laws to zone areas for

commercial or industrial purposes, and the actions of the States in this regard

will be accepted for the purposes of this Act.

23 U.S.C. § 131(d).

While the States “shall have full authority,” see id., to create commercial and

industrial zones for billboard construction, federal regulations provide that certain State

zoning actions will not qualify:

(b) State and local zoning actions must be taken pursuant to the State’s zoning

enabling statute or constitutional authority and in accordance therewith. Action

which is not a part of comprehensive zoning and is created primarily to permit

outdoor advertising structures, is not recognized as zoning for outdoor

advertising control purposes.

....

(d) A zone in which limited commercial or industrial activities are permitted

as an incident to other primary land uses is not considered to be a commercial

or industrial zone for outdoor advertising control purposes.

23 C.F.R. § 750.708(b) and (d).

A. S TATE S TATUTES AND R EGULATIONS

Tennessee Code Annotated § 54-21-103, “Restrictions; exceptions,” which the

Commissioner is responsible for enforcing, overlaps the federal statutes and regulations. That

regulation provides, in pertinent part:

No outdoor advertising shall be erected or maintained within six hundred sixty

feet (660’) of the nearest edge of the right-of-way and visible from the main

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traveled way of the interstate or primary highway systems in this state except

the following:

....

(4) Signs, displays and devices located in areas that are zoned

industrial or commercial under authority of law and whose size,

lighting and spacing are consistent with customary use as

determined by agreement between the state and the secretary of

transportation of the United States;

(Emphasis added).

Acting in compliance with the foregoing responsibilities, the Commissioner

promulgated rules and regulations, including Rule 1680-2-3-.03(1)(a)1, entitled “Criteria for

the Erection and Control of Outdoor Advertising, Zoning.” This regulation states: “Outdoor

Advertising erected or maintained within 660 feet of the nearest edge of the right-of-way and

visible from the main traveled way . . . must be located in areas zoned for commercial or

industrial use or in areas which qualify for unzoned commercial or industrial use.”

(Emphasis added). As noted earlier, the relevant definitions in Tenn. Comp. R. & Regs.

1680-2-3-.02(29)5 read:

Zoned Commercial or Zoned Industrial, means those areas in a

comprehensively zoned political subdivision set aside for commercial or

industrial use pursuant to the state or local zoning regulations, but shall not

include strip zoning, spot zoning, or variances granted by the local political

subdivision strictly for outdoor advertising.

(Emphasis added).

Thus, reading the state and federal statutes and regulations together, it is clear the

Commissioner of TDOT is responsible for ensuring that billboard construction permits are

only granted for “areas in a comprehensively zoned political subdivision set aside for

commercial or industrial use pursuant to state or local zoning regulations,” Tenn. Comp. R.

& Regs. 1680-2-3-.02(29), that those areas are not “created primarily to permit outdoor

advertising structures,” 23 C.F.R. § 750.708(b); see also id. (excluding areas zoned “strictly

for outdoor advertising”), and that the commercial or industrial activities are not “limited”

or only “permitted as an incident to other primary land uses.” 23 C.F.R. § 750.708(d).

5

The definitions, which have not changed, were previously found in Tenn. Comp. R. & Regs.

1680-2-3-.02(27), – now -.02(29) – the amendment took effect in December 2008.

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Petitioner claims the Steve Road PD meets each of these requirements. A PD, or a

PDO – Planned Development Ordinance – is a land use mechanism by which one may

modify the comprehensive zoning regulations within a district on a case by case basis.

Section 4.10.3 of the Memphis Shelby County Unified Development Code provides that

“governing bodies may grant a special use permit for a planned development which modifies

the applicable district regulations and other regulations of this development code upon

written findings of the Land Use Control Board and the Planning Director.” 6 The City’s

stated purpose of the PDO mechanism is to “facilitate the use of flexible techniques of land

development and site design, . . . [and] provid[e] relief from district requirements . . . .” The

Tennessee Supreme Court has described PDOs as providing “relief from zoning requirements

designed for conventional development . . . .” McCallen v. City of Memphis, 786 S.W.2d 633,

639 (Tenn. 1990).

In each of the four applications he submitted, Petitioner represented that the Steve

Road Locations were zoned “PD Commercial.” However, as Robert Shelby correctly

determined, no such zoning designation exists in Memphis, Shelby County, Tennessee.

Further, the undisputed facts establish that the proposed locations were subject to a planned

development permit, as authorized by PD 06-332, but that does not place the four locations

in an area “zoned commercial or industrial” as the state and federal regulations require.

During his inquiry, Mr. Shelby was informed by local zoning officials for Memphis

and Shelby County that the West Location was in the R-MM(FP) - Residential Flood Plain

Zoning District, and that the East Location was in the AG(FP) - Agriculture Flood Plain

Zoning District. Thus, acting in compliance with TDOT Rule 1680-2-3-.03(1)(a)1, Mr.

Shelby, acting in his capacity as TDOT Regional Manager, rejected Petitioner’s applications

because the locations were not zoned commercial or zoned industrial. Accordingly, contrary

to Petitioner asserting, TDOT did not reject or ignore the zoning established by Memphis and

Shelby County for the four locations at issue; to the contrary, TDOT accepted the zoning to

be exactly what it was.7

6

The zoning ordinance was formerly known as the Memphis and Shelby County Zoning Ordinance,

and provided that the “legislative body may grant a permit which modifies the applicable zoning district

zoning regulations and subdivision regulations upon written findings and recommendations . . . .” See

McCallen v. City of Memphis, 786 S.W.2d 633, 635 (Tenn. 1990).

7

One of the issues raised by Petitioner reads: “Must TDOT recognize and accept planned

developments and does a planned development constitute a change in the comprehensive zoning?” Our

foregoing analysis reveals that the PDO at issue did not constitute a change in the comprehensive zoning for

any of the locations at issue.

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As TDOT correctly asserts in its brief, TDOT is required to limit billboard

construction within 660 feet of interstate and primary highways, to those areas “zoned

commercial or zoned industrial.” See Tenn. Code Ann. § 54-21-103(4); Tenn. Comp. R. &

Regs. 1680-2-3-.03(1)(a)1. And the relevant definition for “Zoned Commercial or Zoned

Industrial” is stated in Tenn. Comp. R. & Regs. 1680-2-3-.02(29):

Zoned Commercial or Zoned Industrial, means those areas in a

comprehensively zoned political subdivision set aside for commercial or

industrial use pursuant to the state or local zoning regulations, but shall not

include strip zoning, spot zoning, or variances granted by the local political

subdivision strictly for outdoor advertising.

Therefore, for the foregoing reasons, TDOT acted within its statutory authority in

denying Petitioner’s applications for permits based on state law.

B. F EDERAL R EGULATIONS

In its August 2012 Order, the trial court considered federal regulation, 23 C.F.R. §

750.708 subsections (b) and (d), which, as described above, disqualify certain proposed

billboard locations. In its analysis the trial court noted that subsection (b) was not a proper

basis for TDOT’s decision to deny the permits, because the Steve Road PD allowed for the

development of a daycare and mini-storage units, and was thus not “created primarily to

permit outdoor advertising structures.” Id. § 750.708(b) (disqualifying action which is “not

part of comprehensive zoning and is created primarily to permit outdoor advertising

structures”).

The trial court then focused its analysis on subsection (d) of 23 C.F.R. § 750.708,

which disqualifies any “zone in which limited commercial or industrial activities are

permitted as an incident to other primary land uses.” The trial court found persuasive the

reasoning in United Outdoor Advertising Co., Inc. v. Business Transportation & Housing

Agency, 746 P.2d 877 (Cal. S. Ct. 1988) which, like here, involved subsection (d) of 23

U.S.C. § 131. In that case, the plaintiff relied, in part, on the fact that the parcels at issue

were within a location that the county general plan identified as a “Desert Special Service

Center,” or a “DSSC.” The DSSC designation, the plaintiff contended, satisfied the federal

permit requirements. United Outdoor Advertising Co., 746 P.2d at 882. The California

Supreme Court, however, did not agree.

A DSSC is clearly not a zone, but instead designates isolated areas in the

desert that might have some commercial potential but do not warrant zoning

for a specific land use. Rather than zoning the areas commercial, the county

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has retained the DL zone and deals with development in DSSC’s on a

site-by-site basis by the use of conditional use permits (i.e., by site approval).

This technique purportedly allows the county flexibility and enables it to

restrict development to that actually needed.

Plaintiff reasons that because the parcels are in a DSSC and have

obtained site approval for a commercial activity, they are in the desert

equivalent of a commercial zone. We cannot concur with this analysis. In the

first place, the DSSC designation is conferred by the general plan and is not

a zoning category. As part of the general plan it does not bestow on

landowners the right to engage in commercial activities, but is instead a

“statement of development policies” (Gov. Code, § 65302), part of a

“constitution for all future developments” (Neighborhood Action Group v.

County of Calaveras (1984) 156 Cal.App.3d 1176, 1183, 203 Cal. Rptr. 401).

It is the zoning laws that regulate the geographic allocation and permissible

uses of land. (Ibid.) The county’s description of the DSSC in its general plan

confirms this: it characterizes the label as temporary, not meant to be a

permanent feature of the county’s planning scheme; rather, the DSSC label

will be replaced by appropriate land use categories as community plans are

developed. In contrast, zoning is intended to represent a considered, specific,

and lasting implementation of the broad statements of policy of the general

plan. (See Gov. Code, §§ 65302, 65800.) Section 5205’s requirement that an

area be “zoned” in a particular way contemplates the detailed land use

decisions reflected by zoning and not the broad and temporary designations of

a general plan, which amount only to a possibility of future rezoning for

commercial uses.

Id.

The California Supreme Court went on to conclude:

[T]he DSSC designation on the general plan, even combined with the DL zone

and site approval for a commercial activity, does not convert the area into a de

facto commercial zone. The designation is too imprecise to function effectively

as a type of zoning, nor was it intended to do so. Furthermore, allowing

billboards in DSSC’s without appropriate zoning does not comply with the

legislative intent of concentrating outdoor advertising in clusters of relatively

significant entrepreneurial endeavor.

Id. at 883-84.

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As the trial court correctly concluded, similar circumstances exist here – the Steve

Road PD carves out a small zone for commercial activity in an area otherwise zoned

residential/flood plain and agricultural/flood plain, and which is, in fact, heavily wooded and

undeveloped except for apartment buildings. Using the reasoning in United Outdoor

Advertising Co., the trial court concluded that 23 C.F.R. § 750.708(d) applies to the facts of

this case, because Petitioner’s proposed billboard locations were in a PDO, a land use

mechanism by which one may modify the comprehensive zoning regulations within a district

on a case by case basis. Thus, the court concluded, because the Commissioner of TDOT has

the responsibility to carry out the provisions of the Federal Highway Beautification Act, see

§§ 54-21-112 & 116, the billboard construction permits could not be issued, and TDOT

properly denied Petitioner’s applications.

The Resolution of the City of Memphis adopting the Steve Road PD provides that “the

planned development amendment is hereby granted to ‘allow Single Family Residential (R-

S6) District uses, including a day care center, limited Highway Commercial (C-H) District

uses, including mini-storage warehouses with outdoor storage and off-premise advertising

(billboard) sign[s] . . .’” For the foregoing reasons, we agree with the trial court’s conclusion

that Petitioner’s proposed billboard locations are in areas that are disqualified for billboard

construction by 23 C.F.R. § 750.708(d).

C. T HE P ROPOSED L OCATIONS ARE D ISQUALIFIED

In summation of our rulings in this section, we have concluded that the record

contains substantial and material evidence to support the finding that the proposed billboard

locations are in areas that are comprehensively zoned for “residential,” “agricultural” and

“flood plain uses,” as well as the finding that the Steve Road PD relied upon by Petitioner

limits his commercial activities to those incident to these primary land uses. Therefore, 23

C.F.R. § 750.708(d), the Billboard Regulation and Control Act of 1972, Tenn. Code Ann.

§§ 54-21-101 through -123, and Tenn. Comp. R. & Regs. 1680-2-3-.03(1)(a)1, prohibit

issuance of any of the billboard permits at issue.

O THER I SSUES R AISED BY P ETITIONER

As for the other issues raised by Petitioner that were not directly or indirectly

addressed in the foregoing analysis, we address them below.

A. S EPARATION OF P OWERS

Petitioner contends that TDOT violated the separation of powers doctrine of the

constitution of Tennessee when it, he contends, refused to recognize the “zoning” change

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made by the Steve Road PD as valid and lawful. We have determined these contentions lack

a factual or legal basis.

As discussed in the previous section of this opinion, pursuant to Tennessee Code

Annotated §§ 54-21-112 and -116, the Tennessee General Assembly directed the

Commissioner of TDOT to promulgate and enforce regulations necessary to carry out the

provisions of Tennessee’s Billboard Regulation and Control Act of 1972 and those of 23

U.S.C. § 131. Thus, by statute and as this court has held, the General Assembly assigned the

responsibility to determine whether proposed locations comply with state and federal law

before a permit may be issued. See Phillips v. Tenn. Dept. of Trans., No. M2006-00912-COA

-R3-CV, 2007 WL 1237695, at *8 (Tenn. Ct. App. Sep. 7, 2007). As for the erroneous

assertion that TDOT refused to accept the zoning established by Memphis and Shelby County

for the four locations at issue, the record reveals quite the contrary. TDOT accepted the

zoning to be exactly what it was, Multiple Dwelling Residential/Flood Plain, and

Agricultural/Flood Plain. Petitioner even acknowledges this fact, but he nevertheless

contends that the Steve Road PD changes everything. Although the PD permit authorizes

limited commercial activity, it does not change the zoning of the four locations to

commercial or industrial, and it does not alter TDOT’s responsibility regarding the

construction of billboards.

We, therefore, conclude that the facts of this case reveal that TDOT complied with

its responsibility without violating the separation of powers doctrine.

B. W AS A D ECLARATORY J UDGMENT A CTION R EQUIRED?

The foregoing notwithstanding, Petitioner argues a controversy exists because TDOT

refused to recognize Memphis and Shelby County’s “zoning.” He contends TDOT had an

affirmative duty to commence a declaratory judgment action to resolve the alleged zoning

controversy before it could lawfully deny the permit.

The purpose of a declaratory judgment action is “to resolve a dispute, afford relief

from uncertainty with respect to rights, status, and other legal relations,” Cannon Cnty. Bd.

of Educ. v. Wade, 178 S.W.3d 725, 730 (Tenn. Ct. App. 2005) (citing Snow v. Pearman, 436

S.W.2d 861, 863 (Tenn.1968); Tenn. Code Ann. § 29–14–103)). A justiciable controversy

must exist to commence or maintain a declaratory judgment action. State v. Brown &

Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000).

Although a direct action for declaratory judgment is available “to challenge the

validity, including the constitutionality, of an ordinance, or to determine whether an

ordinance applies,” State ex rel. Moore & Associates, Inc. v. West, 246 S.W.3d 569, 581

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(Tenn. Ct. App. 2005), a declaratory judgment action is not available to challenge the

administrative decision of a local administrator or board in “applying, enforcing, or executing

a zoning ordinance.” Id.

Whether the Steve Road PD qualifies Petitioner’s proposed locations for billboard

permits is an administrative decision TDOT is statutorily authorized and directed to make.

TDOT made the administrative decision that the PD permit did not create commercial or

industrial zoning for the purpose of constructing billboards thereon. Judicial review of

decisions of administrative agencies, when those agencies are acting within their area of

specialized knowledge, experience, and expertise, such as a decision by TDOT to grant or

deny a billboard permit, is governed by and limited to the review afforded by Tennessee

Code Annotated §§ 4-5-322 and -323.

TDOT has not attempted to declare the comprehensive zoning in the area – multiple

dwelling residential/flood plain and agricultural/flood plain – invalid. Further, TDOT has not

attempted to declare the Steve Road PD invalid. TDOT’s decision to deny the billboard

permits does not affect Petitioner’s ability to construct single-family homes, a daycare, or

mini-storage units. Accordingly, we find the assertion that a zoning controversy exists

between TDOT and Memphis and Shelby County is unfounded.5

For the foregoing reason we have concluded TDOT was not required to file a

declaratory judgment action to deny the permits requested by Petitioner.

C. D UE P ROCESS

Petitioner also contends his due process rights were violated during the administrative

proceedings because TDOT “failed to insulate the lawyers who prosecute cases involving

billboard cases [sic] from those who advise and represent the Commissioner in appeals

involving billboard cases.” In support of this assertion, he asks this court to review evidence

presented in a previous action between himself and TDOT, which involved different

billboard construction permit applications for different locations than those at issue today.

Petitioner’s claims in that action were dismissed by this Court in State ex rel. Comm’r of

Dept. Of Transp. v. Thomas, 336 S.W.3d 588, 608 (Tenn. Ct. App. 2010).

Petitioner is correct in his assertion that procedural due process in administrative

proceedings “demands a fair trial before a neutral or unbiased decision-maker,” as discussed

5

Petitioner makes similar arguments in support of his claim that the Davidson County Chancery

Court lacked subject matter jurisdiction over this action. Because we find TDOT was not required to file a

declaratory judgment action, we also find this claim is without merit.

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extensively in Martin v. Sizemore, 78 S.W.3d 249, 265 (Tenn. Ct. App. 2001). Due process

in administrative proceedings includes adequate notice of the proceedings, an opportunity

for a hearing in a meaningful manner, and an opportunity to obtain judicial review of the

agency’s decision. See id. at 267.

The administrative proceedings at issue were conducted pursuant to the Uniform

Administrative Procedures Act, Tennessee Code Annotated §§ 4-5-301 through -325, and

the record before us contains substantial and material evidence that supports TDOT’s

findings that Petitioner’s proposed locations for billboards violated state and federal zoning

requirements. Further, the evidence cited by Petitioner in his brief fails to establish otherwise.

Thus, we find no merit to the assertion that Petitioner’s due process rights were violated in

the administrative proceedings.

I N C ONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs of

appeal assessed against the Appellant, William H. Thomas, Jr.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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