Jerry Kittrell v. Wilson County, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 18, 2011 Session

JERRY KITTRELL v. WILSON COUNTY, TENNESSEE, ET AL.

Appeal from the Chancery Court for Wilson County

No. 09020 Charles K. Smith, Chancellor

No. M2010-00792-COA-R3-CV - Filed August 3, 2011

The owner of a piece of rural property in Wilson County applied for a “permissible use”

permit that would allow him to display vehicles for sale on the property. The County

planning staff recommended against issuance of a permit, reasoning that the proposed use

was not consistent with other uses permitted in an A-1 (agricultural) zoning district. The

owner appealed to the Board of Zoning Appeals, which agreed to issue the permit, but

limited the use to “no more than 10 serviceable items being on the property at any given

time.” The owner challenged the limitation by filing a petition for writ of certiorari in the

Wilson County Chancery Court. The court determined that the BZA had acted arbitrarily and

had exceeded its authority by placing a condition on the owner’s use of the property of a type

not contemplated by the controlling ordinance, and it removed that condition. We affirm the

removal of the condition, but we reverse the trial court’s holding that the BZA had violated

the property owner’s substantive due process rights.

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

Affirmed In Part, Reversed In Part

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.

C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.

Michael Ray Jennings, Lebanon, Tennessee, for the appellants, Wilson County, Tennessee

and the Wilson County Board of Zoning Appeals.

Michael W. Ferrell, Mt. Juliet, Tennessee, for the appellee, Jerry Kittrell.

OPINION

I. P ROCEEDINGS B EFORE THE B OARD OF Z ONING A PPEALS

Plaintiff Jerry Kittrell owned a 1.4 acre lot of irregular shape in a rural area of Wilson

County. The lot has road frontage on two of its opposite sides and was zoned A-1 for

agricultural use. Mr. Kittrell, who described himself as a retired home builder, had owned

the property for eleven years, but he had concluded that it was not suitable for a residence,

and he wanted to get some benefit from it. He asked the Wilson County Building Inspector

for permission to display vehicles for sale on the land, but permission was denied.

On November 4, 2008, Mr. Kittrell appealed the Building Inspector’s decision by

submitting an application for a permissible use permit to the Wilson County Board of Zoning

Appeals (BZA). The BZA planning staff declined to recommend approval of the application

because “the proposed use does not conform with the intent of the A-1 district and is not

permitted or permitted on appeal in this district nor is it similar to those allowed.”

Under the Wilson County Zoning Ordinances, a “permitted use” within a particular

zoning category is one that does not require approval by the BZA. Conversely, a “use

permissible on appeal” is one that is only allowed if the proposal for such a use is approved

by the BZA. The use proposed by Mr. Kittrell was not one of those specifically included in

the list of permissible uses on appeal in an A-1 district, but it possibly falls under the general

category of “other similar uses as reviewed and approved by the Board of Zoning Appeals.” 1

Mr. Kittrell’s application stated “Wish to use property occasional or ongoing use of

a portion of my property to display a trailer, any type vehicle, not to exceed farm equipment,

implement, RV and boats for sale.” He submitted a site plan, which included a semi-circular

driveway and a sales area, but no building on the property. His application was considered

during the regularly scheduled BZA meeting of November 21, 2008. The transcript of that

meeting includes lengthy discussions between the members of the Board and Mr. Kittrell as

to his intentions for the land.

1

Permitted uses in an A-1 district under the Wilson County Zoning Ordinance include farming, single

family housing, home occupations and roadside produce stands. Uses permissible on appeal and specifically

set out in the ordinance include aircraft landing fields, barber and beauty shops, bed and breakfast facilities,

cemeteries, churches, convenience markets, country clubs, daycare centers, service stations, golf courses,

schools, hospitals. libraries, nursing homes, and public recreational facilities.

-2-

Mr. Kittrell showed the BZA photographs of a number of enterprises located on

property near his own, including a grocery, a fire station, a septic tank storage lot, a tent for

firework sales, and a trailer sales lot which was directly across the road from his property.

He asserted that his proposal was not so different from what was already there. Several

citizens spoke in favor of Mr. Kittrell’s proposal, including the County Commissioner in

whose district the Kittrell property is located.

But several long-time homeowners in the area declared that they were opposed to any

further commercial uses near their property. They complained that they were already

burdened by the presence of the existing businesses near their homes and that Mr. Kittrell’s

proposal would increase their burden. Among other things, they stated that traffic associated

with those businesses raised legitimate safety concerns, including in particular dangers

arising from trucks pulling into their driveways to turn around.

The Board questioned Mr. Kittrell closely about his plans. He admitted that he wanted

to make a profit from selling vehicles, but declared that it was for the purpose of paying the

taxes on his property. He denied that he was interested in operating a business. He stated

instead that he enjoyed going to vehicle and farm equipment auctions and that for him, the

buying and selling of vehicles was “a part-time hobby.”

One Board member asked Mr. Kittrell how many vehicles he expected to sell from his

property. His first response was to minimize the scale of his plans: “It is such a small little

thing that I want to do, that there may be like a boat, or maybe one RV and one trailer, you

know, may sit over there or something.” But after further questioning as to the maximum

number of pieces of equipment he expected to have on the property at any one time, he

responded that “20 would be more than adequate for anything I could conceive right now.”

Another Board member stated that he wanted to avoid the possibility that a junkyard

or an automobile dealership might be put on the property, and he moved that Mr. Kittrell’s

proposal be approved with the stipulation “that there be no more than 10 vehicles, utility

trailers, farm equipment, boats or what have you at any one time on that property.” An

amendment was proposed that any items on the property be “serviceable and in a condition

ready to go.” The motion and amendment were approved by a vote of four to one.

II. T RIAL C OURT P ROCEEDINGS

Although the BZA had acted in a way that appeared to be favorable to Mr. Kittrell,

he nonetheless filed a Petition for Writ of Certiorari in the Chancery Court of Wilson County

on January 15, 2009, naming Wilson County and the Wilson County Board of Zoning

Appeals as defendants. He argued that no evidence was presented to the BZA to justify the

-3-

ten vehicle limitation it placed on his use of the property and that the Board’s action was

therefore arbitrary, capricious, illegal, and in violation of his constitutional rights to due

process. He also contended that since the owner of a nearby 5.41 acre property was allowed

to sell and service farm implements and utility trailers without limitations as to numbers, the

BZA’s action violated his constitutional right to equal protection under the law. The trial

court granted the petition and ordered that the record of the proceedings before the BZA be

sent up for review.

The defendants answered, asserting that the BZA had acted within its authority when

it limited to ten the number of vehicles that Mr. Kittrell could place on his property. They

also claimed that Mr. Kittrell had unclean hands, because shortly after the BZA approved his

permit, he parked a line of five trailers from tractor-trailer rigs end to end on his property,

and that no advertisements or signs were posted for the sale of the trailers. They accordingly

contended that Mr. Kittrell was using his property for a different purpose than they had

approved.

Mr. Kittrell argued, however, that if the BZA objected to his conduct, the proper

vehicle for its objection was an enforcement action, not the writ of certiorari proceeding

whose sole purpose was to determine whether the BZA had exceeded its authority or acted

arbitrarily, capriciously, or illegally in placing a condition on his permit. Plaintiff and

defendants both submitted pre-trial memoranda to which they attached copies of Wilson

County Zoning Ordinance 5.20.03, which regulates uses permissible on appeal.

A very brief hearing on the petition was conducted on March 11, 2010. The court

studied the files and the briefs of the parties, heard argument from both sides, and then

announced that the condition the BZA had placed on the use of Mr. Kittrell’s property was

beyond its authority. The court cited Section 5.20.03.1(2) of the zoning ordinance, which

states that “[a]ny use on appeal approved under this provision is subject to meeting additional

buffering, landscaping criteria, etc. as deemed necessary by the Board of Zoning Appeals to

insure harmony of character and to protect the general health, safety, and welfare of the

surrounding area.”

The court reasoned that because the condition imposed on Mr. Kittrell’s use of the

property had nothing to do with buffering or landscaping, it was not of a type contemplated

by the relevant ordinance. The court also declared that the BZA had violated Mr. Kittrell’s

constitutional due process rights. The court’s decision was memorialized in a final order,

which was entered on March 23, 2010. This appeal followed.

-4-

III. A NALYSIS

A. The Standard of Review

The proper method of review of a decision made by a board of zoning appeals, is

through a common law writ of certiorari. McCallen v. City of Memphis, 786 S.W.2d 633,

639 (Tenn.1990). See also Tenn. Code Ann. § 27–8–101. The scope of judicial review

under the common law of writ of certiorari is limited. Powell v. Parole Eligibility Rev. Bd.,

879 S.W.2d 871, 873 (Tenn. Ct. App. 1994); Yokley v. State, 632 S.W.2d 123, 126 (Tenn.

Ct. App. 1981).

The scope of review under a common law writ of certiorari is very narrow.2 The trial

court reviews the decision of the lower tribunal (here, the BZA) to determine whether the

decision maker exceeded its jurisdiction, followed an unlawful procedure, acted illegally,

arbitrarily, or fraudulently, or acted without material evidence to support its decision.

Petition of Gant, 937 S.W.2d 842, 844, (Tenn. 1996) (quoting McCallen v. City of Memphis,

786 S.W.2d at 638); Fallin v. Knox County Bd. of Com’rs, 656 S.W.2d 338, 342-43 (Tenn.

1983); Lafferty v. City of Winchester, 46 S.W.3d 752, 758-59 (Tenn. Ct. App. 2001); Hoover,

Inc. v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997).

In proceedings involving a common law writ of certiorari, illegal, arbitrary, or

fraudulent actions include: 1) the failure to follow minimum standards of due

process; 2) the misrepresentation or misapplication of a legal standard; 3)

basing a decision on ulterior motives; and 4) violating applicable constitutional

standards.

Harding Academy v. the Metropolitan Government of Nashville and Davidson County, 222

S.W.3d 350, 363 (Tenn. 2007) (citing Hoover, Inc. v. Metro Bd. of Zoning Appeals, 924

S.W.2d 900, 905 (Tenn. Ct. App. 1996)).

Application of a statute or ordinance to the facts is a question of law that is properly

addressed to the courts. Sanifill of Tenn., Inc. v. Tennessee Solid Waste Disposal Control Bd.,

907 S.W.2d 807, 810 (Tenn. 1995). As to issues of law, our review is de novo, with no

2

The trial court may not (1) inquire into the intrinsic correctness of the lower tribunal’s decision,

Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn.1997); Powell v. Parole Eligibility Rev. Bd.,

879 S.W.2d at 873; (2) reweigh the evidence, Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277

(Tenn. 1980); Hoover, Inc. v. Metro Bd. of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn. Ct. App. 1996); or

(3) substitute its judgment for that of the lower tribunal. 421 Corp. v. Metropolitan Gov’t of Nashville, 36

S.W.3d 469, 474 (Tenn. Ct. App. 2000).

-5-

presumption of correctness. Tenn. R. App. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 670

(Tenn. 2006); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

Similarly, the interpretation of a statute or ordinance is a question of law, which we review

de novo.

Zoning ordinances must be construed and applied “with some deference toward a

property owner’s right to the free use of his or her property.” Lions Head Homeowners’ Ass’n

v. Metro. Bd. of Zoning Appeals, 968 S.W.2d 296, 301 (Tenn. Ct. App. 1997). Courts will

seek to interpret a zoning ordinance in a way that is “most consistent with the ordinance’s

general purposes,” but any ambiguity will be resolved “in favor of the property owner’s right

to the unrestricted use of his or her property.” 421 Corporation v. Metropolitan Gov’mt of

Nashville and Davidson County, 36 S.W.3d at 475. Stated more forcefully, it has been held

that because zoning ordinances are an attempt to limit the use of land by a property owner,

they are in derogation of the common law, and, therefore, are to be strictly construed in favor

of the property owner. See Anderson County v. Remote Landfill Services, Inc., 833 S.W.2d

903, 909 (Tenn. Ct. App. 1991); Rogers Group, Inc. v. County of Franklin, No.

01A01-9110-CH-00378, 1992 WL 85805 at *8 (Tenn. Ct. App. Apr. 29, 1992) (no Tenn. R.

App. P. 11 application filed); see also Red Acres Improvement Club, Inc. v. Burkhalter, 241

S.W.2d 921, 923 (Tenn. 1951).

B. The Trial Court’s Conclusions as to the Scope of the BZA’s Authority

The BZA argues on appeal that a separate section of the Wilson County Zoning

Ordinance, 6.40.04(D), gave it the authority to place the disputed condition on Mr. Kittrell’s

use of his property. That regulation sets out the BZA’s powers and duties when it authorizes

uses permissible on appeal. The BZA has attached a copy of that regulation to its reply brief

on appeal, which states at 6.40.04(D)(3) that “[i]n the exercise of its approval, the Board of

Zoning Appeals may impose such conditions regarding the location, character, or other

features of the proposed use of land or buildings as it may deem advisable in the furtherance

of the general purpose of these regulations.”

Tennessee Rules of Evidence 202(a) requires our courts to take mandatory judicial

notice of certain laws, including “the constitutions and statutes of the United States and of

every state, territory and other jurisdictions of the United States.” The courts may also take

judicial notice of other rules, laws, ordinances and treaties, but these are listed in Tennessee

Rules of Evidence 202(b) under the rubric of “Optional Judicial Notice of Law.” The rule

states that “[u]pon reasonable notice to adverse parties, a party may request that the court

take, and the court may take, judicial notice of . . . all duly enacted ordinances of

municipalities or other governmental subdivisions.”

-6-

During the certiorari proceeding, the BZA never informed Mr. Kittrell that it intended

to rely on Wilson County Zoning Ordinance Regulation 6.40.04(D) and it never submitted

a copy of that ordinance to the trial court. Further, no duly authenticated copy of the

ordinance appears in the appellate record. Review under the common law writ of certiorari

is generally limited to the record made before the lower tribunal or board. See 27-9-111(b);

Jeffries v. Tennessee Dept. of Correction, 108 S.W.3d 862, 877 (Tenn. Ct. App. 2002); 421

Corp. v. Metro. Gov’t of Nashville & Davidson County, 36 S.W.3d at 474.

Because Regulation 6.40.04(D) is relevant to the question of the scope of the BZA’s

jurisdiction, the trial court could have considered it if it had been introduced at trial. But the

BZA did not introduce that regulation at trial, and the trial court therefore did not have the

opportunity to consider it. We decline to consider the ordinance now proffered as an

attachment to a party’s brief but not furnished to the trial court. This court is not required

to grant relief to a party “responsible for an error, or who failed to take whatever action was

reasonably available to nullify the effect of an error.” Tenn. R. App. P. 36(a).

The only evidence presented to the trial court as to the scope of the BZA’s authority

was Zoning Ordinance 5.20.03. We agree with the trial court that that provision does not

authorize the type of condition imposed by the BZA in this case. We therefore affirm the

trial court’s determination that the BZA exceeded its jurisdiction in limiting the number of

vehicles that Mr. Kittrell could place in the sales area of his property.

C. The Question of Substantive Due Process

We do not agree with the trial court, however, that the BZA violated Mr. Kittrell’s

substantive due process rights under the Fourteenth Amendment of the United States

Constitution. Such a violation can only occur when a party is deprived of a constitutionally

protected right under circumstances that are highly unusual. Actions premised on violations

of substantive due process are designed “to protect against acts of governmental officials that

are so far beyond the outer limits of legitimate governmental action that no amount of

process could cure the deficiency.” Parks Properties v. Maury County, 70 S.W.3d 735, 744

(Tenn. Ct. App. 2001) (holding that the developers of a commercial warehouse project did

not have a constitutionally-protected property interest such that an erroneous refusal to grant

them a building permit constituted a violation of their substantive due process rights). See,

also, Haskins v. City of Chattanooga, 877 S.W.2d 267, 269 (Tenn. Ct. App. 1993) (holding

that substantive due process only protects rights that can be ranked as fundamental).

In this case, the BZA was authorized to grant or to deny applications for uses

permissible on appeal. Mr. Kittrell’s proposal was for a use that was not even specifically

listed in the relevant ordinance. Thus, he did not have a constitutionally protected property

-7-

interest in receiving a permit. We see no reason why the imposition of a condition on that

permit might generate such a right. Further, any interest he may have had in using his

property certainly did not rise to the level of “fundamental right.”

Substantive due process violations only occur when governmental actors engage in

deliberate conduct intended to injure in some way that cannot be justified by any

governmental interest. Parks Properties v. Maury County, 70 S.W.3d at 744. Erroneous,

mistaken or even negligent action by government officials does not, by itself, justify a finding

that a party has been deprived of his rights to substantive due process. Id. There was no

evidence in this case that the BZA was trying to injure Mr. Kittrell in any way. The

transcript indicates, rather, that the members of the Board were trying to harmonize Mr.

Kittrell’s desire to establish a productive use for his property with the legitimate concerns of

his neighbors. We therefore reverse the trial court’s holding that the BZA violated Mr.

Kittrell’s substantive due process rights.

IV.

The judgment of the trial court is affirmed in part, and reversed in part. We remand

this case to the Chancery Court of Wilson County for any further proceedings necessary. Tax

the costs on appeal to the appellants, Wilson County, Tennessee and the Wilson County

Board of Zoning Appeals.

_________________________________

PATRICIA J. COTTRELL, JUDGE

-8-