The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
LEE SIMMONS and wife, JULIA )
SIMMONS, )
)
Plaintiffs/Appellants, ) Henderson Chancery No. 11897
)
VS. ) Appeal No. 02A01-9810-CH-00282
)
CITY OF LEXINGTON, TENNESSEE; )
CITY OF LEXINGTON BOARD OF
ZONING APPEALS, TOWNSEND
)
)
FILED
PLUMBING & ELECTRIC COMPANY, )
LYMAN TOWNSEND, LYNN ) August 27, 1999
TOWNSEND, and BARRY )
TOWNSEND, Individually and d/b/a ) Cecil Crowson, Jr.
TOWNSEND PLUMBING & ELECTRIC ) Appellate Court Clerk
COMPANY; and LYNN TOWNSEND )
and wife, ELAINE TOWNSEND, )
)
Defendants/Appellees. )
APPEAL FROM THE CHANCERY COURT OF HENDERSON COUNTY
AT LEXINGTON, TENNESSEE
THE HONORABLE JOE C. MORRIS, CHANCELLOR
ROBERT B. VANDIVER, JR.
LAW OFFICE OF T. VERNER SMITH
Jackson, Tennessee
Attorney for Appellant
PAUL F. RICE
UTLEY & LATIMER, P.C.
Jackson, Tennessee
Attorney for Appellees, Townsend Plumbing &
Electric Company, Lyman Townsend, Lynn Townsend
and Barry Townsend, Individually and d/b/a Townsend
Plumbing & Electric Company, Lynn Townsend and
Elaine Townsend
KENNETH L. WALKER
WALKER LAW OFFICE
Lexington, Tennessee
Attorney for Appellee, City of Lexington, Tennessee
REVERSED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
The trial court granted Defendants’ Lyman, Barry, Lynn and Elaine Townsend,
individually and d/b/a Townsend Plumbing and Electric, (“Townsends” or “Appellees”)
Motion for Summary Judgment, thereby dismissing the complaint of Plaintiffs Lee and Julia
Simmons (“Simmonses” or “Appellants”) and allowing Townsends to continue construction
on the property located at 158 Huntsman Avenue and operate their commercial plumbing
and heating business from said property.
I. Factual and Procedural History
The Simmonses own a house and lot located at 146 Huntsman Avenue in
Lexington, Tennessee. Next door to the Simmonses’ residence at 158 Huntsman Avenue,
lies the property at issue in this case, a lot upon which sits a 24x30 building. This case
involves the actions of Lynn and Barry Townsend d/b/a Townsend Plumbing & Electric, in
purchasing the property, constructing an addition onto the building that more than tripled
the square footage of the building, and moving their commercial plumbing and heating
business into the enlarged building on the property.
The property at 158 Huntsman has been in commercial use since 1947. In 1959 the
City of Lexington enacted a comprehensive zoning ordinance and the lot at 158 Huntsman
became R-2 property. At that time, the lot and building at issue were owned by Troy and
Florence Maxwell, who operated a woodworking shop and sold bee-keeping supplies from
the building located on the property. With the passage of the zoning ordinance, the use of
the building became a “legal, non-conforming” use. Ownership of the property passed
through several hands before it was purchased by Lynn and Elaine Townsend on January
18, 1997.
Lyman Townsend, father of Lynn and Barry Townsend, originally did business as
Townsend Plumbing and Heating until his sons took over the business in 1991. Lyman
Townsend lives at 181 Huntsman Avenue (across the street from the property next door
to Simmonses) and originally operated the business from his home. The Townsend
business leased the 158 Huntsman property around 1967 and used it for storage. Lyman
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Townsend was issued a business license to conduct business from his home at 181
Huntsman in 1973 and maintained that license until November of 1991. In July of 1991,
Lynn and Barry Townsend d/b/a Townsend Plumbing and Electric were issued a business
license at the 181 Huntsman address and have continually renewed the license to the
present time.
On or about July 7, 1997, Lynn Townsend applied for and was granted a building
permit to build a “shop on to a shop” at the 181 Huntsman address. However, the
Townsends began construction of and enlargement onto the building located at 158
Huntsman. (It should be noted that the property at issue here did not have a formal
address until 1997 when the area received 911 service).
After construction began complaints were made to the City of Lexington.
Construction was halted and a Board of Zoning Appeals meeting was held on July 30,
1997. The Simmonses attended the meeting with their attorney, along with other neighbors
and members of the public. The attorney for Lynn Townsend d/b/a Townsend Plumbing
and Heating made a presentation to the Board concerning the proposed construction. The
Board recessed and considered written briefs from both sides before reconvening in
August, 1997. After seeking a legal opinion letter from the City Attorney, the Board
ultimately approved the building permit and allowed construction to continue.
On October 23, 1997 the Simmonses filed a complaint in Chancery Court seeking
to stop construction on the property and permanently enjoin the Townsends from operating
their commercial business from the enlarged building on the property. Appellants contend
that Tenn. Code Ann. §13-7-208(a)(2), provides original jurisdiction in the Chancery Court
for contesting issuance or denial of a building permit. Appellants contend they were entitled
to file an original action, conduct full discovery and to put on a de novo trial on the merits.
The trial court treated the case as one of review on certiorari, evidenced by the
Chancellor’s refusal to allow discovery of matters that should have been presented to the
Board of Zoning appeals and by language in the final order. In the appeal before this Court,
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the Appellees contend that the Chancellor should have dismissed the Complaint for failure
to state a claim upon which relief could be granted, or alternatively that the Chancellor was
correct in treating the Simmonses’ complaint as an appeal on writ of certiorari.
Defendants Elaine and Lynn Townsend filed a Motion for Summary Judgment and
a memorandum in support thereof and Lyman and Barry Townsend filed a motion to join
in that motion. The Simmonses also filed a Motion for Summary Judgment. A hearing was
held on July 9, 1998 and the trial court granted the Defendants’ Motion for Summary
Judgment. The Simmonses then timely filed this appeal.
II. Writ of Certiorari v. Injunction or Mandamus
Tennessee Code Annotated §13-7-208 allows certain uses to continue as “non-
conforming” uses if these uses existed immediately prior to zoning. Tenn. Code Ann. §13-
7-208(a)(2) sets forth the remedy to be followed when there is a violation of the statute:
(2) In case any building or structure is or is proposed to be
erected, constructed, reconstructed, altered, converted or
maintained, or any building, structure or land is or is proposed
to be used in violation of any ordinance enacted under this part
and part 3 of this chapter, the building commissioner,
municipal counsel or other appropriate authority of the
municipality, or any adjacent or neighboring property owner
who would be specially damaged by such violation, may, in
addition to other remedies, institute injunction, mandamus or
other appropriate action or proceeding to prevent such
unlawful erection, construction, reconstruction, alteration,
conversion, maintenance or use, or to correct or abate such
violation, or to prevent the occupancy of the building, structure
or land.
Tenn. Code Ann. § 13-7-208(a)(2) (emphasis added).
The Simmonses followed this procedure by filing their complaint entitled ”Complaint
for Permanent Injunction and Alternatively Petition for Writ of Mandamus; and Additionally,
Complaint to Abate Nuisance.” The Townsends argued that a Writ of Certiorari is the only
route that the Simmonses could or should have taken. The Townsends cite case law
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stating the proper procedure for reviewing decisions of local boards of zoning appeals is
the common-law writ of certiorari. Fallin v. Know County Board of Commissioners, 656
S.W.2d 338 (Tenn. 1983); McCallen v. City of Memphis, 786 S.W.2d 633 (Tenn. 1990).
The Townsends contend that the language in Tenn. Code Ann. §13-7-208(a)(2)
does not create original jurisdiction in the Chancery Court over matters previously decided
by administrative agencies. They argue that under the Simmonses’ view, there would be
no need for the various Boards of Zoning Appeals that the Legislature has authorized and
that the judiciary would usurp the authority vested in the local electorate and violate the
doctrine of separation of powers.
We do not agree that by allowing any adjacent or neighboring property owner who
would be specially damaged by such violation to file a complaint in the trial court, there
would be no need for the various Boards of Zoning Appeals. Our inspection of many zoning
cases involving Boards of Zoning Appeals reveals that many such cases are cases in
which a property owner has been denied a building permit because of zoning ordinances
and the party being denied the permit appeals the decision, See Chadwell v. Know County,
980 S.W.2d. 378 (Tenn.App. 1998), or the grant of a building permit is opposed by outside
parties. See Lions Head Homeowner’s v. Metropolitan Bd. of Zoning Appeals, 968 S.W.2d
296 (Tenn.App. 1997).
Nor would allowing such a complaint to be filed usurp the authority vested in the
local electorate and violate the doctrine of separation of powers. The Legislature has given
any adjacent or neighboring property owner who would be specially damaged by such
violation, in addition to other remedies, the specific remedy of injunction, mandamus or
other appropriate action or proceeding to prevent such unlawful erection, construction,
reconstruction, alteration, conversion, maintenance or use, or to correct or abate such
violation, or to prevent the occupancy of the building, structure or land. Tenn. Code Ann.
§13-7-208(a)(2).
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Townsend Plumbing & Electric was issued a building permit allowing them to
construct a building on Huntsman Avenue. According to the record of the Board of Zoning
Appeals hearing, after the permit was issued, there were some calls, questions, or
complaints voiced to the city fathers. They assessed the situation and felt that before there
was any further action on the building construction, the Board should have an opportunity
to look at it. The Board then issued public notices for a Board of Zoning Appeals meeting.
The Simmons attended the meeting with their attorney, along with other neighbors and
members of the public.
The Board of Zoning Appeals hearing was not a forum choice that was made by the
Simmons. They Simmons appeared at the public hearing, along with other concerned
neighbors. As the Simmons were particularly affected by the construction, they brought
along an attorney to represent their interest. It must also be pointed out that there are no
discovery procedures or pleadings in front of the Board of Zoning Appeals. Although the
Simmons were aware that there was construction occurring on the property next door to
them, they knew nothing else about the history of the property or the Lexington Zoning
Ordinances until the July 30, 1997 hearing.
While it is true that the proper procedure for reviewing decisions of local boards of
zoning appeals is the common-law writ of certiorari, Tenn. Code Ann. § 13-7-208(a)(2)
specifically allows certain parties, namely the building commissioner, municipal counsel or
other appropriate authority of the municipality, or any adjacent or neighboring property
owner who would be specially damaged by such violation, in addition to other remedies,
to institute injunction, mandamus or other appropriate action or proceeding to prevent such
unlawful construction.
In construing statutes, we must assume that the legislature used each word in the
statute purposely, and that the use of these words conveys some intent and has a meaning
and purpose. Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998). Where words of the
statute are clear and plain and fully express the legislature's intent, there is no room to
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resort to auxiliary rules of statutory construction. Id. The provisions of Tenn. Code Ann.
§13-7-208 allowing a neighbor to institute injunction, mandamus or other appropriate are
clear and should be enforced as written. Moreover, Tenn. Code Ann. was amended in
1973 to add the grandfather language, while leaving the injunction/mandamus remedy.
This further strengthens our opinion that the legislature intended to leave the specific
remedy of injunction and mandamus, “in addition to other remedies,” available to
neighboring landowners who are involved in disputes governed by Tenn. Code Ann. §13-
7-208.
The Townsends urged the trial court to find that the Simmonses’ only remedy was
a writ of certiorari. The scope of review, and that of the trial court, under a common law writ
of certiorari, is to determine whether the Board exceeded its jurisdiction, followed unlawful
procedure, acted arbitrarily or capriciously or acted without material evidence to support
its decision. Hemontolor v. Wilson County Board of Zoning Appeals, 883 S.W.2d 613, 616
(Tenn.App.1994). In its final order, the trial court agreed with the Townsends and found
that its inquiry was limited to whether or not the agency, in this case, the Lexington Board
of Zoning Appeals, acted arbitrarily, capriciously or illegally. The trial court further found
that its review was bound by the material evidence rule and found from the record
presented that the Lexington Board of Zoning Appeals did not act illegally, capriciously or
arbitrarily.
For all of the aforementioned reasons, we find that the trial court erred in treating
the Simmonses’ Complaint as a writ of certiorari and limiting the evidence to the record
before the Board of Zoning Appeals.
The trial court did not consider any additional evidence in ruling on the summary
judgment motions of the parties, finding that Simmonses’ complaint should be treated as
a writ of certiorari. However, during the trial court hearing on the application for temporary
injunction, additional evidence was brought out regarding the dates on which the zoning
legislation was passed and the date upon which the Townsends began using the subject
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property. The trial court considered this additional evidence in ruling on the temporary
injunction application.
The additional evidence set forth the following facts. On June 2, 1959 the City of
Lexington adopted zoning ordinances which zoned the Huntsman Avenue area as R-2
Residential. The evidence establishes that Mr. and Mrs. Troy Maxwell owned the subject
property next door to the Simmonses on June 2, 1959, and operated a woodworking shop
and sold bee-keeping supplies from the building located on the property. Thereafter,
according to the Answer of Lynn and Elaine Townsend, Townsend Plumbing & Electric
Company began the operation of its business from 181 Huntsman Avenue (at the home
of Lyman Townsend). In the mid-60's, Lyman Townsend leased a building located across
the street from his residence, on the subject property and began using the building for
storage for a heating, plumbing, and electrical business. The Townsend’s connection with
the subject property did not begin until after the passage of the zoning ordinances.
Tennessee Code Annotated §13-7-208 allows certain uses to continue as “non-
conforming” uses if these uses existed immediately prior to zoning.
§13-7-208 Ordinances; enforcement; penalty for violation;
remedies
(b) In the event that a zoning change occurs in any land area
where such land area was not previously covered by any
zoning restrictions of any governmental agency of this state or
its political subdivisions, or where such land area is covered by
zoning restrictions of a governmental agency of this state or its
political subdivisions, and such zoning restrictions differ from
zoning restrictions imposed after the zoning change, then any
industrial, commercial or business establishment in operation,
permitted to operate under zoning regulations or exceptions
thereto prior to the zoning change shall be allowed to continue
in operation and be permitted; provided, that no change in the
use of the land is undertaken by such industry or business.
(e) The provisions of subsections (b)-(d) apply only to land
owned and in use by such affected business, and do not
operate to permit expansion of an existing industry or business
through the acquisition of additional land.
The Lexington ordinance, Section 11-202, is very similar in its effect and states that
lawful non-conforming uses, buildings and structures existing at the time of the passage
of this ordinance or any amendment thereto shall be allowed to remain, subject to certain
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provisions. Unlike Tenn. Code Ann. §13-7-208, Section 11-202 states that an existing non-
conforming use of a building or land may be changed to a conforming use or to another
non-conforming use of the same classification or a classification less detrimental to the
district in which it is located.
Under the language of the Tennessee statute, Mr. Maxwell’s business use of the
property and structure as a bee-keeping facility and woodworking shop would have been
“grandfathered in” and allowed to continue as a legal non-conforming use. However, no
other such use would be allowed this right. Under the less restrictive provision found in
Section 11-202 of the Lexington Zoning Ordinances, the leasing of the subject premises
to the Townsends for the purpose of storage of heating and plumbing materials, while not
another non-conforming use of the same classification, might qualify as a classification less
detrimental to the district in which it is located.
However, even If the Townsends’ use of the premises for storage qualified as less
detrimental under the Lexington ordinance, the inquiry does not stop there. The
Townsends and Simmonses seem to agree that the subject property was used by the
Townsends for storage up until the issuance of the new building permit. However, the
Simmonses now contend that after construction on the property was completed in early
1998, the Townsends began full-scale operation of their commercial heating, plumbing,
and air-conditioning business from this property. Employees of the business come and go
on a daily basis. Townsend Plumbing & Electric regularly receives deliveries of heating and
air conditioning units via tractor-trailer trucks to the property, literally in the middle of a
residential neighborhood. Because the property is not big enough to accommodate the
tractor-trailer trucks, the trucks are unloaded in the street by a backhoe. A picture of the
unloading procedure is contained in the record. The property also contains an office and
a phone and is the only place from which Townsend Plumbing & Electric does business.
The trial court must determine if such a use of the property is a classification less
detrimental to the district in which it is located than Mr. Maxwell’s original business use of
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the property and structure as a bee-keeping facility and woodworking shop. If the trial court
finds that the Townsends’ use of the property is a legal non-conforming use, the trial court
will then have to decide whether Tenn. Code Ann. § 13-7-208 and Lexington Ordinance
Section 11-202 permit the Townsends to expand operations and construct additional
facilities on the subject property.
For all the forgoing reasons we find that the trial court erred in granting summary
judgment in favor of the Townsends. We therefore reverse and remand this case to the
trial court for further proceedings consistent with this opinion.
III. Conclusion
The judgment of the trial court is hereby reversed and remanded for further
proceedings consistent with this opinion. Costs of this appeal are taxed to Appellees, for
which execution may issue if necessary.
HIGHERS, J.
CONCUR:
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CRAWFORD, P.J., W.S.
FARMER, J.
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