Gary Finley v. Marshall County

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 17, 2015 Session

GARY FINLEY v. MARSHALL COUNTY, ET AL.

Appeal from the Chancery Court for Marshall County

No. 016507 J. B. Cox, Chancellor

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No. M2015-00313-COA-R3-CV – Filed January 20, 2015

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Property owner sought recognition that his property had a nonconforming use as a rock

quarry. We have determined that the property owner‘s previous appeal before the board of

zoning appeals, for which he did not file a petition for writ of certiorari in chancery court, is

res judicata as to the present matter.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR.,

P.J., M.S., and RICHARD H. DINKINS, J., joined.

John Cordwell, II, Nashville, Tennessee, for the appellant, Gary Finley.

Barbara G. Medley, Lewisburg, Tennessee, for the appellee, Marshall County, Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Gary Finley owns property located at 2100 Caney Springs Road in Marshall County

(―the County‖). In 1989, prior to Mr. Finley‘s ownership of the property, the County enacted

zoning restrictions, and the property at issue was classified as A-1 Agriculture-Forestry.

In 2007, Don Nelson, the county zoning administrator, denied Mr. Finley‘s request to

have his property recognized as having a nonconforming use as a rock quarry, in other words,

to have his property ―grandfathered in.‖ Mr. Finley appealed this denial to the board of

zoning appeals (―BZA‖), which considered the matter at its meeting on August 21, 2007.

The matter was eventually moved to the next meeting, on September 25, 2007, at which the

BZA took up Mr. Finley‘s request again. At the October, 16, 2007 meeting, the BZA voted

unanimously to deny Mr. Finley‘s request for grandfathered status. Mr. Finley did not file a

petition for writ of certiorari to the chancery court.

In September 2011, Mr. Finley submitted additional documentation to the zoning

administrator, Mr. Nelson, and again sought to have the property recognized as having a non-

conforming use. Mr. Nelson denied Mr. Finley‘s request for grandfathered status.

Mr. Finley appealed the zoning administrator‘s decision to the BZA, which heard the

appeal at its November 15, 2011 meeting. After a hearing and deliberation by the BZA, the

BZA decided that the information provided by Mr. Finley had failed to establish proof of a

preexisting nonconforming use. The BZA voted unanimously to affirm Mr. Nelson‘s

decision. Mr. Finley filed a petition for writ of certiorari in the chancery court on April 12,

2012. On November 7, 2012, the court entered an agreed order whereby the parties agreed to

remand the case back to the BZA for the BZA to meet on November 13, 2012 to reconsider

Mr. Finley‘s request. The trial court dismissed the case with prejudice.

At the November 13, 2012 hearing, the BZA met again to consider Mr. Finley‘s case.

The BZA voted unanimously to let its 2007 decision and its November 2011 decision stand.

On January 14, 2013, Mr. Finley filed the petition for writ of certiorari at issue in the present

appeal. He asserted that the decision of the BZA was ―illegal, arbitrary, and capricious‖ and

that ―no other plain, speedy, or adequate remedy [was] available.‖ The clerk and master

issued the writ of certiorari, and the County filed the administrative record.

The case was heard on October 30, 2014, at which point both sides had the

opportunity to argue their positions before the chancellor. The trial court entered a

memorandum opinion on December 12, 2014 in which it made findings of fact and

conclusions of law. The court reviewed the case under the common law writ of certiorari,

codified at Tenn. Code Ann. § 27-8-101. In determining whether the BZA‘s decision not to

reopen the case was arbitrary, the trial court went through the following analysis:

First, did the BZA follow minimum standards of due process in its

consideration of the matter on remand? The BZA published a public hearing.

The BZA allowed input from interested parties and the public at large at the

public hearing . . . . The BZA closed the public hearing and addressed the

request at its meeting that occurred after the public hearing. At that meeting

the BZA took the time to review the matter that was previously reviewed in

2011 and take into consideration the other affidavits presented by Mr. Finley.

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The BZA heard from Mr. Finley‘s counsel who was given ample opportunity

to address the issue. The Court cannot say that Mr. Finley did not enjoy

minimum due process.

Secondly, did the BZA misrepresent or misapply a legal standard? The

BZA addressed burden of proof in its hearing and had previously addressed it

with Mr. Finley. There is no evidence in the record that they misapplied or

misrepresented an applicable legal standard.

Thirdly, was the decision of the BZA based on ulterior motives? It is

clear from the record that the BZA was tired of seeing Mr. Finley on this

particular issue. Had they chosen to wholeheartedly refuse to review his

request, there would be a basis to believe that they had an ulterior motive.

That is not what occurred here. There is no indication in the record that there

was an ulterior motive to deny the request.

Lastly, did the BZA violate applicable constitutional standards in

conducting its review? The answer to that is clearly in the negative. The BZA

took an explanation from counsel as to their role in considering Mr. Finley‘s

request. These instructions included an admonition to look at the request with

fresh eyes. Will Wilson asked for clarification of the question and indicated

that he was considering whether the new information presented in 2011 would

change the board‘s mind about its previous decision.

Mr. Nelson took the time to explain the decision that he reached in 2011

and he went through the packet of information page by page so the BZA could

consider it. The record also reflects that the BZA took the time to review the

prior record presented in the 2011 hearing and that [County] Attorney Shofner

had requested that the BZA review the record relied upon by Mr. Dalton on

behalf of Mr. Finley. The BZA took the time to review that record, apparently

at length.

Was the BZA the most artful in its approach to once again reviewing

the proof, probably not, but that is not the standard. The standard is whether

there is material evidence in the record to support the decision of the BZA. It

is clear to this Court that the BZA took the time and effort required under law

and consistent with its agreement to reconsider the matter and in fact did fully

and painstakingly reconsider the matter. The BZA‘s decision about whether to

allow a grandfathered status for Mr. Finley was a product of considering all of

the evidence from the 2011 hearing plus the public hearing materials from the

2012 public hearing.

This record is devoid of a single piece of evidence that will relate the

operation of the quarry, as a quarry, to the relevant time frame when the

ordinance was put in place. Later proof of activity outside the ordinance

notwithstanding, there is no evidence relating back to there being an active

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quarry in operation that had not been abandoned in 1989. The BZA is free to

weigh the credibility of the witnesses it has before it and the Court may not

substitute its judgment for the judgment of the BZA. More than one (1)

witness testified that there had been some quarrying activity ongoing since

1998. At least one (1) witness testified that there had not been quarrying

activity there since the 1970‘s. Other witnesses testified that they had never

seen any quarrying activity going on. No witness testified that quarrying was

occurring in 1989 or for any relevant time period to the BZA‘s inquiry until the

mid 90‘s.

The trial court found material evidence to support the BZA‘s decision and therefore

upheld that decision. In an order entered on January 14, 2015, the trial court decreed that the

decision of the Marshall County BZA, ―made at its November 13, 2012, meeting, to deny

[Mr. Finley‘s] request for recognition as a legal nonconforming (―grandfathered‖) use as a

rock quarry on his property located at 2100 Caney Springs Road, Chapel Hill, Marshall

County, Tennessee, is hereby upheld.‖ Mr. Finley appeals from that decision.

ISSUES ON APPEAL

Mr. Finley has raised a myriad of issues on appeal. We find that these issues can be

summarized as follows: (1) Whether the trial court erred in failing to apply the statutory writ

of certiorari instead of the common law writ of certiorari; (2) whether the BZA applied an

incorrect legal standard—regarding the burden of proof or the interpretation of certain legal

terms—in its consideration of Mr. Finley‘s case; (3) whether the BZA deprived Mr. Finley of

due process; (4) whether the trial court erred in finding that the record contained material

evidence to support the decision of the BZA; and (5) whether the trial court erred in finding

that the BZA decision was not based on ulterior motives. Mr. Finley further seeks an award

of attorney fees pursuant to Tenn. Code Ann. §§ 29-37-101–29-37-106, the Equal Access to

Justice Act of 1984.

The BZA argues that the trial court did not have subject matter jurisdiction to hear this

case. In our view, the issue is better stated as whether the 2007 decision of the BZA is res

judicata as to the present case.

ANALYSIS

Under Tennessee law, ―[t]he doctrines of res judicata and collateral estoppel are

applicable to give conclusive effect to quasi-judicial determinations of administrative

agencies.‖ Morris v. Esmark Apparel, Inc., 832 S.W.2d 563, 566 (Tenn. Ct. App. 1991); see

Sullivan v. Wilson Cnty., No. M2011-00217-COA-R3-CV, 2012 WL 1868292, at *10 (Tenn.

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Ct. App. May 22, 2012) (recognizing Morris as source of res judicata and collateral estoppel

rules regarding administrative decisions in Tennessee). As long as ―‗an administrative

agency is acting in a judicial capacity and resolves disputed issues of fact properly before it

which the parties have had an adequate opportunity to litigate, the courts have not hesitated

to apply res judicata to enforce repose.‘‖ Morris, 832 S.W.2d at 566 (quoting United States

v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)).

When is an administrative agency acting in a quasi-judicial or judicial capacity? This

depends upon whether the agency‘s actions are legislative or administrative. The test for

determining whether a governmental action is legislative or administrative in nature is

―whether it ‗makes new law or executes one already in existence.‘‖ State ex rel. Moore &

Assoc., Inc. v. West, 246 S.W.3d 569, 575 (Tenn. Ct. App. 2005) (quoting McCallen v. City

of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990)). The ―action by a board of zoning of

appeals is an administrative rather than a legislative act‖ because it executes an existing law

rather than making a new law. Weaver v. Knox Cnty. Bd. of Zoning Appeals, 122 S.W.3d

781, 783-84 (Tenn. Ct. App. 2003). In this context, the ―term ‗administrative is used

interchangeably with judicial or quasi-judicial.‘‖ Id. at 784 (quoting McCallen, 786 S.W.2d

at 638). Decisions by a board of zoning appeals are quasi-judicial decisions ―that involve

applying the facts of the situation before the board to the applicable ordinance or

requirement, i.e., enforcing, applying, or executing a law already in existence.‖ State ex rel.

Moore, 246 S.W.3d at 576.

The doctrine of res judicata applies to the determinations of administrative agencies

―acting in a quasi-judicial capacity‖ when the following conditions are met:

(1) the issues decided in adjudicative proceedings are identical; (2) the prior

adjudication resulted in a judgment on the merits; (3) the proceedings involve

the same parties; and (4) the parties had a full and fair opportunity to litigate

the issue in the prior proceeding.

Wayman v. Transp. Licensing Comm’n of Metro. Gov’t of Nashville & Davidson Cnty., No.

M2009-01360-COA-R3-CV, 2010 WL 1293796, at *3 (Tenn. Ct. App. Apr. 5, 2010) (citing

Mangrum v. Wal-Mart Stores, Inc., 950 S.W.2d 33, 36 (Tenn. Ct. App. 1997)). The general

rule concerning the application of the doctrine of res judicata to decisions by administrative

boards has been summarized as follows:

Like a judgment of a court, an administrative adjudication is res judicata or

conclusive between the same parties on the same cause of action not only as to

all matters litigated, but as to all matters which could have been litigated in the

proceeding with respect to such cause. An administrative decision denying or

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dismissing a party‘s claim on the merits precludes such party from obtaining,

in a judicial proceeding not designated for review of the administrative

decision, the relief denied by the administrative agency, whether upon the

same ground as urged in the administrative proceeding, or upon another

ground. An administrative decision granting a party the relief asked for

prevents such a party from obtaining additional relief in a judicial proceeding

upon the same ground.

Purcell Enters., Inc. v. State, 631 S.W.2d 401, 407 (Tenn. Ct. App. 1981) (quoting 2 AM.

JUR. 2D Administrative Law § 502 (1962)).

The question in the present case, then, is whether the October 2007 BZA decision is

res judicata with respect to the present case. The issue before the BZA in 2007 was whether

Mr. Finley‘s property had a non-conforming use as a rock quarry, or was grandfathered in,

pursuant to Tenn. Code Ann. § 13-7-208(b)(1), which provides:

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.

Tennessee Code Annotated section 13-7-208(g) specifies that subsection (b) shall not apply if

the establishment ―ceases to operate for a period of thirty (30) continuous months and the

industrial, commercial, or other business use of the property did not conform with the land

use classification as denoted in the existing zoning regulations . . . .‖ The burden of proof is

upon the party seeking the protection of the grandfather statute. B.F. Nashville, Inc. v. City

of Franklin, No. M2003-00180-COA-R3-CV, 2005 WL 127082, at *12 (Tenn. Ct. App. Jan.

21, 2005) (citing Coe v. City of Sevierville, 21 S.W.3d 237, 243 (Tenn. Ct. App. 2000)).

Thus, in order to qualify as having a non-conforming use, Mr. Finley had to show that the

property was used as a rock quarry prior to the enactment of the zoning ordinance in 1989

and that the use continued without any cessation of thirty continuous months.

After Mr. Nelson denied Mr. Finley‘s initial request to have his property recognized as

having a non-conforming use in 2007, Mr. Finley appealed to the BZA, which first

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considered his appeal on August 21, 2007. Mr. Finley‘s attorney provided the BZA with

―written documents and displayed photographs of the quarry.‖ During the public hearing,

one of the BZA members brought to the attention of Mr. Finley‘s attorney documents

evidencing a previous lessee of the property having been denied a rezoning request to operate

as a quarry by the Marshall County Planning Commission in August 2000; and a previous

sale contract (dated October 2, 1999) contingent upon the BZA granting the proper variance

to allow the new owner to operate a ―crushed stone processing operation.‖ Mr. Finley‘s

attorney requested more time to review this information, and the matter was moved to a later

meeting.

At the September 25, 2007 meeting, Mr. Finley‘s attorney stated that a representative

from the Tennessee Department of Environment and Conservation (―TDEC‖) was available

to answer questions about air quality and regulations concerning quarries; and she produced a

letter from a representative of the Division of Water Pollution Control. Members of the BZA

asked the TDEC representative, Carol Williams, several questions about the procedures of

her office with regard to quarries. Ms. Williams stated that her office did not have any record

of a quarry at the site in question. Mr. Nelson spoke and presented his reasons for denying

Mr. Finley‘s request. He stated that he ―was not denying activity had occurred on the

property in question, but rather questioned whether that the activity that had occurred, would

qualify as a legally operating business,‖ which would have tax returns, ―something he had

repeatedly asked Mr. Finley for.‖ Mr. Nelson provided the BZA with the following

documents:

1) Contract for Sale of Real Estate, dated October 2, 1999 in which the

contract was contingent on the property receiving the proper

zoning/variance to operate as a crushed stone processing plant.

2) Minutes from the Marshall County Board of Zoning Appeals dated

December 21, 1999, which showed the request to operate a crushed stone

business, was denied.

3) A Rezoning Application dated July 26th 2000, to operate an extraction,

processing, sales operation for crushed stone on the property in question.

4) Minutes from the Marshall County Planning Commission dated August

15, 2000, in which the re-zoning application was sent to the Marshall

County Commission with an unfavorable recommendation.

5) A copy of Resolution 00-9-10 which showed that the resolution

requesting a re-zoning to operate an extraction, processing, and sales

operation of crushed stone on the property in question died on the floor for

lack of a second.

6) A copy of a letter from Don B. Craig with the Mine, Safety and Health

Administration which showed no record of a mine in existence at the

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property in question.

The BZA voted to take the matter under advisement.

The BZA considered Mr. Finley‘s request for grandfathered status again at a meeting

on October 16, 2007. The county attorney summarized the written opinion she had produced

at the request of the BZA on Mr. Finley‘s appeal. According to the BZA minutes, the county

attorney stated:

[B]ased on the proof submitted to the Board over the past two meetings, by

means of photographs, affidavits, and arguments, it was her legal opinion that

Mr. Finley had not met the burden of proof showing that a rock quarry should

be grandfathered for that specific parcel[.] [T]he legal burden to show

continuous use from the time of adoption of the Zoning Resolution of Marshall

County to the present time with no more than a thirty month gap in between, . .

. [H]er recommendation was that the Board deny Mr. Finley‘s request and

affirm the ruling by Mr. Nelson.[1]

The BZA voted unanimously to deny Mr. Finley‘s request for grandfathered status. A

member of the BZA asked that the Board include a discussion of its reasons for rejecting Mr.

Finley‘s request and stated that Mr. Finley had not met his burden of proof ―of operation of a

quarry; members of the Board concurred, and added no proof of legal blasting on the

[property] had ever been produced, as well as documentation of a business operation.‖ Mr.

Finley did not file a petition for writ of certiorari to the chancery court as a result of the

BZA‘s decision.

In September 2011, Mr. Finley submitted additional documentation to the zoning

administrator, Mr. Nelson, and again sought to have the property recognized as having a non-

conforming use. Mr. Nelson again denied Mr. Finley‘s request for grandfathered status. In a

letter dated September 26, 2011, Mr. Nelson stated that he had reviewed the two sets of

documents provided to him by Mr. Finley, one a thirteen-page packet, the other a one-page

letter explaining the desired use for the property. Mr. Nelson wrote:

As you know, the Marshall County Board of Zoning Appeals met on August

21, 2007 and September 25, 2007 to hear your appeal of my decision to deny

the grandfather status of a quarry located at 2100 Caney Springs Road. You

1

In the attorney‘s full memorandum to the BZA, she pointed out: ―Mere removal of rock no further

than current grade constitutes a borrow pit, which holds no special zoning requirement. No evidence was

produced regarding legal blasting, crushing or quarrying since 1989.‖

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and your attorney were given the opportunity to make your case. As you also

know, the Marshall County Board of Zoning Appeals decided that you had not

proven your case and denied your appeal by a unanimous vote. You had the

opportunity to appeal their decision, but did not; the time period to appeal that

decision has expired.

After reviewing all of the documents provided, Mr. Nelson determined that they ―do not

support any change in the zoning status or classification of 2100 Caney Springs Road‖ and

that Mr. Finley‘s ―request for nonconforming (‗grandfathered‘) use status is denied.‖

Mr. Finley appealed the zoning administrator‘s 2011 decision to the BZA, which

heard the appeal at its November 15, 2011 meeting. Mr. Finley‘s attorney explained that he

had presented the zoning administrator with new affidavits from some of the same persons

who had given affidavits for Mr. Finley‘s 2007 request for grandfathered status. He felt that

these new affidavits showed activity that would support a non-conforming use.

Mr. Nelson went through the thirteen-page packet provided by Mr. Finley with the

BZA to explain his decision. The first three pages were handwritten letters from Mr. Finley.

The third letter addressed federal mining, which falls under the Mine Safety and Health

Administration (―MSHA‖); Mr. Nelson stated that the MSHA had no jurisdiction over local

zoning approval. He further opined that the letter offered no proof of a rock quarry in

operation on the property in question prior to the adoption of the zoning ordinance in

September 1989 until the present without an interruption lasting thirty continuous months.

The packet also included an application for a business license dated August 31, 2011, a

blanket certificate of resale from the Tennessee Department of Revenue effective September

1, 2011, a certificate of business tax registration effective September 1, 2011, a certificate of

registration from the Tennessee Department of Revenue dated August 31, 2011, a minimum

business license and gross sales receipt dated September 14, 2011, an inquiry about other

permits dated July 19, 2011, and a letter from Don Owen, NPDES Program Manager

Division of Water Pollution Control, Mining Section TDEC. After reviewing all of the

evidence, Mr. Nelson ―stated that he could find nothing to support a nonconforming use

status, or any change in the zoning status of 2100 Caney Springs Road.‖

Two persons at the hearing spoke in opposition to Mr. Finley‘s assertions concerning

the property. They stated that they had lived in the area for years and had not seen any

quarrying activity on the property. Both stated that they were willing to complete an

affidavit. After some discussion, the BZA decided that the information provided by Mr.

Finley had failed to establish proof of a preexisting nonconforming use. The BZA voted

unanimously to affirm Mr. Nelson‘s decision.

9

Mr. Finley filed a petition for writ of certiorari in the chancery court on April 12,

2012. On October 29, 2012, the court entered an agreed order whereby the parties agreed to

remand the case back to the BZA for the BZA to meet on November 13, 2012 to reconsider

Mr. Finley‘s request. The case was then dismissed with prejudice.

At the November 13, 2012 hearing, the BZA heard testimony from ten people. Some

merely expressed opposition to having a rock quarry in that location. Chris Gilbert testified

that the last time he could remember the quarry being active was in 1970 or 1971, when

Highway 99 was being built. Since that time, ―[v]ery little, if any action, has been done

there, . . . maybe a few loads of rock had been hauled out of there that was already crushed or

something and I think maybe that the Warner brothers hauled some shock rock out of there

and shot some and hauled some . . . and that stopped several years ago.‖ Mr. Gilbert stated

that, ―other than that, there have been no actual quarrying done there on that property in

forever . . . .‖

Mike Hatten, the city manager of Chapel Hill, stated that, for the past ten years, ―I

have not recognized, been told or been aware of any activity [taking] place on that property.

At this time, it is a non-functional property.‖

Carl Cooper stated that he had ―been acquainted [with] that rock quarry [for] 65 or so

years, I know when it went into operation, a fellow by the name of Minifees operated there,

they operated there for several years during the time Chris [Gilbert] spoke of, then shortly

thereafter they ceased operations.‖ Mr. Cooper testified that the electrical services remained

there for a few more years after the operations ceased and were then removed; he

remembered this because he had enjoyed shooting doves off of the wires. He further stated

that the property ―has not been used as a rock crusher of any legal manner,‖ but ―there was

some loose stuff hauled away since then.‖ He himself had hauled away loose rock that was

already ground up because his niece owned the property at the time.

Debbie Hill testified that she had owned property adjacent to the property at issue for

about twenty years. She stated that, ―As far as I know and as long as I have owned that piece

of property, I know that the rock quarry has not operated, at all, and . . . maybe some loose

stuff has been carried out . . . .‖

Tony Buholz testified that he had looked at satellite imagery on a website called Terra

Server that showed, from 1997 to the present, ―it doesn‘t look like anything has happened in

that area.‖

Mr. Finley‘s attorney, Robert Dalton, spoke next. He argued that satellite photos had

been provided to the BZA previously and showed that ―there has been an expansion during

10

this period.‖ He referenced the affidavit of Tammy Lewis as attesting that there had been

some blasting. Mr. Dalton stated that ―that blasting has been very small amounts of blasting

over years and most of the extraction done has been by mechanical means‖ and had gone

unnoticed. According to Mr. Dalton, the affidavits submitted were from those who were

performing the activities (―extracting this rock, digging the rock out and carrying it off‖) and

from those who witnessed it.

At this point, the public hearing was closed. The county attorney, Ginger Shofner,

explained to the BZA the posture of the case. Because Mr. Finley had been before the BZA

in 2007 and the board had voted him down, that ―issue is basically put to rest.‖ But, Ms.

Shofner explained, the BZA retained the discretion to ―to reopen a previous decision based

on new evidence.‖ In response to questions from the BZA, Mr. Nelson read into the record

the definition of ―mining and quarrying operations‖ from the Marshall County Zoning

Resolution:

An establishment engaged in excavation or extraction of any earth products or

natural mineral deposit, except where such excavation is for purposes of

grading for a building lot or a roadway, where grass sod is removed to be used

for landscaping, or where materials are extracted for use on that same lot by

the owner of the property. Specifically excluded from this use is grading and

removal of dirt associated with an approved site plan or subdivision or

excavations associated with; where topsoil or clay is removed as part of a

legitimate business; and for the improvement of, a bona fide agricultural use.

Marshall County Zoning Ordinance § 7.020.

Ms. Shofner explained that the BZA needed to decide if there was evidence that

justified reopening its prior decision from 2007 denying Mr. Finley grandfathered status. Mr.

Finley stated that he had not brought any new evidence not submitted at the September 2011

hearing because this was just a rehearing of the September 2011 hearing (due to a failure to

prepare a record of the hearing). Mr. Nelson again went through each page of the evidence

presented by Mr. Finley. His question when looking at each piece of evidence was: Does

―this prove there was a quarry in existence prior to Zoning 1989 through present without

interruption?‖ Mr. Nelson found nothing in the packet of new evidence to indicate that a

quarry was in operation from 1989 through the present.

The BZA also considered the minutes from the November 15, 2011 hearing and the

new affidavits placed into the record at that hearing. During the discussion, Mr. Nelson

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clarified that there was nothing prohibiting Mr. Finley from operating a ―barrow pit,‖2 where

he could remove existing rock to grade. Operating a quarry, by contrast, would involve the

use of mechanical means to extract the rock. The BZA voted unanimously to let its 2007

decision and its November 2011 decision stand.

The chancery court affirmed the decision of the BZA in an order entered in January

2015, and Mr. Finley filed a petition for writ of certiorari from the chancery court‘s decision.

So, is the October 2007 BZA decision res judicata with respect to the present case?

We must consider the four requirements set out in Wayman, 2010 WL 1293796, at *3.

First, are the issues decided identical? Id. We find that they are. In both instances, Mr.

Finley is asking the BZA to recognize his property as having a non-conforming use, and the

key issue is the same: whether the property was used as a quarry prior to September 1989

and continuously since then with no cessation for a period of thirty continuous months.

Second, did the first adjudication result in a judgment on the merits? Id. Mr. Finley did not

file a petition for a writ of certiorari of the October 16, 2007 BZA decision. Consequently,

after sixty days, that decision became a final judgment. Tenn. Code Ann. § 27-9-102; Shafer

v. City of Dickson, No. M2000-03175-COA-R3-CV, 2002 WL 1787952, at *5 (Tenn. Ct.

App. Aug. 2, 2002) (stating that common law writ of certiorari must be filed within sixty

days of the order or judgment); Morris, 832 S.W.2d at 566 (concluding that ―an unappealed,

final, administrative determination by an administrative agency‖ constituted a ―judgment on

the merits that became final‖); see also Sullivan, 2012 WL 1868292, at *10 (stating that

―Tennessee courts give the agency‘s determination the same preclusive effect as they would

if the agency had been a court of law‖); Set Prods., Inc. v. Bainbridge Twp. Bd. of Zoning

Appeals, 510 N.E.2d 373, 376-77 (Ohio 1987) (holding doctrine of res judicata applied to

BZA decisions on applications for variance absent change of circumstances; affirming denial

on res judicata grounds of subsequent application for variance to permit operation of sand

and gravel quarry).

The third question in the res judicata analysis is, did the proceedings involve the same

parties? The 2007 proceedings and the proceedings on appeal both involved Mr. Finley and

the Marshall County zoning authorities. The fourth question is, did the parties have a full

and fair opportunity to litigate the issue in the prior proceeding? In 2007, Mr. Finley

appeared at three hearings. He had the opportunity to present evidence during at least two of

those hearings, in August and September 2007; the October 2007 hearing was mainly for the

purpose of announcing the BZA‘s decision. Mr. Finley does not assert on appeal that he was

denied the opportunity to present evidence in 2007.

2

Also referred to as a ―borrow pit.‖

12

We conclude that the four conditions necessary for res judicata to apply are met here.

Therefore, the 2007 BZA decision is conclusive ―‗not only as to all matters litigated, but as to

all matters which could have been litigated in the proceedings with respect to such cause.‘‖

Purcell, 631 S.W.2d at 407 (quoting 2 AM. JUR. 2D Administrative Law § 502). Any ―new

evidence‖ presented with the 2011 petition—i.e. evidence not available at the time of the

2007 petition—failed to support a finding that the quarry was active prior to September 1989

and continuously thereafter, without any continuous breaks of thirty months. Thus, the 2007

BZA decision is res judicata as to the current case, and all issues related to the current case

are pretermitted.

CONCLUSION

The judgment of the trial court is affirmed. Costs of appeal are assessed against the

appellant, and execution may issue if necessary.

_________________________

ANDY D. BENNETT, JUDGE

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