Posted by: Patricia Salkin | October 10, 2007

Trial Court Erred in Ordering Removal of Illegal Dumpster

Enforcement of zoning laws presents many issues and options for local governments.  From decisions of effective enforcement, including issuing of notices of noncompliance and/or appearance tickets, to allowable fines and other remedies, the locality must often make strategic decisions. Effective enforcement demands strict compliance with zoning. However, in a recent case, the Court tried to go a step farther than the municipality to demand compliance with the zoning ordinance rather than simply the payment of a fine. 

A property owner sought and received a conditional variance allowing him to place a dumpster on his front yard, where the zoning requires that dumpsters on residential property be kept in back of the property and that they be adequately fenced.  The variance allowed the property owner to place the dumpster on his front year conditioned on the planting of shrubbery on three sides of the dumpster and the placement of an ivy-covered gate on the side of the dumpster that faced the road.  The board granted the variance for six months with the caveat that if the improvements did not adequately screen the dumpster from the road, the property owner would be required to build a fence around the dumpster or he would have to remove it.  After the property owner failed to comply with the conditions, the City cited him for a violation of the zoning ordinance (not for a violation of the conditions) and the City Court imposed a $50 fine plus court costs and ordered him to erect a fence or plant 8 foot shrubs around the dumpster or face contempt of court charges.  On appeal, the City again requested the $50 fine, and the Circuit Court imposed that penalty, but also ordered removal of the dumpster from the property.  In finding that the trial court overstepped its authority by requiring removal, the Appeals Court noted that City chose merely to cite the property owner for failure to comply with ordinance, and the City did not seek an order requiring him to comply with the variance or remove the dumpster. The court affirmed the judgment holding that the property owner violated the ordinance, but vacated the order requiring removal. 

City of Millersville v. Falk, 2007 WL 2827376 (Tenn. Ct. App. 9/28/07).  The case is available at: www.tsc.state.tn.us/OPINIONS/TCA/PDF/073/MillersvilleOPN.pdf 


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