Posted by: Patricia Salkin | May 31, 2017

TN Appeals Court Finds Trial Court was Without Subject Matter Jurisdiction Hear Billboard Dispute Case

This case was the third appeal regarding two billboards in the Town of Collierville on land owned by Abbington Center. The billboards were constructed in December 1979, at a time when building permits and a sign permit fee were the only requirements for construction of a billboard in the Town. In June 1982, the Town passed an ordinance prohibiting the construction of any new billboards. Abbington purchased the billboards in 1993, and the Town assured Abbington that the billboards were “grandfathered in.” Shortly after this, Abbington discovered that the billboards were leased for use by a third party for fourteen years. In 2007, Abbington submitted proposed designs to the Town’s Design Review Commission for new billboards to replace the billboards in question. Abbington subsequently applied for the necessary permits, but the Town denied the permits on the basis that the billboards did not constitute a legal nonconforming use.

The BZA affirmed the Town’s stop work orders and the denial of the request for building permits. Abbington filed a petition for writ of certiorari to the chancery court, which invalidated the stop work orders and permitted Abbington to reconstruct the billboards. The Town then appealed to the Court of Appeals, but while the appeal was pending, Abbington reconstructed the billboards. The Court of Appeals then reversed the decision of the chancery court and reinstated the decision of the BZA. The BZA then had a split decision on a motion to affirm the Development Department. In November 2013, the chancery court entered a final judgment in which it dismissed the Town and Development Department’s petition for lack of standing. After the Court of Appeals found standing and remanded the issue, the trial court determined that the Board of Zoning Appeals’ decision not to affirm the removal order was arbitrary and capricious because the removal order was enforcing the Board of Zoning Appeals’ prior rulings that had been affirmed and reinstated by the Court of Appeals.

On the third appeal, Appellant did not dispute that the writ of certiorari was timely filed within the sixty-day time period provided by Tennessee Code Annotated section 27-9-102; however, the petition for writ of certiorari filed in this case did not contain an oath or verification. Here, the petition for writ of certiorari only contained the standard “respectfully submitted” signature of the attorneys representing the Town. Moreover, there was no dispute that a petition for writ of certiorari was the proper procedural vehicle to challenge the decision of the Board of Zoning Appeals. Accordingly, the court held that compliance with the technical requirements of Tennessee Code Annotated section 27-8-106 was mandatory, and the failure to comply with those requirements deprived the trial court of the subject matter jurisdiction to conduct any judicial review.

Town of Collierville v Town of Collierville Board of Zoning, 2017 WL 2365018 (TN App. 5/31/2017)


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