Posted by: Patricia Salkin | October 26, 2018

Fed. Dist Court I TN Finds Board Had Authority to Revoke Development’s Approvals, Dismisses Claims as Time-Barred and Finds no Due Process or Equal Protection Violations

This post was authored by Matthew Loeser, Esq.

Whistle Stop purchased 142 acres of property in the Town of Thompson Station to develop a residential subdivision. In October 2013, the Town’s Planning Commission approved the preliminary plat for Phase I of the Development and the 46 lots in Phase I to the Town’s Heritage Commons wastewater treatment facility. Whistle Stop then paid for sewer tap fees for Phase I, capacity allocation fees for all the Development, and a preliminary plat fee.  The Town later issued Whistle Stop a grading permit for Phase I, and the Tennessee Department of Environment and Conservation Division of Water Pollution Control (“TDEC”) approved Phase I for construction.  In July 2014, Town staff informed Whistle Stop that approvals for the Development were improperly issued and that it needed to obtain Town approval for a revised plan. The Town Administrator, Joe Cosentini, then told Whistle Stop that the Board would have to reconsider the original request for sewer connection, which the Planning Commission had approved rather than the Board. At its February 10, 2015 meeting, the Board revoked approval for the 46 taps in Phase I of the Development and stated that it wanted to “start all over from the top on Whistle Stop.” Whistle Stop thereafter filed a Petition for a Writ of Certiorari and Writ of Supersedeas asserting that the Board lacked authority or exceeded its jurisdiction in revoking the Development’s approvals.

The Town contended that the claims arising prior to November 2015 should be dismissed because they were time-barred. Specifically, the Town argued that the statute of limitations commenced running on the date of each Board action and therefore any claims arising out of Board actions in February, September, and October 2015 were time-barred because Whistle Stop filed its action on November 18, 2016. Whistle Stop alleged that it was not alerted that it needed to act to protect its rights until the Board’s September 13, 2016 meeting in which the Board denied the use of the SABRE SBR system that it previously approved, even though it required Whistle Stop to pursue the system and TDEC approved it. As the court found that Whistle Stop knew or had reason to know of its alleged injuries when the denials occurred, any claims that were based on the Town’s denials of approval before November 18, 2015 were time-barred.

The Town next argued that the Board never granted Whistle Stop the right to develop its property using a SABRE SBR system. Here, the record reflected that the Board voted at its October 13, 2015 meeting to allow the SABRE SBR wastewater system for the Whistle Stop subdivision. While Whistle Stop also alleged that the Board denied its use of the SABRE SBR system that it previously approved, the Board made a motion at its September 2016 meeting, which was unanimously approved, to direct Whistle Stop to select an alternative SBR system. Accordingly, to the extent Whistle Stop’s substantive due process claim relied on due process violations occurring on or after November 18, 2015, the motion to dismiss was denied.

Finally, as to its class of one claim, Whistle Stop contended that it plausibly alleged that Bridgemore Village, Williamson County Schools (“WCS”), and Two Farms were similarly situated comparators.Although Whistle Stop alleged that Bridgemore Village, WCS, and Whistle Stop were all developments in the Town occurring around the same time and involved with the Board for sewage related issues, there were no additional factual allegations detailing why these entities are identical in all relevant respects or directly comparable in all material respects. Accordingly, Whistle Stop’s equal protection claim was dismissed with prejudice.

Whistle Stop Farms, LLC v Town of Thompson Station, 2018 WL 5313340 (MD TN 10/26/2018)

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