|Legal Opinion: |
Text of Document: March 5, 1998
Your question is, where do appeals from decisions of the city's Board of Zoning Appeals (BZA) go? In most Tennessee cities such appeals go to the chancery or circuit court on a writ of common law certiorari. The same is probably true with respect to your city.
As you have already discovered, the Tennessee statutes governing BZAs do not prescribe the avenue of appeals from BZA decisions. However, it seems clear that the decisions of most BZAs are final quasi-judicial or administrative decisions. Appeals from such decisions made by boards and commissions is by common law writ of certiorari. [Father Ryan High School, Inc. v. City of Oak Hill, 774 S.W.2d 188 (Tenn. Ct. App. 1988); Fallin v. Knox County Board of Commissioners, 656 S.W.2d 338 (Tenn. 1983); McCallen v. City of Memphis, 786 S.W.2d 633 (Tenn. 1990); 868 S.W.2d 278 (Tenn. Ct. App. 1993). Also see Cantrell, Ben H., Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 Memphis State L.R. 19; Guthrie, Mark, Note: Methods of Judicial Review over Administrative Actions in Tennessee, 13 Memphis State L.R. 18.]
I know of at least one city in Tennessee (Knoxville)--there may be a few others--in which the zoning ordinance provides for an appeal from the BZA to the city’s governing body. In that case, BZA decisions are not final decisions. However, most zoning ordinances are either silent on appeals of BZA decisions, or expressly provide that appeals from BZA decisions are to the courts. I have been unable to find a copy of the city’s zoning ordinance, but I presume that it does not provide for an appeal of BZA decisions to the city’s governing body.
Tennessee Code Annotated, section 27-9-101, provides that,
Anyone who may be aggrieved by any final order or judgment of any board or commission functioning under the laws of this state may have said order or judgment reviewed by the courts, where not otherwise specifically provided, in the manner provided by this chapter.
Tennessee Code Annotated, section 27-9-102, further provides that the petition of certiorari is filed in the chancery court. However, Tennessee Code Annotated, section 27-9-103, provides that “The circuit court is given concurrent jurisdiction over such proceeding.”
Those statutes apply to both common law and statutory writs of certiorari. However they do not destroy the distinction between the two writs; rather, they only offer a procedure for the filing of such writs. [Tennessee Real Estate Commission v. Potts, 428 S.W.2d 794 (Tenn. 1968), Hoover Motor Express Co. v. Railroad & Public Utilities Commission, 246 S.W.2d 15 (Tenn. 1951).]
As indicated above, the law governing the establishment of BZAs contains no provision for the avenue of appeal of BZA decisions. For that reason, if the zoning ordinance is silent on the question of the avenue of appeals of BZA decisions, or provides that the avenue of such appeals is to the courts, under Tennessee Code Annotated, section 27-9-101 et seq., plaintiffs can file appeals in either circuit or chancery court. In fact, I have reviewed a number of cases involving suits against BZA and have found that appeals from BZA decisions have indeed been filed in both circuit and chancery courts. [Stevenson v. Palmer, 448 S.W.2d 67 (Tenn. 1969) (BZA to circuit court); Houston v. Memphis and Shelby County Board of Adjustment, 488 S.W.2d 387 (Tenn. Ct. App. 2972) (BZA to circuit court); McClurkan v. Board of Zoning Appeals, 565 S.W.2d 495 (Tenn. Ct. App. 1977) (BZA to chancery court); Merritt v. Wilson County Board of Zoning Appeals, 656 S.W.2d 846 (Tenn. Ct. App. 1983) (BZA to chancery court); Hunter v. City of Gallatin Board of Zoning Appeals, Tenn. Ct. App., W.S., filed Feb. 21, 1991 (16 TAM 13-6) (BZA to chancery court); Hoover, Inc. v. Metro Board of Zoning Appeals, 924 S.W.2d 900 (Tenn. Ct. App. 1996) (BZA to chancery court)]. The same thing is true with respect to other boards and commissions.
Let me know if I can help you further in this or any other matter.
Sidney D. Hemsley
Senior Law Consultant