|Legal Opinion: |
Text of Document: MEMORANDUM
TO: Municipal Management Consultant
FROM: Sid Hemsley, Senior Law Consultant
DATE: March 22, 2011
RE: Movement of house to another piece of property with the approval of city council, after denial of permit for the movement by the building inspector
This is one of those questions to which I do not have all the facts. But as I understand at least some of the facts, I think I can answer the questions raised by the action of the city council in overturning the decisions of the building inspector, and in effect the Board of Zoning Appeals (BZA). Based on the letter the building inspector wrote to a Mr. Y on September 17, 2010, the building inspector refused to grant Mr. Y a building permit to move a house from 123 ABC Road to property on DEF Street. The reason for the building inspector’s refusal to grant a building permit and the action of Mr. Y afterwards is reflected in the letter.
If the letter is an accurate reflection of what happened, two things seem apparent to me:
1. Mr. Y has no building permit to move the building to the property in question;
2. The city council has no authority to approve the movement of the building to the property in question.
It does not appear to me that whatever the quit claim deed (which I assume to be from the railroad to Mr. Y) says, and which I have not seen or read, it is not immediately pertinent to those two questions.
With respect to the second conclusion, because I have been unable to obtain a copy of the city’s zoning ordinance, I am making an assumption that your City’s zoning ordinance is typical of municipal zoning ordinances in Tennessee as to the remedies a person aggrieved by the zoning ordinance has available to him. Under that ordinance, it is highly unlikely that Mr. Y has any right to appeal a decision of the building inspector or the BZA to the city council. You should check the city’s zoning ordinance to ensure that is true before relying on my handling of Conclusion 2 here and in my analysis below. However, I should emphasize that even if the city’s zoning ordinance provides that appeals from the BZA go to the city’s governing body, that provision would probably be illegal. Tennessee Attorney General’s Opinion 08-082 opines that it is not within the jurisdiction of a city’s governing body to hear appeals from decisions of the BZA. I think that is an accurate reflection of the law on that issue. I will expand on that opinion below.
With respect to the first conclusion, in the 2003 case of Far Tower Sites, LLC v. Knox County, 126 S.W.3d 52 (Tenn. Ct. App. 2003) (Appeal to Tenn. Supreme Court denied January 26, 2004), stands for the proposition that a property owner cannot achieve any vested rights at all in a building permit issued in violation of the zoning ordinance. I can think of no reason that case would not apply to Mr. Y, who did not even obtain a building permit.
In that case, Far Tower Sites, LLC, obtained a permit from Knox County to build a telecommunications tower, renewed the permit several times, and was repeatedly assured by county officials the permit was valid. It invested $62,000 in improvements to the site. It was subsequently discovered by both the county and Far Tower that the tower site was in the Tennessee Technology Corridor, and that as a prerequisite for the issuance of a building permit by the county, Far Tower was required to obtain a Certificate of Appropriateness under the Technology Corridor Development Authority Act. Because Far Tower had not obtained that certificate, Knox County shut down the project.
Far Tower argued that there are only two requirements to establish a vested right in a building permit; (1) the issuance of the permit by the responsible government agency, (2) making of contracts and incurring substantial liabilities in reliance on the permit. Far Tower further argued that, since no case expressly states that the permit must be validly issued, the validity of the issuance of the permit was immaterial. [At 63] The Court rejected those arguments, and accepted Knox County’s argument that under Moore v. Memphis Stone & Gravel Co., 47 Tenn. App. 461, 339 S.W.2d (1959), “a permittee can acquire no vested rights when a permit is issued in violation of the zoning ordinance.” [At 59] [Emphasis is mine.]
For that reason, concluded the Court, Far Tower had no vested property right in and under the invalidly issued permit. As pointed out above and below, Mr. Y did not even have a building permit, and had only a conditional variance from the BZA, which conditions he had not met.
Far Tower also attempted to rely on Haymon to claim that the county should be estopped from denying the validity of the building permit. The Court turned aside that attempt, pointing to the limitations on estoppel when the person asserting it had equal ability to acquire knowledge that would have saved him from his damage, declaring that:
In the case at bar, Far Tower and the defendants both had access to the Tech Act and the Knox County Zoning Ordinance. Both documents were in the public domain. As we have previously noted, when both parties have “the same means of ascertaining the true facts there can be no estoppel. Haymon, 513 S.W.2d at 188.
There is nothing in this case to take it out of the general rule that “the doctrine of estoppel does not apply to the acts of public authorities.” Id. At 189. [At 68]
But there is more to Haymon about the question of whether erroneously issued building permits can be revoked than the cost of the investment the landowner has made in the property in question. In that case, the court said:
The principle is well established that where both parties have the same means of ascertaining the true facts that there can be no estoppel. Crabtree v. Bank 108 en. 483, 67 S.W. 797; Parkey v. Ramsey, 111 Tenn;. 302, 76 S.W. 812.
“It is essential, as a general rule, to the application of the principle of estoppel, that the party claiming to have been influenced by the conduct of declarations to another to his injury, was himself not only destitute of knowledge of the state of the facts, but was also destitute of any convenient and available means of ascertaining such knowledge, that where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. Crabtree v. Bank, supra; Hankins v. Waddell, 26 Tenn. App. 71, 167 S.W.2d 694.
It is proper to add that, generally, the doctrine of estoppel does not apply to the acts of public authorities. State v. Williams, 207 Tenn. 695, 343 S.W.2d 857. [At 188-89]
In Haymon the Court pointed out that:
The record suggests...that the building inspector said enough to put complainants upon inquiry as to the existence of the covenant. In any event, the instrument creating the covenant and making it run with the land was of record complainants had constructive notice of its existence. It seems to be unquestioned that the narrow buffer strip would be to the disadvantage of nearby owners of residential property. We fail to see why they should suffer loss under all the circumstances of this case. [At 189]
Mr. Y had ample facility and opportunity to determine that he was required to obtain a building permit to move the building in question, and to legally place it on the site where he wished to place it.
With respect to the second conclusion, the Tennessee statutes governing BZAs do not prescribe the avenue of appeals from BZA decisions. However, as pointed out above, Tennessee Attorney General’s Opinion 98-082 opines that it is not within the jurisdiction of a city’s governing body to overturn the decision of the BZA. The decisions of most BZAs are final quasi-judicial or administrative decisions, and appeals from such decisions made by boards and commissions are by common law writ of certiorari to the chancery or circuit court. [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.]
In this case, Mr. Y apparently moved the building in question without a building permit, then appealed the building inspector’s decision not to give him a building permit to the BZA which granted conditional variances, none of which the building inspector determined Mr. Y had not met. Upon the building inspector’s refusal to grant Mr. Y a building permit, Mr. Y then unsuccessfully attempted to obtain a variance from the BZA, then “appealed” to the city’s governing body, which does not have the authority to overturn the BZA’s decision. The failure of Mr. Y to get a building permit, unless he can get a court to reverse the building inspector and/or the BZA, forecloses his right to move the building onto the property in question.