Knowledgebase-Construction without a Building Permit


Information Product

Title:Construction without a Building Permit
Summary:MTAS was asked whether a certain building within the city was legally constructed, and if the answer was no, what legal remedies were available to the city.
Original Author:Hemsley, Sid
Co-Author:
Product Create Date:02/11/2008
Last Reviewed on::12/19/2016
Subject:Building permits
Type:Legal Opinion
Legal Opinion: Construction without a Building Permit public.doc

Reference Documents:

Text of Document: February 11, 2008

Dear City Recorder:

You have the following question: What are the city's remedies for the construction by a property owner of a truck repair business, without a building permit, on property zoned C-1 (general business).

Under the facts you related to me, and my personal view of the building, Ron and Kathy X's began construction on the building in question, which is clearly designed to accommodate at least the tractors of large tractor-trailer type trucks. As will be seen below, the X's Application for a Zoning Request, indicates that the use of the property will be for "Auto Sales & Trucking Co." The building inspector issued a stop work order at a point where the walls were up, and some of the trusses were set. There was no sheeting on the roof. However, it appeared to me when I saw the building in October, 2007, that its exterior was either complete or substantially complete.

The X's also built a residence on the property without obtaining a building permit. The city is not nearly as concerned about the construction of the residence on the property, but what I say with respect to the construction of a building without a building permit applies to all buildings. I have also mentioned in the section below suggesting the possibility of the X's obtaining a special exception for their truck facility, that the provisions of the city's zoning ordinance governing special exceptions also includes the possibility that they can obtain one for their house as well.

The property upon which the building sits was apparently zoned C-1 (Commercial) by Zoning ordinance 460, adopted on final reading November 10, 1995. Prior to that time it had been zoned R-2, and on June 6, 1991, the planning commission granted a special exception to the VFW to operate a club on the property. That VFW club subsequently burned down. At some point prior to the time the X's began construction on the building in question, they inquired of the city recorder the zoning of the property. The city recorder mistakenly told them it was zoned R-1. On July 23, 2007, the X's filed with the city recorder a zoning request. Item 9 of that request states that CURRENT ZONE is "Resident," and ZONE REQUESTED states "Commercial." Item 10 of that request states that the EXISTING USE is "Resident," and that the PROPOSED USE is "to locate auto sales & trucking Co." In Item 11, it is stated that REASON FOR REQUEST is "We have been here since 1999 with our business. We thought it was already zoned Commercial because the VFW Club was on this property before we owned it. We recently found out that it was not zoned Commercial." However, apparently construction on the building in question had already begun, and at no time then or thereafter did the X's seek to obtain a building permit from the city to construct the building.

Do the X's Derive any Rights from the VFW's Special Exception?

The X's belief that the property was zoned commercial because the VFW club had been on the property, is misplaced. As I understand the facts and the documents, the property was zoned R-2 at the time the VFW obtained a special exception to operate the club. The X's obtained no rights under that special exception. Variances "run with the land." [See 3 Yokley, Zoning Law and Practice, ' 20-2 and cases cited therein.] However, the extent to which special exceptions run with the land is not entirely clear, especially in Tennessee where there are no cases directly on that question. However, Tennessee Attorney General's Opinion 2001-148 opines that "vested rights" may arise and be passed on to subsequent property owners with respect to both variances and special exceptions. That opinion is supported by a case arising in Tennessee's neighboring state of Missouri. In Ford Leasing Development Co. v. City of Ellisville, 718 S.W.2d 228 (Mo. 1986). There the Missouri Court of Appeals addressed that issue in a manner that I think the Tennessee courts would probably follow.

In that case, Bud Anderson Ford owned a nine acre tract of land. In 1983, it obtained from the city a conditional use permit to operate an AMC Jeep Dealership on four acres. The plans for the conditional use permit called for Bud Anderson Ford to immediately build a sales agency building and in the future to build a larger service building. Bud Anderson Ford built the first building, but never built the second one. Bud Anderson Ford subsequently sold the nine acres to Ford Motor Company Leasing, which applied for a conditional use permit to operate a Lincoln-Mercury Dealership on the property. The city denied Ford Leasing's application for a conditional use permit. Ford Leasing appealed on the ground that the denial of the conditional use permit was arbitrary and capricious. Ford Leasing won that case because the Court could see no reason why the city issued a conditional use permit to Bud Anderson Ford but would not issue one to Ford Leasing under similar facts.

But before the Court took up Ford Leasing's argument that the denial of the conditional use permit was arbitrary and capricious, it considered the question of whether the conditional use permit issued to Bud Anderson Ford "ran with the land." The Court observed that in 1983 the city's building commissioner had sent Bud Anderson Ford a letter pointing out that under and ordinance recently passed by the city, conditional use permits "allow[ed] conditional use permits to go with the land rather than with the operator as in the past. In other words, the use permit is transferable." However the Court found no evidence that either the ordinance granting the cognitional use permit to Bud Anderson ford, or any separate city ordinance, provided for the transferability of conditional use permits. From there, the Court went on to outline the nature of special exceptions, which outline I will quote at length:

"A 'special permit' or 'special exception' designates a species of administrative permission which allows a property owner to put his property to a use which the regulations expressly permit under conditions specified in the zoning regulations themselves. Some zoning laws or ordinances use the term conditional use permit,... to refer to this type of administrative permission." 82 Am.Jur.2d Zoning and Planning ' 281 at p. 827 (1976). The grant of a special permit is regarded as personal to the landowner to whom it is granted. Whereby a variance which "runs with the land" is distinguished from a mere "permit " which is personal to the grantee. Balodis v Fallwood Park Homes, Inc., 54 Misc.2d 936, 283 N.Y.S.2d 497, 501 (1967). (emphasis ours) See also, 82 Am.Jur.2d ' ' 255-257.

The mere issuance of a zoning or building permit gives no vested rights to the permittee, nor does he acquire a property right in the
permit.... Under or apart from statute, however, a permittee acquires a property or vested right where he has acted on the faith of a zoning or building permit or certificate....

101A C.J.A. Zoning and Land Planning ' 222 (1979) (sic) it has been said a building represents an investment in the improvement of the land upon which it is erected; and if regard were not had for the reasonable protection of such investment, then a zoning law, order, resolution or ordinance would frequently be confiscatory with respect to its application to particular structures. Not only is a building erected with a view to its adaptation to a specific form of

use which is to be made of it, but it is often difficult, if not impossible, to convert it to an entirely different form of use.

Brown v Gambrel, 358 Mo. 192, 213 S.W2d 931, 935 (1948). [At 232]

Bud Anderson Ford was granted a conditional use permit for an AMC Jeep Dealership, continued the Court, its plans for which included the sales building that it built, and a future service building. It built the sales building, but did not build the service building. For that reason, declared the Court, Bud Anderson Ford had

vested rights only in the continued operation of the sales building and only this runs with the land and consequently to Ford Leasing. Because the service building was never built the conditional use permit for this expansion remained personal to Bud Anderson. Therefore, the conditional use permit pertaining to the service building expansion does not run with the land and did not transfer to Ford Leasing. [At 232]

The VFW apparently built a modest club building, which subsequently burned well before the X's bought the property. I find nothing in the resolution giving granting the special permit to the VFW to use the property in question for a club, nor in the city's zoning ordinance indicating that special permits are transferable. Moreover, I will speak more about vested interests in connection with the X's construction of the building at issue, but it is doubtful that whatever vested rights arose in the VFW in its club building passed with the land to the X's. That use and the X's use are entirely different. In any event, the VFW's building had already gone up in smoke by the time the X's bought the land.
Special Exception B Possible "Remedy" for X' s and the City

There is surprisingly little law in the United States on the question of what remedies are available to a local government where a property owner has constructed a building without a building permit. Apparently, most cases on that question are resolved before they reach the courts of appeal in the state or federal court systems. Obviously, one of the immediate remedies is to issue a stop work order pending the property owner's compliance with the requirement that he obtain a building permit. That remedy was used by the city, but the question is, what happens next?

However, before I analyze the remedies available to the city, I am going to analyze the question of whether the same remedy that was available to the VFW is available to the X's: a special exception. The reason I will analyzed that question is that a special exception may operate as a kind of "remedy" for the city as well. It will be seen below that the remedies for the city's problem with the building in question can be expensive and unsatisfying, and that a special exception is a way to avoid the application of those remedies.

As I understand the facts, the X's are aware of the possibility of obtaining a special exception, as evidenced by the fact that a hearing on a special exception was set for their property was set for them on October 23, 2007, but they did not appear for the hearing.

Article 2, ' 3 of the city's zoning ordinance provides for a C-1 General Business district in which a list of uses is permitted [subsection (1)] and a list of uses permitted on appeal [subsection (2)]. I have attached a copy of Article II, ' 3. A perusal of uses permitted under subsection (1) clearly indicates that a tractor-trailer truck repair or service business is not permitted as a matter of right in a C-1 district. However, the uses permitted on appeal in a C-1 district under subsection (2) include:

(b) Automobile repair shops, including but not limited to: brake and alignment shops, muffler shops, body shops, machine shops, general repair shops, trim and upholstery shops and any other automotive service facility, provided however, that in no case shall any such facility be allowed to store wrecked or disabled vehicles outdoors.

(c) Auto parts stores.
(d) Auto and truck sales and service lots.
********************************
(m) Any other activity which in the opinion of the Board of Zoning Appeals is customarily related, or similar in nature, to the above permitted uses. [Emphasis is mine.]

In addition, with respect to the house constructed by the X's, Article 2, ' 3(1)(w), expressly allows a single family residence as a use in a C-1 zone.

Presumably then, putting aside for a moment the legal consequences of the construction by the X's of the building without a building permit, the X's could ask the board of zoning appeals to grant them a special exception under Article 4, ' 5(2) of the city 's zoning ordinance, which provides that:

(2) Special Exceptions (Uses Permitted Upon Appeal). The Board of Zoning Appeals may hear and decide only such Special exceptions as it is specifically authorized to pass on by the terms of the "Uses Permitted on Appeal" sections of this ordinance. Further, the Board of Zoning Appeals is to decide such questions as are involved in determining whether Special exceptions (Uses Permitted Upon Appeal) should be granted, to grant special exceptions with such conditions and safeguards as are appropriate under this ordinance, or to deny special exceptions when not in harmony with the purpose and intent of this ordinance.

Article 2, ' 3 (2)(m) also provides that:

After public notice and hearing, the Board of Zoning Appeals shall determine the suitability of the above Uses Permitted on Appeal by evaluating the following:

[There follows the list of things the BZA is supposed to evaluate, which are attached]

It appears to me that a tractor-trailer repair facility of the kind suggested by the building at issue would be a permitted special exception under Article 2, ' 3(m). It is an activity similar to an auto repair facility, perhaps to an auto parts store, and definitely an activity similar to an auto and truck sales and service lot. It is said in 3 Yokley Zoning Law and Practice, ' 21-1, that:

A board may grant an exception once it finds that all of the requirements of the ordinance have been satisfied and that the applicant is willing to comply with any conditions which the board is empowered to impose. When the requisite facts and conditions in an ordinance are found to exist, the applicant is entitled to the Special exception unless there is legally competent evidence to support a fining that the exception is adverse to the public interest. Thus, where an ordinance authorized an exception as a matter of right, on a showing of compliance with the enumerated safeguards, the board's function is to decide if the conditions exist that make the case an appropriate one for an exception. Courts, therefore, generally agree that if the proposed use meets the standards prescribed, the board is bound to approve the application subject to any reasonable conditions that it might impose to mitigate any harm.
However, in the next paragraph of the same section Yokley says, "Where an ordinance provides that an exception may" be granted, it has been held that this merely confers discretion and that a board may not be compelled to grant the exception.

But the law in Tennessee appears to be that even where the board of zoning appeals has discretion in granting Special exceptions, that discretion must be exercised within the limits of what the BZA is entitled to consider under Tennessee Code Annotated, ' 13-7-207, and the zoning ordinance. Tennessee Code Annotated, ' 13-7-207 says this with respect to the powers of a board of zoning appeals:

The board of zoning appeals has the power to:

************************************

(2) Hear and decide, in accordance with the provisions of such [zoning] ordinance requests for special exceptions or for the interpretation of the map or for decisions upon other special questions upon which such board is authorized by any such ordinance to pass; ....

As already noted above, under Article 2, ' 3(2)(n) the Board of Zoning Appeals shall determine the suitability of the above uses permitted on appeal by evaluating the following [list of variables]

Finally, Article 2, ' 5(2)(b) says this about the function of the BZA with respect to special exceptions:

General Provisions Governing Uses Permitted on Appeal. Before any special exception shall be issued, the Board of Zoning Appeals shall certify compliance with the specific rules governing individual exceptions and that satisfactory provision and arrangement has been made concerning the following general requirements:

1. It is so designed, located and proposed to be operated so that the public health, safety and welfare will be protected;
2. It will not adversely affect other property in the area in which it is located;
3. It is within the provision of the "Uses Permitted on Appeal" as set forth in this ordinance; and
4. It conforms to all applicable provisions of this ordinance for the district in which it is to be located.

The above provisions of the city's zoning ordinance prescribing the powers and duties of the BZA undoubtedly limit the discretion of the BZA, and probably obligate it to issue a special exception where the particular use meets the standards prescribed in the zoning ordinance for special exceptions.

I am not remotely able to guess whether the BZA will grant a special exception to the X's

However, I will say here that it appears to me that of the four items the BZA is supposed to certify, Item 1, and probably Item 2 immediately above in Article 2, ' 5(2)(b) exceed the power of the BZA. In Father Ryan High School, Inc. v. City of Oak Hill, 774 S.W.2d 184 (Ct. App. E.S. 1989), the city's zoning ordinance authorized the operation of private high schools in Residential B Districts as a conditional use (special exception), provided that other requirements of the zoning regulations were satisfied. For some reason I do not understand, apparently the city manager issued conditional use permits, subject to appeal to the BZA. The city manager refused to issue a conditional use permit for the high school, and the BZA followed suit. The trial court said that in denying the special exception, the:

Board [BZA] then, after emphasizing the provision in the ordinance that requires the board, in reviewing the action of the city manager to make an affirmative determination ...that the establishment or operation of such school is consistent with the general welfare, safety, morals and health of the community after taking into consideration the letter and spirit of this ordinance said:

The Board is bound by this requirement of the zoning ordinance. Unless the Board is able to make such a finding, a permit may not be granted. Accordingly, considerations such as the effect the proposed school will have on traffic in the neighborhood, whether safety will be adversely affected, and other impact on the general welfare of the community are all relevant and appropriate considerations to be taken into account by the Board.

The Board is unable to determine that construction and operation of Father Ryan High School on the proposed site is consistent with the general welfare and safety of the community.... [At 186].

Father Ryan held, among other things, that it was beyond the jurisdiction conferred by statute for the BZA to determine whether a special exception would be "consistent with the general welfare, safety, morals and health of the community." The Court reasoned that "the legislature, in providing for the establishment of a board of zoning appeals did not confer this authority upon such boards under the enabling legislation, the exercise of which would be legislative, as opposed to the quasi-judicial authority vested in the boards of zoning appeals." [At 188-89]

For that reason, continued the Court:

In the instant case, the board's action in denying the permit was based upon considerations beyond its statutory powers and was therefore illegal. The board, after correctly observing that a "private school is permitted in a residential B district, providing other requirements of the zoning regulations are satisfied" nevertheless concluded "the board is unable to determine that construction and operation of Father Ryan High School on the proposed site is consistent with the general welfare and safety of the community." The principal reasons given were "traffic problems," "traffic will increase on residential streets" "residents' concern about safety from the increase in traffic," "noise level from traffic," and "fears of diminished property values in the area." While these conditions are or may be inherent in construction and operation of any school, the City of Oak Hill took into account these considerations when it authorized the construction of schools in this zoning classification by promulgating the attending safeguards set forth in its zoning ordinances specifying under what conditions a private school could be constructed and operated within the zone. [At 190-91]

The legal issues involved in Father Ryan are somewhat esoteric and difficult to understand with respect to what is beyond the powers of the BZA to determine. Essentially, what it does not have the power to determine is what is within the power of the legislative body of the city to determine.

The City's Remedy of a Citation to Municipal Court

One of the remedies for the construction of a building without a building permit (or other building code violations) is to cite the property owner to municipal court. But as will be seen below, that remedy can have some serious drawbacks. One of those is that the fine for municipal ordinance violations. The other drawback is that there is a distinction between "punitive" and "remedial" fines which is difficult to understand and more difficult for municipalities and municipal courts to apply. The cases below deal with this troublesome distinction and the pitfalls that it produces in building code violation cases.

The cases that made the "punitive-remedial" fine distinction were City of Chattanooga v. Davis and its companion case of Barrett v. Metropolitan Government of Nashville and Davidson County, 54 S.W.3d 248 (Tenn 2001). The second case is the one with which we are concerned. In that case, the Nashville-Davidson County Metropolitan Court imposed a civil penalty on the defendant of $500 for each of five civil warrants issued over a period of months for various building code violations, including the failure to obtain a building permits, and the violation of a stop work order. Tennessee Code Annotated, ' 7-3-507, authorized Metropolitan Governments to impose penalties up to $500 per day for the violation of ordinances. The Court held that under Article VI, ' 14 of the Tennessee Constitution, the maximum penalty that could be levied by municipal courts was $50, and that there was a difference between "punitive" and "remedial" fines. Punitive fines were designed to punish the offender for the ordinance violation, remedial fines were designed to compel the offender to comply with the ordinance. In this case, said the Court, the fines were punitive rather than remedial, reasoning that a "monetary penalty" can serve but a few truly remedial purposes: (1) compensation for loss, (2) reimbursement for expenses, (3) disgorge ill-gotten gains, (4) restitution for harm, and (5) ensure compliance with an order or direction through the execution of a bond or through a prospectively coercive fine. [Emphasis is mine.] In Barrett, said the Court, the purpose of the fine was to punish the offender for his building code violations, not to accomplish one of those four functions. Note in particular function No. (4); it turns up in the cases below.

Some building code violations were the subject of Town of Nolensville v. King, 151 S.W.2d 427 (Tenn. 2004). There the municipal court fined a persistent offender $300 per day for each of 62 days it determined the offender had been in continuing violation of the ordinance at issue, a total fine of $18, 600. On appeal the Tennessee Supreme Court held that the fines were punitive, and reduced them to a fine of $50 per day for each of the 62 days the defendant had violated the ordinance

But City of Johnson City v. Paduch, 224 S.W.3d 686 (Tenn. Ct. App. 2007) is a recent case that deserves attention for the nightmare land use violations can become. There the city issued a citation to the Paduchs for constructing a 5,000 square foot addition to a building they owned, without obtaining a building permit. They had also earlier built a 15,000 square foot addition to the building without obtaining a building permit. But after the construction of the 15,000 square foot addition, the building had become subject to the building codes sprinkler requirements. The city court fined each of the Paduchs $50 for the construction of both the 15,000 square foot, and the 5,000 square foot additions without a building permit, but declared that it would waive the $50 fines if the Paduchs brought the building into compliance with the building codes, and obtain a building permit, within 60 days. The court also held that beginning the 61st day following its order, each of the Paduchs would be fined $50 per day for each day that the buildings were not brought into compliance with the building code.

On appeal to the Circuit Court by the Paduchs, that Court held that the only building code violation for failing to obtain a building permit applied to the 5,000 square foot addition to the building, and set one fine of $50 for that violation, declaring it to be a punitive fine. With respect to the city court's order that the Paduchs pay $50 per day for each day their building was not in compliance with the building code beginning the 61st day after the court's order, the Circuit Court noted that: The Paduchs had appealed the city court's order promptly after it had issued it, that the Paduchs had made no effort to comply with the building code requirements pursuant to the City Court's order; and that after they had appealed the City Court's judgment to the Circuit Court, the Circuit Court trial had been set for September 27, 2004, but had been continued "for months, probably six months" at the Paduch's request. The Circuit Court fined the Paduchs $50 per day from September 27, 2004 to the initiation of the trial (November 23-24, 2004), and declared the fine to be remedial. The Circuit Court also gave the Paduchs until February 1, 2005 to come into compliance with the building codes. Apparently the Paduchs did not comply, for on February 16, 2005, the Circuit Court imposed an accumulated remedial fine on the Paduchs of $50 per day from December 9, 2004, until February 15, 2005, for a total of $3,400 and ordered that "the remedial and coercive fine of $50 per day shall continue until the day this Court concludes and identifies the date the defendant's building is brought into compliance with the City's building codes and ordinances." [The record showed that the Paduchs achieved compliance on February 21, 2005.] On June 10, 2005, the Circuit Court awarded the city $1,589.60 in discretionary costs and eliminated the $50 per day punitive fine which it had previously imposed, and subsequently awarded the City additional discretionary costs on May 26, 2006.

The Paduchs appealed the Circuit Court's decision to the Court of Appeals, on a multitude of grounds. The only one of those grounds that will be analyzed here is the Paduch's argument that the City Court had only the authority to levy a total fine of $50, and for that reason could not levy a fine of $50 per day for each day the violations at issue continued. The Court of Appeals agreed that the City Court did not have the authority to levy a fine of over $50, but held that it had the authority to levy such a fine multiple times in a case, in this one $50 per day for each day the violation continued because it was coercively remedial. But this case began around 1998, and did not make it through the court system until March, 2007!!!! There is no telling how many thousands of dollars the city burned in this case on attorney' s fees and time, undoubtedly far less than it received in remedial fines.

The City's Remedy of Demolition or Other Alteration or use of the Building

In some Tennessee cases where a building permit has been erroneously issued, and the permitted has accrued "substantial expense" in reliance on the permit, the permit cannot be revoked. The question of whether a property owner has accrued "substantial expense" is a factual one, and will obviously vary from case to case. [See Howe Realty v. City of Nashville, 141 S.W.2d 9094 (1940); Haymon v. City of Chattanooga, 513 S.W.2d 185 (Tenn. App. 1973).]

However the City's case involves a situation where no building permit was asked for or obtained. In the case of Chickering Ventures, Inc. v. Metropolitan Government of Nashville & Davidson County, 1988WL 133527 (Tenn. Ct. App.1988), it was said that the possession of a valid building permit is a prerequisite in determining whether the builder has a vested interest in continuing the particular land use or finishing the particular project at issue. In that case, the Court pointed out that the developer was not able to place "good faith reliance" upon the building
permit issued by the city because under the facts the permit was invalid. As to the investment the developer had made in the property under the invalid permit, the Court pointed to Haymon v. City of Chattanooga:

With respect to the amount expended prior to the revocation of the building permit, we are not referred to any authority on what constitutes "substantial expenditures." In Haymon v. The City of Chattanooga, 513 S.W.2d 185 (Tenn. Ct. App. 1973), the court held that the expenditure of $35,000 in the construction of a foundation for an apartment building was not sufficient to give the property owner a vested right to continue construction. We find that case to be persuasive authority.... [At 3]

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), supports that conclusion, and appears to go even further by holding 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 a situation involving a builder who did not 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 permitted can acquire no vested rights when a permit is issued in violation of the zoning ordinance." [At 59]

The Court stuck to that position, rejecting Far Tower 's argument that the Court should adopt the Pennsylvania Supreme Court's position in Petrosky v. Zoning Hearing Bd. of Township of Upper Chichester, 402 A.2d 1385 (1978). In that case, the property owners, relying upon a building permit issued to them by the township, built a garage in accordance to plans they had submitted with their application for a permit. However, it was discovered seven months later that the garage violated the set back requirements, and the township ordered them to remove it or alter it to comply with the setback requirements. The Pennsylvania Court declared that, "We reject the notion that a citizen who does attempt to check the zoning statutes by making inquiry of the proper officials, who certainly should be expected to have knowledge about zoning, has not exercised due diligence." [At 65]

The Tennessee Court of Appeals rejected Pennsylvania 's position:

We decline to adopt, as an absolute proposition, that a citizen can rely upon the advice and actions of a mid-level local county official pertaining to a zoning matter within that official 's area of responsibility in lieu of any independent research. It is certainly conceivable that such an official might not be well-versed in the legal intricacies of a thick zoning ordinance. It goes without saying that such officials are of varying levels of education, training, intelligence, competence and most importantly knowledge and comprehension of the law pertaining to their official duties. "The ramifications of the broad A due diligence" proposition stated in Petrosky are too significant to prompt us to depart from the established precedent in the Moore case. If there is to be a departure from Moore, we believe it must come from the General Assembly or the Supreme Court...

In the instant case, as previously noted, Far Tower does not contest the obvious B all of the permits issued by Knox County in this case...were issued in violation of the Tech Acts and the Knox County Zoning Ordinance, i.e. they were all issued prior to the issuance of a COA.[Certificate of Appropriateness.] [At 66]

For those reasons, concluded the Court, Far Tower had no vested property right in and under the invalidly issued permit.

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 A 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.

A 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]

In the City's case, the X's state in their APPLICATION FOR ZONING REQUEST, made on July 23, 2007, that the reason for their request is that "We have been here since 1999 with our business. We thought it was already zoned commercial because the VFW Club was on the property before we owned it. We recently found out that it was not zoned commercial." I am not sure what the "We have been here since 1999 with our business" means; apparently the X's were not on the property in question operating their truck service and repair business in 1999. In any event, the X's inquired as to the zoning of the property in question, but regardless of what they were told as to the zoning of the property, in neither the case of an R-1 zone or a C-1 zone was the building they constructed authorized, except in a C-1 zone as a special exception. It was in their means to learn what uses were permitted in both zoning districts. In any case, the salient point is that they did not obtain a building permit.

I frankly cannot guess what the local courts there will do in this case. Generally, courts are quite reluctant to order the destruction of buildings already built. But in the Tennessee Courts of Appeal and the Tennessee Supreme Court, Far Tower is heavy authority supporting the proposition that if a property owner does an end run around the requirement for a building permit, even if he does so with no intention to do the end run, he has very little legal traction. In the X 's case, the end run around the building permit requirement was apparently done deliberately or negligently.

Hopefully, this letter will help the city to decide what kind, and how much, of a legal investment it wishes to make in this case Of course, the X's are in a similar position. Please call on me if you have any questions about this or any other matter.

Sincerely,

Sidney D. Hemsley
Senior Law Consultant
SDH/

Please remember that these legal opinions were written based on the facts of a given city at a certain time. The laws referenced in any opinion may have changed or may not be applicable to your city or circumstances.

Always consult with your city attorney or an MTAS consultant before taking any action based on information contained in this database.