421 CORPORATION, ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.
No. M1997-00212-COA-R3-CV
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
April 26, 2000
Carol L. McCoy, Chancellor
Direct Appeal from the Chancery Court for Davidson County, No. 96-2234-II
KOCH, J., delivered the opinion of the court, in which TODD, P.J., M.S., and CANTRELL, J., joined.
Joel H. Moseley and Robert W. Rutherford, Nashville, Tennessee, for the appellants, 421 Corporation and Mike Sokolic.
James L. Murphy, Lizabeth D. Foster, and Francis H. Young, Nashville, Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson County, Tennessee and the Metropolitan Board of Zoning Appeals.
OPINION
421 Corporation operates a store named The Purple Onion that sells sexually oriented materials. The store is located at 2807 Nolensville Road in Nashville on property owned by Mike Sokolic. The Purple Onion’s location does not comply with Nashville’s current zoning ordinance restricting sexually oriented businesses primarily to the downtown area. However, Nashville has allowed The Purple Onion to continue in business on Nolensville Road as a nonconforming use
Sometime after September 1977, Mr. Sokolic acquired the real property next door to The Purple Onion at 2809 Nolensville Road. The building on this property shares a common wall with the building housing The Purple Onion. At Mr. Sokolic’s request, the tax assessor combined the two tracts into one and designated the tracts as 2807 Nolensville Road on the tax map. Mr. Sokolic and 421 Corporation later decided to expand The Purple Onion into the adjacent building by removing portions of the common wall. The zoning administrator declined to issue a building permit for the construction, and Mr. Sokolic requested the Metropolitan Board of Zoning Appeals to reverse the zoning administrator’s decision. The board also declined to approve the proposed expansion of The Purple Onion because the expanded business would no longer be on the same property it occupied when it became a nonconforming use.
Mr. Sokolic and 421 Corporation filed a petition for writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the board’s decision. They asserted that the board had misconstrued the provisions in the zoning ordinance regarding the alteration of nonconforming uses and that the city was selectively enforcing its zoning ordinance. In support of their latter contention, Mr. Sokolic and 421 Corporation claimed that Nashville was permitting two other sexually oriented businesses that did not qualify as nonconforming uses to operate illegally in the Nolensville Road area. The trial court granted Nashville’s motion to dismiss the selective enforcement claim for failure to state a claim upon which relief can be granted. Then, following a hearing, the trial court upheld the board’s action after concluding that both state law and the city ordinance required a nonconforming use to remain on the same property. Mr. Sokolic and 421 Corporation have appealed.
I.
THE STANDARD OF REVIEW
We take up first the standard of review applicable to this appeal. The proper vehicle for reviewing decisions of local boards of zoning appeals is the common-law writ of certiorari. See McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990). This writ affords quite limited judicial review, see Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994), that consists of determining whether the administrative body exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support its decision. See Fallin v. Knox County Bd. of Comm’rs, 656 S.W.2d 338, 342-43 (Tenn. 1983); Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997); Hemontolor v. Wilson County Bd. of Zoning Appeals, 883 S.W.2d 613, 616 (Tenn. Ct. App. 1994).
Judicial review under a common-law writ of certiorari is limited to the record made before the board or agency, unless the court permits the introduction of additional evidence on the issue of whether the board or agency exceeded its jurisdiction, or acted illegally, capriciously, or arbitrarily. See Cooper v. Williamson County Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987); Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983). The reviewing courts will not reweigh the evidence, see Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980); Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn. Ct. App. 1996), examine the intrinsic correctness of the decision being reviewed, see McCord v. Nashville, C. & St. L. Ry., 187 Tenn. 277, 294, 213 S.W.2d 196, 204 (1948); Tarpley v. Traughber, 944 S.W.2d 394, 395 (Tenn. Ct. App. 1996), or substitute their judgment for that of the local officials. See Whittemore v. Brentwood Planning Comm’n, 835 S.W.2d 11, 15 (Tenn. Ct. App. 1992).
The common-law writ of certiorari likewise provides limited options for dealing with errors discovered in the proceedings being reviewed. Because courts should avoid dictating specific decisions to local zoning boards except in the most extraordinary circumstances, the most common judicial remedy in zoning cases is to remand the case to the zoning agency with instructions appropriate to the circumstances of the case. See 4 Robert M. Anderson, American Law of Zoning § 27.39, at 598 (3d ed. 1986). Rather than shouldering the local agency’s responsibilities, the courts should insist that the agency carry out its task in an appropriate manner. The goal of a remand should be to place the parties and the agency in the position they would have been in had the agency not acted improperly. See Hoover v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d at 55.
II.
THE BOARD’S INTERPRETATION OF THE LOCAL ZONING ORDINANCE AND RELIANCE ON STATE LAW
Mr. Sokolic and 421 Corporation assert that the board acted arbitrarily and illegally by misconstruing the zoning ordinance governing alterations of nonconforming uses and by relying on a state statute limiting the power of local governments to enforce their zoning ordinances against otherwise legal nonconforming uses. We have determined that the provisions in the zoning ordinance and state law relating to the alteration of nonconforming uses should be read in pari materia, and accordingly, that the board did not misconstrue the zoning ordinance.
A.
Local governments lack inherent power to control the use of private property within their boundaries. Their power derives from the State through specific delegation by the General Assembly. See State ex rel. SCA Chem. Servs. v. Sanidas, 681 S.W.2d 557, 562 (Tenn. 1984); Family Golf of Nashville, Inc. v. Metropolitan Gov’t, 964 S.W.2d 254, 257 (Tenn. Ct. App. 1997). While local governments have considerable discretion to act within the scope of their delegated power, they cannot effectively nullify state law on the same subject by enacting ordinances that ignore applicable state laws, that grant rights that state law denies, or that deny rights that state law grants. See generally State ex rel. Beasley v. Mayor & Aldermen of Fayetteville, 196 Tenn. 407, 415-16, 268 S.W.2d 330, 334 (1954). Thus, local governments must exercise their delegated power consistently with the delegation statutes from which they derive their power. See Henry v. White, 194 Tenn. 192, 196, 250 S.W.2d 70, 71 (1952).
When the language of an ordinance is clear, the courts will enforce the ordinance as written. When, however, the language of an ordinance is ambiguous, the courts will resort to the customary principles of statutory construction. See Whittemore v. Brentwood Planning Comm’n, 835 S.W.2d at 15. Accordingly, the reviewing courts will construe a zoning ordinance as a whole and will give its words their natural and ordinary meaning. See Lions Head Homeowners Assoc., Inc. v. Metropolitan Bd. of Zoning Appeals, 968 S.W.2d 296, 301 (Tenn. Ct. App. 1997); Boles v. City of Chattanooga, 892 S.W.2d 416, 420 (Tenn. Ct. App. 1994). They will also seek the interpretation that is most consistent with the ordinance’s general purposes, but they will resolve ambiguities in favor of the property owner’s right to the unrestricted use of his or her property. See State ex rel. Morris v. City of Nashville, 207 Tenn. 672, 680, 343 S.W.2d 847, 850 (1961); State ex rel. Wright v. City of Oak Hill, 204 Tenn. 353, 356, 321 S.W.2d 557, 559 (1959).
The well-known in pari materia rules also apply to the construction of zoning ordinances. Thus, zoning ordinances dealing with the same subject should be construed together. See Lions Head Homeowners Ass’n v. Metropolitan Bd. of Zoning Appeals, 968 S.W.2d at 301. In addition, zoning ordinances must also be construed in light of the state statutes empowering local governments to enact them in order to avoid conflict and to enable related statutes and ordinances to operate concurrently. See City of Louisville v. Thompson, 339 S.W.2d 869, 873 (Ky. Ct. App. 1960); City of Dallas v. Sullenger, 826 P.2d 34, 36 (Or. Ct. App. 1992); Carroll v. Hastings, 402 N.Y.S.2d 279, 283 (Sup. Ct. 1977).
B.
The source for the law applicable to this dispute are the state statutes, codified at
The General Assembly recognized that empowering local governments to enact zoning ordinances could result in hardship to existing property owners whose property was not previously covered by land use restrictions. These property owners could find themselves in violation of a newly enacted zoning ordinance simply because the existing use of their property was inconsistent with the new restrictions. Rather than leaving the resolution of this problem entirely to the local governments, the General Assembly decided, as a matter of policy, that certain property owners should always be permitted to continue to use their property as they had been using it before the local land use restriction took effect. Thus,
In the event that a zoning change occurs in any land area where such land area was not previously covered by any zoning restrictions of any governmental agency of this state or its political subdivisions, . . . then any industrial, commercial or business establishment in operation . . . prior to the zoning change shall be allowed to continue
in operation and be permitted; provided that no change in the use of the land is undertaken by such industry or business.1
The General Assembly also envisioned that property owners permitted to continue using their property contrary to the zoning laws might desire to expand their businesses or might, for some reason, desire to construct replacement facilities. Accordingly,
The Metropolitan Government of Nashville and Davidson County exercised its delegated zoning power by enacting a comprehensive zoning ordinance on September 2, 1977. This ordinance covered all real property located in Davidson County. Tracking
A. Incidental Alterations. Incidental alterations may be made to a building or other structure occupied by a nonconforming use, or in connection with a permitted change of nonconforming use.
B. Alterations other than Incidental Repairs. Alterations other than minor alterations shall be permitted for replacement and/or expansion of legally nonconforming commercial and industrial uses subject to the following provisions:
- The nonconforming use shall have been legally in existence at the time it became nonconforming, presently occupies the same property it occupied when it became nonconforming, and is not affected by Section 17.128.210[.]
- The proprietor of the use for which replacement or expansion is sought is the owner of the property on which the use is located.
- The replacement and/or expansion does not involve any change in use.
- The alteration either complies with the applicable district bulk regulations, decreases the degree of noncompliance, or does not increase the degree of noncompliance.
- Where the alteration involves an increase in the degree of noncompliance with the applicable district regulations, such expansion shall be permitted through the issuance of a conditional use permit by the metropolitan board of zoning appeals in accordance with the conditions set forth in Section 17.124.420.
Metro. Code § 17.128.060 (1997).5
Metro. Code § 17.128.060 did not contain a provision similar to
C.
Mr. Sokolic and 421 Corporation have two arguments why the board acted arbitrarily when it determined that the proposed expansion of The Purple Onion did not meet all the requirements of Metro. Code § 17.128.060(B) and was contrary to
Both
Mr. Sokolic contends that we should not use
The state enabling statutes provide some direction for resolving conflicts between local zoning regulations and state statutes.
We conclude that the board did not act arbitrarily by considering Mr. Sokolic’s request for a building permit in light of both Metro. Code § 17.128.060 and
III.
THE SELECTIVE ENFORCEMENT CLAIM
Mr. Sokolic’s and 421 Corporation’s second argument is that the board acted arbitrarily and illegally by holding The Purple Onion to the strict requirements of the zoning ordinance while, at the same time, permitting other sexually oriented businesses competing with him in the Nolensville Road to operate illegally outside the zone in downtown Nashville set aside for these businesses. The trial court dismissed this claim for failure to state a claim upon which relief can be granted.
A.
The sole purpose of a
A
B.
Persons making selective enforcement claims have a heavy burden to overcome because the courts, in recognition of the doctrine of separation of powers,7 presume that public officials have discharged their duties in good faith, see Williams v. American Plan Corp., 216 Tenn. 435, 441, 392 S.W.2d 920, 923 (1965), and in accordance with the law. See Reeder v. Holt, 220 Tenn. 428, 435-36, 418 S.W.2d 249, 252 (1967). Because practical realities require the allocation of limited public resources, the courts afford public agencies and officials substantial discretion with regard to law enforcement decisions. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668 (1978). That some people escape the law’s reach while others have the law enforced against them does not, by itself, run afoul of the equal protection guarantees in the state and federal constitutions. See State v. Martin, 719 S.W.2d 522, 525 (Tenn. 1986). There is no constitutionally protected right to have the law go unenforced, even if others who may be equally or more guilty escape punishment. See Futernick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir. 1996).
However, the courts are not required to stay their hand when the government unfairly marshals its immense power against selected citizens. Regulatory or enforcement decisions based on personal dislike, vendetta, or some other impermissible consideration, are anathemas to the American tradition honoring the rule of law. See Futernick v. Sumpter Township, 78 F.3d at 1059. Accordingly, the federal and state constitutions do not permit regulatory and law enforcement decisions to be based on certain impermissible considerations. See Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531 (1985). These impermissible considerations include race, gender, religion, or some other arbitrary classification such as the exercise of statutory or constitutional rights. See Wayte v. United States, 470 U.S. at 608, 105 S. Ct. at 1531; Futernick v. Sumpter Township, 78 F.3d at 1057; Irvin v. City of Clarksville, 767 S.W.2d 649, 654 (Tenn. Ct. App. 1988); Patterson v. Hunt, 682 S.W.2d 508, 517 (Tenn. Ct. App. 1984), citing Oyler v. Boles, 360 U.S. 448, 452, 82 S. Ct. 501, 503 (1962).
Persons asserting a selective enforcement claim must prove that the regulatory or law enforcement decision had a discriminatory purpose and produced a discriminatory effect. See United States v. Armstrong, 517 U.S. 456, 466, 116 S. Ct. 1480, 1487 (1996). There are two elements to a selective enforcement claim: (1) the government has singled out the plaintiff for adverse regulatory or enforcement action while others engaging in similar activity have not been subject to the same type of action and (2) that the decision to prosecute them rests on an impermissible consideration
With regard to the first element, the claimant must allege and prove: (1) that other non-prosecuted offenders have engaged or are engaging in essentially the same conduct, (2) that the non-prosecuted offenders violated the same regulation, statute, or ordinance that the claimant is accused of violating, and (3) that the magnitude of the non-prosecuted offender’s violation was not materially different from that of the plaintiffs. See National Loans, Inc. v. Tennessee Dep’t of Fin. Institutions, 1997 WL 194992, at *5. With regard to the second element, the claimant may prove either that the government singled out a protected class of citizens for enforcement of the law or that the government prosecution was intended to deter or punish the exercise of a protected right. See Futernick v. Sumpter Township, 78 F.3d 1056-57, 1057 n.7 (differentiating between “true selective enforcement” and “vindictive enforcement“).8
C.
Mr. Sokolic’s and 421 Corporation’s complaint must be tested against these standards to determine whether it articulates a selective enforcement claim. The complaint alleges only that Nashville is permitting other sexually oriented businesses to operate outside of their permitted zones even though they do not qualify as nonconforming uses. It does not allege that the board has the authority to commence enforcement actions against any of these businesses or that the board has ever granted these businesses, or any other nonconforming use for that matter, permission to expand on to adjoining property that was not owned when the use became nonconforming.
The governmental activity at issue in this case is the board’s enforcement of the restriction against expanding a nonconforming use onto adjoining property, not the selling of adult oriented materials. Whether the complaint’s bare-bones allegations articulate the first element of a selective enforcement claim is questionable. The complaint does not allege that other sexually oriented businesses are engaging in the same conduct that The Purple Onion seeks to engage in, i.e., attempting to expand onto adjoining property. It does not even allege that the board has permitted other nonconforming uses to expand their operations onto adjoining property. Accordingly, the complaint in this case does not allege that other non-prosecuted offenders have been permitted to engage in the same conduct that Mr. Sokolic and 421 Corporation desire to engage in.
Likewise, the complaint does not contain allegations sufficient to make out the second element of a selective enforcement claim. The complaint does not allege that the board’s decision to enforce the restrictions regarding nonconforming uses against the proposed expansion of The Purple Onion stems from some improper discriminatory motive or that it has produced some
IV.
The memorandum and order affirming the decision of the board and dismissing the petition for common-law writ of certiorari is affirmed and the case is remanded to the trial court for whatever further proceedings may be required. The costs of this appeal are taxed jointly and severally to 421 Corporation and Mike Sokolic and their surety for which execution, if necessary, may issue.