Tumen and Orman
v.
Metropolitan Board of
Zoning Appeals

Memorandum

This case came before the Court on petition of petitioners Mr. and Mrs. Jon J. Tuman and John F. Orman for writ of certiorari, pursuant to Tenn. Code Ann. 27-8-101 et seq. Petitioners, adjacent property owners, seek a judicial review of an Order of the Metropolitan Board of Zoning Appeals ("Board") which granted an application for a 15 foot variance in the required 20 foot depth in the rear yard of petitioners' neighbor, Walter D. Conrad. Mr. Conrad's property is located at 4002 Estes Road in Nashville, Tennessee, and he sought the variance so that he could construct an attached garage on his property.

Petitioners also seek relief under 42 U.S.C. 1983 and 1988 for the respondent Board's violation of the due process and equal protection clauses of the United States Constitution, injunctive relief and their attorneys' fees pursuant to the Equal Access to Justice Act, Tenn. Code Ann. 29-37-101 et seq.

I.

Facts

A summary of the facts in the record are as follows:
Walter D. Conrad, petitioners' neighbor, applied for a building permit to construct an attached garage five (5) feet from the rear line of his property. Mr. Conrad's application was denied because the Metropolitan Code, Section 17.28.290 required in such R20 zone that a rear yard have a depth of not less than 20 feet. Mr. Conrad appealed the denial of his application to the Board.

On January 5, 1995, the Board heard Mr. Conrad's appeal of the denial of his application for a variance. The evidence in the record shows that the reason Mr. Conrad wanted the variance was to prevent the removal of a large tree which stood at the site where he wanted to build the attached garage. (Record p. 25). This tree was planted on the property by previous owners.(Record p. 24).

On January 10, 1995, the Board entered an Order granting the variance with the condition that an instrument be filed with the Registrar's Office stipulating that there would be no living quarters in the garage. (Record p. 35).

On February 2, 1995, the Board, at the request of Mr. Conrad, reconsidered the condition imposed on the previously granted variance.

On February 10, 1995, the Board issued an Order that deleted the original condition and imposed a condition which prohibited the rental of the additional space above the garage.

A detached garage could be constructed at other sites on Mr. Conrad's property which would be in compliance with the Comprehensive Zoning Ordinance (COMZO) Record p. 22).

II.

Standard of Review

The standard of review for this case is the common law writ of certiorari, Tenn. Code Ann. 27-8-101. Thus, review in this case is limited to a determination by this Court of whether the Planning Commission exceeded its jurisdiction or acted illegally, arbitrarily or fraudulently. Hoover Motor Express Co. v, Railroad & Public Utilities Commission, 195 Tenn. 593, 261 S.W.2d 233, 236 (Tenn. 1953); Watts v. Civil Service Bd. for Columbia, 606 S.W.2d 274, 276-277 (Tenn. 1980).

Under the common law writ of certiorari, reversal or modification of the action of the Planning Commission only may be had if the Commission acted in violation of constitutional or statutory provisions or in excess of its own statutory authority; has followed unlawful procedure or been guilty of arbitrary or capricious action; or has acted without material evidence to support its decision. Watts at 277.

III.

Conclusions of Law

A. Board Decision

The applicant for a variance must meet certain requirements before the Zoning Board may grant a variance. Under COMZO 17.132.060, the Zoning Board may not grant a variance unless its findings are based on evidence presented to it as follows:

(a) the particular physical surroundings, shape, or topographic conditions of the specific property involved that would result in the particular hardship upon the owner as distinguished from a mere inconvenience, if the strict application of this title were carried out;

(b) the conditions upon which the petition for a variance is based would not be applicable, generally, to other properties within the same district;

(c) the variance would not authorize activities in a zoned district other than those permitted by this title;

(d) financial returns only shall not be considered as a basis for granting a variance;

(e) the alleged difficulty or hardship has not been created by any person having interest in the property after the effective date of the ordinance codified in this section;

(f) the granting of the variance would not be detrimental to the public welfare or injurious to other property or improvements in the area in which the property is located;

(g) The proposed variance would not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety, or substantially diminish or impair property values within the area;

(h) the Board may require that the planned development provides for compensating features to offset any potentially adverse conditions that might be brought about by said variance; and

(i) the Board shall obtain an advisory opinion from the Metropolitan Traffic Engineer before reducing the number of required parking spaces.

On consideration of the evidence presented in support of the application for the variance, the Court finds that the applicant, Mr. Conrad, failed to adequately satisfy the requirements of COMZO 17.132.060. In particular, the hardship about which Mr. Conrad complains was created by his predecessor in title or by himself.

Therefore, the decision of the Board granting the variance is illegal, arbitrary, capricious and in excess of its statutory authority.

B. Attorneys' Fees

As prevailing parties, petitioners seek their attorneys' fees under the provisions of the Tennessee Equal Access to Justice Act of 1984, Tenn. Code Ann. 29-37-101 et seq. and 42 U.S.C. 1988 for deprivation of their constitutional rights under 42 U.S.C. 1983, by the Zoning Board.

1. Tennessee Equal Access to Justice Act of 1984, Tenn. Code Ann. 29-37-101 et seq.

This Act applies to small businesses which prevail in litigation with state government. Petitioners have not alleged that they are a small business. Therefore, their claim for their attorneys' fees is without merit.

2. 42 U.S.C. 1988

Petitioners seek their attorneys fees under 42 U.S.C. 1988, for the alleged deprivation of their federal constitutional rights under 42 U.S.C. 1983, by the Board. Petitioners' claim in this regard is improperly joined with the instant action. An original action such as a 42 U.S.C. 1983 action may not be joined with an administrative appeal. Goodwin v. Metropolitan Board of Health, 656 S.W.2d 383, 386 (Tenn. Ct. App. 1983). Therefore, petitioners are not entitled to such relief in this cause of action.

IV.

Decision

l. The decision of the Board granting the variance is reversed. This cause of action is remanded to the Board for any further proceedings not inconsistent with this Memorandum.

2. Petitioners' claims for attorneys fees under the Tennessee Equal Access to Justice Act of 1984, Tenn. Code Ann. 29-37-101 et seq., and 42 U.S.C. 1988 are dismissed.

3. The costs are taxed to the respondent, the Metropolitan Government of Nashville and Davidson County, Tennessee.

Mr. Evans and Mr. Dean shall prepare an order consistent with this memorandum.

________________________________________
IRVIN H. KILCREASE, JR.
CHANCELLOR

cc:
Winston Evans
George A. Dean
Lizabeth D. Foster

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