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Town of Collierville v. Town of Collierville Board of Zoning Appeals

Court of Appeals of Tennessee, Jackson

April 7, 2015

TOWN OF COLLIERVILLE, ET AL.
v.
TOWN OF COLLIERVILLE BOARD OF ZONING APPEALS, ET AL.

Session Date July 22, 2014

Appeal from the Chancery Court for Shelby County No. CH1302031 Walter L. Evans, Chancellor

Taylor A. Cates and Charles Silvestri Higgins, Memphis, Tennessee, for the appellants, Town of Collierville and Town of Collierville Development Department.

David C. Riley, Memphis, Tennessee, for the appellees, Town of Collierville Board of Zoning Appeals including those persons who were its members on December 20, 2012, Steven Counts, Auston Wortman, Thomas Swan, Lance Warren, and Maurice Oswell, in their official capacities and Bradley Rice and David Hamilton, who were appointed to said Board to serve during 2013 in their official capacities.

Richard L. Winchester, Memphis, Tennessee, for the appellee, Abbington Center, a Tennessee General Partnership having as one of its general partners, Stanley H. Trezevant, III.

W. Neal McBrayer, J., delivered the opinion of the Court, in which J. Steven Stafford, J., and Kenny W. Armstrong, Sp. J., joined.

OPINION

W. NEAL McBRAYER, JUDGE

I. Facts and Procedural History

This is the second appeal concerning two billboards located in Collierville, Tennessee, (the "Town") on land currently owned by Abbington Center ("Abbington"). See Abbington Center, LLC v. Town of Collierville, 393 S.W.3d 170 (Tenn. Ct. App. 2012). As related in the previous opinion, the billboards were constructed in December 1979. Id. at 172. At that time, building permits and a sign permit fee were the only requirements for construction of a billboard in the Town. Id. On June 24, 1982, the Town passed an ordinance prohibiting the construction of any new billboards. Id. at 173.

Abbington[1] purchased the billboards in 1993. Id. Abbington began making inquiries as to whether the billboards were "grandfathered in" and could be torn down and reconstructed. Id. The Town assured Abbington that the billboards were "grandfathered in." Shortly thereafter, Abbington discovered that the billboards were leased for use by a third party for fourteen years, so Abbington did not pursue the matter. Id.

In 2007, Abbington submitted proposed designs to the Town's Design Review Commission for new billboards to replace the billboards in question. The Design Review Commission approved the design with the requirement that Abbington obtain building and electrical permits for the billboards. Id. Abbington began removing and replacing the old billboards but failed to apply for the permits. Therefore, the Town posted "Stop Work" orders at the sites for both billboards. Id.

Abbington subsequently applied for the necessary permits. The Town denied the permits on the basis that the billboards did not constitute a legal nonconforming use. The Town asserted that there was no proof that the requisite permits were obtained for the construction of the billboards in 1979. Id. Abbington appealed the decision to the Board of Zoning Appeals ("BZA"). The BZA affirmed the Town's stop work orders and the denial of the request for building permits. Id.

Abbington filed a petition for writ of certiorari to the chancery court. Id. Following a remand and second hearing before the BZA, the chancery court invalidated the stop work orders and permitted Abbington to reconstruct the billboards. Id. at 173-74. The Town then appealed to the Court of Appeals, but while the appeal was pending, Abbington reconstructed the billboards.

This Court determined that Abbington had not proven that the requisite municipal permits had been obtained when the billboards were originally constructed in 1979. Id. at 184. Therefore, we reversed the decision of the chancery court and reinstated the decision of the BZA. Id. at 184-85.

After the decision in this Court, on October 4, 2012, the Development Department[2] sent a letter to Abbington directing the removal of the reconstructed billboards because they were in violation of the Town's ordinances. In doing so, the Development Department relied upon this Court's judgment reinstating the BZA's decision, which affirmed the stop work ...


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