Town of Collierville v. Town of Collierville Board of Zoning

          Session April 4, 2017 ^[1]

         Direct Appeal from the Chancery Court for Shelby County No. CH-13-0203-1 Walter L. Evans, Chancellor No. W2016-02032-COA-R3-CV

         This is the third appeal in an ongoing dispute between the Town of Collierville and the owner of property on which two billboards are situated. On February 12, 2013, the Town filed a petition for writ of certorari, challenging a decision of the Board of Zoning Appeals. Because the petition for writ of certorari does not comply with Tennessee Code Annotated section 27-8-106, the trial court and, therefore, this Court lack subject matter jurisdiction. We vacate the judgment of the chancery court and dismiss the petition.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated and Dismissed

          Richard L. Winchester, Jr., Memphis, Tennessee, for the appellant, Abbington Center, LLC.

          Taylor Cates, Memphis, Tennessee, for the appellees, Town of Collierville and Town of Collierville Development Department.

          Brandon O. Gibson, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Jeff Parham, Sp. J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE.

         This is the third appeal regarding two billboards in the Town of Collierville (the "Town") on land owned by Abbington Center ("Abbington"). See Town of Collierville v. Town of Collierville Board of Zoning Appeals, No. W2013-02752-COA-R3-CV, 2015 WL 1606712 (Tenn. Ct. App. 2015); Abbington Center, LLC v. Town of Collierville, 393 S.W.3d 170 (Tenn. Ct. App. 2012). Our 2015 opinion regarding these billboards provides an appropriate recitation of the facts underlying the dispute:

[T]he billboards were constructed in December 1979. At that time, building permits and a sign permit fee were the only requirements for construction of a billboard in the Town. On June 24, 1982, the Town passed an ordinance prohibiting the construction of any new billboards.

Abbington purchased the billboards in 1993. Abbington began making inquiries as to whether the billboards were "grandfathered in" and could be torn down and reconstructed. 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.

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. 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.

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. 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.

Abbington filed a petition for writ of certiorari to the chancery court. Following a remand and second hearing before the BZA, the chancery court invalidated the stop work orders and permitted Abbington to reconstruct the billboards. The Town then appealed to the Court of Appeals, but ...