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Vergos v. Swaney

Court of Appeals of Tennessee, Jackson

May 17, 2019

JOHN VERGOS
v.
RANDALL SWANEY

          Assigned on Briefs March 1, 2019

          Appeal from the Circuit Court for Shelby County No. CT-000263-17 Jerry Stokes, Judge

         A private citizen initiated a proceeding in Shelby County Environmental Court to remove a billboard; the environmental court denied the petition, and the citizen appealed to Circuit Court. That court held that the citizen did not have standing to initiate the action and granted summary judgment to the billboard's owner. The citizen appeals, contending that he has standing. The undisputed facts show that the Memphis and Shelby County Office of Construction Code Enforcement issued a citation to the billboard's owner indicating that the billboard violated the Uniform Development Code, and initiated a proceeding in Shelby County General Sessions Court against the billboard owner, which was dismissed and no appeal was taken. We conclude that the fact that a proceeding to remove the billboard was initiated by the City deprives the citizen of standing to enforce the pertinent provisions of the Code himself. Accordingly, we affirm the judgment of the trial court granting summary judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Webb A. Brewer, Memphis, Tennessee, for the appellant, John Vergos.

          David Wade and Abigail K. Abide, Memphis, Tennessee, for the appellee, Randall Swaney.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Arnold B. Goldin, J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         Randall Swaney is in the outdoor billboard sign business; Mr. Swaney found a billboard at 2884 Walnut Grove Road in Memphis that he wanted to convert to a digital sign. He engaged an attorney and discussed the change with an official at the Memphis and Shelby County Office of Construction Code Enforcement ("CCE"). That official conducted his own review, and a permit was subsequently issued on January 29, 2016 to allow the billboard to be converted to a digital sign. Mr. Swaney then obtained more than $800, 000 in financing and converted the billboard to a digital sign.

         On February 4, 2016, an inspector with CCE issued Mr. Swaney a citation, stating that the billboard violated Ordinance No. 5367, section 4.9.8M(3) of the Memphis and Shelby County Unified Development Code ("UDC") by "fail[ing] to comply with requirements of UDC concerning Permit 1073478 billboard atop building." The citation required Mr. Swaney to appear in the General Sessions Court on February 29, 2016 to respond to the citation. A hearing was held on the citation in July 2016, and the citation was dismissed.[1]

         John Vergos, a resident of Memphis and former City Council member, filed a petition in the Environmental Court of Shelby County seeking removal of the sign, asserting that he was "adversely affected by the presence of the billboard sign." The petition alleged that the billboard violated the various provisions of UDC, including sections 4.9.6 and 4.9.8, and that it must be removed in accordance with section 4.9.15(B).[2] Mr. Vergos alleged that he was authorized to bring such an action pursuant to section 4.9.15(G) of the UDC, which provides that a resident of the City of Memphis or Shelby County is authorized to initiate proceedings in environmental court to secure removal of nonconforming and illegal billboards when "the building official fails to initiate proceedings against the owner" within certain time limits.

         A hearing was held in the Environmental Court on November 2, 2016, at which seven witnesses testified and exhibits were admitted. The trial court entered an order on January 5, 2017, denying Mr. Vergos' petition because "[t]he Respondent detrimentally relied on the issued Permit to complete the construction" and "[r]evocation of the Permit would create a significant hardship and would be unjust and inequitable." Mr. Vergos appealed the decision to Shelby County Circuit Court.

         In the circuit court, Mr. Swaney filed a motion for summary judgment in which he argued he was entitled to judgment as a matter of law because Mr. Vergos had no standing to enforce the provisions of the UDC and because the appeal to the Circuit Court was not timely perfected. Along with his motion, he filed a statement of twenty-five undisputed material facts ("SMF"), supported by his sworn affidavit, a copy of the citation issued by CCE, a printout of "Case Information" relating to the hearing on the citation, Mr. Vergos' petition, a printout of "Case Information" relating to the ...


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