# FILED
May 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

ADVANCED SALES, INC., ) by GARY E.NEELEY, PR ESIDENT, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9805-CH-00245 VS. ) ) Wilson Chancery ) No. 97069 WILSON COUNTY, WILSONCOUNTY ) BOARD OF ZONING APPEALS, ) KATHY DEDMON, d/b/a WILSON ) COUNTY BUILDING INSPECTOR, ) ) Defendants/Appellants. )
APPEALED FROM THE CHAN CERY COUR T OF WILSON COUNTY AT LEBANON, TENNESSEE THE HONORABLE C. K. SMITH,CHANCELLOR

B. KEITH WILLIAMS TAYLOR, TAYLOR, LANNOM & WILLIAMS 102 East Main Street Lebanon, Tennessee 37087 Attorney for Plaintiff/Appellee MICHAEL R. JENNINGS 326 North Cumberland Street Lebanon, Tennessee 37087 Attorney for Defendants/Appellants

REVERSED AND DISMISSED

BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N- 2 - In this appeal of a decision of the Wilson County Board of Z oning Appeals, we are asked to decide (1) when is the Board’ s decision entered for the purpose of calculating the six ty day time limit for appeal in Tenn. Code Ann. § 27-9- 102, and (2) whether the Board’s deci sion was arbitrary, illegal, or fraudulent.The ChanceryCourt of Wilson County held that the appeal was timely and overturned the decision of the Board. We reverse and dismi ss the action.

I.

On December 3, 1996, Gary Neeley, President of Advanced Sales, Inc. applied to the Wilson County Board of Zoning Appeals for permissi on to use a parcel of property zoned A-1 for“machine (mfg’d) sales & minimum repairs.” The Board’s minutes of December 20, 1996 reflect that the appl ication was denied “bas ed on staff recommendation and area resident concerns.”

On February19, 1997, Advanced Sales, Inc.filed a petition for certiorari in the Chancery Court of Wilson County alleging that the Board’s decision was illegal, arbitrary, and capricious. The petition asserted that the us e he was being denied w as essentiallythe same as the use allowed by the Board to a prior landowner, and that the Board’s denial was based exclusively on opposition from neighbors.

The Board moved to dismiss because the sixty day s tatute of limitations had run. The Board also filed an answer denyin g all the material allegations i n the complaint. The chancellor overrul ed the motion to dismiss and found that the Board had acted arbitrarily

in denyingthe application to use the property for the re quested p urpo ses. The court’s order over turned the Board’s decision and ordered that “the
use on appeal sought by the plaintiff shall be granted to establish a mac hinery sales and mac hine r epair shop and business on the 16. 85 acres of A-1 zoned propert y owned by the plaintiff . . . .”- 3 - II.
Tenn. Code Ann. § 27-9-102 requi res a petition for certior ari to review the actions of certain boards and commissions to be filed “within si

xty (60) days fro m the entry of the order or judg ment.” The failure to file the petiti on within the statutory limit deprives the

reviewing cour

t of jurisdiction to

consider the appeal. Thandiwe v. Traughber

, 909 S.W.2d 802 (Te nn. App. 1994).

In this case the petition for certiorari alleges t hat, “on December 20, 1996 the Plain tiff Gary Neeley as Pre sident of Advanced Sales, Inc.;who is the current owner of the parcel in question appeal ed a decision of the building inspector that denied him the use of his property in a commercial enterprise. This appeal was denied.” The face of the petition shows that it was filed on February 19, 1997. Thus, if the statutory period

began to run on December 20, 1996,the petition was filed too late.

The petitioner alleges t hat the Board’s “order or judgment” was not entered until January 24, 1997 when the Board met and approved the minutes of the December

20 meeting. We fail to find where that appears in the record. What does appear is the appli cation d ated December 3, 1996 reflecting a hearing date of December

20. Variousnotices to the public and to affected lando wners appear in the record announcing a hearing date of December 20. Thepetition itself has a secti on on which to show the ac tion of the Board. That section reflects that the petition was presented to the Board on December 20, 1996, an d the entry, “Rel ief Denied,” is circled on th e form. It is true that the place on the form showing how the members voted is left blank, but there is no dispute that the Board voted unanimously to deny the peti tion. Th e form is signed by th e Board se cretary.- 4 - We think the Board’s order or judgment

was entered on December 20, 1996. The applicant relies on the case of Carter v. Board of Zoning Appeals of City of Nashville , 377 S.W.2d 914 (Tenn. 1964) for the proposition that the Board’s order
or judgmentin this case was only “rendered”on December 20, 1996 and not “enter ed” until the Board approved the minutes in January of 1997. The Carter case, however, stands for an entirely different propos ition. In that case the pet ition for certiorari alleged that the Board made an oral ruli ng on February 11, 1963 , but the appellant filed a petition to rehear and the or der of the Board was not entered until April 24 , 1963. The petition for certiorar i was filed on April 25,1963.

The Supreme Court held that if the facts alleged in the petitio n were true, the petition was timelyfiled. The Carter case doe

s not dea l with

the effec

t of a Board’s action in approving its minut es at a lat er meetin g. It deals only wi th a f act question as to when the Board’s or der was actually entered. In this case we think the record before the Board conclusivel y shows that

the Board’s actionwas entered on the record on December 20, 1996.

III.

Beyond the question of whether the peti tion was filedin time, we think the chancellor erred in r eversing the Board’s

action. The chancellor’s o rder stated that th ere was no material ev idence to support the Board’s decision and that th e Board acted arbitrarily based on the prior use of the propert y and the use of the surround ing prope rty.

We think all the proof is to the contrary; there is a

complete lack of proof
s howing that the applicant was enti tled to the use on appeal. Althoug h the zonin g ordinan ce is not i n the record, the parties, without objection, quote from it in their briefs. They agree that the use proposed by the applicant is not allowed in an A-1- 5 -

classification. The ordinance do es, ho wever, recogniz e that the Board may allow certain “uses on appeal ” in an A-1 zone. These uses included “uses permitted or permissible on appeal in a C-1 ne ighbo rhood commercial district” (Section 5.20.03(V)) and “other similar

uses as reviewed and approv ed by the Board of Zoning Appeal s.” (Section 5.20.03(W)). A C-1 neighborhood commerci al district is descr ibed in the ordinan ce as a “restricted commercial district, limited to a narrow range of re tail , service and convenien ce goods only.”

There is no transcript of the ev idence ta ken bef ore the Board. The record does, however, contain a history of how this co ntroversy arose. The prior owner, Mr. Tidwell, got Board approval of a use as a used car lot and repair shop. He also tried unsuccessfully t o have the lot

rezoned to a C-3 class ification. On October 21, 1996 the Wilson County building ins pector wrote the following letter to the applicant, Advanced Sales, Inc.

I noticed that a crane and some hoppers have been placed on a tract of land located o n Highway 231 South, prior owner being Mr. C hester Tidwell. After checking the tax record s I find yo u as the ne w owner of t he prope rty. The property is Parcel 27 on Wilson County Tax Map 114. The property is zoned A -1 Agr iculture. Mr. Tidw ell went before the Board of ZoningAp peals December 1, 1989, at which tim e the Boar

d grant ed the use of a

used car lot repair shop. The property being Lot 5 Padgett Estates. With the pro pert y being zoned Agriculture, the only commercial use thatcan be conducted on the site is the use allowed, a used car l ot and repair shop. If you des ire to have a different commercial use on this tract you will need to make a pplication to the Board of Zoning Appeals for theuse. You make application in this of fice. We are located in Room 6, Basement of th e court house, Lebanon, Tennessee and we are open Monday thr

ough Frida

y from 8:00 a. m. until 4:00 p.m.

Advanced Sales, Inc. then filed the appli cation u nder considerat ion. The onlydescription of the proposed use appears in th e record as a Fact Sheet, and it shows the followin g:- 6 - Owners: Gary E. Neeley, M urfreesboro, Tennessee

Carlyle Neeley,Kendallville, Indiana Business: Sales of new and used industrial and materials handling equipment. Gross Sales: 1995 - $58,255

1996 - $375,000 (projected) 1997 - $600,000 (budgeted) Plan - Employees: It is anticipated that Advance Sales, Inc., will employ 4-6 peop le by the end of 1997. Plan - Site: The owners of the property at

3828 Murfreesboro Road, assuming they are gr anted the appropriate use variance on approximately five acres of the subject p roperty, plan to enclose the perimeter of the ar ea grant e d the variance with a suitable fence and construct a 60' X 100' pole barn to house any machinery store d on the prope rty. Property is located on the property onl y for the time it requires to find a su itable b uyer an d then pe rfo rm any refurbishing required by that buyer. The owners plan to improv e the building and immediate area surrounding the build ing with appropriate dri veway and landscaping to enhance the appearance of the property from the road.

The Board staff recommenda tions were as follows: 1662 - Gary Neeley, Advance Sales, Hwy. 231 South Request is to establish manu fa ctured machine sales and minimal repair servic es on A-1 property. The A-1 district allows numerous uses on appeal including uses allo we d in t he C-1 district. Machine sal es and repair servic e could be co nsi dered heavy commercial/indus trial use. This site alr eady has numerous pieces of heavy equipment (apparently used f or asphalt or gravel production) already stored on site, mu ch of wh ich may be unser

viceab le. Staf

f does not consider this use simil ar in nature to any of the uses permitted or permitted on appeal in the A- 1 district, recommend denial

.

Based on this record we cannot say that the Board acted arbi trarily in denying the use on appeal. We think the Board’s conclusion that the use sought was- 7 -

not simi lar to the uses in a C-1 n eighborhood commercial dis trict was based on substantial and material evidence. See Hedgepath v. Norton , 839 S.W.2d 416 (Tenn. App. 1992).
The applicant asserts that the chancellor correctly reversed the Board because the Board’s deci sion wasmotivated entirely by neighborhood opposition. The minutes do reflect that thedecision was influenced by neighborhood opposition, but that was not the sole reas on. It is true that an adminis trative body cannot

den y a landowner the right to use his property in a law ful manner because of the concerns of adjacent property ow ners. Merritt

v. Wilson

Co. Bd. of Zoning Appeals , 656 S.W.2d 846 (Tenn. App. 1983); Father Ryan High School v. Oak Hill , 774 S.W.2d 184 (Tenn. App. 1988). Bu t these ca ses dealt wi th r ights that the landowner was entitled to as
a mat ter of course, once the conditio ns precedent had been satisfied. This cas e involves an interp retation of the zoning ordinance, a matter in which the Board’s expertise is entitled to great deference. C.F. Indu stries v. T enn. Pub . Serv. Co mm. , 599 S.W.2d 536 (Tenn. 1980).

The judgment of the court below is reversedand the petition dismissed. Remand the case to the Chancery C ourt of Wilson County

for any furthe r proceedings necessary. Tax the costs on appeal to Advanced Sales, Inc.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:- 8 -

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE