# FILED

May 16, 1997 Cecil Crowson, Jr
. App ellate C ou rt Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

______________________________________________________________________________ VOW ELL VENT

URES, Weakley Chancery No. 1 2325 C.A. No. 02A0

1-9604-CH-000

90 Plaintiff, Hon. William B. Acree, Judge v. CITY OF MARTIN, Defe nda nt. H. MAX SPEIGHT, Martin, Att orney for Plaintiff. MAR K G. G ALLI EN, Mar tin, A ttorne y for

Defe nda nt. AFFIRMED Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. Vowell Ventures, a partnership (herea fter “Vowell” or “Morris Vowell”) f iled suit in the Chancery Court of Weakley County against the City of Martin (“City”) by a pleading which was appropriately treated by the trial c ourt as a Petition for a Writ of Certiorari, seeking an order from that court directing City to issue Vowell a building permit to erect an office building on a parcel of land owned by Vowell. City had previously denied the permit for the reason that the proposed building was to be constructed over an existing sanitary sewer line and a storm drain. Vowell presents one issue for this cour t to consid

er on app eal—whe

ther the trial cou rt erre d in denyin

g its application for a building permit. For the reasons hereinafter state d, we affirm the trial court. W e also hol d that this a

ppeal is f rivolous. The basic facts—in essence virtually all the fac ts—are not in dispute. Inasmuch as the parties were unable to file an agr eed statement of the evidence, the chanc ellor prepared and filed one on behalf of the court. Morris Vo well and o thers ac quired tit le to the p roperty in questio n by warr

anty deed in 1983. The property, a rectangular va cant lot, fronts on U.S. 45 in the city. The frontage, the width of the property, is 94 feet. The prope rty extends back east from the highway s lightly ove

r 250 fee t in length. Vowell pr

oposed to c onstruct

a 40' X 80'

shell for an of fice bui lding, re ctangula

r in shape , to be set

back 50 f eet fro m the eas t margin2

of highway 45. The minimum set back requirement in this area is 25 feet. While the warranty deed from Vowell’s gra ntor to Vowell makes no mention of any underground utility easement running through the property, it is uncontradicted that two separate underground utility lines—one a sanitary sewer line a nd the other a storm sewer line—run in a general north-south direction through the pr operty and based upon the planned location of the building would pass directly underneath portions of the proposed structure. For the benefit of the reade rs of this opinion we have attached a copy of a plat, filed as exhibit 4 at trial below, which shows all the pertinent physical facts relative to this controversy. Vowell’s application for a building permit was denied by Billy Stout, City’s Chief Building Inspector, on the ground that City had recently adopted a policy of denying building permits when the building would be located directly over underground utility line s. Stout tes tified tha t this polic y was ena

cted to a void unne cessar

y repair costs to City for damage to private buildings which could be caused by a failure of one of the sewer lines. After Vowell was unable to obtain a hearing by City’s governing board, this petition for certiorari was filed. At the hea

ring belo w, the onl

y witness t

o testify f or plainti ff was Mo

rris Vow ell, one of the partners. He testified that there we re no recorded easements or gra nts for either o f the unde

rground s ewer lines on his pr operty. T his is not co ntested. He also testified that as we have already noted, there was no reference to either se wer line in the deed to Vowell. This is also not contested. He further testified that City had permitted others to construct buildings over underground sewer lines. City did provide Vowell a compromise plan that would place Vowell’s proposed building a

n addition al seven

teen fe et back f

rom the hig

hway right-of-w ay, whic h would clear Vowell’s structure from lying above the unde rground lines. Vowell rejected the offer, stating that such a relocation of the building would make the site “unattra ctive” for a fu ture sale . Vowell c oncede d that City’ s comprom ise plan w ould allow

him to still pave and/or otherwise make use of the property over the lines and that he had a deep lot with “plenty of room to build on.” On cross examina

tion Vowell readil

y admitted

that pote ntial prob lems exist

in3

placing a building ov er a sew er line o r a storm d

rain and that the li

kelihood o f proble

ms increases if a building is placed over both a sewer line and a storm drain. He described potential problems to include a line collapse, a line becoming stopped up, and a line generally needing repairs or replac ement. He stated that structural damage to a building c ould occu

r if a sew er line under it sh ould colla pse. He f urther te stified th at a portion of a building over an underground sewer line would have to be removed if the line under it needed repairs or replac ement. As a licensed contractor, he voiced the opinion that if a person had a choice it would be better not to build over a utility line. He further stated that he had no knowledge of the c ondition or age of the utility lines crossing this property over which he desired to construct his new building. The first of two witnesses to testify for City was James Crocker, City Engineer. He stated that he made the determination not to allow building permits to be issued over existing se

wer and storm dra

inage lin es, although he ad mitted tha

t there w as no City ordinance in place specifically prohibiting the issuing of permits under such conditions. Crocker, a licensed civil engineer, testified as to the e xtensive repairs that had to be made in five instances by City to sewer lines which had buildings and other improvements constructed over them, as well as the extensive costs in some instance s that had to be borne by City due to repairs that had to be made to these buildings and improvements because of their location over or in proximity to these underground sewer li nes. He f

urther te stified th at he had served a s public wo

rks dire ctor for

City since 199 0 and to hisknowledg e no perm its had be en issued

since tha t time by City

to build over any underground utility lines. The second and last witness to testify for City was Billy Stout, a certified building in spector

who had se

rved in th at capa

city since 1993. He t

estified that while he knew of no City code that specifically prohibited the construction of buildings or improveme

nts over s ewer or

storm dra

in lines, he denied

the perm it in this ca se as it was the p ractice at that time

for the City Public W orks Dep artment n ot to issue a permit under the se condit

ions, prima

rily to avo id unnece ssary re pair cos ts due damage to private buildings that could be caused by a sewer line failure

. He further testified that while there was no spec ific provision in the Standard4

Building Code (1982 edition) that had been adopted and was in effect in City at that time that w ould spec ifically prevent the plac ement of

buildings o ver stor

m sewer l ines, he was of the opinion that he was empowered to do so pursuant to § 103.5 there of, which re ads as fo llows:
103.5--REQUIREMENTS NOT COVERED BY CODE Any requirement necessary for the stre ngth or stability of an existing or proposed building or structure, or for the safety or hea lth of the occupants thereof, not specifically covere d by this code, shall be determin ed by the B uilding Of

ficial.
On appea l our scop e of review in reviewing a trial cou rt’s dec ision per

taining to administrative or legislative action by a local governing body is to ascertain whether the trial court and the governmental entity in the first instance, acted illegally, ar bitrarily or capriciously. Neither the trial court nor this court is to substitute their judgment for that of a local governmental body. McCallen v. City of Me

mphis , 786 S.W.2d 633, 641 (Tenn. 1990). In our opinion not only did City fail to act in an arbitrary, illegal or capricious manner, but to the contrary it acted not only for the best interest of the City’s welfa re, but for the best interest of the welfare of Vowe ll as well. In our opinion the testimony of Morris Vowell standing alone would be sufficient to justify the action of the trial court. While it would appear from some portions of Vowell’s testimony that he was seeking to claim an estoppel against City, estoppel was not pled in his complaint. Furthermore, as a general rule estoppel would not lie aga inst a governmental agency. Elizabethton Housing and Development Agency, Inc. V. Price , 844 S.W.2d 614, 618 (Tenn. App. 1992). Accord ingly, the judgment o f the tria

l court is a

ffirmed . In addit

ion, this c ourt is of the opinion that when the principles governing the determination of a frivolous appeal are applied, this is a frivolous appeal, pursuant to T.C.A. § 27-1-122. U pon remand the trial court is directed to hold a hearing to asce rtain the amount of reimbursement to City for attorney fees and other legal costs pursua nt to T.C.A. § 27-1- 122. Costs in this cause on appeal are taxed to Vowell, for which execution may issue if necessary.5 ________________________________________ TOMLIN, Sr. J.

________________________________________ CRAWFORD, P. J. W .S. (CONC URS)

________________________________________ LILLARD, J. (CONC URS)