1 The City of Dyersb urg, the City Board,

the Mayor, and the

Ci ty Alderman w ill be collectively ref

erred to as the D

efendant. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON WILLIE TOLES & IDA MAY TOLES v. CITY OF DYERSBURG, ET AL 

### .

A Direct Appeal from the Circuit Court for Dyer County No. 98-243; The Honorable Lee Moore, Judge

No. W1999-01238-COA-R3-CV - Decided July 14, 2000

The present appeal arises out of a zoni ng dispute betwe

en the plaintiff pr

operty owner and the City of Dyersburg, Tennessee. The p roper ty in qu estio n had b een op erate d as a t avern since 1960. In 1998, the area in which

the property

was located was r

e-zoned as a resi

dential area. A

t that point, the tavern became a non-conforming use. Prior to the re-zoning, the tavern’s business license had expired and the beer license had also lapsed. The operator of the club applied for a beer permit but was denied based upon the fact that at the time of the r

e-zoning there w

as no business

in operation on the premises. Therefore, the City determin

ed that the premise

s could not be “gr

andfathered”

into the new zoning classification. The Plaintiffs filed a Statutory Writ of Certiorari challenging the City’s actio

ns. The trial cour

t held a trial de novo after which the City’s actions were upheld. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
H IGHERS , J., delivered the opinion of the court, in which F ARMER , J., and L ILLARD , J., joined. Martin L. Howie, D

yersburg, for Ap

pellants Fred Collins, Dyersburg; John M. Lannom, Dyersburg, for Appellees
OPINION
The plaintiffs in this case appeal from the decision of the Dyer County Circuit Court, which upheld the Defendant’s denial of plaintiffs’ application for a beer permit. For the reasons stated herein, we affirm the trial court decision. I. Facts and Procedural History
The p laintiff, W illie Tol es, is the o wner of a piec e of propert y located in Dyersb urg, Tennessee. 1 Since 1960, the building on that property had been operated as the Avalon Club (“The2 The B-1 classification is referred to as a “Limited Trading Services District.”

3 The signing of the application only denoted that the property was in compliance with

all applicable code

s.
4 This zoning classification is referred to as R-3.

5 The re-zoning a

ppears to have c

omplied with all app

licable rules an

d regulations.
2 Club”). The Club sold beer f or on-premises c

onsumption at all time

s prior to the even

ts giving rise to the present appeal. Since 1989, the Club had been rented by Linda Ward. The Club was operated under a business

license and beer license held by Ms. Ward. The business license expired on March 31, 1998, and

Wa rd surren dered the beer license on July 1, 1998. During this time, the Club was located within a B-1 zone and was a permissible use of the land under that zoning plan. 2
In April or May of 1998, Willie Toles began making improvements to the Club with the intentof renting the property to another individual to continue its operation as a tavern. In or around July of 1998, Ida M

ae Toles, also a p

laintiff in the ca

se, agreed to o

perate the busine

ss. On July 21, 1998, Ms. Toles applied for a beer permit. On July 30, 1998, the building inspector and a member of the Dyersburg Fire Department conducte d an inspection of the building. On July 31, 1998, a letter was sent to Ms. Toles advising her that certain repair work would be required before her application for a beer permit could be processed. Three re-inspections were conducted before the property was found to be in compliance with the applicable codes on October 1, 1998. On that date, Ms. Toles’ application for a

beer permit was s

igned by th

e necessary

authorities. 3 During the time

that the application for a beer permit was pending, property ow ners in the area petitioned the Dyersburg Planning Commission to re-zone the area as residential. 4 On August 13, 1998, the Dyer sburg M unicipal-Regional Planning Commission met and considered the application to re-zone the area in which the Avalon Club was located. The Planning Commission recommended

to the City Board that the property be

re-zoned. The De

fendant held

a public hearing on September 8, 1998, and voted to re-zone the area from B-1 to R-3. 5
On October 19, 1998, after the re-zoning had taken place, the Plaintiff’s application for a beer permit was denied. The basis for the denial was that the property could not be “gr

andfathered”

into the R-3 zone because at the time of the re-zoning, there was no operating business on thepremises. The Plaintiffs then filed for a Statutory Writ of Certiorari, challen ging the Defe ndant’s actions in denying the application f

or a beer permit

. A trial de novo was conducted in the Dyer County Circui

t Court, and the denial was upheld. The present appeal followed. II. Law and Analysis
The issue in

this case is whether the Plaintiff’s property should have been gra ndfathered

into the new zoning classification a s a non-conformin

g prior use. The

re appears to be

no doubt that,3

under the new zoning classification, the operation of a tavern on the pr ope rty i s not allowed. Add iti ona lly, there appear s to be no doubt that the Plaintiffs had eve

ry intention

of continuing to operate the Avalon Club as a

tavern. The dispositive question is wh ether the lapse o

f the business license and beer license operated to p revent the business from being grandfathered into the new zoning classification.
It is important to note

the timing of the c

ritical events in

this case. The bus

iness license hel

d by Linda Ward expired on March 31, 1998. Ms. Ward subsequen tly surrendered her beer permit on July 1, 1998. Ms. Toles, the new operator of the club, applied for

a beer permit on July

21, 1998. However, due to structural deficiencies in

the building, her

application was n

ot approved until October 1, 199 8. In the interim, on September 8, 1998, the area

was formally

re-zoned from B -1 to R-3.
It is clear that at the time the area was re-zoned , no valid business license existed for the pro pert y, nor was there a v alid beer permit.

The Defendant a

rgues that this la

ck of a valid busine

ss license and beer permit means that no business was in operation. The Defendant further argues that since no business was in operation at the time of the re-zoning, there was nothing capable of being grandfathered

into the new classification. The Plaintiffs, however, argue that their intent to continue operating the business, exemplified by the application for a beer permit and repair work, is sufficient. Herein lies the point of disa

greement betw

een the parties.

The Plainti ffs argue that the i ntent to contin ue operating a business is sufficient to allow the property to be grandfathered, w hile the Defendant

argues that the business must bein operation, whic h would include all

applicable licenses and permits.
The Plaintiffs rely on the case of Boles v. Ci ty of Chattano oga , 892 S.W.2d 416 (Tenn. Ct. App. 1994), to support their position. In Boles , the owners and operators of an adult-oriented establishment

sought a declaration tha t their u se of the property was allowed under the zoning ordinance as a prior nonconforming u se. The property

in question had bee

n operated as an

adult book/video store since the early 1970's. Boles , 892 S.W.2d at 418. In 1977, the City of Chatt anooga amended its zoning laws in such a way that the plaintiffs’ property was no longer a permissible use. However, the business was a llowed to continue

its operations as a

prior non-confo

rmi ng use. In 1987, the Hamilton County District Attorney filed suit against the owners and operators of the store seeking to “abate

a public nuisance.” An injunction was subsequently entered which precluded the operation of the business. The business was n ot in operation while the Criminal Court action was pe nding in the trial and appellate courts. In early October, 1989, the Plaintiffs leased the subje ct premises to another individual for the operation of an adult-oriented establishment. On October 13, 1989, a City of Chattanooga Building Inspec tor issued a

correction notice to thebusiness because the premises did not conform to the applicable provisions of the Zoning Ordinance. The City took the position that the pro

perty was n

ot zoned for an adu

lt- oriented establishment and that the Plaintiffs had lost their right to

this non-conformi

ng use because they had discontinued that use for more than6 The time limitation of

100 days was a specific provision of the local Chattanooga ordinance and has no application in the present case.
4 100 consecutive day

s. 6 The Plaintiffs argued

that a non-conforming use is not discontinued within the meaning of the "grandfather" clause of the Chattanooga Zoning Ordinance “unless and until the owner or occupier of the property through that person's voluntary and affirmative actions manifests an intention to abandon the non-conforming use.”
In resolving the issue, the Court of Appeals focused on the meaning of the word “discontinued.” The court stated that t he word “should be

construed to

include an eleme

nt of intent, combined withsome act--or failure to act--indicative of abandonment.” The court ultimate ly held “that the term ‘discontinued’ as found in Article VII, Section 100 of the Chattanooga Z oning Ordinance does not apply if the discontinuance of the non-conforming use is purely involuntary in natu re.” (em phasis added). Since the Plaintiffs could not have operated the business due to the injunction, the court found that the property did not lose its character as a non-conforming prior use.
We undertook

the exte nsive review of the facts in the Boles case because t he Plaintiffs’ argument seems to rise or fall on its applicab ili ty t o the present facts. In that regard, we do not bel ieve that Boles has any bearing on the present case. Unlike the injunction in Boles , nothin g prevented the operation of the Avalon Club as a tavern prior to the zoning change. After Linda Ward stopped operating the c

lub, there was no e

xtrinsic force which prevented the club from continuing its operations. The owner of the property had to find someone else to operate the club. That process apparently

took some time. This is

certainly not the concern o

f the Defendant

. The Defendant

did notprevent the club’s operation during this time. After Ida Mae Toles agreed to operate the club, the structural deficiencies which were found in the club did stall the approval of the application for a beer permit. However, there has been no assertion that these deficiencies were unfounded or that the inspections were undertaken as a stall technique. The building did no t conform to the ap

plicable codes, and the application for the beer permit could not be approved until the necessary repairs were made. The timing of the repairs was totally in control of the Plaintiffs. Had the repairs been made more quickly, then, presumably, the application could ha ve been approved prior

to the re-zoning.
In short, there was nothing “involuntary”about the cessation of the operation of the Avalon Club as a tavern. We read Boles to support the proposition that “intent ” is only important where some force outside the control of the pr operty owner prevents the continued use of the land in a particular manner. Since no such force prevented the Plaintiffs from operating the Avalon Club as a tavern, their intent is not important and the Boles decision is thus distinguishable from the present case. Therefore, since the building was not being operated as a business at the time of the re-zon ing, there is nothing to grandfather into the new zoning classification. Acco rdi ngly, the City was w ithin its rights to deny

the Plaintiffs’ ap

plication for a be

er permit.

Conclusion5

For the foregoing reasons, the decision of the trial court which upheld the Defe ndant’s denial of a beer permit is affirmed. Costs of this appeal are taxed to the Appellants, Willie Toles and Ida Mae Toles, for which execution may issue if ne cessary.