### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON March 2000 Session VOWELL VENTU

RES v. CITY OF

MARTIN Appeal from the Circuit Court for Weakley County No. 2815 William B. Acree, Jr., Judge

No. W1999-01445-COA-R3-CV - Decided July 21, 2000

Vowell Ventures, a partnership, sued the City of Mart in al leging that the

City denied V

owell Ventures’ application for a building permit du

e to the fact that t

here was a sewe

r line and storm dra

in crossing the property. The complaint al leged that the denial of the application for the building permit constituted a takin

g of property

without just compensation and sought judgment against the City for the taking. T

he trial court g

ranted the City

of Martin’s Motion T

o Dismiss Or For

Summary Judgment and we af

firm. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed;

and Remanded
D AVID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K. L ILLARD , J., joined. H. Max Speight, Mar

tin, Tennessee, f

or the appellant,

Vowell Ventures

. Mark F. Gallien, Martin, Tennessee, for the appellee, City of Martin. OPINION
Vowell Ventures, a part

ner ship, appeals from the order of the Circuit Court of Weakley County granting City

of Martin’s motion f

or summary ju

dgment. This

marks the second

appearance by these parties before

this Court. The ge

nesis of this case

was the denial by

the City of Ma

rtin to issue a building pe

rmit applied for by

Vowell Ventures

in February, 1990. Vowell Ventures filed suit in the Chancery Court of Weakley County against theCity in what was treated as a petition for a writ of certiorari seeking an order from the court di rectin g City to issue

Vowell Ventures

a building permit to erect a

n office building

on a parcel of la

nd owned by V

owell Ventures.

The trial court deniedthe petition and Vowell Ventures appealed to this Court, which affirmed the trial court by an opinion filed May 16, 1 99 7. Vowell Ventures’ application for permission to appeal to the supreme court was denied December 8, 1997. The Ci ty denied the permit because the building which Vowell Ventures

proposed to build on

its lot was to be constructed over an existing sanitary-2-

sewer line and stormdrain. Vowell Ventures v. City

of Martin , No. 02A01-9604-CH-00090, 1997 WL 254236 (Tenn. Ct. App. May 16, 1997) perm. app. denied

. The basic facts a

s set forth in this Cou

rt’s May 16,

1997 opinion are a

s follows: Morris Vowell and others acquired title to t

he property

in quest ion by warranty deed in 1983. The property , a rectangular v

acant lot, fronts on U.S. 45 in the city. The fr

ontage, the widt

h of th e pro pert y, is 94 feet. The property extends back east from th e highway slight ly over 250 feet in lengt h. Vowell proposed to construct a 40' x 80' shell for an office building, rectangular in shape, to be set back 50 feet from the ea

st margin of Highway 45. The minimum set back requirement in this area is 25 feet. Whilethe warranty

deed from Vowell ’s grantor to Vowell makes no mention of any underground utility easem ent runnin g through the property, i t is uncontradicted

that two separate underground utility lines –

one a sanitary sewer line andthe other a storm sewer line – run in a general north-south direction through the property and based upon the

planned location o

f the building wou

ld pass directly underneath portions of the proposed structure.

. . . . At the hearing below, the only witness to test ify for pla intiff was Morris Vowell, one of the partne rs. He testified th

at there were n

o recorded eas

e m ents or grantsfor either of the underground sewer lines on his pr operty. This is not contested. He also testified that as we have already noted, there was no ref erenceto either sewer line in the deed to Vowell. Thi s is al so not contested. He further testifiedthat City had p

ermitted others to

constr uct buildings over underground sewer lines. City

did p rovide Vowell a compromise plan that would place Vowell’s proposedbuilding an additional seventeen feet back fro m th e hi ghwa y righ t-o f-wa y, which would clear Vowell’s structure from lying ab ove the u nderground line s. Vowell rejected theoffer, stating that such a relocation of the building would make the site “unattractive” for a future sal e. Vowell conce ded that City’ s compromise plan would allow him to stil l pave and/or othe

rwise ma ke use of the property over the lines and that he had a deep lot with “plenty of room to build on.”
On cross examination V

owell readily

admitted that poten

tial problems exist in placing a building over a sewer line or a storm dra in a nd that the likelihood of problemsincreases 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 gene

rally need

ing repairs or r

eplacement. He

stated that str

uctura l1 Tenn. Co de Ann. section 29-16-12 4 states:
L imitation

of owners’ a ctions. – The owners of la nd shall, in such cas es, commence proceedi ngs withi n (continu ed...) -3- damage to a building could occur if a sewer line under it should collapse. He further testified that a portion of

a building over an underground sewer line would have to be removed if the line

under it needed r

epairs or repla

ceme nt. 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 kn owledge o f the condition or age of the ut ility lines cr

ossing this proper

ty over whic

h he desired to construct his new building. On January 31, 1996, Vowell Ventures sued City of Martin in the present action alleging that City denied Vowell Ventures’ application for a building permit due to the fact that there was a sewer line and storm drain crossing the property. The complaint alleged tha t the denial of the application for the building permit

constituted a taking of property without just compensation as prohibited by the Fifth and Fourte

enth Amendments to the Constitution of the United States and Article I, Sections 8 and 21 of the Constit

ution of the State

of Tennessee. V

owell Ventures sought compensation from City f or the taking of its property. The City responde d by a pleading styled Motion to Dismiss or for Summary

Judgment contending that the complaint was an action of inverse condemnation and was barred by the statute of limitations set forth in T.C.A. § 29-16-124; that the action is barred by the statute of limitatio

ns applicable to su

its against governmental entities under the Governmental Tort Liability Act T.C.A. § 29-20-303(b); that as a matter of law the de nial of a building permit by a munici pali ty does not constitute a “taking of property ” as alleged in the complaint and that the disposition of the previous la wsuit is res judicata

and/or coll ateral esto ppel. Foll owing a hearing on the motion, the trial court entered an order granting summary judgment in favor of the defendant City and Vowe

ll Ventures appe

als to this court. The issues as pre

sented by the

appellant on appe

al are as follows : I. The City of Martin cannot take private propert

y and appropriate such for the use of the public without compensation to the landowner.
II. Summary Judgment was not appropriate where there is a genuine issue of disputed facts. Governmental entities are empowered to take private property for the use and benefit of the publicgood, but a

r e constitutionally prohibited from doing so without just compensation being made. When such a taking occurs, an action may be initiated by the landowner in an action referred to as inverse condemnation. Such an action must generally be broug ht within 12 months after the landhas been actually taken possession of and the work on the proposed improvemen ts beg un. T.C.A. § 29-16-124. 11 (...continued)

tw elve (12) months after the land has been actually taken possession of, and the work of t he proposed internal improvement begun ; sa ving , howe

ver, to un known owners and nonreside nts, t welve (12) months a

fter act ual knowledge of such occ upation , not exce eding thr ee (3) yea rs, and sav ing to per sons un der the disa bilit ies of i nfancy and unsound ness of mind , twelve (12) m onths after such d isability is removed, bu t not exceeding ten (10) years. -4- We are unable to determine from the record before us when the sewer line and

storm drain were installed on the pr

operty of Vowell Ventures or whether Vowell Ventures was the owner of the property at the time of the in

stallation. Vowell

Ventures include

d allegations in i

ts complaint filed in the previous law

suit against the Ci

ty of Martin a

s follows: On or about February 9, 1990, Morris Vowell, one of the partners of Plaintiff, requested a building permit from the City of Martin to construct on t he above property a 40 fee t by 80 feet “she ll” office b uilding. By letter dated March 9, 1990, Johnny Tuck, the then City of Martin B uilding Inspector, denied the application for a building permit

stating that upon checking the pro pert y, he discovered that there is a sewer line and a storm drain crossing the property, and that he could not grant the application. Morris A. Vowell thenrequested to the Defendant that it remove the sewer an d storm drain from property, as such were prohibiting the issuance of a building permit. According to the record in the previous case, that complaint was filed on October 16, 1991. Therefore, Vowell Ventures had knowledge a

t that time that ther

e was a sewer line and sto

rm drain acrossits property. The present action was filed January 31, 1996. Therefore, the plaintiff’s action for inverse condemnation is barred by the aforementioned statute of limitations. Appellant argues t hat the den ial of t he b uil din g per mit con sti tut es a t aki ng of its pro pert y. It was determin

ed in the prior suit that the trial court did not err in denying Vowell Venture s ’ petition. Just as the application of valid zoning regulations is not considered to

amount to a taking under the power of eminent domain ( see Draper v. Haynes , 567 S.W.2d 462, 465 (Tenn. 1978) and Ragan v. Hall , No. 02 A01-950 1-CH-00007, 1995 WL 769269 (Tenn. Ct. App. Dec. 29, 1995) perm. ap p. denied ); it would appear that the denial of a building permit, previously adjudicated to hav e beenproper, likewise

does not constitute a taking of property without just compensation. However, assuming Appellant is

correct,its cause of actio n would still be barr

ed by the twe

lve month statute of limitations set forth at Tenn. Code Ann. section 29-16-124.-5-

In view of our decis

ion, th e appellant’s second issue is pretermitted. The judgment of the trial court is affirme

d and the costs of th

is cause are taxed to the appellant, Vowell Ventures and its sur ety, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE