### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE BOB KIELBASA and VEEDA KIELBASA, v. WILSON COUNTY BOARD OF ZONING APPEALS, B & H R ENTALS, LLC; and HORIZON CONCRETE, INC. Appeal from the Chancery Court for Wilson County No. 98134, Hon. C.K. Smith, Chancellor

No. M1999-01155-COA-R3-CV - Decided May 5, 2000

Petitioners’ Writ of Certiorari to the Board of Zoning Appeals wa

s not timely

filed in accordance with T.C.A. § 27-9- 102, but petitioners argued the statute of limitation was tolled beca use the Board did not comply with the notice provision, or that the meeting of t he Board o f Zoning Appeals was fr audulent ly concealed. Th e Chancellor hel

d the statute of limit

ation applicable and dismissed the writ. Petitioners have appealed. Tenn. R. App. P.3, Appea l as of Right; Judgme

nt of the Chancery

Court affirmed.
FRANKS , J., delivered the opinion of the court, in which GODDARD, P.J., and SWINEY, J., joined.
Jerry Gonzales , Griffith & Gonza lez, P.C., Lebanon

, for Appellants.
Jere N. Mccullough, Rochelle, McCullough & Aulds, Lebanon, for Appellees, B & H

Rentals, LLC and Horizon Concrete, Inc.

OPINION

Petitioners own a parcel of land that adjoins a parcel of land which is now owned by defendant B & H Rentals, LLC, where a concr ete batch plant has been constructed pursu ant to a building permit, and is now in operation. The application for construction of a concrete batch plant was approved by the Board on July 25, 1997, and a s the Trial Court noted, petitioners’ action was filed on April 8, 1998, some 257 days after the action of the Board of Z oning and Appeals.
Petitioners claim they n

ever knew that any of

the events had tak

en place until construction began on the plant in February of 1998.1 The record show s that written notic

e was mailed to othe

r adjoining landow

ners.

-2- Petitioners filed their petition on April 8, 1998 and subsequently filed a Motion for Summary Judgment. The Motion for Summary Judgment was denied. The Court was then asked to decide this matter on the record. The court found the notice of the Board meeting “was published in the Lebanon Democrat, a newspaper of gene ral circulation in Wilson County” and that the notice complied with the Board rules and was adequate and timely, and orde red the petition dismissed.
The enabling statute whi ch authorizes counties to set up boards to hear zoning matters does not set forth any

requirements

regarding notice for hearings of this ty pe. See Tenn. Code Ann. §§ 13-7-101 to

13-7-117. The statute empowers the board to develop such rules as are necessary for it to carry out

its duties. Id. The defendant Board’s rules regarding notice require different types of notice depending upon the type of relief that is requested. If the request is an appeal from a decision of the Building Inspector, then the rules require that wri

tten notice be mail

ed to “parties of

interest” at least five days prior t

o the hearing. H

owever, if

the request is for

a special exemption

for a use permissible

on appeal, then the notice required is publication in the daily paper of general circulation in W ils on C oun ty.

In the form which Ms. H and fille d out, s he checked she w as appealing f

rom a decisi on of the building inspector, but there is nothing in the record to indicate that the Building Inspector denied a building

permit. Attached

to the form execute d by Ms. Hand, is a typewritten letter signed by Ms. Hand which asks that she be granted “us

e on appeal” to bu

ild a concrete plan

t. Since there is nothing i

n the record to show

that a building pe

rmit was sought an

d denied, there is no support for petitioners’ argument that this should be treated as an appeal from a decision of the Building In

spector which re

quires that writte

n notice be mailed

to all parties of in

terest. 1
The Board was required under its rules to publish a notice of the time and place of the meeting in

a dai ly paper of general circulation in Wilson County, and the notice which was published cited the time and place of the Board ’s meeting and then gave a list of requests which would be presented, including “Priscilla Hand, use located on Beckwith Road/I40.” The Board met on April 25 th and approved Ms. H and’s requ est. The Minutes re flect that two adj oining property owners appeared in opposition to the request, and the record

further shows that B & H applied for a building permit for the plant on October 16, 1997, which was granted.

The six ty day

statute of limitatio

ns contained in Te

nn. Code Ann. §27-9

-101 is jurisdictional,

and the failure to file a Petition fo r Writ of Certiorari within sixty days of the Board’s decision results in said decision becoming final, such that the trial court and consequently this Court are without the jurisdiction to review it. Thandiwe v. Traughber , 909 S.W.2d 802 (Tenn. Ct. App. 1994); Turner v. Tennessee Board of Paroles , 993 S.W.2d 78 (Tenn. Ct. App. 1999).

Petitioners argue the Boa

rd fraudulently

concealed its

meeting and/or decision from-3-

petiti oners by no t sending them a ma iled notice, as wa

s done for other a

djoining landowne

rs. Fraudulent

concealment may

occur when a pa

rty who has a duty

to disclose a known fact

fails to do so, and another party reasonably relies upon the resulting misrepresentation, thereby suff ering i nju ry. Chrisman v. Hill

Home Development, Inc., 978 S.W.2d 535, 539 (Tenn. 1998). As already stated, the Board had

no duty in this c

ase to mail notices to any

adjoining landow

ners, including

petitioners, thus there is no bas

is to find fraudule

nt concealment.
It is unfortunate for the petitioners that they did not have actual notice of the Board of Zoning Appeals’ meeting. However, the Board discharged its obligations under the statute. The Constitution does not a

fford int erested l andowner s a right t o actual n otice in zo

ning matters. See Nichols v. Tullahoma Open Door, Inc. , Tenn. App. 640 S.W.2d 13 (1982).

The judgment of the Chancery Court is affirmed and the cause remanded with cost of the appeal ass

essed to appellan

ts.