IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 20, 2011 Session

ANITA J. CASH, CITY OF KNOXVILLE ZONING COORDINATOR, v. ED

WHEELER

Appeal from the Chancery Court for Knox County

No. 173544-2 Hon. Daryl Fansler, Chancellor

No. E2010-02652-COA-R3-CV-FILED-AUGUST 16, 2011

The City of Knoxville Board of Zoning Appeals granted defendant a variance and the

Knoxville City Council then nullified the variance granted by the Board of Zoning Appeals.

Defendant then appealed to the Chancery Court of Knox County contending that the city

ordinance which permitted the City Council to review the decisions of the Board of Zoning

Appeals was invalid, and the Chancellor agreed. On appeal, we hold that the ordinance at

issue is valid under the State's statutory scheme. We reverse the Chancellor and remand for

further proceedings.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Reversed.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D.

SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

Angela B. Rauber, and Debra C. Poplin, Knoxville, Tennessee, for the appellant, Anita

Cash.

Arthur G. Seymour, Jr., and Matthew A. Grossman, Knoxville, Tennessee, for the appellee,

Ed Wheeler.
OPINION

Background

The Zoning Coordinator for the City of Knoxville, (The City), filed a Complaint in

the Chancery Court for injunctive relief against defendant Ed Wheeler, a homeowner.

Wheeler owns residential property in Knoxville that has a fence that exceeds the maximum

height allowed by the city’s zoning ordinance. Wheeler applied for and was granted a

variance from the City of Knoxville Board of Zoning Appeals. The variance permitted

Wheeler to maintain the fence despite its height. The Kingston Pike - Sequoyah Hills

Association appealed the Board of Zoning Appeal’s approval of the variance to the chief

legislative body, the Knoxville City Council. The Council voted to approve the appeal,

resulting in overturning the variance which had been granted by the Board of Zoning

Appeals.

Wheeler answered the Complaint, and filed a Counterclaim for declaratory judgment

and attorney fees contending that the City Council lacked authority to disturb the actions of

the Board of Zoning appeals with respect to variances and that the Council’s action to

overturn the variance was void.

The Trial

The case proceeded to trial before the Chancellor, who filed a Memorandum Opinion

and found that the City Council lacked authority to hear appeals from the Board of Zoning

Appeals and that, as a result, the variance granted by the Board of Zoning Appeals was valid,

and that Wheeler was not in violation of the zoning ordinance.

The Trial Court initially held that defendant was entitled to recover attorney fees, but

subsequently, the Trial Court disallowed defendant's claim for attorney's fees.

The City appealed to this Court and has raised this issue:

Did the City of Knoxville’s legislative body have authority to enact an ordinance that

created an additional level of administrative review whereby aggrieved parties may

appeal decisions of the City of Knoxville Board of Zoning Appeals to the Knoxville

City Council?

The Kingston Pike - Sequoyah Hills Association appealed the Board of Zoning

Appeal’s decision to grant the variance to the City Council pursuant to the Knoxville City

Code, Appendix B, Article VII, § 2(E), which provides:

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Section 2. Variances

* * *

E. City council review of action of board.

1. Any person, firm or corporation aggrieved by any decision of the board

may petition the city council to consider the same, in accordance with

the provisions set forth in article VII, section 6, subsection F, of this

ordinance.

Any question regarding the scope of local governmental authority is a question of law,

and as such, we review the issue in this case under a purely de novo standard of review,

according no deference to the conclusions of law made by the lower courts. S. Constructors,

Inc. v. Loudon County Bd. of Educ. 58 S.W.3d 706, 710 (Tenn. 2001).

Discussion

The power of Tennessee’s local governments to enact ordinances is derived from the

General Assembly. S. Constructors at 710. The power to enact zoning ordinances has been

granted to Tennessee municipalitiesthrough Tenn. Code Ann. §13-7-201 etseq. Tenn. Code

Ann. §13-7-201(a)(1) specifically grants zoning powers to the chief legislative body of any

municipality as follows:

For the purpose of promoting the public health, safety, morals, convenience, order,

prosperity and general welfare, the board of aldermen, board of commissioners or

other chief legislative body of any municipality by whatever title designated, and

hereinafter designated as “chief legislative body”, is empowered, in accordance with

the conditions and the procedure specified in this part and part 3 of this chapter, to

regulate the location, height, bulk, number of stories and size of buildings and other

structures, the percentage of the lot which may be occupied, the sizes of yards, courts

and other open spaces, the density of population, and the uses of buildings, structures

and land for trade, industry, residence, recreation, public activities and other purposes

. . .

In addition to granting the general powers necessary to regulate land use through zoning

ordinances, the statute permits municipalities to create a board of zoning appeals. Tenn.

Code Ann. §13-7-205(a)(1) provides:

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The chief legislative body may create a board of zoning appeals of three (3) or five

(5) members, may specify the mode of appointment of members of such board and

their terms, which terms shall be of such length and so arranged that the term of one

(1) member shall expire each year, or the chief legislative body may designate the

planning commission of the municipality as the board of zoning appeals. . . .

(emphasis added).

Tenn. Code Ann. §13-7-205(b) provides that the chief legislative body “may provide and

specify, in its zoning or other ordinance, general rules to govern the organization and

procedure and jurisdiction of the board of appeals . . . .”. Any board of zoning appeals

created pursuant to the statute is authorized to hear appeals concerning administrative

decisions of the municipality, Tenn. Code Ann. §13-7-206, and to decide requests for

variances in accordance with the powers described in Tenn. Code Ann. §13-7-207.

The zoning enabling statute is silent as to appellate review of board of zoning appeals

decisions. Judicial review of a decision by a local board of zoning appeals, an administrative

body, is obtained by filing a petition for a common law writ of certiorari pursuant to Tenn.

Code Ann. § 27–8–101. Harding Acad. v. Metro. Gov't of Nashville & Davidson County,

222 S.W.3d 359, 363 (Tenn. 2007); McCallen v. City of Memphis, 786 S.W.2d 633, 639

(Tenn.1990). The Knoxville City Council interjected an intermediate level of appeal by

enacting the ordinance that permits a party aggrieved by a zoning decision made by the Board

of Zoning Appeals to appeal to the City Council. The issue is whether the City Council had

authority to enact this ordinance, Article VII, § 2(E).

We conclude the City Council does have such authority under the reasoning this Court

employed in a strikingly similar case, Wadlyn Corp. v. City of Knoxville, 296 S.W.3d 536

(Tenn. Ct. App. 2008) perm. app. denied (Aug. 24, 2009), wherein the Court held that

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enabling statute, Tenn. Code Ann. §13-7-201, et seq., did not prohibit the Knoxville City

Council from hearing an appeal from a decision reached by the Metropolitan Planning

Commission pursuant to a zoning ordinance. The only difference between Wadlyn and this

case is that the question here pertains to variances granted by the Board of Zoning Appeals

rather than use-on-review granted by the city planning commission. The ordinance at issue

in Wadlyn was almost identical to the ordinance at issue here except that the word “board”

is exchanged for “planning commission”. The ordinance at issue in Wadlyn provided: “Any

person, firm or corporation aggrieved by any decision of the planning commission may

petition the city council to consider the same, in accordance with the provisions set forth in

article VII, section 6, subsection F, of this ordinance.” Wadlyn at 539.

 The trial court declined to follow Wadlyn . 

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This Court in Wadlyn, stated the issue before it as whether the ordinance allowing the

council to review the planning commission’s decision was ultra vires and illegal. The land

owners had argued the ordinance was not authorized by Tenn. Code Ann. § 13-7-201 et seq.

Id. at 542. We held that as the enabling statute did not prohibit the Council from retaining

the right of review of actions of a planning commission, the action of the City Council was

not ultra vires and illegal. Id. at 542. We reasoned as follows:

The appropriate enabling statute relevant to the case now before us, Tenn. Code Ann.

§ 13–7–205, provides, in pertinent part, that the chief legislative body of a

municipality may create a board of zoning appeals or may designate the planning

commission as the board of zoning appeals and “may provide and specify, in its

zoning or other ordinance, general rules to govern the organization and procedure and

jurisdiction of the board of appeals....” Tenn. Code Ann. § 13–7–205 (1999). The

language used in Tenn. Code Ann. § 13–7–205 clearly is permissive and not

mandatory. The chief legislative body of a municipality may choose to create a board

of zoning appeals, may designate the planning commission to act in that capacity, or

may do neither. However, if a chief legislative body of a municipality chooses not to

create a board of zoning appeals or designate the planning commission to act in such

a capacity, this does not mean that there is no avenue of appeal to parties who have

been aggrieved by actions of the planning commission. Further, we note that Tenn.

Code Ann. § 13–7–201 et seq. contains no prohibition on the establishment of

additional levels of administrative review beyond a board of zoning appeals, if the

chief legislative body of a municipality desires to so provide. As such, the chief

legislative body of a municipality could create a board of zoning appeals and then

provide that appeals of matters from the board of zoning appeals would be heard by

the chief legislative body.

Id. at 542 - 543.

Clearly, the rationale in Wadlyn, applies to the case before us. The Board of Zoning

Appeals is a quasi-judicial body, as is the Planning Commission. B & B Enterprises of

Wilson Co., LLC v. City of Lebanon, M2003-00267-COA-R3-CV, 2004 WL 2916141(Tenn.

Ct. App. Dec. 16, 2004) states:

Planning commissions, like other boards and commissions of local government, are

performing a quasi-judicial function when they review a proposed use of a particular

tract of real property. See Reddoch v. Smith, 214 Tenn. 213,222, 379 S.W.2d 641,

645 (1964); Lafferty v. City of Winchester, 46 S.W.3d 752, 758 (Ten.. Ct. App.

2000); Burson & Simpson Lodge Devs., Inc. v. Metropolitan Gov't, No. 01A01-9805-

CH-00249, 1999 WL 114257, at *2-1 (Tenn. Ct. App. Mar. 5, 1999 (No. Tenn. R.

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App. P. 11 application filed).

(Emphasis supplied).

We hold that the City Council was not prohibited from enacting the ordinance at issue

by the enabling statute, Tenn. Code Ann. § 13-7-201 et seq. Thus, the action taken by the

City Council pursuant to the ordinance was valid. The Judgment of the Trial Court

dismissing the City’s suit and holding that the variance granted by the Board of Zoning

Appeals was valid is reversed. The cause is remanded for the Trial Court to consider the

plaintiff’s complaint for injunctive and other relief.

The Judgment of the Trial Court dismissing the City's suit and upholding the variance

granted by the Board of Zoning appeals is reversed and the cause remanded for further

proceedings consistent with this Opinion. The cost of the appeal is assessed to Ed Wheeler.

_________________________________

HERSCHEL PICKENS FRANKS, P.J.

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