B.F. Nashville, Inc. v. City of Franklin, No. M2003-00180-COA-R3-CV (TN 1/21/2005)
| Decision Date | 21 January 2005 |
| Docket Number | No. M2003-00180-COA-R3-CV.,M2003-00180-COA-R3-CV. |
| Parties | B. F. NASHVILLE, INC. v. CITY OF FRANKLIN, TENNESSEE. |
| Court | Supreme Court of Tennessee |
Appeal from the Chancery Court for Williamson County; No. 28940; Russ Heldman, Judge.
Judgment of the Chancery Court Affirmed.
George H. Nolan; Jonathan D. Rose, Nashville, Tennessee, for the appellant, B. F. Nashville, Inc.
Douglas Berry, Nashville, Tennessee, for the appellee, City of Franklin, Tennessee.
Patricia J. Cottrell, J., delivered the opinion of the court, in which William C. Kocha, Jr., P.J., M.S., and Frank G. Clement, Jr., J., joined.
Three years after its free-standing advertising sign was damaged in a thunderstorm and removed, the owner of a restaurant in Franklin decided to erect a replacement sign. Although the restaurant had not proceeded with its plans to the point of applying for a permit, it was notified by the city that it must remove the support posts remaining from the original sign. That notice also stated that the old sign could not be reconstructed since it did not conform to a new sign ordinance. The restaurant owner filed a complaint for declaratory judgment, seeking a declaration that it had a vested right under Tenn. Code Ann. § 13-7-208 to erect a non-conforming replacement sign. The trial court dismissed the complaint. We hold that although the protections of Tenn. Code Ann. § 13-7-208 apply generally to on-site advertising signs, the restaurant was not entitled to a declaratory judgment that its sign could be reconstructed without regard to the city's sign ordinance. We affirm the trial court.
B.F. Nashville, Inc. ("B.F."), the plaintiff in this case, is the owner/operator of a Wendy's restaurant adjacent to I-65 in Franklin, Tennessee ("City"). At the time of the restaurant's construction in 1983, a large free-standing sign was erected to advertise its location. The pylon supporting the sign was 116 feet tall, and the face of the sign measured about 20 feet by 20 feet. At the time it was erected, the sign complied with all applicable ordinances. In 1995, Franklin enacted a sign ordinance that would have prohibited the existing sign.
On March 3, 1999, a fierce thunderstorm with heavy winds caused the partial collapse of the sign. The City's Director of Codes Administration promptly ordered that the damaged sign be removed because it was unsafe.1 He also required that any replacement sign be designed to withstand winds of up to seventy miles per hour. The restaurant owner then removed the sign and portions of its telescopic support pole.
Several years later, B.F. ultimately decided to construct a replacement sign that would be in compliance with the wind resistance requirement. The plan called for the new sign to rise 85 feet, instead of the original's 116 feet. However, on March 22, 2002, the City's Sign Codes Administrator sent a letter to B.F. stating that since the collapsed sign "was a legally non-conforming sign" (i.e., it did not comply with Franklin's existing sign ordinance), "it was not allowed to be reconstructed." Neither party alleges B.F. had discussed with City officials its plan to construct a sign, and it is not clear from the record what prompted the letter.2 The administrator also ordered that the remainder of the support posts be removed within ninety days of the receipt of the letter.
On July 16, 2002, B.F. filed a complaint for declaratory judgment in the Chancery Court of Williamson County. The complaint alleged that the City, through its sign administrator, had asserted the zoning ordinance prohibited reconstruction of the sign unless it conformed to the existing sign ordinance. B.F. alleged it had a statutory right to reconstruct the subject sign. The specific relief requested was a declaration that, pursuant to T.C.A. § 13-7-208, "[B.F.] has a statutory right to reconstruct the subject sign regardless of the provisions of the Franklin Zoning Ordinance."
The City responded with a Tenn. R. Civ. P. 12.02(6) motion to dismiss, contending only that because B.F. had not availed itself of its right to appeal to the Board of Zoning Appeals, it had not exhausted its administrative remedies and, therefore, was not entitled to a declaratory judgment.
At the initial hearing on the motion to dismiss, the trial court asked the parties to brief the question of whether Tenn. Code Ann. § 13-7-208 was applicable to the present case, particularly in light of this court's recent holding in National/Auto Truck Stops, Inc. v. Williamson County, No. M2000-02456-COA-R3-CV, 2001 WL 434860 (Tenn. Ct. App. April 30, 2001) (perm. app. denied September 24, 2001). By agreed order, the City was allowed to amend its motion to dismiss to add the ground that the non-conforming use statute, Tenn. Code Ann. § 13-7-208, did not apply to the sign at issue.
After the amended motion to dismiss was heard, the trial court ruled in favor of the City, and in a three-sentence order, granted the motion. The court's order does not set forth its reasoning or state upon what grounds it relied. This appeal followed.
A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual allegations in the complaint but asserts that no cause of action arises from these facts. Davis v. The Tennessean, 83 S.W.3d 125, 127 (Tenn. Ct. App. 2001). In reviewing the trial court's grant of the motion to dismiss, we must presume that the factual allegations in the complaint are true, and review de novo the trial court's legal conclusion that Plaintiff failed to state a claim for relief. Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997). Additionally, our review of a trial court's determinations on issues of law is de novo, with no presumption of correctness. Frye v. Blue Ridge Neuroscience Center, P.C., 70 S.W.3d 710, 713 (Tenn. 2002); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
The issues raised in this appeal involve the interpretation of state statutes and local ordinances. The primary rule of statutory construction is "to ascertain and give effect to the intention and purpose of the legislature." LensCrafters, Inc. v. Sundquist, 33 S.W.3d 772, 777 (Tenn. 2000); Carson Creek Vacation Resorts, Inc. v. Department of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993); McGee v. Best, 106 S.W.3d 48, 64 (Tenn. Ct. App. 2002). To determine legislative intent, one must look to the natural and ordinary meaning of the language used in the statute itself. We must examine any provision within the context of the entire statute and in light of its over-arching purpose and the goals it serves. State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000); Cohen v. Cohen, 937 S.W.2d 823, 828 (Tenn. 1996); T.R. Mills Contractors, Inc. v. WRH Enterprises, LLC, 93 S.W.3d 861, 867 (Tenn. Ct. App. 2002). The statute should be read "without any forced or subtle construction which would extend or limit its meaning." National Gas Distributors, Inc. v. State, 804 S.W.2d 66, 67 (Tenn.1991). As our Supreme Court has said, "[w]e must seek a reasonable construction in light of the purposes, objectives, and spirit of the statute based on good sound reasoning." Scott v. Ashland Healthcare Center, Inc., 49 S.W.3d 281, 286 (Tenn. 2001), citing State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995).
Courts are also instructed to "give effect to every word, phrase, clause and sentence of the act in order to carry out the legislative intent." Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn.1975). In re Estate of Dobbins, 987 S.W.2d 30, 34 (Tenn. Ct. App. 1998). Courts must presume that the General Assembly selected these words deliberately, Tenn. Manufactured Housing Ass'n. v. Metropolitan Gov't., 798 S.W.2d 254, 257 (Tenn. App.1990), and that the use of these words conveys some intent and carries meaning and purpose. Tennessee Growers, Inc. v. King, 682 S.W.2d 203, 205 (Tenn.1984). Clark v. Crow, 37 S.W.3d 919, 922 (Tenn. Ct. App. 2000). The same rules and principles are applied when construing zoning ordinances. Lions Head Homeowners' Ass'n v. Metropolitan Bd. of Zoning Appeals, 968 S.W.2d 296, 301 (Tenn. Ct. App. 1997).
The portion of the Franklin Zoning Ordinance that deals with signs includes a section, numbered 8.7.5, on Nonconforming Signs. That section begins with a preamble stating the goals:
This section recognizes the eventual removal, as expeditiously and as fairly as possible, of nonconforming signs and (sic) is as much a subject of health, safety, and welfare as is the prohibition of new signs that would violate the provisions of this ordinance. It is also the intent of this section that the removal of nonconforming signs shall be effected so as to avoid the unreasonable invasion of established property rights.
In determining that the reconstruction of B.F.'s sign as proposed by B.F. was prohibited, the City relied upon the following provision of the sign ordinance:
8.7.5(2) Removal, Replacement, Reconstruction, or Relocation. No nonconforming sign shall be removed, replaced, reconstructed, or relocated in whole or in part to any other location on the same or any other lot unless the replaced, reconstructed, or relocated sign conforms to the provisions of this ordinance.
The sign proposed by B.F. would not conform to two provisions of the sign ordinance: specifically, the provisions that limit signs that are located within 1,500 feet of the interstate to a height of 20 feet and that allow only one freestanding sign per lot.3 In addition, the letter of March 22, 2002, was based on another section of the zoning ordinance applicable to Nonconforming Signs which addresses abandonment:
8.7.5(4) Abandonment:...
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