Brooks v. Fisher
| Decision Date | 25 October 1985 |
| Citation | 705 S.W.2d 135 |
| Parties | Harry E. BROOKS and wife Palma J. Brooks, Plaintiffs-Appellants, v. Baxter FISHER, Gene Harris and Ed Hudgins, in their official capacities as members of the Board of Zoning Appeals of the City of Martin, Tennessee, Defendants-Appellees. 705 S.W.2d 135 |
| Court | Tennessee Court of Appeals |
William B. Acree, Jr., Union City, for plaintiffs-appellants.
William Michael Maloan, Martin, for defendants-appellees.
This case was before the trial court on common law writ of certiorari as embodied in T.C.A. Sec. 27-8-101 (1984 Supp.) to review the action of the City of Martin's Board of Zoning Appeals denying plaintiff landowners a permit to use certain property as a fraternity house.
Plaintiffs had leased their property to Phi Kappa Tau Properties, Inc., with the understanding that the property would be used as a fraternity house by Phi Kappa Tau Fraternity. The lease agreement contained an option to purchase. The agreement is contingent upon obtaining a permit that the property can be used as a fraternity house. Plaintiffs' request for the permit was made to the Board of Zoning Appeals pursuant to Sec. B 2(a) of Article V of the zoning ordinances of the City of Martin which is as follows:
At the board hearing plaintiffs filed as a site plan a copy of their deed and a copy of the tax assessor's record showing the lot and house dimensions. Plaintiff Harry Brooks testified concerning the location of the property, the description of the house and lot and the size thereof. He also expressed his willingness to comply with any conditions imposed by the board in granting the permit. The vice-president of the fraternity testified that the property would be maintained in good repair and that the fraternity would use the property in a proper manner.
Neighbors were then allowed to testify concerning their opposition to the fraternity using this property and related details of problems that had occurred since several members of the fraternity had been occupying the house and in fact allowing the house to be used as a fraternity house. Testimony from these witnesses included complaints concerning noise, unruly conduct, beer drinking, congested parking, motor vehicle traffic and, in general, the incompatibility of a fraternity house and the neighborhood.
At the conclusion of the testimony, the chairman of the board reviewed the various shortcomings the board found in plaintiffs' request. Although plaintiffs' attorney requested the board to specify the conditions upon which the permit would be granted, the board unanimously voted to deny the request for a permit.
Under common law writ of certiorari the scope of review by the trial court is limited to a determination of whether the inferior tribunal has exceeded its jurisdiction, has followed unlawful procedure, has been guilty of arbitrary or capricious action or has acted without material evidence to support its decision. See Watts v. Civil Service Board for Columbia, 606 S.W.2d 274 (Tenn.1980); Hoover Motor Express Company v. Railroad and Public Utilities Commission, 195 Tenn. 593, 261 S.W.2d 233 (1953).
In dismissing the petition for writ of certiorari the trial court found that the board did not act illegally, arbitrarily, capriciously or discriminatorily, and that there was material evidence to support the decision of the board. Plaintiffs have presented two issues for review, but we find it necessary to consider only Issue No. 2 which is as follows:
2. Did the chancellor err in dismissing the plaintiffs' petition and thereby disallowing their request to use their property as a fraternity house.
Plaintiffs assert that the terms and provisions of the zoning ordinance do not authorize the board of zoning appeals to deny plaintiffs' request as it did in this case. On the other hand, the board contends it was justified in denying the request because of the neighbors' testimony and the plaintiffs' failure to comply with the zoning ordinance by not filing a site plan.
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...that another basis for grant of the writ is that the board or commission followed unlawful procedure. See, e.g., Brooks v. Fisher, 705 S.W.2d 135, 136 (Tenn. Ct. App. 1985). In Brooks, however, the court's holding was based upon a finding that the board's decision exceeded its authority bec......
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