Flautt & Mann v. Council of City of Memphis

• Decision Date: 20 February 2008
• Docket Number: No. W2006-02227-COA-R3-CV.,W2006-02227-COA-R3-CV.
• Citation: 285 S.W.3d 856
• Parties: FLAUTT & MANN, a Partnership v. The COUNCIL OF the CITY OF MEMPHIS, et al.
• Court: Tennessee Court of Appeals

285 S.W.3d 856

FLAUTT & MANN, a Partnership v. The COUNCIL OF the CITY OF MEMPHIS, et al.

No. W2006-02227-COA-R3-CV.

Court of Appeals of Tennessee, at Jackson.

October 12, 2007 Session.

February 20, 2008.

Order on Denial of Rehearing April 10, 2008.

Application for Permission to Appeal Denied by Supreme Court October 27, 2008.

Lori Hackleman Patterson, Allan Jerome Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellants, The Council of the City of Memphis and The City of Memphis.

William H. Fisher, III, and Valerie Futris Fisher, Memphis, Tennessee, for the Appellee, Flautt & Mann.

OPINION

DAVID R. FARMER, J., delivered the opinion of the court, in which HOLLY M. KIRBY, J., and JOHN EVERETT WILLIAMS, SP. J., joined.

This appeal involves protracted litigation concerning the zoning of a parcel of land located in Memphis, Tennessee. After a bridge, which provided the only access to the property, collapsed, the landowners planned to install and maintain billboards on the subject parcel by helicopter. The landowners initially applied to the Memphis City Council to have the subject parcel re-zoned from agricultural uses to commercial uses. The Memphis City Council rejected the landowners' application. The landowners filed a petition for review by common law and statutory writ of certiorari and an action for declaratory judgment in the circuit court. The circuit court entered an order reversing the decision of the Memphis City Council and remanding the case to the Council for a new hearing.

Upon remand, the Memphis City Council once again rejected the landowners' application. The landowners filed a petition for contempt in the circuit court alleging the Council violated the court's order on remand. The trial court found that the Council violated its order, but that the Council was not in willful contempt of the court's order because it relied on the erroneous advice of its lawyer in interpreting the order. The trial court remanded the case to the Memphis City Council for a new hearing. The City filed an appeal in this Court. After noting that reliance on the advice of counsel is not a defense to contempt, we reversed the trial court's decision and remanded the case to the trial court to determine if the contempt was willful. On remand, the trial court found that the City was in willful contempt of the trial court's order and assessed daily damages of $1,500, accruing from June 13, 2003 order, until the Council complied with the court's order. The City filed a second appeal in this Court. We vacate the trial court's damages order and remand the case to the trial court for further proceedings consistent with this opinion.

Factual Background and Procedural History

This case is a second appeal regarding a contempt order. See Flautt & Mann v. Council of City of Memphis, No. W2004-01188-COA-R3-CV, 2005 WL 940568, at *1 (Tenn.Ct.App. Apr.22, 2005). The underlying facts and pertinent procedural history set forth in our previous opinion are reiterated below:

In 1979, Flautt & Mann, a partnership, purchased a parcel of real property currently located at the intersection of Interstate 240 and Mt. Moriah Road in Memphis, Tennessee. The subject property, approximately 13.55 acres in size, is presently bounded by Interstate 240 to the north, "old" Mt. Moriah Road to the west, Nonconnah Creek to the south, and property owned by Shelby County to the east. According to Flautt & Mann, they originally intended to use the subject property to develop commercial office buildings. When Flautt & Mann purchased the property, vehicles could access the parcel by using a bridge from "old" Mt. Moriah Road, a public road, across Nonconnah Creek.

At some point, the State of Tennessee ("State") constructed a portion of Interstate 240 to the north of the subject parcel, and the project included the construction of an interchange at Mt. Moriah Road. During the course of constructing the new interchange, the State created a new bridge across Nonconnah Creek which, in turn, limited access to "old" Mt. Moriah Road. The State did, however, leave the "old" Mt. Moriah Road bridge intact when it completed construction of the interchange. Thereafter, maintenance of the "old" Mt. Moriah Road bridge ceased. In approximately 1984, the "old" Mt. Moriah Road bridge leading to the subject parcel collapsed. Following the bridge's collapse, no effort was undertaken to rebuild the bridge, and the subject property remained without vehicle access.^FN1 In approximately 1990, the State filed a condemnation action against Flautt & Mann in the Circuit Court of Shelby County to acquire a portion of the subject property to widen Interstate 240. In turn, Flautt & Mann filed a claim against the City of Memphis ("City") seeking a mandatory injunction ordering the City to restore access to the subject property.

^FN1. It is estimated that the cost of restoring access to the property by building a new bridge across Nonconnah Creek would be approximately $2,000,000.00.

Without vehicle access, the only way to reach the subject property is by helicopter. Flautt & Mann determined, and the City agreed, that the only economically viable use of the property was as a site for the construction and maintenance of billboards, which could be accomplished by helicopter. The City, however, has zoned the subject property for agricultural uses only. On May 10, 1994, Flautt & Mann filed an application with the Memphis and Shelby County Office of Planning and Development ("OPD") seeking to have the property re-zoned for either commercial or industrial uses.^FN2 After reviewing the application, OPD recommended that the application be rejected for the following reasons:

^FN2. It was necessary for Flautt & Mann to file an application for re-zoning due to state law, which provides:

Restrictions on outdoor advertising on interstate and primary highways. — No outdoor advertising shall be erected or maintained within six hundred sixty feet (660') of the nearest edge of the right-of-way and visible from the main traveled way of the interstate or primary highway systems in this state except the following:

(1) Directional or other official signs and notices including, but not limited to, signs and notices pertaining to natural wonders, scenic and historical attractions which are authorized or required by law;

(2) Signs, displays and devices advertising the sale or lease of property on which they are located;

(3) Signs, displays and devices advertising activities conducted on the property on which they are located;

(4) Signs, displays and devices located in areas which are zoned industrial or commercial under authority of law and whose size, lighting and spacing are consistent with customary use as determined by agreement between the state of Tennessee and the secretary of transportation of the United States; and

(5) Signs, displays and devices located in unzoned commercial or industrial areas as may be determined by agreement between the state of Tennessee and the secretary of transportation of the United States and subject to regulations promulgated by the commissioner.

Tenn.Code Ann. § 54-21-103 (2003). All of the subject property is within 660 feet of Interstate 240, therefore, Flautt & Mann sought to qualify for the exception in section 54-21-103(4) of the Tennessee Code by having the property re-zoned.

1. The location of the site makes rezoning to the Highway Commercial District inappropriate. The property has no available vehicular access to support land uses permitted by the C-H District including billboards. No access is allowed for maintenance of signs from the interstate by the TN Department of Transportation.

2. Rezoning to the C-H District cannot be justified solely for the purpose of allowing billboards.

3. Billboards on the subject property may be visible over sound barriers erected behind single family residential properties north of the expressway creating an adverse visual effect on those residences.

In fact, OPD's policy is to reject applications for re-zoning to commercial or industrial designations when the sole purpose is to construct billboards. The Memphis and Shelby County Land Use Control Board subsequently rejected the application based upon the recommendation of OPD. Flautt & Mann appealed the rejection of its application to the Memphis City Council.

On November 21, 1995, Flautt & Mann's application came before the Memphis City Council. At the hearing, Mary Baker ("Ms.Baker"), Deputy Director of OPD, advised the Memphis City Council that OPD recommended rejecting the application because the property did not have adequate vehicle access. In addition, a neighborhood association attended the meeting and offered testimony in opposition to Flautt & Mann's application. The Memphis City Council voted five (5) to four (4) in favor of granting Flautt & Mann's application, but the application failed because zoning changes require the approval of a majority of the fifteen member Memphis City Council.

On January 17, 1996, Flautt & Mann filed a "Petition for Certiorari or, in the Alternative, for Declaratory Judgment" in the Circuit Court of Shelby County. The petition alleged two counts: (1) that, pursuant to a common law writ of certiorari codified at section 27-8-101 of the Tennessee Code, the circuit court should find that the Memphis City Council exceeded its jurisdiction or acted illegally and arbitrarily in denying Flautt & Mann's application for re-zoning; and (2) that, since the actions of the Memphis City Council amounted to a taking without just compensation, Flautt & Mann is entitled to a declaratory judgment to that effect. Flautt & Mann also requested a jury to try the issues when joined. The circuit court entered a Writ of Certiorari on January 17, 1996, requesting that the record of the proceedings before the Memphis City Council be certified and sent to the circuit court for review. On March 20, 1996, the City filed a motion seeking to...