Schneider v. Lazarov

• Decision Date: 07 May 1965
• Parties: , 216 Tenn. 1 Harry SCHNEIDER et al., Appellees, v. Alvin J. LAZAROV et al., Appellants.
• Court: Tennessee Supreme Court

Page 197

390 S.W.2d 197

20 McCanless 1, 216 Tenn. 1

Harry SCHNEIDER et al., Appellees, v. Alvin J. LAZAROV et al., Appellants.

Supreme Court of Tennessee.

May 7, 1965.

Feuerstein, Feibelman & Kaminsky, Memphis, Robert W. Pharr, Asst. County Atty., for appellants, William H. Williams, County Atty., of counsel.

Harry W. Wellford, McCloy, Wellford & Clark, Memphis, for appellees.

WHITE, Justice.

Complainants in this case filed an original and an amended bill in the nature of a Bill for Declaratory Judgment, seeking to have declared void a variation, granted by the Shelby County Board of Adjustment, which allowed certain of the defendants to build a 'high-rise' apartment building on a tract of property in Memphis, Shelby County, Tennessee. The complainants, appellees here, further seek to have declared void certain building permits granted to these defendants by the defendants Shelby County Building Commission.

The defendants demurred to the bill, as amended, on the grounds that it did not state a cause of action and that the variation allowed and the permits granted were valid. This demurrer was overruled, but a discretionary appeal to this Court was allowed. T.C.A. § 27-305.

We set forth the various steps taken by the appellants to secure a variance and building permit which would enable them to begin construction on the proposed apartment building.

On February 12, 1959, after due notice, a public hearing was held before the Shelby County Board of Adjustment upon application by the appellants for a variance to the present zoning law. The hearing was attended by many of the complainants in the instant case, and other neighboring property owners, twenty-eight persons in all, who were represented by legal counsel and who presented a petition bearing sixty-two names in opposition to granting the petition, as well as five persons from among the group who spoke in opposition to the Board allowing the variation prayed for in the application. After hearing all of the evidence, the Board granted the application, subject to several conditions and provisions set forth in the Board's formal resolution, one of which was obtaining a building permit within six months therefrom, or by August 12, 1959.

Such building permit was not obtained by appellants within the time specified, and, thereafter, on August 13, 1959, according to the bill, the Board, by informal action, without any public notice or hearing whatsoever, and in response to a letter on behalf of appellants, granted an extension of time of one year within which to obtain a building permit, the new termination date to be August 12, 1960.

Thereafter, on March 6, 1960, the Quarterly County Court of Shelby County, Tennessee, and the City Commission of the City of Memphis, acting jointly, adopted a comprehensive zoning plan for the area in Shelby County located within five miles of the Memphis City Limits, which plan included a change in the zoning of the subject property from 'agricultural' to 'R-1, single family dwelling district'.

Next, on July 14, 1960, the Board, by informal action, without public notice, and in response to a letter on behalf of the appellants, granted a second extension of time until March 10, 1961 within which to obtain a building permit. Following, on March 9, 1961, the Board, in like manner, granted the appellants a third extension of time for obtaining a building permit.

Thereafter, on March 9, 1962, the Shelby County Building Department issued Building Permit No. 00713 to Southern Builders of Tennessee for the erection of an apartment building foundation with a valuation of $25,000.00, to be placed upon the subject property; however, such foundation was never constructed and it appears the plans were abandoned. Complainants allege that the issuance of said permit was improper and unlawful.

Thereafter, the Board, by informal action, without any public notice, and in response to a letter on behalf of the appellants, granted four more yearly extensions of time, the dates of which are as follows: April 12, 1962, February 14, 1963, July 11, 1963, and July 9, 1964.

On September 1, 1964, the Shelby County Building Department issued building permits to erect foundations and a temporary construction office upon the subject property, and on September 4, 1964, said Department issued a permit to Lazarov Construction Company to erect a ten-story, one hundred and twenty unit apartment building. According to the bill, no construction had been initiated by or at the time of the filing of the bill herein.

Perhaps the most significant date to remember in this case is the following one. On September 8, 1964, the Memphis City Commission annexed the subject property into the limits of the City of Memphis by Ordinance Number 1335. The property involved in this lawsuit is now situated in the City of Memphis and is presently zoned R-1. The City of Memphis has continued the R-1, single family zoning, on this property since its annexation, despite the urgings to re-zone, and the City of Memphis has not granted any permits for construction for apartment purposes on this property.

Appellees allege, in their bill, that they individually and as a class have a real, tangible, substantial and present interest and legal rights which are adverse to those of the appellants. It is appellees' contention that the original variation granted by the Board to appellants expired by its own terms on August 12, 1959, prior to any purported extension without compliance by appellants with the conditions thereof. In addition, appellees state that the property itself was zoned from 'agricultural' to 'R-1, single family residential' in 1960, after the purported variation has been granted, and, therefore, the said variation even if it had not expired by its own terms and in accordance with the rules of the Shelby County Board of Adjustment, was insufficient and inoperative to allow construction of a 'high-rise' apartment, in a zone which permits only single family residential units.

Further, appellees contend that the Board, without notice to adjacent and affected property owners, has no jurisdiction and authority to grant an extension of time of purported variations beyond the limits specified in its rules. And, lastly, appellees declare that appellants must obtain a permit from the City of Memphis to begin construction within the city limits since the property in question has been annexed by the City of Memphis before any construction begins.

Appellants have filed nine assignments of error to the chancellor's opinion, generally supporting the proposition that the complainants should not be allowed to have a rehearing on the merits of a zoning controversy since the Board of Adjustment has already decided that the 'high-rise' apartment use of the subject tract is a proper one. The appellants contend that the complainants failed to appeal from the decision of the Board within the allowable time and that the decision of the Board is, therefore, final. They also contend that the Board had the power and authority to grant the original variation and that the building permits which were issued by the Shelby County Building Department are valid and subsisting. The appellants further contend that there is no need to obtain additional permits from the City of Memphis since the county permits are given full faith and credit by the city.

To begin with, it is not our intention to, nor do we, pass upon the merits of this contest. We are concerned only with the sufficiency of the averments in the petition to sustain it as a matter of law and not as a matter of fact. It is well established as a part of the procedural law of this State that demurrers are not looked upon with favor and are sustained only when it clearly appears that averments and charges upon which the complaint rests are fatally defective in substance.

This Court must take the averments of the bill as...