Brannon v. County of Shelby

900 S.W.2d 30, 1994 Tenn. App. LEXIS 746
CourtCourt of Appeals of Tennessee
DecidedDecember 19, 1994
StatusPublished
Cited by12 cases

This text of 900 S.W.2d 30 (Brannon v. County of Shelby) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brannon v. County of Shelby, 900 S.W.2d 30, 1994 Tenn. App. LEXIS 746 (Tenn. Ct. App. 1994).

Opinion

FARMER, Judge.

This appeal concerns the granting of a special use permit for the operation of a sand and gravel excavating business to Appellant, Standard Construction Company (Standard) by the Shelby County Board of Commissioners (Board), also an appellant in this action. The appellees, Thomas C. Brannon d/b/a Barrett’s Community Organization and Barrett’s Community Organization either represent or are the owners of real property adjoining or in close proximity of the proposed business site.1

The Board first considered Standard’s application at a public hearing conducted November 28,1992 after the Memphis and Shelby County Office of Planning and Development and the Land Use Control Board recommended its rejection. After presentation of testimony on the issue, but prior to a vote being taken, the Board voted to defer the matter until its December 7, 1992 meeting. At this hearing, which originated with the presentation of additional testimony, the Board approved Standard’s application by a vote of nine to two.

The “Zoning Resolution” was signed by the mayor of Shelby County, William Morris, Jr., on December 14,1992 and states, in part:

BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF SHELBY COUNTY, TENNESSEE, That a special use permit is granted for the purpose of establishing sand and gravel extraction and processing in accordance with the site plan incorporated in the application, ...
[[Image here]]
BE IT FURTHER RESOLVED, That this Resolution take effect from the [sic] after the date it shall have been passed by this Board of County Commissioners, and become effective as otherwise provided by law, and thereafter shall be treated as in full force and effect by virtue of the passage thereof by the Board of Commissioners of Shelby County, Tennessee, the public welfare requiring same.

[32]*32At its January 25,1993 meeting, the Board entertained a motion to reconsider approval of the application. The Memphis and Shelby County Health Department, concerned homeowners and proponents of Standard presented additional testimony. Prior to voting on the motion, the chairman of the board acknowledged that the “item was passed at our December 7 meeting” and that all that was before them was “a reconsideration.” The motion failed by a vote of five to five with one abstention.

On February 23,1993, the appellees filed a “Petition for Writ of Certiorari and for In-junctive and Declaratory Relief,” seeking to have the resolution declared invalid on the basis that it was an arbitrary and capricious act and not supported by substantial evidence.2 The petition alleged that the resolution was “adopted on December 7, 1992 ... and approved on January 25, 1993.” The appellees alleged that subsequent to the December 7, 1992 vote, it was discovered that one of the commissioners who voted in favor of the application had a “long-term on-going business relation” with Standard.3 It was further averred that on December 21, 1992, the commissioners deferred approval of its minutes and adoption of the application pending results of a requested report from the health department.

The appellants moved to dismiss and, additionally or alternatively, for summary judgment, asserting, inter alia, that the petition was time barred by the provisions of T.C.A. § 27-9-102. The affidavit of Dorothy Beard, clerk of the county commission, was submitted in support thereof. The trial court denied the motion, specifically finding that the petition was timely and remanded the matter to the Board for reconsideration.4

The appellants raise the following issues for our review:

1. Whether the trial court erred in vitiating the special use permit granted to Standard and “remanding” the matter to the County Commissioner for de novo reconsideration?
2. Whether the trial court erred by revoking Standard’s permit without the required finding by the court that the County Commission’s approval of the special use permit was clearly arbitrary, capricious or illegal, or that the Commission’s action lacked a rational basis?
3. Whether the trial court lacked jurisdiction to grant certiorari to review the action of the County Commission because the plaintiffs’ Complaint was barred by the 60-day limitation period set forth in T.C.A. § 27-9-102 for petitioning the court for writ of certiorari?

We first consider the issue concerning the trial court’s lack of jurisdiction as we find it dispositive. T.C.A § 27-9-101 provides:

Right of review. — Anyone who may be aggrieved by any final order or judgment of any board or commission functioning under the laws of this state may have said order or judgment reviewed by the courts, where not otherwise specifically provided, in the manner provided by this chapter.

T.C.A. § 27-9-102 states:

Filing and contents of petition. — Such party shall, within sixty (60) days from the entry of the order or judgment, file a petition of certiorari in the chancery court of any county in which any one or more of the petitioners, or any one or more of the material defendants reside, or have their principal office, stating briefly the issues involved in the cause, the substance of the order or judgment complained of, of the [33]*33respects in which the petitioner claims the order or judgment is erroneous, and praying for an accordant review.

The appellants argue that the trial court lacked jurisdiction to grant a certiorari review of the Board’s decision as the appellees’ petition for relief was filed outside the sixty (60) day limitation set forth above. It is undisputed that the petition was not filed until February 23, 1993, more than sixty (60) days after December 14, 1992 — the day the resolution was signed by the county mayor. The appellees contend, however, that the petition was timely filed within sixty (60) days of January 25, 1993 — the date on which the Board approved its December 7, 1992 minutes. It is the appellees’ position that when the Board chairman signed the minutes, the resolution was adopted, made official and entered as a matter of public record.5

Tennessee courts have previously made reference to the distinction between the rendering of a judgment and its entry. See Carter v. Board of Zoning Appeals of Nashville, 377 S.W.2d 914, 916 (Tenn.1964); Christopher v. Spooner, 640 S.W.2d 833, 835 (Tenn.App.1982). The “entry” of a judgment has been defined as “the ministerial act by which enduring evidence of the judicial act of rendition of judgment is afforded.” Carter, 377 S.W.2d at 916. The appellees argue that although the Board’s decision was rendered on December 7, it was not entered until January 25, 1993.

The parties do not dispute that a two-thirds vote of the Board was required to approve the grant of a special use permit to Standard.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Tenneseee v. Gary D. Jones
Court of Criminal Appeals of Tennessee, 2013
O'Rane M. Cornish, Sr. v. The City of Memphis
Court of Appeals of Tennessee, 2011
Grigsby v. City of Plainview
194 S.W.3d 408 (Court of Appeals of Tennessee, 2005)
Allen W. Hughes v. Tennessee Board of Paroles
Court of Appeals of Tennessee, 2004
State of Tennessee v. William Paul Eblen
Court of Criminal Appeals of Tennessee, 2003
Sierra Summerall v. Department of Correction
Court of Appeals of Tennessee, 2003
Lance Grigsby v. City of Plainview
Court of Appeals of Tennessee, 2003
Vances Smith v. Warden Fred Figueroa
Court of Appeals of Tennessee, 2002
Hickman v. Tennessee Board of Paroles
78 S.W.3d 285 (Court of Appeals of Tennessee, 2001)
J.D. Hickman v. TN Board of Paroles
Court of Appeals of Tennessee, 2001

Cite This Page — Counsel Stack

Bluebook (online)
900 S.W.2d 30, 1994 Tenn. App. LEXIS 746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brannon-v-county-of-shelby-tennctapp-1994.