Scenic Helicopters, Inc., Scenic Helicopter Rides , Limited v. City of Sevierville, Tennessee

• Court: Court of Appeals of Tennessee
• Decided: March 3, 1998
• Docket: 03A01-9709-CH-00439
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE FILED March 3, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk SCENIC HELICOPTERS, INC. and ) SEVIER CHANCERY SCENIC HELICOPTER RIDES, ) LIMITED, ) ) Plaintiffs/Appellees ) NO. 03A01-9709-CH-00439 ) v. ) HON. CHESTER S. RAINWATER, JR. ) JUDGE CITY OF SEVIERVILLE, ) TENNESSEE, ) ) Defendant/Appellant ) AFFIRMED

Linda J. Hamilton Mowles, Knoxville, for Appellant.

Dwight E. Stokes, Sevierville, for Appellee.

OPINION

INMAN, Senior Judge

This complaint sought a writ of mandamus to require the City to issue a

sign permit, or, alternatively, to review the action of the City in denying the

application for a permit. The Chancellor found that the action of the Board of

Zoning Appeals in denying the permit was arbitrary and ordered the issuance

of the permit. We affirm.

The plaintiff leased two adjoining parcels of real estate fronting 216 feet

on Highway 66, and 250 feet on a private drive, aggregating 12 acres, only

one-half of which is within the city limits. The proposed sign is to be erected

on a portion of the property within the city limits.

The plaintiff made application for a sign permit which was rejected

because “it was on an unapproved lot of record.” Section 409 of the Zoning Ordinance governs the location and erection

of signs. It contains no requirement that a sign be located on an “approved lot

of record.”

The City recognized the difficulty, but argued before the Chancellor and

this Court that “the permit for the sign was refused because it was not located

on a subdivision lot approved by the Planning Commission,” and a lot is

required to have 149 feet of road frontage if it is to be approved. The

proposed lot allegedly has only six feet of frontage within the city limits.

Because the sign ordinance provides that an applicant must comply with all

other ordinances, the City’s extended argument is that a sign cannot be erected

on any lot having less than 149 feet of road frontage as required by Article

VIII of the Zoning Code. This Article is concerned “with developments along

major arterials.” We conclude that the sign proposed to be erected is not a

‘development’ within the overall purview of the Zoning Ordinance.

We agree with the Chancellor that the City’s argument requires a bit of

stretch, since the sign ordinance nowhere mentions the requirement that a sign

must be located on an ‘approved lot’; and, even so, we are not precisely

certain as to the definition of an ‘approved lot’ other than its approbation by

the Planning Commission. We think the specific provisions of Section 409

dealing exclusively with signs should control. See, Norris v. Snodgrass, 871

S.W.2d 484 (Tenn. App. 1993); Woodroof v. City of Nashville, 192 S.W.2d

1013 (Tenn. 1946), and it is not controverted that subject to the ‘approved lot’

argument the plaintiffs fully complied with the signage ordinance.

Our review of the findings of fact made by the trial Court is de novo

upon the record of the trial Court, accompanied by a presumption of the

correctness of the finding, unless the preponderance of the evidence is

otherwise. TENN. R. APP. P., RULE 13(d). There is no presumption of the correctness of the decision of the trial Court on a question of law. NCNB Nat’l.

Bank v. Thrailkill, 856 S.W.2d 150 (Tenn. Ct. App. 1993). The evidence does

not preponderate against the judgment, which is affirmed at the costs of the

appellant.

___________________________ William H. Inman, Senior Judge

CONCUR:

_______________________________ Herschel P. Franks, Judge

_______________________________ Don T. McMurray, Judge