City loses appeal of zoning lawsuit

But the impact of the court ruling may be moot since the city will likely pass an identical ordinance next week after the appeals court declared the old one invalid.

In a decision filed by the Tennessee Court of Appeals at Nashville on Tuesday, Judge Patricia J. Cottrell ruled that the city's published notice in regards to a 2004 zoning change "failed to provide reasonable notice to landowners that their property may be affected" and found the notice to be insufficient.

Norma and Tommy Wright, Wright Paving Co., Inc and Custom Stone LLC, sued the city, the city council and planning commission over a proposed, rock quarry which was turned down for approval in January 2005.

Summary judgement was granted in December 2008 in favor of Shelbyville by Judge Lee Russell, who found that the ordinance in question complied with all public notice requirements.

He also ruled that the Wrights had no right to require that their request under the prior I-2 zoning be considered and that the denial of the Wrights' I-3 zoning application was not illegal.

The Wrights moved to dismiss any of their remaining claims without prejudice and it was granted, however, they appealed solely on the issue whether the public notice given by Shelbyville was adequate.

Notice inadequate

According to city attorney Ginger Shofner, when the city published the public notice in the Times-Gazette, it was "not specific enough."

Judge Cottrell ruled that while the public notice made reference to the city's zoning ordinance, "there is no other information provided about the substance of the proposed amendment or what property may be affected."

Shofner said that the council thought that it had an I-3 zone when it passed the amendment in July 2004, but the court has now ruled that was not the case.

However, next Thursday, the city will hold the third and final reading to amend the city zoning ordinance to add a new section entitled "Building Requirements in Commercial or Industrial Zones to Article IV, Supplementary Provisions applying to Specific Districts," which would establish an I-3 zoning classification.

City recorder Betty Lamb said Thursday that the new amendment simply reconfirms the I-3 requirement.

Mary Ferrara of Nashville represented the city in the matter and according to Shofner, the litigation was covered by the Tennessee Municipal League insurance fund.

Shofner said that the ruling may make the standard for public notices "more difficult" for municipalities and that the city council has 60 days to appeal the decision to the Tennessee Supreme Court.

Wright pleased

Tommy Wright said Thursday that the ruling "was a long time coming, we knew the law would eventually be on our side."

The Wrights' original suit claimed that Shelbyville only possessed two industrial zones -- I-1 and I-2. Mining and quarrying activity was allowed as a conditional use in the I-2 zone, the suit said.

The suit states that on Feb. 12, 2004, the Wrights submitted a letter to the city's Board of Zoning Appeals requesting approval for special conditions for mining and quarrying.

The lawsuit stated that in March of that year, engineer Jim Patterson sent a letter to then-codes official Wayne Williams stating that the Wrights wanted to "keep the application pending" and requested to be notified if it needed to be resubmitted to be considered and to notify them of any proposed changes in zoning ordinances.

The Wrights' lawsuit asserted that, "in an effort to thwart" their application for approval of special condition for quarrying activity, the city council introduced an ordinance in May of 2004 that added a third industrial zoning district called I-3, which deleted certain uses, including stone quarrying and crushing, from I-2.

Lack of notice claimed

The Wrights claimed they received no notice of the change and were sent a fax on the day of the third and final reading in July 2004, "when it was too late for plaintiffs [the Wrights] to schedule a hearing on their pending application," the suit states.

During the Nov. 18, 2004 meeting of Shelbyville Municipal Planning Commission, several citizens attended to oppose the proposed quarry on L. Fisher Road, several hundred feet from another quarry on Railroad Avenue. Planning commissioners at that meeting unanimously denied an application for the site under I-2.

However, the Wrights submitted a new application on Dec. 2 for a rock quarry under I-3 zoning. The city council turned down their request in January 2005 "on the basis that the proposed location is close to residential development and community facilities and a rock quarry at that location would adversely affect property values and property use."

The Wright lawsuit asked the court to make the city consider the rock quarry under I-2 zoning, to void the decision denying it under I-3 zoning, and to set aside the I-3 zone as unconstitutional.