Stuart H. Kaplow v. City of Gatlinburg Board of Adjustments and Appeals ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 24, 2015 Session
STUART H. KAPLOW, ET AL. v. CITY OF GATLINBURG BOARD OF
ADJUSTMENTS AND APPEALS, ET AL.
Appeal from the Circuit Court for Sevier County
No. 2012-1311-III Rex Henry Ogle, Judge
No. E2014-00347-COA-R3-CV-FILED-JUNE 30, 2015
Housing units belonging to the property owners were cited by a city official for
condemnation. The property owners appealed to the city’s Board of Adjustments and
Appeals. After the board agreed with the city official and condemned the property, the
property owners filed a petition for common law writ of certiorari seeking judicial review
of the board’s decision. The trial court determined that the decision of the board was
supported by material evidence and was neither arbitrary nor capricious. The property
owners appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and THOMAS R. FRIERSON, II, J., joined.
Arthur G. Seymour, Jr., and Matthew A. Grossman, Knoxville, Tennessee, for the
appellants, Stuart H. Kaplow and Maury R. Greenstein.
John T. Batson, Jr., and Brian R. Bibb, Knoxville, Tennessee, for the appellees, City of
Gatlinburg Board of Adjustments and Appeals, City of Gatlinburg, Ralph Maples, David
Hadden, Gary Shultz, Mike Smelcer, and Mitch Ayers.
OPINION
I. BACKGROUND
This appeal concerns certain low income rental property owned by Maury R.
Greenstein and leased by Stuart H. Kaplow (collectively, “the Property Owners”) at 426
Ski Mountain Road (“the Property”) in Gatlinburg, Tennessee (“the City”). The
Property, built during the 1940s, was condemned by order of Deputy Building Official
Jay Horner on October 2, 2012; the City’s Board of Adjustments and Appeals (“the
Board”) affirmed the order of condemnation on November 8, 2012, finding the Property
to be in violation of the International Property Maintenance Code (“the IPMC”).1
Horner identified various structural deficiencies and concluded that there was “an
imminent danger of somebody - something failing, somebody getting hurt.” He
contacted structural engineer Todd Duncan to further inspect the Property. The structural
defects were detailed by Duncan as follows:
Building D
The concrete ramp providing access to the second level is
damaged and in poor condition. It was not constructed
properly and is possibly inadequate to allow safe egress from
the building in the event of an emergency. The ramp is
deteriorated, the rebar is rusted and exposed, and the concrete
is chipping. Underneath the building, an exposure has been
made to allow a creek to run below the structure, and the
concrete pipe that the creek runs through is severely
deteriorated and the steel reinforcement exposed. The pipe
which the water runs through was placed in such a way as to
support the load of the building. The second floor balcony is
exhibiting structural deficiencies with cracks in the concrete
caused by freezing. This raises the risk of serious injury or
death from falling and reduces the “actual load capacity of the
cantilevered slabs [which] may be less than needed to support
the weight of the occupants.” The concrete slab above the
mechanical room is in a serious state of deterioration. It had
previously been sealed off but has since been opened and is
unsafe for residents to walk on. The mechanical room is in
poor repair and creates both circumstances for decay and
microbial growth along with a weakening of the structural
integrity of the building itself. Other issues include the
sealing of a gap around an air conditioning unit with non-
treated plywood and the deterioration of the gutter system.
1
The City adopted the IPMC on September 19, 2006.
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Building E
This building also contains a storm drain pipe which runs
underneath it which is forced to support, in part, the load of
the building itself. Because of the decay of the storm drain
pipe, “there are concerns the aged pipe has partially collapsed
in the area below Building E allowing water to erode the soil
supporting the building foundation and floor slabs.” As in
Building D, the steel reinforcement of the pipe is coming into
contact with the storm water and beginning to deteriorate.
Building F
Of particular concern is a deteriorated retaining wall rising
ten to fifteen feet from the creek below that supports a
sidewalk adjacent to Building F. The retaining wall supports
the concrete walkway, which is an exit corridor for Building
F. At the base of the retaining wall, several pieces of a slab
have fallen off, and the soil on which the concrete retaining
wall sits is beginning to wash out, calling into question the
structural integrity of the wall itself. As a result of the
damage to the retaining wall, the concrete slab upon which
Building F is based has slipped five or six inches. There is
also a one inch gap created on the block mortar joint on the
outside of Building F. Duncan notes that failures present at
the base of the stone wall indicate that it is not supported by a
continuous concrete foundation and results in the loss of
support for the concrete walkway above. Portions of the rock
base of the stone wall have fallen off into the creek bed and
the soil at the bottom of the wall is beginning to wash out.
Because of the failure of the stone retaining wall, both the
north exterior wall of Building F and the concrete walkway
slabs along the exterior are beginning to move. Significant
gaps of between one and six inches are forming on the
concrete slab and at the interior and exterior joints. Duncan
concludes: Based on the age of the existing stone retaining
wall, lack of structural continuity and stone construction,
magnitude and quantity of damage and failures along the
length of the wall, as well as, the loss of support for the
building foundation and the safety of the occupants, the wall
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must be removed and replaced with a new, adequately
designed and constructed wall to resist the applied forces.
Duncan also notes that the roof of Building F is in very poor
condition and is showing signs of separation, breaking and
decay.
Building G
This building has issues with separation of the roof structure
evidencing a lack of maintenance. Duncan notes severe
deficiencies with the condition of the roof, including a
“deflected shape” that indicates localized failure of the roof
structure. Duncan identifies other serious issues with the roof
and end gable of Building G, including a lack of gutters
adjacent to certain portions of the roof.
Building H
Duncan notes that the concrete masonry has been removed to
allow the installation of small window air conditioning units,
but the gap between the air conditioning units and the existing
masonry is not properly reconstructed. Instead, untreated
wood was used to block the gap.
In his written report presented to City Attorney James Ripley, Duncan made the
following conclusion:
The itemized damage revealed a significant concern for the
safety of the occupants and guests. The noted damage is a
product of substandard maintenance and upkeep, which has
resulted in the loss of structural integrity to the buildings.
Uncorrected, the noted conditions will worsen with possible
localized failures and/or collapse of the structures.
Horner thereafter concluded that the buildings were unfit for occupancy and the
appropriate course of action was to condemn the Property pending remediation of the
structural deficiencies. The letter of condemnation was hand delivered to Kaplow on
October 2, 2012.
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The Property Owners appealed the condemnation to the Board. However, the only
evidence they presented at the hearing was an unauthenticated e-mail from a consulting
engineer, Paul Tucker, who essentially agreed in principle with Duncan’s findings;
Tucker differed with Duncan regarding the severity of the structural issues and whether
the buildings should be demolished. After hearing testimony from Horner and Duncan,
and reviewing Duncan’s report with attached photographs, the Board unanimously
affirmed the condemnation decision.
After the hearing before the Board, the Property Owners filed this certiorari action
on November 16, 2012, followed by deposition notices for each individual Board
member. Subsequently, a motion to quash and for a protective order filed by the City
was granted by the trial court. The writ of certiorari was denied nearly a year later on
October 8, 2013. The court affirmed the decision of the Board, finding it did not act
arbitrarily, capriciously, or illegally and that its decision was supported by substantial and
material evidence. Property Owners appeal.
II. ISSUES
We restate the issues raised by the Property Owners in this appeal as follows:
1. Whether the failure of the City to put all “owners” of the Property
(as the City defines the term in its own ordinances) on notice of the
condemnation proceedings with respect to the Property, constitutes a
due process violation requiring the vacation of the condemnation,
when the same municipal ordinances mandate that the City provide
all owners of notice of the condemnation by hand-delivery, mail, or
posting on the property, and when it is undisputed that the City
undertook no efforts to perfect such notice upon all such parties.
2. Whether Horner’s ex parte communications with the members of
the Board hearing the appeal from the condemnation order, with
respect to the substance of the condemnation order, constitutes a due
process violation, when the Board renders a decision adverse to the
Property Owners, and when no building official, nor the Board, nor
the trial court conducting certiorari review, allows the Property
Owners to discover the nature of the ex parte communications or
other bias affecting the decision-making process of the Board.
3. Whether the Board’s belief that the City Attorney representing
the City in an adversarial proceeding represents the Board, coupled
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with that Board’s overt reliance upon legal advice of the City
Attorney, to the detriment of the Property Owners appearing before
the Board, constitutes a due process violation, when the Board
follows the City Attorney’s advice to the prejudice of the City
Attorney’s adversary.
4. Whether the Property Owners seeking certiorari review of an
adverse decision of the Board, who seek relief upon the grounds of
improper ex parte communications between the Board and a building
official, are entitled to conduct discovery regarding the nature of the
ex parte communications with the members of the Board and as to
the Board’s bias, when the Board refused to provide any disclosures
as to the ex parte communications or bias.
III. STANDARD OF REVIEW
The proper vehicle for review of the Board’s decision is the common law writ of
certiorari. McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990). A common
law writ of certiorari is an extraordinary judicial remedy. State v. Lane, 254 S.W.3d 349,
355 (Tenn. 2008). Judicial review available under a writ of certiorari is quite limited, and
is confined only to determining whether the entity whose decision is being reviewed
exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or
fraudulently, or acted without material evidence to support its decision. Heyne v. Metro.
Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 729 (Tenn. 2012); Lewis v. Bedford Cnty.
Bd. of Zoning Appeals, 174 S.W.3d 241, 245 (Tenn. Ct. App. 2004) (citing Willis v. Tenn.
Dep’t of Correction, 113 S.W.3d 706, 712 (Tenn. 2003)). Our appellate courts have
explicitly approved the use of the common law writ of certiorari to provide judicial relief
from (1) fundamentally illegal rulings, (2) proceedings inconsistent with essential legal
requirements, (3) proceedings that effectively deny parties their day in court, (4)
decisions that are beyond the decision-maker’s authority, and (5) decisions that involve
plain and palpable abuses of discretion. Lane, 254 S.W.3d at 355 (quoting Willis, 113
S.W.3d at 712. The common law writ of certiorari is not designed to correct errors of
fact, law, or procedure. It contemplates only “fundamental illegalit[ies].” McGee v.
State, 340 S.W.2d 904, 906 (Tenn. 1960) (the writ “may not be resorted to for the
correction of technical or formal errors, not affecting jurisdiction or power, or for the
correction of defects that are not radical, amounting to an illegality that is fundamental, as
distinguished from an irregularity.”).
A common law writ of certiorari proceeding does not empower the courts to
redetermine the facts found by the entity whose decision is being reviewed. Tennessee
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Waste Movers, Inc. v. Loudon Cnty., 160 S.W.3d 517, 520 n. 2 (Tenn. 2005); Cooper v.
Williamson Cnty. Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987). Accordingly, a
common law writ of certiorari does not authorize a reviewing court to evaluate the
intrinsic correctness of a governmental entity’s decision. See, e.g., Stewart v. Schofield,
368 S.W.3d 457, 465 (Tenn. 2012); Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478,
480 (Tenn. 1997). Similarly, reviewing courts may not reweigh the evidence or
substitute their judgment for the judgment of the entity whose decision is being reviewed.
See, e.g., Lane, 254 S.W.3d at 355.
Ascertaining whether a record contains material evidence to support a board’s
decision is a question of law. Leonard Plating Co. v. Metro. Gov’t of Nashville &
Davidson Cnty., 213 S.W.3d 898, 904 (Tenn. Ct. App. 2006). For the purpose of this
inquiry, “material evidence” is relevant evidence that a reasonable person would accept
as adequate to support a rational conclusion. Hedgepath v. Norton, 839 S.W.2d 416, 421
(Tenn. Ct. App. 1992). The amount of material evidence required to support an agency’s
decision “must exceed a scintilla of evidence but may be less than a preponderance of the
evidence.” Leonard Plating Co., 213 S.W.3d at 904. Because the sufficiency of the
material evidence in a common law writ of certiorari proceeding is a question of law, the
courts must review the record de novo without presuming that the findings are correct.
Lafferty v. City of Winchester, 46 S.W.3d 752, 759 (Tenn. Ct. App. 2000).
A trial court’s decisions concerning discovery are reviewed on appeal under an
abuse of discretion standard. A trial court abuses its discretion when it applies an
incorrect legal standard or reaches a decision which is against logic or reasoning that
causes an injustice to the party complaining. Jones v. LeMoyne-Owen College, 308
S.W.3d 894, 908 (Tenn. Ct. App. 2009). The “abuse of discretion” standard does not
permit an appellate court to substitute its judgment for the trial court’s judgment. Wright
ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011). As the Tennessee Supreme
Court has explained:
Discretionary decisions must take the applicable law and the
relevant facts into account. An abuse of discretion occurs
when a court strays beyond the applicable legal standards or
when it fails to properly consider the factors customarily used
to guide the particular discretionary decision. A court abuses
its discretion when it causes an injustice to the party
challenging the decision by (1) applying an incorrect legal
standard, (2) reaching an illogical or unreasonable decision,
or (3) basing its decision on a clearly erroneous assessment of
the evidence.
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To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a lower court’s
discretionary decision to determine (1) whether the factual
basis for the decision is properly supported by the evidence in
the record, (2) whether the lower court properly identified and
applied the most appropriate legal principles applicable to the
decision, and (3) whether the lower court’s decision was
within the range of acceptable alternative dispositions.
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citations omitted); see
also Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012); Gonsewski v. Gonsewski, 350
S.W.3d 99, 105-06 (Tenn. 2011); Elliott v. Cobb, 320 S.W.3d 246, 249-50 (Tenn. 2010).
IV. DISCUSSION
A.
The Property Owners do not assert that the decision of the Board was not
supported by material evidence. Rather, they focus on perceived procedural deficiencies:
(1) Horner engaged in ex parte communications with at least
one member of the Board and, on motion, no member recused
himself;
(2) The Board denied the motion of the Property Owners for
a continuance;
(3) The tenants affected by the condemnation were not given
proper notice;
(4) The Board refused to hear all factual and legal arguments
that the Property Owners wanted to present;
(5) The Board refused to hear from all present tenants
affected by the condemnation;
(6) The Board identified counsel for City as its own legal
counsel; and
(7) The Chairman of the Board had an alleged conflict of
interest because he owns weekly rental property in the City.
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The Property Owners contend that the due process violations cited above so taint the
Board’s decision that we must vacate it. They also contend that the trial court’s denial of
their attempt to conduct discovery amounts to an abuse of discretion. According to the
City, when a “court finds any material evidence to sustain the findings that are made, the
court must affirm the board or commission.” Houston v. Memphis and Shelby Cnty. Bd.
of Adjustment, 488 S.W.2d 387, 388 (Tenn. Ct. App. 1972). If “any possible reason”
exists justifying the action, it will be upheld. McCallen, 786 S.W.2d at 641.
In this case, the Board’s decision was supported by material evidence. Horner
examined the Property and observed serious violations of the IPMC. In order to perform
a comprehensive study of the Property, Horner retained Duncan, an independent
structural engineer, who prepared and submitted a written report confirming Horner’s
findings. Taking into consideration Duncan’s conclusions along with his own, Horner
determined that violations of the IPMC existed warranting condemnation of the Property
pending remediation of the structural deficiencies.
At the hearing, rather than attempt to rebut the findings and conclusions of Horner
and Duncan, the Property Owners alleged bias. Interestingly, the e-mail from Tucker, the
independent engineer consulted by the Property Owners, in large part concurred with
Duncan’s determinations. In the meantime, the Board members actively engaged with
Duncan and questioned him as to the photographs he took of the Property and the
severity of the conditions; they also heard testimony from Horner. The record reveals
that the Board had ample material evidence before it. The trial court correctly concluded
that the decision of the Board was supported by material evidence and was neither
arbitrary nor capricious.
B.
The Property Owners next raise an issue as to notice required by the IPMC:
107.1 Notice to person responsible. Whenever the code
official determines that there has been a violation of this code
or has grounds to believe that a violation has occurred, notice
shall be given in the manner prescribed in Sections 107.2 and
107.3 to the person responsible for the violation as specified
in this code. Notices for condemnation procedures shall also
comply with Section 108.3.
107.2 Form. Such notice prescribed in Section 107.1 shall
be in accordance with all of the following:
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1. Be in writing.
2. Include a description of the real estate sufficient for
identification.
3. Include a statement of the violation or violations
and why the notice is being issued.
4. Include a correction order allowing a reasonable
time to make the repairs and improvements required to
bring the dwelling unit or structure into compliance
with the provisions of this code.
5. Inform the property owner of the right to appeal.
6. Include a statement of the right to file a lien in
accordance with Section 106.3.
107.3 Method of service. Such notice shall be deemed to be
properly served if a copy thereof is:
1. Delivered personally;
2 Sent by certified or first-class mail addressed to the
last known address; or
3. If the notice is returned showing that the letter was
not delivered, a copy thereof shall be posted in a
conspicuous place in or about the structure affected by
such notice.
(Emphasis added.). The Property Owners claim that the hearing conducted before the
Board did not conform with due process because the actual tenants were not served with
notice. They contend that the tenants should be considered “owners” under the
applicable provisions of the IPMC.
The IPMC defines terms at § 202:
OWNER. Any person, agent, operator, firm or corporation
having a legal or equitable interest in the property; or
recorded in the official records of the state, county or
municipality as holding title to the property; or otherwise
having control of the property, including the guardian of the
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estate of any such person, and the executor or administrator of
the estate of such person if ordered to take possession of real
property by a court.
OCCUPANT. Any individual living or sleeping in a
building, or having possession of a space within a building.
TENANT. A person, corporation, partnership or group,
whether or not the legal owner of record, occupying a
building or portion thereof as a unit.
IPMC § 202.
The IPMC reveals that the “owner” is the person responsible for the maintenance
of the premises and must ensure that the structures comply with the Code provisions.
IPMC §§ 102.2; 301.2. In this case, where multi-unit housing is involved, the “owner” is
responsible for maintaining the premises as a whole, whereas the “occupant” or “tenant”
of a unit is responsible for maintaining only his or her individual unit:
301.2 Responsibility. The owner of the premises shall
maintain the structures and exterior property in compliance
with these requirements, except as otherwise provided for in
this code. A person shall not occupy as owner-occupant or
permit another person to occupy premises which are not in a
sanitary and safe condition and which do not comply with the
requirements of this chapter. Occupants of a dwelling unit,
rooming unit or housekeeping unit are responsible for
keeping in a clean, sanitary and safe condition that part of the
dwelling unit, rooming unit, housekeeping unit or premises
which they occupy and control.
IPMC §301.2. The Code provisions clearly reveal that it is the “owner” who is to be
noticed under IPMC § 107.1 et. seq. of a violation on the Property, and it is the “owner”
who is to be informed of the right to appeal. IPMC §107.2(5). When a decision to
condemn property is made, notice is to be “served on the owner[.]” IPMC § 108.3.
Pursuant to the language of the IPMC, there is no support for the contention that the
tenants were entitled to notice of condemnation.
The Board did hear from Jeremy Bliss, the Property’s former
manager/“maintenance man” and tenant. Rather than address the conditions of the
Property, Bliss’s testimony stressed the fact that the tenants needed a cheap place to live
and how unfair it would be to evict them. After hearing from Bliss, the Board decided
that it had heard enough and that the hearing needed to be concluded:
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CHAIRMAN MAPLES: Gentlemen, what’s your pleasure?
Are we going to sit here and listen to all these people getting
throwed out or are we going to
MR. SHULTZ: I think it’s come to this point that Gatlinburg
has had to force his hand to make him fix something. That’s
what it sounds --
CHAIRMAN MAPLES: Well --
MR. SHULTZ: But they’ve got to do something to get him to
do something, and that’s where he’s at right now. That’s
what I’m talking about.
As noted by the City, even if notice had been sent to each and every tenant, the
events that transpired at the hearing would not have been any different. The testimony
offered regarding the social and economic impact on the tenants addressed matters
beyond the Board’s scope of review and out of its control. The Board complied with the
IPMC and reached a decision supported by material evidence. No fundamental
illegalities have been raised.
C.
According to the Property Owners, a conflict of interest was created by purported
ex parte communications between Horner and at least one Board member. At the
hearing, counsel for the Property Owners asked Horner if he had spoken with any
member of the Board outside of the courtroom:
Q. Have you ever spoken with anybody on this board about -
outside of this courtroom have you ever spoken to any
member of this board about any building belonging to Mr.
Kaplow or Mr. Greenstein?
A. I probably have, yes, sir.
An argument ensued concerning the permissibility of this line of questioning. When
questioning resumed, counsel for the Property Owners inquired:
Q. Do you remember any specific conversations you had with
members of this board about any Kaplow building?
A. I’m not going to say yes, because I don’t remember any
specific conversations.
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Q. You said earlier you have had-
A. I would probably say we’ve had discussions about it in,
like off the cuff information.
Q. What sort of things would you have said about Mr.
Kaplow in those conversations?
A. Sir, I don’t know. I don’t remember. I don’t have - I
mean, I don’t know if I was questioned about it. I don’t know
if it came up. You’re asking me something I do not know.
Q. Is it possible you told a member of this board outside of
this courtroom that the Kaplow buildings were not up to
code?
A. That would probably be possible, yes.
Before the Board at the hearing was the validity of the notice issued by Horner
containing both his findings and those of Duncan. The Board therefore was aware that
Horner believed the buildings were not in compliance with the IPMC, because the notice
from which the appeal in question was filed specifically stated such. The Board was
entitled to review Horner’s and Duncan’s opinions set out in the notice which formed the
basis for the decision to condemn the Property. Any verbal representation by Horner that
the Property was not in compliance with the relevant code would have given the members
no more information than that to which they already had access. Furthermore, the Board
members had sufficient evidence, properly introduced and largely unrebutted, upon
which to base their decision regarding the Property. The trial court correctly concluded
that the administrative record showed no bias.
D.
It is claimed by the Property Owners that the Board’s identification of City
Attorney Ripley as its legal counsel requires vacation and remand:
CHAIRMAN MAPLES: The board’s attorney is the city’s
attorney.
CHAIRMAN MAPLES: What’s our attorney’s name there?
Jim, let me ask you something.
Due process does not require all the structural safeguards in administrative and
civil adjudicatory proceedings that we have come to expect in criminal proceedings. See
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2 Richard J. Pierce, Jr., Administrative Law Treatise § 9.9, at 679 (4th ed. 2002).
Accordingly, while the separation of investigative, prosecutorial, and adjudicative
functions is a hallmark of criminal proceedings, due process does not require the strict
adherence to separation of functions in civil matters. See Hortonville Joint Sch. Dist. No.
1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 493 (1976); 32 Charles A. Wright & Charles
H. Koch, Jr., Federal Practice and Procedure § 8259, at 469 (2006). Accordingly, some
combination of overlapping of functions in an administrative proceeding is not
inconsistent with fundamental fairness. Martin v. Sizemore, 78 S.W.3d 249, 264 (Tenn.
Ct. App. 2001). The dual role Attorney Ripley played in the proceedings therefore is not
sufficient, by itself, to establish a due process violation. A party may succeed with a due
process claim if it can present special facts and circumstances demonstrating that the risk
of actual bias in a particular proceeding is intolerably high. Id. at 265.
The City Attorney represents all administrative arms and committees of the City.
City of Gatlinburg Charter § 11. Under the facts of this case, no evidence was presented
that the Board gave undue or unnecessary credence to Attorney Ripley’s suggestions or
opinions. In fact, the Board disregarded his suggestion that it had the discretion to reset
the hearing if it had concerns about removing the tenants from the Property. The record
reveals no colorable evidence of improper influence by the City Attorney on the decision-
making process of the Board.
Similarly, the Property Owners contend that the Board’s identification of Ripley as
its attorney caused the denial of their motion for a continuance of the hearing date. In
response to the request for a continuance, primarily based on the unavailability of co-
counsel, Ripley noted that the language of the IPMC required hearing within 20 days of
the filing of an appeal and reminded the Board regarding the health and welfare of the
tenants of the Property. He informed the Board that it could continue the hearing if it so
desired:
MR. RIPLEY: There’s one possibility here, and I’m not
asking you to do this, but in fairness I’m going to point out
that the code says that while these matters are on appeal
before you, the action of the city is stayed, meaning while this
is before you.
I suppose one possibility could be to reset this matter for
further hearing on another date, give them opportunity in the
interim to come in with -- or to present plans to Mr. Horner.
Now, you know, that’s a possibility. And then you reconvene
your hearing and look at it at that point.
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After considering arguments made by counsel, the Board unanimously agreed to go
forward with the hearing within the guidelines of the IPMC and while the evidence and
witnesses were present and ready to proceed.
The Property Owners also claim the Board acted inappropriately when it
determined that the applicable provisions of the IPMC required that a hearing be held
within 20 days of the notice of appeal. IPMC § 111.1 requires filing of a written notice
of appeal within 20 days of service of the notice. The notice in this case was served
October 2, 2012. IPMC § 111.3 provides that the Board shall meet to consider a filed
appeal either within 20 days of the notice of appeal or at the stated periodic meeting. The
notice of appeal was filed October 22, 2012. The hearing was scheduled for and held on
November 8, 2012. The Board holds regular meetings on the fourth Thursday of each
month, but the fourth Thursday of November 2012 fell on Thanksgiving. The Board
concluded that it needed to have a hearing within 20 days of the filing of the notice of
appeal to avoid needlessly delaying the resolution of this case. Its interpretation of its
own regulations and ordinances at issue is entitled to deference.
Further, the Board’s decision to proceed with the hearing on the date it was
originally noticed and scheduled was based on material evidence, supported by reason,
and was neither arbitrary nor capricious. The Property Owners were represented by
competent counsel, and the Board’s denial of their request for a continuance was neither
arbitrary nor capricious. Accordingly, the failure to grant a continuance is not a ground
to remand this case to the Board. The evidence before us does not indicate that there
would be a different result if the cause were reversed.
E.
The trial court denied the Property Owners the opportunity to conduct discovery to
determine the nature and extent of ex parte communications between Horner and the
Board.
Common law certiorari provides appellate review of the decision of an
administrative tribunal. Thus, discovery as a general proposition has no place in a
certiorari review action: “the reviewing court should determine from the evidence filed
before the lower tribunal whether that tribunal acted arbitrarily, illegally or without
material supporting evidence.” Huddleston v. City of Murfreesboro, 635 S.W.2d 694,
696 (Tenn. 1982) (citing Lansden v. Tucker, 321 S.W.2d 795 (Tenn. 1959)).
The trial court correctly prohibited the taking of discovery depositions in this case:
But the bottom line is that there must be, I think, more than
the mere allegations. Just mere allegations in and of
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themselves without any substantiation, I don’t think brings it
to the level where the Court can order depositions . . . . [J]ust
assuming, for example, that Mr. Maples has a similar type
business, does not in and of itself create a conflict of interest .
. . . The other issue about the ex parte communications,
they’re not held to the same standards . . . . [T]he Court does
not feel that based upon what the Court has heard this
morning, that there is any reason for this Court to - - to
decline to follow the general rule on - - on forbidding
depositions in these types of cases. So for that reason, the
Court must respectfully grant the motion to quash the notice
of deposition.
As indicated in the trial court’s ruling, the Property Owners asserted that they would have
questioned the Board members on two issues: (1) The purported conflict of interest of
Maples; and (2) the alleged ex parte communications between the Board and Horner. In
regard to Maples’ supposed conflict of interest, they failed to make a motion for his
recusal before the Board. Thus, they have waived any argument on appeal that Maples
had a conflict. See Guess v. City of Manchester, M2001-00250-COA-R3-CV, 2010 WL
4629594, at *4 (Tenn. Ct. App. Nov. 15, 2010) (deeming the argument that a member of
an administrative board had a conflict of interest waived when no motion for recusal was
made before the board). Furthermore, Maples did not represent a deciding or
determinative vote, as the Board’s decision was unanimous. Thus, even if it could be
established that Maples was biased, that showing would be insufficient to invalidate the
Board’s decision. Humana of Tenn. v. Tennessee Health Facilities Comm’n, 551 S.W.2d
664, 669 (Tenn. 1977) (holding that the bias of one board member does not invalidate a
board’s decision where a majority vote and quorum still exist absent the allegedly biased
member). We have previously addressed the immaterial nature of the allegations of ex
parte communications on the part of Horner. The trial court did not abuse its discretion
in declining to deviate from the standard rule prohibiting discovery in certiorari review
cases.
Under the standards applicable to certiorari review, the trial court correctly
affirmed the decision of the Board.
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V. CONCLUSION
The decision of the trial court upholding the findings of the Board is affirmed.
The trial court did not abuse its discretion in quashing the notices of deposition filed for
the individual members of the Board. Costs on appeal are assessed to the Appellants,
Stuart H. Kaplow and Maury R. Greenstein.
_____________________________
JOHN W. McCLARTY, JUDGE
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