Corp. v. Metro Gov't of Nashville ( 2000 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
421 CORPORATION, ET AL. v. METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.
Direct Appeal from the Chancery Court for Davidson County
No. 96-2234-II Carol L. McCoy, Chancellor
No. M1997-00212-COA-R3-CV - Decided April 26, 2000
This appeal involves a dispute between a sexually oriented business and a city over the business’s
desire to expand onto adjoining property. After the city’s board of zoning appeals denied its
application for a building permit because the business had not met the requirements for the
expansion of a nonconforming use, the business filed a petition for a common-law writ of certiorari
in the Chancery Court for Davidson County asserting that it had satisfied the city’s standards for
expanding a nonconforming use and that the board was selectively enforcing the city’s land use
regulations. The trial court, sitting without a jury, rejected both claims and affirmed the board’s
decision. On this appeal, the business renews the same arguments that proved unsuccessful below.
We have determined that the board correctly interpreted the city’s land use regulations and that the
selective enforcement allegations fail to state a claim for which relief can be granted. Accordingly,
we affirm the order dismissing the petition for writ of certiorari.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed.
KOCH , J., delivered the opinion of the court, in which TODD , P.J., M.S., and CANTRELL, J., joined.
Joel H. Moseley and Robert W. Rutherford, Nashville, Tennessee, for the appellants, 421
Corporation and Mike Sokolic.
James L. Murphy, Lizabeth D. Foster, and Francis H. Young, Nashville, Tennessee, for the
appellees, Metropolitan Government of Nashville and Davidson County, Tennessee and the
Metropolitan Board of Zoning Appeals.
OPINION
421 Corporation operates a store named The Purple Onion that sells sexually oriented
materials. The store is located at 2807 Nolensville Road in Nashville on property owned by Mike
Sokolic. The Purple Onion’s location does not comply with Nashville’s current zoning ordinance
restricting sexually oriented businesses primarily to the downtown area. However, Nashville has
allowed The Purple Onion to continue in business on Nolensville Road as a nonconforming use
because it was already doing business at that location when Nashville enacted its comprehensive
zoning ordinance in September 1977.
Sometime after September 1977, Mr. Sokolic acquired the real property next door to The
Purple Onion at 2809 Nolensville Road. The building on this property shares a common wall with
the building housing The Purple Onion. At Mr. Sokolic’s request, the tax assessor combined the two
tracts into one and designated the tracts as 2807 Nolensville Road on the tax map. Mr. Sokolic and
421 Corporation later decided to expand The Purple Onion into the adjacent building by removing
portions of the common wall. The zoning administrator declined to issue a building permit for the
construction, and Mr. Sokolic requested the Metropolitan Board of Zoning Appeals to reverse the
zoning administrator’s decision. The board also declined to approve the proposed expansion of The
Purple Onion because the expanded business would no longer be on the same property it occupied
when it became a nonconforming use.
Mr. Sokolic and 421 Corporation filed a petition for writ of certiorari in the Chancery Court
for Davidson County seeking judicial review of the board’s decision. They asserted that the board
had misconstrued the provisions in the zoning ordinance regarding the alteration of nonconforming
uses and that the city was selectively enforcing its zoning ordinance. In support of their latter
contention, Mr. Sokolic and 421 Corporation claimed that Nashville was permitting two other
sexually oriented businesses that did not qualify as nonconforming uses to operate illegally in the
Nolensville Road area. The trial court granted Nashville’s motion to dismiss the selective
enforcement claim for failure to state a claim upon which relief can be granted. Then, following a
hearing, the trial court upheld the board’s action after concluding that both state law and the city
ordinance required a nonconforming use to remain on the same property. Mr. Sokolic and 421
Corporation have appealed.
I.
THE STANDARD OF REVIEW
We take up first the standard of review applicable to this appeal. The proper vehicle for
reviewing decisions of local boards of zoning appeals is the common-law writ of certiorari. See
McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990). This writ affords quite limited
judicial review, see Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App.
1994), that consists of determining whether the administrative body exceeded its jurisdiction,
followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material
evidence to support its decision. See Fallin v. Knox County Bd. of Comm’rs, 656 S.W.2d 338, 342-
43 (Tenn. 1983); Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d 52, 54 (Tenn. Ct.
App. 1997); Hemontolor v. Wilson County Bd. of Zoning Appeals, 883 S.W.2d 613, 616 (Tenn. Ct.
App. 1994).
Judicial review under a common-law writ of certiorari is limited to the record made before
the board or agency, unless the court permits the introduction of additional evidence on the issue of
whether the board or agency exceeded its jurisdiction, or acted illegally, capriciously, or arbitrarily.
See Cooper v. Williamson County Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987); Davison v. Carr,
659 S.W.2d 361, 363 (Tenn. 1983). The reviewing courts will not reweigh the evidence, see Watts
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v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980); Hoover, Inc. v. Metropolitan
Bd. of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn. Ct. App. 1996), examine the intrinsic
correctness of the decision being reviewed, see McCord v. Nashville, C. & St. L. Ry., 187 Tenn. 277,
294, 213 S.W.2d 196, 204 (1948); Tarpley v. Traughber, 944 S.W.2d 394, 395 (Tenn. Ct. App.
1996), or substitute their judgment for that of the local officials. See Whittemore v. Brentwood
Planning Comm’n, 835 S.W.2d 11, 15 (Tenn. Ct. App. 1992).
The common-law writ of certiorari likewise provides limited options for dealing with errors
discovered in the proceedings being reviewed. Because courts should avoid dictating specific
decisions to local zoning boards except in the most extraordinary circumstances, the most common
judicial remedy in zoning cases is to remand the case to the zoning agency with instructions
appropriate to the circumstances of the case. See 4 Robert M. Anderson, American Law of Zoning
§ 27.39, at 598 (3d ed.1986). Rather than shouldering the local agency’s responsibilities, the courts
should insist that the agency carry out its task in an appropriate manner. The goal of a remand
should be to place the parties and the agency in the position they would have been in had the agency
not acted improperly. See Hoover v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d at 55.
II.
THE BOARD ’S INTERPRETATION OF THE LOCAL ZONING ORDINANCE
AND RELIANCE ON STATE LAW
Mr. Sokolic and 421 Corporation assert that the board acted arbitrarily and illegally by
misconstruing the zoning ordinance governing alterations of nonconforming uses and by relying on
a state statute limiting the power of local governments to enforce their zoning ordinances against
otherwise legal nonconforming uses. We have determined that the provisions in the zoning
ordinance and state law relating to the alteration of nonconforming uses should be read in pari
materia, and accordingly, that the board did not misconstrue the zoning ordinance.
A.
Local governments lack inherent power to control the use of private property within their
boundaries. Their power derives from the State through specific delegation by the General
Assembly. See State ex rel. SCA Chem. Servs. v. Sanidas, 681 S.W.2d 557, 562 (Tenn. 1984);
Family Golf of Nashville, Inc. v. Metropolitan Gov’t, 964 S.W.2d 254, 257 (Tenn. Ct. App. 1997).
While local governments have considerable discretion to act within the scope of their delegated
power, they cannot effectively nullify state law on the same subject by enacting ordinances that
ignore applicable state laws, that grant rights that state law denies, or that deny rights that state law
grants. See generally State ex rel. Beasley v. Mayor & Aldermen of Fayetteville, 196 Tenn. 407,
415-16, 268 S.W.2d 330, 334 (1954). Thus, local governments must exercise their delegated power
consistently with the delegation statutes from which they derive their power. See Henry v. White,
194 Tenn. 192, 196, 250 S.W.2d 70, 71 (1952).
When the language of an ordinance is clear, the courts will enforce the ordinance as written.
When, however, the language of an ordinance is ambiguous, the courts will resort to the customary
principles of statutory construction. See Whittemore v. Brentwood Planning Comm’n, 835 S.W.2d
-3-
at 15. Accordingly, the reviewing courts will construe a zoning ordinance as a whole and will give
its words their natural and ordinary meaning. See Lions Head Homeowners Assoc., Inc. v.
Metropolitan Bd. of Zoning Appeals, 968 S.W.2d 296, 301 (Tenn. Ct. App. 1997); Boles v. City of
Chattanooga, 892 S.W.2d 416, 420 (Tenn. Ct. App. 1994). They will also seek the interpretation
that is most consistent with the ordinance’s general purposes, but they will resolve ambiguities in
favor of the property owner’s right to the unrestricted use of his or her property. See State ex rel.
Morris v. City of Nashville, 207 Tenn. 672, 680, 343 S.W.2d 847, 850 (1961); State ex rel. Wright
v. City of Oak Hill, 204 Tenn. 353, 356, 321 S.W.2d 557, 559 (1959).
The well-known in pari materia rules also apply to the construction of zoning ordinances.
Thus, zoning ordinances dealing with the same subject should be construed together. See Lions
Head Homeowners Ass’n v. Metropolitan Bd. of Zoning Appeals, 968 S.W.2d at 301. In addition,
zoning ordinances must also be construed in light of the state statutes empowering local governments
to enact them in order to avoid conflict and to enable related statutes and ordinances to operate
concurrently. See City of Louisville v. Thompson, 339 S.W.2d 869, 873 (Ky. Ct. App. 1960); City
of Dallas v. Sullenger, 826 P.2d 34, 36 (Or. Ct. App. 1992); Carroll v. Hastings, 402 N.Y.S.2d 279,
283 (Sup. Ct. 1977).
B.
The source for the law applicable to this dispute are the state statutes, codified at Tenn. Code
Ann. §§ 13-7-101, -410 (1999), establishing the ground rules for regulation of land use by local
governments. These statutes empower counties and municipalities to regulate the use of real
property and the structure and design of buildings within their boundaries. See Tenn. Code Ann. §§
13-7-101(a)(1) & 13-7-201(a)(1). The grants of power in these statutes are broad, see Fallin v. Knox
County Bd. of Comm’rs, 656 S.W.2d at 342, but not without limit. In the words of the statutes, the
counties and municipalities must exercise their power “in accordance with the conditions and the
procedure specified in this part. . . .” Tenn. Code Ann. §§ 13-7-101(a)(1), -201(a)(1). Accordingly,
we have held that counties and municipalities cannot wield their land use control power in conflict
with state law. See Family Golf of Nashville, Inc. v. Metropolitan Gov’t, 964 S.W.2d at 257.
The General Assembly recognized that empowering local governments to enact zoning
ordinances could result in hardship to existing property owners whose property was not previously
covered by land use restrictions. These property owners could find themselves in violation of a
newly enacted zoning ordinance simply because the existing use of their property was inconsistent
with the new restrictions. Rather than leaving the resolution of this problem entirely to the local
governments, the General Assembly decided, as a matter of policy, that certain property owners
should always be permitted to continue to use their property as they had been using it before the
local land use restriction took effect. Thus, Tenn. Code Ann. § 13-7-208(b) provides, in part:
In the event that a zoning change occurs in any land area where such
land area was not previously covered by any zoning restrictions of
any governmental agency of this state or its political subdivisions, .
. . then any industrial, commercial or business establishment in
operation . . . prior to the zoning change shall be allowed to continue
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in operation and be permitted; provided that no change in the use of
the land is undertaken by such industry or business.1
The General Assembly also envisioned that property owners permitted to continue using their
property contrary to the zoning laws might desire to expand their businesses or might, for some
reason, desire to construct replacement facilities. Accordingly, Tenn. Code Ann. § 13-7-208(c)
authorizes a property owner continuing to operate its business under Tenn. Code Ann. § 13-7-208(b)
“to expand operations and construct additional facilities which involve an actual continuation and
expansion of the activities of the industry or business which were permitted and being conducted
prior to the change in zoning.”2 Likewise, Tenn. Code Ann. § 13-7-208(d) authorizes businesses “to
destroy present facilities and reconstruct new facilities necessary to the conduct of such industry or
business.”3
Tenn. Code Ann. §§ 13-7-208(b), (c), (d) reflect the General Assembly’s intention to permit
existing businesses to continue operating even if they do not comply with later-enacted zoning laws.
However, in 1973 the General Assembly realized that some businesses would attempt to use these
statutes to justify expanding their nonconforming businesses onto adjoining property that had never
been used inconsistently with the zoning laws. Accordingly, the General Assembly determined that
this sort of geographic expansion should not be permitted and stated in plain terms: “The provisions
of subsections(b)-(d) [of Tenn. Code Ann. § 13-7-208] apply only to land owned and in use by such
affected business, and do not operate to permit expansion of an existing industry or business through
the acquisition of new land.” Tenn. Code Ann. § 13-7-208(e).4 This statute, as we shall see, has a
direct bearing on this case.
The Metropolitan Government of Nashville and Davidson County exercised its delegated
zoning power by enacting a comprehensive zoning ordinance on September 2, 1977. This ordinance
covered all real property located in Davidson County. Tracking Tenn. Code Ann. § 13-7-208(b),
the ordinance authorized the continuation of nonconforming uses. See Metropolitan Gov’t of
Nashville & Davidson County, Tennessee, Code § 17.128.030 (1977) (“Metro. Code”). It also
addressed alterations of buildings or structures occupied by a nonconforming use. The provision in
existence at all times relevant to this case stated:
1
The elided portions of the statute deal with changes in zoning ordinances and are not
relevant to the issues on this appeal.
2
To avoid nuisances to adjoining landowners, the statute imposes siting requirements on the
right to construct additional facilities to expand current business operations.
3
The property owner’s right to construct replacement facilities is also subject to siting
requirements to avoid nuisances to adjoining property owners.
4
Act of May 4, 1973, ch. 279, 1973 Tenn. Pub. Acts, 1065, 1067. This specific resolution
was added by amendment in the House of Representatives. See 1973 House Journal 1599.
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A. Incidental Alterations. Incidental alterations may be made
to a building or other structure occupied by a nonconforming use, or
in connection with a permitted change of nonconforming use.
B. Alterations other than Incidental Repairs. Alterations
other than minor alterations shall be permitted for replacement and/or
expansion of legally nonconforming commercial and industrial uses
subject to the following provisions:
1. The nonconforming use shall have been legally in
existence at the time it became nonconforming, presently occupies
the same property it occupied when it became nonconforming, and is
not affected by Section 17.128.210[.]
2. The proprietor of the use for which replacement or
expansion is sought is the owner of the property on which the use is
located.
3. The replacement and/or expansion does not involve any
change in use.
4. The alteration either complies with the applicable district
bulk regulations, decreases the degree of noncompliance, or does not
increase the degree of noncompliance.
5. Where the alteration involves an increase in the degree of
noncompliance with the applicable district regulations, such
expansion shall be permitted through the issuance of a conditional use
permit by the metropolitan board of zoning appeals in accordance
with the conditions set forth in Section 17.124.420.
Metro. Code § 17.128.060 (1997).5
Metro. Code § 17.128.060 did not contain a provision similar to Tenn. Code Ann. § 13-7-
208(e) explicitly prohibiting owners of nonconforming uses from acquiring additional land to expand
their business. However, it conditioned the right of an owner of a nonconforming use to alter its
premises on the requirement that the nonconforming use occupy the “same property” it occupied
when it became nonconforming. Mr. Sokolic now asserts that the “same property” requirement in
Metro. Code § 17.128.060(B)(1) is not as broad as Tenn. Code Ann. § 13-7-208(e) and, therefore,
that The Purple Onion should be permitted to expand onto his newly acquired property. The city
responds by asserting that Metro. Code § 17.128.060(B)(1) is essentially equivalent to Tenn. Code
Ann. § 13-7-208(e), and even if it were not, Tenn. Code Ann. § 13-7-208(e) prevents the proposed
expansion of The Purple Onion’s business.
C.
5
The city later repealed Metro. Code § 17.128.060(B). The zoning ordinance now simply
invokes Tenn. Code Ann. § 13-7-208. See Metro. Code § 17.40.650 (1998). The repeal of Metro.
Code § 17.128.060(B) has no direct bearing on this case.
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Mr. Sokolic and 421 Corporation have two arguments why the board acted arbitrarily when
it determined that the proposed expansion of The Purple Onion did not meet all the requirements of
Metro. Code § 17.128.060(B) and was contrary to Tenn. Code Ann. § 13-7-208(e). First, they assert
that the proposed expansion is on the “same property” because, for tax purposes, the tax assessor has
combined the parcel at 2807 Nolensville Road with the parcel at 2809 Nolensville Road. Second,
they assert that Tenn. Code Ann. § 13-7-208(e) does not apply to them because it has been
supplanted by Metro. Code § 17.128.060.
Both Tenn. Code Ann. § 13-7-208 and Metro. Code § 17.128.060 deal with nonconforming
uses. Because the ordinance draws its effectiveness from the state zoning laws, the statute and the
ordinance should be read in pari materia to avoid conflict and to enable them to operate concurrently.
Mr. Sokolic’s and 421 Corporation’s construction of the “same property” requirement in Metro.
Code § 17.128.060(B)(1) would set the ordinance on a collision course with Tenn. Code Ann. § 13-
7-208. This conflict can be avoided by giving the term “same property” a reasonable construction
based on the common meaning of its words. As we see it, the term “same property” refers to the
same tract of real property on which the business was operating when it became a nonconforming
use. It does not include “new land” acquired by the property owner after the use became
nonconforming, even if the “new land” was later combined with the existing property into one parcel
for tax purposes.6
Mr. Sokolic contends that we should not use Tenn. Code Ann. § 13-7-208(e) to interpret
Metro. Code § 17.128.060(B)(1) because the ordinance, rather than the statute, governs his
application for a building permit. This argument overlooks the principle that local zoning ordinances
cannot ignore state law and cannot grant rights that the state law denies. See Riggs v. Burson, 941
S.W.2d 44, 54 (Tenn. 1997) (holding that a local ordinance permitting the operation of a heliport
within nine miles of a national park boundary did not take precedence over a state statute requiring
that heliports within nine miles of a national park boundary be eliminated); State ex rel. Beasley v.
Mayor & Aldermen of Fayetteville, 196 Tenn. at 415-16, 268 S.W.2d at 334. The restriction
regarding acquiring new property in Tenn. Code Ann. § 13-7-208(e) is mandatory, and local
governments cannot grant broader rights to expand nonconforming uses.
The state enabling statutes provide some direction for resolving conflicts between local
zoning regulations and state statutes. Tenn. Code Ann. § 13-7-209 provides that when a local zoning
ordinance and a state law contain different restrictions regarding the size of open spaces, building
height, and percentage of the lot occupied by a building, the restriction requiring greater open space,
lower building height, or the greater percentage of the lot left unoccupied shall control. This
provision, on its face, does not apply to The Purple Onion’s planned expansion of its nonconforming
6
In addition to being harmonious with Tenn. Code Ann. § 13-4-208(e), this interpretation of
Metro. Code § 17.128.060(B)(1) is also consistent with the general purpose of the provisions in the
zoning ordinance governing nonconforming uses which is to provide a “gradual remedy” for existing
undesirable conditions caused by incompatible nonconforming uses by restricting “further
investment in such uses which would make them more permanent establishments in inappropriate
locations.” Metro. Code § 17.128.010(B) (1997).
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use. There is no dispute between the parties involving open space, building height, or the footprint
of a new building.
We conclude that the board did not act arbitrarily by considering Mr. Sokolic’s request for
a building permit in light of both Metro. Code § 17.128.060 and Tenn. Code Ann. § 13-7-208 and
that the board neither misconstrued the facts nor misapplied the law. When Nashville’s zoning
ordinance was enacted in September 1977, the real property at 2807 Nolensville Road was separate
from the tract at 2809 Nolensville Road. The Purple Opinion was operating only on the 2807 tract
at the time and had never operated on the 2809 tract. Mr. Sokolic’s desire to expand The Purple
Onion’s business to the 2809 tract would enable the business to be operated on different property
than it was operating on in September 1977 and would contravene Tenn. Code Ann. § 13-7-208(e)
by allowing Mr. Sokolic to expand the business by acquiring new land. Accordingly, like the trial
court, we find no basis in the zoning ordinance, state law, or the facts, to second-guess the board’s
decision that The Purple Onion could not operate as a nonconforming use on the tract previously
identified as 2809 Nolensville Road.
III.
THE SELECTIVE ENFORCEMENT CLAIM
Mr. Sokolic’s and 421 Corporation’s second argument is that the board acted arbitrarily and
illegally by holding The Purple Onion to the strict requirements of the zoning ordinance while, at
the same time, permitting other sexually oriented businesses competing with him in the Nolensville
Road to operate illegally outside the zone in downtown Nashville set aside for these businesses. The
trial court dismissed this claim for failure to state a claim upon which relief can be granted.
A.
The sole purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to test the sufficiency
of the complaint, not the strength of the plaintiff’s evidence. See Doe v. Sundquist, 2 S.W.3d 919,
922 (Tenn. 1999); Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986
S.W.2d 550, 554 (Tenn. 1999). It requires the courts to review the complaint alone, see Daniel v.
Hardin County Gen. Hosp., 971 S.W.2d 21, 23 (Tenn. Ct. App. 1997), and to look to the complaint’s
substance rather than its form. See Kaylor v. Bradley, 912 S.W.2d 728, 731 (Tenn. Ct. App. 1995).
Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the alleged facts will not entitle
the plaintiff to relief or when the complaint is totally lacking in clarity and specificity. See Dobbs
v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992).
A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual
allegations in the complaint but asserts that no cause of action arises from these facts. See
Winchester v. Little, 996 S.W.2d 818, 821 (Tenn. Ct. App. 1998); Smith v. First Union Nat’l Bank,
958 S.W.2d 113, 114 (Tenn. Ct. App. 1997). Accordingly, courts reviewing a complaint being
tested by a Tenn. R. Civ. P. 12.02(6) motion must construe the complaint liberally in favor of the
plaintiff by taking all factual allegations in the complaint as true, see Stein v. Davidson Hotel, 945
S.W.2d 714, 716 (Tenn. 1997), and by giving the plaintiff the benefit of all the inferences that can
be reasonably drawn from the pleaded facts. See Robert Banks, Jr. & June F. Entman, Tennessee
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Civil Procedure § 5-6(g), at 254 (1999). On appeal from an order granting a Tenn. R. Civ. P.
12.02(6) motion, we must likewise presume that the factual allegations in the complaint are true, and
we must review the trial court’s legal conclusions regarding the adequacy of the complaint without
a presumption of correctness. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., 986 S.W.2d at 554 (Tenn. 1999); Stein v. Davidson Hotel, 945 S.W.2d at 716.
B.
Persons making selective enforcement claims have a heavy burden to overcome because the
courts, in recognition of the doctrine of separation of powers,7 presume that public officials have
discharged their duties in good faith, see Williams v. American Plan Corp., 216 Tenn. 435, 441, 392
S.W.2d 920, 923 (1965), and in accordance with the law. See Reeder v. Holt, 220 Tenn. 428, 435-
36, 418 S.W.2d 249, 252 (1967). Because practical realities require the allocation of limited public
resources, the courts afford public agencies and officials substantial discretion with regard to law
enforcement decisions. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668 (1978).
That some people escape the law’s reach while others have the law enforced against them does not,
by itself, run afoul of the equal protection guarantees in the state and federal constitutions. See State
v. Martin, 719 S.W.2d 522, 525 (Tenn. 1986). There is no constitutionally protected right to have
the law go unenforced, even if others who may be equally or more guilty escape punishment. See
Futernick v. Sumpter Township, 78 F.3d 1951, 1056 (6th Cir. 1996).
However, the courts are not required to stay their hand when the government unfairly
marshals its immense power against selected citizens. Regulatory or enforcement decisions based
on personal dislike, vendetta, or some other impermissible consideration, are anathemas to the
American tradition honoring the rule of law. See Futernick v. Sumpter Township, 78 F.3d at 1059.
Accordingly, the federal and state constitutions do not permit regulatory and law enforcement
decisions to be based on certain impermissible considerations. See Wayte v. United States, 470 U.S.
598, 608, 105 S. Ct. 1524, 1531 (1985). These impermissible considerations include race, gender,
religion, or some other arbitrary classification such as the exercise of statutory or constitutional
rights. See Wayte v. United States, 470 U.S. at 608, 105 S. Ct. 1531; Futernick v. Sumpter
Township, 78 F.3d at 1057; Irvin v. City of Clarksville, 767 S.W.2d 649, 654 (Tenn. Ct. App. 1988);
Patterson v. Hunt, 682 S.W.2d 508, 517 (Tenn. Ct. App. 1984), citing Oyler v. Boles, 360 U.S. 448,
452, 82 S. Ct. 501, 503 (1962).
Persons asserting a selective enforcement claim must prove that the regulatory or law
enforcement decision had a discriminatory purpose and produced a discriminatory effect. See United
States v. Armstrong, 517 U.S. 456, 466, 116 S. Ct. 1480, 1487 (1996). There are two elements to
a selective enforcement claim: (1) the government has singled out the plaintiff for adverse regulatory
or enforcement action while others engaging in similar activity have not been subject to the same
type of action and (2) that the decision to prosecute them rests on an impermissible consideration
7
See National Loans, Inc. v. Tennessee Dep’t of Fin. Institutions, No. 01A01-9506-CH-
00241, 1997 WL 194992, at *4 (Tenn. Ct. App. Apr. 23, 1997) (No Tenn. R. App. P. 11 application
filed).
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or purpose. See National Loans, Inc. v. Tennessee Dep’t of Fin. Institutions, 1997 WL 194992, at
*5.
With regard to the first element, the claimant must allege and prove: (1) that other non-
prosecuted offenders have engaged or are engaging in essentially the same conduct, (2) that the non-
prosecuted offenders violated the same regulation, statute, or ordinance that the claimant is accused
of violating, and (3) that the magnitude of the non-prosecuted offender’s violation was not materially
different from that of the plaintiffs. See National Loans, Inc. v. Tennessee Dep’t of Fin. Institutions,
1997 WL 194992, at *5. With regard to the second element, the claimant may prove either that the
government singled out a protected class of citizens for enforcement of the law or that the
government prosecution was intended to deter or punish the exercise of a protected right. See
Futernick v. Sumpter Township, 78 F.3d 1056-57, 1057 n.7 (differentiating between “true selective
enforcement” and “vindictive enforcement”).8
C.
Mr. Sokolic’s and 421 Corporation’s complaint must be tested against these standards to
determine whether it articulates a selective enforcement claim. The complaint alleges only that
Nashville is permitting other sexually oriented businesses to operate outside of their permitted zones
even though they do not qualify as nonconforming uses. It does not allege that the board has the
authority to commence enforcement actions against any of these businesses or that the board has ever
granted these businesses, or any other nonconforming use for that matter, permission to expand on
to adjoining property that was not owned when the use became nonconforming.
The governmental activity at issue in this case is the board’s enforcement of the restriction
against expanding a nonconforming use onto adjoining property, not the selling of adult oriented
materials. Whether the complaint’s bare-bones allegations articulate the first element of a selective
enforcement claim is questionable. The complaint does not allege that other sexually oriented
businesses are engaging in the same conduct that The Purple Onion seeks to engage in, i.e.,
attempting to expand onto adjoining property. It does not even allege that the board has permitted
other nonconforming uses to expand their operations onto adjoining property. Accordingly, the
complaint in this case does not allege that other non-prosecuted offenders have been permitted to
engage in the same conduct that Mr. Sokolic and 421 Corporation desire to engage in.
Likewise, the complaint does not contain allegations sufficient to make out the second
element of a selective enforcement claim. The complaint does not allege that the board’s decision
to enforce the restrictions regarding nonconforming uses against the proposed expansion of The
Purple Onion stems from some improper discriminatory motive or that it has produced some
8
An example of a “true selective enforcement” claim would be an allegation that Nashville
does not enforce its sexually oriented business ordinance against male owners but consistently
enforces its ordinance against female proprietors. An example of a “vindictive enforcement” claim
would be an allegation that Nashville undertook to enforce its ordinance only after the owner of the
sexually oriented business successfully challenged the city’s nude dancing law in court.
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discriminatory effect. It does not allege that the board’s actions stemmed from some impermissible
consideration like race, gender, or religion. Likewise, it does not allege that the board only enforces
these restrictions against sexually oriented businesses, not against other businesses or that the board
is enforcing the nonconforming use restrictions to punish either Mr. Sokolic or 421 Corporation for
exercising some protected right. Thus, the complaint fails to state a claim upon which relief can be
granted because it does not allege that board’s decision to enforce the provisions regarding the
expansion of nonconforming uses rests on some impermissible consideration or purpose.
IV.
The memorandum and order affirming the decision of the board and dismissing the petition
for common-law writ of certiorari is affirmed and the case is remanded to the trial court for whatever
further proceedings may be required. The costs of this appeal are taxed jointly and severally to 421
Corporation and Mike Sokolic and their surety for which execution, if necessary, may issue.
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