City of Athens v. William Straser

10/20/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 22, 2020 Session
CITY OF ATHENS v. WILLIAM STRASER1
Appeal from the Circuit Court for McMinn County
No. 2017-CV-241 Lawrence Howard Puckett, Judge
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No. E2019-02298-COA-R3-CV
___________________________________
In a direct appeal from the Athens City Court (“municipal court”), the McMinn County
Circuit Court (“trial court”) determined that the defendant, William Straser, was not
entitled to a trial by jury in defense of a citation issued by the plaintiff city. Following a
bench trial conducted on November 22, 2019, the trial court further determined that Mr.
Straser had erected a carport on his property in violation of a municipal ordinance requiring
a thirty-foot minimum setback. Mr. Straser has appealed. Discerning no reversible error,
we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Van R. Irion, Knoxville, Tennessee, for the appellant, William Straser.
H. Chris Trew, Athens, Tennessee, for the appellee, City of Athens.
OPINION
I. Factual and Procedural Background
On April 25, 2017, the City of Athens (“the City”) issued a citation to Mr. Straser,
a resident of the City, alleging that Mr. Straser’s carport was in violation of a thirty-foot
minimum setback requirement set forth in Section 3.04.03(E) of the Municipal Zoning
Ordinance for the City of Athens (“the Setback Ordinance”). Following a hearing, the
municipal court entered a judgment on July 3, 2017, determining that Mr. Straser was in
1
Two iterations of Mr. Straser’s last name appear in the record. Because the “Straser” spelling appears to
predominate, we will employ that spelling in this opinion. No disrespect is intended.
violation of the Setback Ordinance. Mr. Straser timely appealed the municipal court’s
judgment to the trial court on July 13, 2017.
After retaining new counsel to represent him, Mr. Straser sought and obtained a
continuance of the initial trial date. On November 19, 2018, by agreement of the parties,
the trial court entered an order rescheduling the matter for a non-jury trial beginning April
22, 2019. Mr. Straser thereafter sought a second continuance of the trial date, submitting
as grounds that he was a party to a pending federal lawsuit concerning the same facts, and
trial was set for October 2019. The City subsequently filed a response, opposing Mr.
Straser’s motion for a second continuance and arguing that the federal lawsuit involved
issues separate from the instant cause. On March 8, 2019, Mr. Straser lodged a motion
seeking permission to file a pleading asserting a counterclaim against the City and a cross-
claim against the City’s attorney. The City subsequently filed a response opposing the
motion.
The trial court conducted a motion hearing on March 18, 2019, and entered an order
denying Mr. Straser’s second motion for continuance on March 21, 2019. On March 22,
2019, Mr. Straser filed an answer asserting a counterclaim against the City and a cross-
claim against the City’s attorney. In addition, for the first time, Mr. Straser demanded a
jury trial concerning the issues. The City subsequently filed a response on March 29, 2019,
opposing Mr. Straser’s demand for a jury trial.
On April 1, 2019, the trial court granted leave for Mr. Straser to file an “Answer
which may include, admissions, denials, and affirmative defenses.” Moreover, the court
directed the parties to file briefs concerning the issue of whether Mr. Straser was entitled
to a jury trial. The City concomitantly filed a motion to dismiss Mr. Straser’s answer
containing a counterclaim and cross-claim.
Following a hearing conducted on April 4, 2019, the trial court entered an order on
April 15, 2019, regarding the pending motions. The court ruled, inter alia:
The part of the pleading fax filed by Mr. Straser on March 22, 2019 referred
to as “Counterclaims” shall be treated by the Court and the parties as a
Motion by Mr. Straser to reconsider the Order filed April 1, 2019 stating that
Mr. Straser shall not be permitted to file a Counterclaim against the City of
Athens alleging a violation of federal laws. The part of the pleading referred
to as a “Crossclaim” against Mr. Trew shall be treated by the Court and the
parties as a Motion by Mr. Straser to file a pleading to add Mr. Trew as a
party to this case.
The court further concluded that the hearing scheduled for April 22, 2019, would not be a
trial on the merits; rather, the court would conduct a motion hearing to consider the
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referenced issues as well as to resolve the question of whether Mr. Straser had timely
demanded a jury trial.
The record, inter alia, contains documents, initially attached to the City’s March 29,
2019 response, from a separate lawsuit filed in federal court by Mr. Straser against the City
and certain officials of the City, wherein Mr. Straser alleged violations of his constitutional
right to equal protection and other claims based on federal law. The federal court ultimately
dismissed Mr. Straser’s claims, granting summary judgment in favor of the defendants. On
September 4, 2019, following the federal court’s grant of summary judgment, the trial court
entered an order determining that Mr. Straser could not amend his answer to add a
counterclaim against the City based on federal law. The trial court also denied a request
by Mr. Straser to add the City’s attorney as a party. With regard to Mr. Straser’s demand
for a jury trial, the trial court determined that Mr. Straser’s request was untimely and
declined to “exercise any discretion permitted by Rule 39.02 of the Tennessee Rules of
Civil Procedure to allow a jury trial when [Mr. Straser had] not made a timely demand
pursuant to Rule 38.03.” The trial court therefore denied Mr. Straser’s request for a trial
by jury.
On November 1, 2019, Mr. Straser filed a motion seeking to have the municipal
ordinance at issue declared unconstitutionally vague. According to Mr. Straser, although
the ordinance required a thirty-foot minimum setback for structures, it failed to specify the
location from which such measurement would be taken. The City filed a response in
opposition to Mr. Straser’s motion, asserting that the municipal ordinance language was
not vague because Mr. Straser’s property lines could be determined from his deed.
The trial court ultimately conducted a de novo bench trial concerning this matter on
November 22, 2019. Through its final judgment entered on December 16, 2019, the trial
court determined that the Setback Ordinance was not unconstitutionally vague and that Mr.
Straser had constructed his carport in violation of the thirty-foot setback established by the
applicable municipal ordinance. Mr. Straser timely appealed.
II. Issues Presented
Mr. Straser presents the following issues for review, which we have restated slightly
as follows:
1. Whether the trial court erred by denying Mr. Straser’s demand for a
trial by jury.
2. Whether the trial court erred by declining to find the subject municipal
ordinance to be unconstitutionally vague.
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III. Standard of Review
We review a non-jury case de novo upon the record with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is otherwise.
See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). “In order
for the evidence to preponderate against the trial court’s findings of fact, the evidence must
support another finding of fact with greater convincing effect.” Wood v. Starko, 197
S.W.3d 255, 257 (Tenn. Ct. App. 2006). We review questions of law, including those of
statutory construction, de novo with no presumption of correctness. Bowden, 27 S.W.3d
at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re
Estate of Haskins, 224 S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and shall
not be disturbed absent clear and convincing evidence to the contrary. See Morrison v.
Allen, 338 S.W.3d 417, 426 (Tenn. 2011).
Concerning Tennessee Rule of Civil Procedure 39.02, this Court has explained,
“The plain words of 39.02 give the Trial Judge discretionary power to allow a trial by jury
regardless of previous default in demand.” Silcox v. Smith Cty., 487 S.W.2d 652, 658
(Tenn. Ct. App. 1972). As our Supreme Court has explained:
The abuse of discretion standard of review envisions a less rigorous
review of the lower court’s decision and a decreased likelihood that the
decision will be reversed on appeal. Beard v. Bd. of Prof’l Resp.,288 S.W.3d
838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86 S.W.3d 189, 193
(Tenn. Ct. App. 2000). It reflects an awareness that the decision being
reviewed involved a choice among several acceptable alternatives.
Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999). Thus,
it does not permit reviewing courts to second-guess the court below, White
v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), or to
substitute their discretion for the lower court’s, Henry v. Goins, 104 S.W.3d
475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927
(Tenn. 1998). The abuse of discretion standard of review does not, however,
immunize a lower court’s decision from any meaningful appellate scrutiny.
Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).
Discretionary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d
652, 661 (Tenn. 1996). 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.
State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its
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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. State v. Ostein, 293 S.W.3d 519, 526 (Tenn.
2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249
S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville,
154 S.W.3d [22,] 42 [(Tenn. 2005)].
To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a lower courts discretionary
decision to determine (1) whether the factual basis for the decision is
properly supported by 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. Flautt & Mann v.
Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008)
(quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co., No.
87-136-II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No Tenn.
R. App. P. 11 application filed)). When called upon to review a lower court's
discretionary decision, the reviewing court should review the underlying
factual findings using the preponderance of the evidence standard contained
in Tenn. R. App. P. 13(d) and should review the lower court’s legal
determinations de novo without any presumption of correctness. Johnson v.
Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. Ct. App. 2004); Boyd v.
Comdata Network, Inc., 88 S.W.3d at 212.
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010).
IV. Demand for Jury Trial
First, we address Mr. Straser’s contention that the trial court erred by denying his
demand for a jury trial. Tennessee Rule of Civil Procedure 38.03 governs a party’s right
to demand a trial by jury in cases removed to circuit or chancery courts. Rule 38.03
provides:
In cases removed by appeal or otherwise to the chancery or circuit courts or
to courts of similar jurisdiction, any party may demand a trial by jury of any
issue triable of right by jury by filing written demand for jury trial within 10
days after the papers are filed with the clerk. If such a case is set for trial
within 10 days after the papers are filed with the clerk, any party may make
demand for jury trial when the case is called for trial. In every case removed
to the chancery or circuit courts or to courts of similar jurisdiction the clerk
shall promptly give notice to the appellee of the filing of the papers.
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In addition, Tennessee Rule of Civil Procedure 38.05 states: “The failure of a party to
make demand as required by this rule constitutes a waiver by the party of trial by jury.”
On appeal, Mr. Straser initially argues that Rule 38.03 did not apply to his jury demand
and that the trial court therefore erred by denying his demand upon determining that he had
failed to comply with Rule 38.03’s ten-day requirement. Respectfully, we disagree.
This action originated in municipal court and was timely appealed to the trial court
pursuant to Tennessee Code Annotated § 27-5-102 (2017). Pursuant to the plain language
of Rule 38.03, this action clearly constitutes a case “removed by appeal . . . to the chancery
or circuit courts.” Moreover, our Supreme Court has previously addressed the issue of
“whether a defendant, who has been convicted of a violation of a city ordinance, is entitled
to a jury trial on appeal of the judgment of the municipal court, where demand for a jury
trial is made in accordance with Rule 38.03 of the Tennessee Rules of Civil Procedure.”
City of Chattanooga v. Myers, 787 S.W.2d 921, 921 (Tenn. 1990) (emphasis added). In
Myers, the defendant appealed a municipal court’s judgment finding him guilty of violating
a city ordinance to the circuit court. Id. Following the defendant’s request for a jury trial,
the trial court denied the request but granted the defendant’s request for interlocutory
review. Id.
On appeal, this Court determined in Myers that the defendant was entitled to a jury
trial and reversed the trial court. Id. Upon granting permission to appeal, our Supreme
Court held, based in part on interpretation of a predecessor statute to Tennessee Code
Annotated § 27-5-102, that a party is entitled to “a jury trial on an appeal to the circuit court
from a judgment of a municipal court based on the violation of a city ordinance, provided
a jury trial is timely demanded.” Id. at 927 (emphasis added). Our review of Myers
indicates that the Supreme Court, when determining whether the Myers defendant made a
timely request for a jury trial on appeal from the municipal court, applied Rule 38.03’s ten-
day requirement. Id. at 921.
This Court has since applied Rule 38.03’s ten-day requirement in a similar
circumstance. See City of Jackson v. Bledsoe, 830 S.W.2d 71, 73 (Tenn. Ct. App. 1991),
perm. app. denied (Tenn. Mar. 16, 1992). The Bledsoe defendant appealed from a
municipal court judgment finding him guilty of a speeding violation predicated on the
city’s municipal code. Id. at 72. The circuit court dismissed the appeal as untimely. Id.
On appeal from the circuit court judgment, the defendant argued that he was denied a right
to trial by jury in violation of the United States Constitution. Id. This Court affirmed the
circuit court’s dismissal and determined that
if [the defendant] had timely appealed from the city court to the circuit court
he would have been required to file a written demand for jury trial within ten
days after the case was docketed in the circuit court clerk’s office. Rule
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38.03, Tenn. R. Civ. P. Failure to make the demand as required by the rule
constitutes a waiver of a trial by jury. Rule 38.05, Tenn. R. Civ. P.
Id. at 73.
Upon our review of Myers and Bledsoe, we reach the conclusion that Rule 38.03
controls a party’s demand for a jury trial when the action has been appealed from a
municipal court, such as in the case at bar.2 Rule 38.03 requires a party to make a written
demand for a jury trial within ten days after the papers are filed with the clerk of the
chancery or circuit court. Mr. Straser’s notice of appeal to the trial court was filed on
November 13, 2017. He presented his first written demand for a jury trial on March 22,
2019. Mr. Straser had previously agreed to set the case for a non-jury trial via an agreed
order entered by the trial court on November 19, 2018. The trial court subsequently found
in its September 4, 2019 order that Mr. Straser did not timely request a jury trial. Inasmuch
as Mr. Straser’s jury demand was made more than one year following the docketing of the
case with the trial court clerk’s office, we determine that the trial court correctly concluded
that Mr. Straser’s demand for a jury trial was untimely and accordingly waived pursuant to
Rule 38.05.
In his brief on appeal, Mr. Straser advances an ostensible argument that the trial
court should have exercised its discretion to grant a jury trial, pursuant to Tennessee Rule
of Civil Procedure 39.02, notwithstanding any untimeliness of his request under Rule 38.
Rule 39.02 provides:
Issues not demanded for trial by jury as provided in Rule 38 shall be tried by
the court; but, notwithstanding the failure of a party to demand a jury as to
any issue with respect to which demand might have been made of right, the
court in its discretion upon motion may order a trial by jury of any or all
issues.
As stated above, a trial court’s decision whether to grant a jury trial notwithstanding the
failure of a party to demand a jury trial is discretionary. Silcox, 487 S.W.2d at 658. In the
case at bar, the trial court declined to exercise such discretion under Rule 39.02, and we
find nothing in the record to demonstrate that the trial court abused its discretion in this
regard. To reiterate, Mr. Straser waited in excess of a year before making his first jury
demand. Moreover, he consented to setting the case for a non-jury trial as evinced by the
November 19, 2018 agreed order. Ergo, we determine Mr. Straser’s argument that the trial
court erred by declining to exercise discretion to allow a jury trial under Rule 39.02 to be
unavailing.
2
We note that appeals to the circuit court from municipal courts are to be treated as appeals from general
sessions courts. See Tenn. Code Ann. § 27-5-102.
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Mr. Straser further asserts that construing Rule 38.03 to be the predominant and
controlling rule in the instant action would lead to an impermissible conflict with
Tennessee Rule of Civil Procedure 38.02. Rule 38.02 provides:
Any party may demand a trial by jury of any issue triable of right by jury by
demanding the same in any pleading specified in Rule 7.01 or by endorsing
the demand upon such pleading when it is filed, or by written demand filed
with the clerk, with notice to all parties, within 15 days after the service of
the last pleading raising an issue of fact.
Mr. Straser essentially posits that Rules 38.02 and 38.03 should be considered and applied
congruently. Such construction, Mr. Straser contends, is supported by Tennessee Code
Annotated § 16-15-729 (2009), which governs cases appealed from a general sessions
court.
Tennessee Code Annotated § 16-15-729 provides:
No civil case, originating in a general sessions court and carried to a higher
court, shall be dismissed by such court for any informality whatever, but shall
be tried on its merits; and the court shall allow all amendments in the form
of action, the parties thereto, or the statement of the cause of action, necessary
to reach the merits, upon such terms as may be deemed just and proper. The
trial shall be de novo, including damages.
Based on the language of § 16-15-729, Mr. Straser claims that because all amendments in
the form of action are permitted, his March 22, 2019 answer containing a jury demand
should be allowed under Rule 38.02 as an amendment. Mr. Straser contends that under a
determination that Rule 38.03 controls, “[t]he appellant would have a statutory right to file
a pleading raising new issues of fact,” pursuant to § 16-15-729, “but would be prohibited
from demanding a jury despite falling within the explicit language of [Rule] 38.02,” leading
to an impermissible conflict. We determine this argument to be unavailing.
Mr. Straser does not cite and our research has not revealed any precedent
recognizing the simultaneous or tandem application of Rules 38.02 and 38.03. Moreover,
our research has not identified any precedent instructing that Tennessee Code Annotated §
16-15-729 may be incorporated to circumvent the ten-day requirement for a jury demand
mandated in Rule 38.03, which, as we have determined, applies to actions appealed from
municipal courts to circuit courts, such as the one at bar. See Bledsoe, 830 S.W.2d at 73.
We therefore conclude that the trial court did not err by determining that Mr. Straser’s
request for a jury trial was untimely, pursuant to Rule 38.03, and thereby waived under
Rule 38.05.
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V. Constitutional Challenge3
Mr. Straser also contends that the trial court erred by declining to find that the
Setback Ordinance was unconstitutionally vague. The specific language of the Setback
Ordinance provides in Chapter 3, Section .04, subsection .03:4
E. Dimensional Regulations:
All uses permitted in the R-2 Medium Density Residential District
shall comply with the following requirements except as provided in
Chapter 5 and in Chapter 4, Section 4.18 for townhouses and patio
homes.
1. Front Yard:
The minimum depth of the front yard shall be thirty (30) feet.
Additional definitions applicable to the Setback Ordinance provide:
2.02. DEFINITIONS.
The following words, terms, and phrases are hereby defined as follows and
shall be interpreted as such throughout this ordinance. Terms not herein
defined shall have the meaning customarily assigned to them:
3
The trial court’s December 16, 2019 order indicated that the court made “Findings of Fact and Conclusions
of Law as shown in the Memorandum Opinion of the Court filed herewith.” However, no such
memorandum appears in the appellate record. The record reflects that upon conclusion of the November
22, 2019 trial, the trial court rendered oral pronouncements, which were transcribed and included in the
transcript of proceedings. A trial court’s oral pronouncements, if made a part of the written judgment
through incorporation by reference, become a part of the judgment and reviewable as such. See, e.g., Shelby
v. Shelby, 696 S.W.3d 360, 361 (Tenn. Ct. App. 1985) (“We do not review the Court’s oral statements,
unless incorporated in a decree . . . .”); Sparkle Laundry & Cleaners, Inc. v. Kelton, 595 S.W.2d 88, 93
(Tenn. Ct. App. 1979) (“[N]o oral pronouncement is of any effect unless and until made a part of a written
judgment duly entered.”). Notwithstanding the absence of a Memorandum Opinion containing the trial
court’s findings and conclusions, we can ascertain the trial court’s findings and conclusions from the
November 22, 2019 trial transcript included in the appellate record, particularly with regard to the trial
court’s determination that the Setback Ordinance was not unconstitutionally vague. Thus, the oral findings
here are sufficiently detailed to enable appellate review.
4
This Court entered an order on June 16, 2020, allowing the City to supplement the appellate record with
a complete copy of the relevant portions of the Municipal Zoning Ordinance for the City of Athens,
Tennessee, which was previously represented by an exhibit in the record. We note that the applicability of
the Setback Ordinance, particularly the applicability of the section, “R-2 Medium Density,” to Mr. Straser’s
property is undisputed by the parties.
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***
YARD, FRONT: The required open space, unoccupied by buildings,
between the road or street right-of-way line and the principal building.
***
OPEN SPACE: An area on the same lot with a main building which is open,
unoccupied and unobstructed by structures from the ground to the sky except
as otherwise provided in this Ordinance. Open space lines shall coincide
with or be parallel to the building setback lines on the same lot.
***
RIGHT-OF-WAY: An area of land that is legally dedicated to the public
for use as a public street. The street pavement, curbs, shoulders, and
sidewalks, are located within the right-of-way and generally do not represent
the boundary of the street right-of-way line.
***
BUILDING SETBACK LINE: A line delineating the minimum allowable
distance between the property line and a building on a lot, within which no
building or other structure shall be placed except as otherwise provided.
Specifically, Mr. Straser argues that the Setback Ordinance and accompanying
definitions fail to establish clearly the location from which to begin measuring the setback
requirement for the front yard. Mr. Straser urges that a reading of the Setback Ordinance
and accompanying definitions could lead a reasonable person to conclude that the starting
point for any setback may be in at least four different locations: the center of the street,
the current edge of the road, some past or future edge of the road, or the right-of-way
boundary. Mr. Straser therefore contends that the Setback Ordinance is unconstitutionally
vague and unenforceable. The trial court determined that the Setback Ordinance was not
unconstitutionally vague. Following our thorough review of the record, we agree with the
trial court’s determination in this regard.
As our Supreme Court has previously elucidated:
Laws that “regulate persons or entities must give fair notice of conduct
that is forbidden or required.” FCC v. Fox Television Stations, Inc., [567]
U.S. [239], 132 S. Ct. 2307, 2317, 183 L. Ed. 2d 234 (2012) (citing Connally
v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)).
“[T]he root of the vagueness doctrine is a rough idea of fairness.” Colten v.
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Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972). A law
is void for vagueness if it fails either to give a person of ordinary intelligence
a reasonable opportunity to know what conduct is prohibited or to provide
sufficient standards for enforcement. See City of Chicago v. Morales, 527
U.S. 41, 52, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999); Grayned v. City of
Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); see
also Phillips v. Bd. of Regents, 863 S.W.2d 45, 48-50 (Tenn. 1993)
(discussing the void-for-vagueness doctrine). A law is not void for
vagueness if an “‘ordinary person exercising ordinary common sense’ can
sufficiently understand the law and comply with [it.]” Arnett v. Kennedy,
416 U.S. 134, 159, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974) (quoting Civil Serv.
Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 578-79, 93 S. Ct.
2880, 37 L. Ed. 2d 796 (1973)).
Moncier v. Bd. of Prof’l Resp., 406 S.W.3d 139, 152 (Tenn. 2013). Furthermore, because
this issue presents a question of law, we review it de novo. Bowden, 27 S.W.3d at 916
(citing Myint, 970 S.W.2d at 924); see also In re Estate of Haskins, 224 S.W.3d at 678.
Concerning interpretation of municipal ordinances, this Court has previously
explained:
In determining the proper construction of a municipal ordinance, we
must follow the same rules as those used for construing statutes. Tennessee
Manufactured Housing v. Metro. Gov’t of Nashville, 798 S.W.2d 254 (Tenn.
Ct. App. 1990). The most basic rule is “to ascertain and carry out the
legislature’s intent without unduly restricting or expanding a statute’s
coverage beyond its intended scope.” Daron v. Dep’t of Corr., 44 S.W.3d
478 (Tenn. 2001); Lavin v. Jordan, 16 S.W.3d 362 (Tenn. 2000).
When the language is clear and unambiguous, “legislative intent is to
be ascertained from the plain and ordinary meaning of the statutory language
used.” Gragg v. Gragg, 12 S.W.3d 412 (Tenn. 2000). When the meaning of
a statute is ambiguous or uncertain, other rules of construction come into
play.
Silverman v. KRSNA, Inc., No. M2001-01921-COA-R9-CV, 2002 WL 1015855, at *3
(Tenn. Ct. App. May 21, 2002).
Concerning this issue, the trial court stated, “Well, most significantly I find the
definition, this additional definition (right-of-way definition) would remove any vagueness
or inability of someone . . . to reasonably [] determine what is required by the Ordinance. .
. . I think that’s very clear.” Based on the finding, the trial court subsequently concluded
that the Setback Ordinance “wasn’t unconstitutionally vague.”
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In reviewing the plain language of the ordinance, we note that “YARD, FRONT”
is defined as the “required open space . . . between the road or street right-of-way line and
the principal building.” (Emphasis added.) “OPEN SPACE” is defined as “an area on the
same lot with a main building which is open, unoccupied and unobstructed by structures
from the ground to the sky except as otherwise provided in this Ordinance. Open space
lines shall coincide with or be parallel to the building setback lines on the same lot.” Mr.
Straser postulates that based on these definitions, there are two different points from which
to begin measurement of the setback requirement, from “the road or street” or from the
“right-of-way.” The City argues that the phrase, “the road or street right-of-way line,”
represents a single location. Specifically, the City asserts that “road or street” is descriptive
of “right-of-way,” referring to “RIGHT-OF-WAY” as defined in Section 2.02.
Upon careful review, we agree with the City’s position. The reference to “road or
street right-of-way line” in the ordinance contains no disjunctive word such as “or”
between the phrases, “road or street” and “right-of-way line,” to indicate that the two
phrases are alternatives. “RIGHT-OF-WAY” is defined in the definitional section as “an
area of land that is legally dedicated to the public for use as a public street. The street
pavement, curbs, shoulders, and sidewalks, are located within the right-of-way and
generally do not represent the boundary of the street right-of-way line.” (Emphasis added.)
Therefore, contrary to Mr. Straser’s argument, the street or road is not the point of reference
from which to measure the setback requirement. The plain language of this ordinance
provides that the curbs, shoulders, and sidewalks are included within the definition of right-
of-way. Thus, Mr. Straser’s argument that a setback can be measured only by the location
of the road or street is unavailing.
The trial court found that “it’s the right-of-way line that’s operative” and not “street
or road.” Our review of the record supports this determination. The ordinance indicates
only one point from which the setback can be measured, and that is the right-of-way line.
We therefore conclude that based on the plain and ordinary meaning of the language
contained in the Setback Ordinance and attendant definitions, the Setback Ordinance is not
unconstitutionally vague.
The City presented testimony from Gene McConkey, a building inspector for the
City, who related that Mr. Straser’s carport was in violation of the Setback Ordinance
because it was within thirty feet of the right-of-way. Mr. McConkey testified:
We had gone -- we went to the property location and done some
measurements. We actually measured from the edge of the street to the
building, to -- from the edge of the street, showing a visual marker for the
pictures. It was to show that it was in violation.
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Mr. McConkey further related that although the edge of the street was not the edge of the
right-of-way, the street was within the right-of-way as defined in section 2.02 of the
municipal ordinance. The trial court specifically found Mr. McConkey’s testimony to be
credible in “all respects.”
Furthermore, the trial court considered over a dozen trial exhibits presented by the
City, including the recorded warranty deed describing Mr. Straser’s real property in
question (“the Warranty Deed”) and a recorded plat that is referenced therein. The
Warranty Deed reflects that the real property is designated as “Lot No. Three (3), in Block
‘C’, in Housley Subdivision, according to the map or plat of record of said Subdivision in
Plat Book 2, at page 94, in the Register’s Office, McMinn County, Tennessee . . . .” A
separate exhibit introduced was a copy of the official plat depicted the above-referenced
“Lot No. Three (3), in Block ‘C’” in Housley Subdivision, which abutted Sunview Drive.
Notably, according to Mr. McConkey’s testimony, the plat indicates that the right-
of-way line along Sunview Drive was the same line that was used to measure the setback,
demonstrating that Mr. Straser’s carport was seventeen feet, five inches, from the right-of-
way line along Sunview Drive, which Mr. McConkey opined was in violation of the
Setback Ordinance. In consideration of the foregoing, particularly with regard to the
recorded plat establishing the perimeter boundaries of Mr. Straser’s real property, we
conclude that an “ordinary person exercising ordinary common sense can sufficiently
understand” the Setback Ordinance and comply with it by not erecting a structure within
thirty feet of the right-of-way line. See Moncier, 406 S.W.3d at 152.
Mr. Straser further argues that a reasonable person may construe the point from
which to begin measuring the setback requirement to be the center of the street, which he
asserts is “the property line.” In support of his argument, Mr. Straser cites to Hamilton
Cty. v. Rape, 101 Tenn. 222, 417-18 (1898), wherein our Supreme Court stated that a “lot
owner is presumed to own to the center of the street.” Id. at 417. However, as noted by
the trial court, Hamilton Cty. is factually distinguishable from the case at bar. In Hamilton
Cty., the county government re-graded a road in front of the property in question, which
impaired the property owner’s ingress and egress to and from his property. Id. at 416. The
question presented for the Court was whether a tort or unconstitutional taking had occurred.
Id. The county argued that when a property owner records a deed referring to a lot depicted
by plat reflecting an abutting street, the property owner thereby dedicates the street to the
public and vests fee-simple title of the street for public use. Id. Our Supreme Court
disagreed, instructing that a
lot owner is presumed to own to the center of the street. He has a right of
ingress and egress to his property, or, as it is called, an easement of access;
and if this is taken away, or if it is impaired or incumbered, without his
consent, it is a taking of his property for public purposes, for which he is
entitled to compensation.
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Id. at 417 (citations omitted).
The case at bar does not present facts or issues akin to those presented in Hamilton
Cty. Instead, the instant action presents the issue of whether the relevant Setback
Ordinance language is unconstitutionally vague, specifically with regard to the point of
reference from which to begin measurement of the pertinent setback. Moreover, as the
trial court noted, Hamilton Cty. was not a case concerning a violation of a municipal
ordinance setback line. Rather, the main issue in that case was whether an unconstitutional
taking had occurred, an issue not raised on appeal in the present case. We therefore
determine Mr. Straser’s reliance on Hamilton Cty. to be inapposite.5
Based on the applicable rules of construction and a thorough review of the record,
we determine that the municipal ordinance language in question is not unconstitutionally
vague. We therefore affirm the trial court’s judgment.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment in all respects. This
case is remanded to the trial court for enforcement of the judgment and collection of costs
assessed below. Costs on appeal are assessed to the appellant, William Straser.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
5
Mr. Straser cites several additional cases as authority for the proposition that a municipality is not the per
se owner of residential roads without due compensation to the adjoining property owner. See, e.g., Jacoway
v. Palmer, 753 S.W.2d 675 (Tenn. Ct. App. 1988). Because this is not at issue in the present case, Mr.
Straser’s reliance on these cases is unavailing.
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