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IN THE CIRCUIT COURT FOR KNOX COUNTY, TENNESSEE CHEROKEE COUNTRY CLUB, INC., Plaintiff, V. CITY OF KNOXVILLE; KNOXVILLE CITY COUNCIL; VICTOR ASHE, Mayor, City of Knoxville; and CHARLES CUMMINS, City of Knoxville Chief Building Official, Defendants. VERIFIED COMPLAINT FOR DECLARATORY WRIT OF MANDAMUS Civil Action No. 1-136-02 JUDGMENT AND COMES the Plaintiff, Cherokee Country Club, Inc. ( and for its Complaint against Defendants, the City of Knoxville ("City"), Knoxville City Council ("City Council"), Mayor Victor Ashe ("Mayor"), and Charles Cummins , as City of Knoxville Chief Building Official ('Building Official'), shows the court as follows: 1 . Cherokee is a Tennessee not-for-profit corporation, with offices located at 5 13 8 Lyons View Pike, Knoxville, Tennessee. 2. The City is a municipal corporation and may be served by serving Michael Kelley, Law Director, City Law Department, 400 Main Street, City County Building, Room 699, Knoxville.. TN 37901. 3. The City Council is the legislative body of the City and may be served by serving Michael Kelley, Law Director, City Law Department, 400 Main Street, City County Building, Room 699, Knoxville, TN 37901. 4. Victor Ashe (the "Mayor') is the mayor of the City of Knoxville and way be served with process at 400 Main Street City County Building, Room 691, Knoxville, TN 37901. 5. Charles Cummins is the Chief Building Official of the City of Knoxville. Building Official Charles Cummins may be served with process at 400 Main Street, City County Building, 5th Floor, Knoxville, TN 37901. 6. By virtue of a warranty deed dated July 20, 1999, of record in the Knox County Register's Office as Instrument No. 199907210005950, a copy of which is attached hereto as Exhibit 1, Cherokee is the owner in fee simple of real property located at 5305 Lyons View Pike in the City of Knoxville (the "Real Property). Located on the Real Property is an unoccupied residence known as the "Coughlin House," and the Real Property is zoned R-1. 7. The Real Property, which is approximately rectangular, is surrounded on three sides by Cherokee's golf and tennis facilities. The Real Property is bounded on the fourth side by Lyons View Pike. Cherokee purchased the Real Property with the purpose and intention of demolishing the Coughlin House and utilizing the property for uses permitted by the City's R-1 zoning classification. 8. Pursuant to the enabling act found at Tenn. Code Ann. §§ 13-7-401 et. seq., the City Council of the City of Knoxville has enacted historic overlay zoning ordinances which have been codified under Article IV, Section 14 of the City's Zoning Ordinances. A copy of this H- I Zoning Ordinance as currently in effect is attached hereto as Exhibit . 9. On April 4, 2000, the City of Knoxville enacted purported "emergency legislation," specifically Ordinance No. 0-119-00 entitled "An Emergency Ordinance of the Council of the City of Knoxville Ordaining a New Section 6-33 of the Knoxville City Code Regulating the Issuance of Demolition Permits." ("1 80-day Moratorium Ordinance" or "Ordinance 0-119-00'). Ordinance 0-119-00 provides as follows; No demolition permit shall be issued, for a period of 180 days, for any property under review and consideration for an H- I overlay or NC- I overlay designation after the application process has been initiated in accordance with the procedures set forth in Article IV, § 14 and § 22, respectively, of the Knoxville Zoning Code. The 180 day period can be extended by Knoxville City Council, as necessary. 10. On February 20, 2002, Cherokee, through its agent Burnett Demolition and Salvage Co., Inc. ("Burnett"), applied to the Building Official for a demolition permit for the Coughlin House pursuant to chapter 104. 1.1 of section 6-32 of the City Ordinances (the "Permit Application!). 11. Burnett was informed by the Building Official that the Coughlin House had been "red-flagged." The Building Official refused to issue a demolition permit, and Burnett asked for a written statement of the denial and the reasons for the denial. 12. On the following day, February 21, 2002, the City's Law Department faxed Burnett a letter stating as follows: "Your request for an explanation regarding the denial of your application for a demolition permit for the above property has been referred to me for response. The subject property is located in an area that has been proposed for historic overlay zoning. The application for the historic overlay designation was filed on January 16, 2002, and is presently under review by the Knoxville/Knox County Historic Zoning Commission. Pursuant to Article 4, Section 14 of the Knoxville Zoning Code, no permit application for demolition upon property proposed to be located in an Historic Overlay District can be processed without a Certificate of Appropriateness issued by the Historic Zoning Commission. Accordingly, any demolition activity on the subject property without such certificate would be unlawful." A copy of the Law Department's February 21, 2002, letter ("Denial Letter") is attached hereto as Exhibit 3. 13. The City, in denying Cherokee's Permit Application, relied upon Article IV, Section 14, of the City's Zoning Ordinances, which states; All applications for permits for construction, alteration, repair, rehabilitation, relocation or demolition of any structure, object, or other improvement to real estate located or to be located within a historic overlay district shall be referred to the historic zoning commission, which shall have broad powers to request detailed construction plans and related data pertinent to a thorough review of the proposal. No building permit issuing authority in the City of Knoxville shall issue any such permit for new structures or improvements within a historic overlay district without issuance of a certificate of appropriateness by the historic zoning commission. 14. Prior to, and on February 20, 2002, Cherokee was unaware that the Real Property and the Coughlin House had been proposed for historic overlay H- I zoning, that the Mayor had 'filed a request for rezoning, or that he had filed an application to create an historic district to be known as the "Lyons View Historic District." A subsequent review of the files of specific departments of the City of Knoxville and specifically the files of the Metropolitan PI I Commission, however, revealed that Mayor Victor Ashe had signed and filed a document entitled "Application for Historic Overlay Zoning" to rezone the Coughlin House and two other pieces of property on Lyons View Pike with the H- I overlay. This filing occurred on January 17, 2002 at 1:49 in the morning, well outside any normal business hours. Cherokee had not been provided any notice of this "application,"' and the so-called "application!' was devoid of the essential information necessary to make it an application within the meaning of Article IV, Section 14 of the City's Zoning Ordinances. 15. Neither Mayor Ashe, the Metropolitan Planning Commission, the Historic Zoning Commission, nor the other two property owners subject to the proposed H-1 overlay rezoning had ever provided Cherokee with notice that such rezoning was proposed or in any way a matter under consideration, prior to February 21, 2002. 16. The "application for historic overlay zoning," filed by Mayor Ashe under the purported authority of Article IV, Section 14 of the City's Zoning Ordinances, is devoid of the factual information requested by the form of application and in fact contains no factual basis for imposing an H-1 overlay on the Coughlin House under Article IV, Section 14 or Tenn. Code Aim § 13-7-404. For example, the Mayor's application fails to set forth any of the following: a. a statement of the significance of the properties in the proposed district, their age, any discussion of the former residents or users of the properties, the architect or builder or any historical events that might be associated with the properties, whether the properties are associated with an event that has made a significant contribution to local, state, or national history, or whether the properties are associated with the lives of persons significant in local, state, or national history; b. whether the area of the proposed district possesses a significant concentration, linkage, or continuity of sites, buildings, structures, or objects which are united by past events or aesthetically by plan or physical development, and if so the facts supporting the yes answer; c. an architectural description describing the properties in the proposed district, any noteworthy site features, the original appearance of the buildings in the proposed district, any alterations that have been made, whether the properties embody the distinctive characteristics of a type, period or method of construction, represent the work of a master, or possess high artistic values; d. any photographs of any of the buildings in the proposed district, much less a photographic documentation of all the exteriors of the buildings; e. any letters or petitions of consent from owners of property for which application is made; f. that the properties have yielded or are likely to yield archeological information important In history or prehistory; g. that the properties are listed in the National Register of Historic Places (they are not); or h. any other information supporting the properties being included within an H-1 zone.
COUNT I: DECLARATORY JUDGMENT THAT ARTICLE IV, SECTION 14 OF THE CITY'S ZONING ORDINANCES DOES NOT GIVE THE BUILDING OFFICIAL AUTHORITY TO DENY A DEMOLITION PERMIT WHERE THE STRUCTURE TO BE DEMOLISHED IS NOT LOCATED WITHIN A HISTORIC OVERLAY DISTRICT OR THAT SUCH MINANCE IS INVALID
17. Plaintiff hereby restates paragraphs 1- 16 and incorporates them herein by reference. 18. Although Article IV, Section 14, of the City's Zoning Ordinances prohibits the Building Official from immediately issuing a permit for demolition of a structure within an existing historic overlay district, contrary to the Denial Letter, it does not grant either the Building Official or the City of Knoxville the right or authority to deny a demolition permit because the property is within an area proposed for an H-1 zoning overlay. 19. Accordingly, Cherokee seeks a declaratory judgment that Article IV, Section 14, of the City's Zoning Ordinances does not provide authority for the Building Official to deny Cherokee's Permit Application and the Building Official's refusal to issue the demolition permit was without basis or lawful authority. 20. Alternatively, if Article IV, Section 14 can be construed to allow the Building Official to deny a demolition permit where the structure is located in an area that is not within an existing historical overlay district, it conflicts with TENN. Com- ANN. § § 13-7-401 et seq. and is therefore invalid. COUNT II: DECLARATORY JUDGMENT THAT THE 180-DAY MORATORIUM ORDINANCE IS INVALID 21. Plaintiff hereby restates paragraphs 1-20 and incorporates them herein by reference. 22. Cherokee seeks a declaratory judgment that the I 80-day Moratorium Ordinance is invalid and does not provide authority for the Building Official's denial of Cherokee's application for a demolition permit. Ordinance 0-119-00 is invalid for numerous reasons, including: A. The City was without power or authority to enact Ordinance 0- 119-00. That Ordinance on its face is a land use or zoning ordinance and purports to place a 180-day moratorium on the issuance of demolition permits for any property for which an application for H- 1 or NC- I overlay designation has been initiated. The City's power to enact legislation removing a landowner's right to lawfully demolish a structure because of its location or proposed location within a historical overlay district is only found in TENN. CODE ANN. §§13-7-401 et seq. These sections allow the City to deny a landowner the right to demolish a structure only if the structure is located in a historic district and the historic zoning commission, after review in accordance with the review guidelines in place for that district, states the reason for denial in writing. Ordinance 0-119-00 conflicts with TENN. CODE ANN. §§13-7-401 et seq. and specifically §§ 13-7-406 et seq., by illegally preventing the issuance of demolition permits for structures which are not currently located within a historic zoning district and not providing for review of the permit by the historic zoning commission, as required by the enabling act B. Ordinance 0- 119-00 is invalid because it is a historic zoning ordinance and the procedures for passing a historic zoning ordinance as required by the enabling act were not followed. Under Tenn CODE ANN. § 13-7-404, a historic zoning ordinance can only be established as part of a new zoning ordinance or as an amendment to existing zoning ordinances. Under TENN. CODE ANN, 13-7-203, the City has to give notice of or hold a public hearing on a new zoning ordinance or amendment, and under TENN. CODE. ANN. § 13-7-204, an amendment to the zoning ordinance must be submitted to the planning commission. The City Council did not give public notice of Ordinance 0-119-00 and did not submit the Ordinance 0119-00 to the planning commission for review. Since the City Council did not follow the procedural prerequisites required to enact a land use or zoning ordinance when it passed Ordinance 0-119-00, that Ordinance is void and unenforceable. C. Ordinance 0- 119-00, passed by the City Council on April 4, 2000, is an invalid emergency ordinance because it was not needed for the "immediate preservation of the public peace, property, health or safety" as required by Article IV, Section 410 of the City's charter. D. Ordinance 0-119-00 is not a valid interim or stopgap ordinance that applies to Cherokee's application for a demolition permit because it was passed prior to the application of the Mayor to create the proposed Lyons View Historic District. 23. Accordingly, Ordinance 0-119-00 does not provide authority for the Building Official to deny Cherokee's Permit Application and the Building Official's refusal to issue the demolition permit was without basis or lawful authority.
COUNT III DECLARATORY JUDGMENT THAT NO SUFFICIENT APPLICATION WAS FILED TO PLACE THE REAL PROPERTY WITHIN A HISTORICAL ZONING DISTRICT 24. Plaintiff hereby restates paragraphs 1-23 and incorporates them herein by reference. 25. Even if Ordinance 0- 119-00 were valid, there has not been an application within the meaning of the Ordinance to place the Real Property within a historical zoning district. The so-called "application!' of the Mayor is so devoid of essential information as not to constitute an application within the meaning of Article IV, Section 14 of the Zoning Ordinances. 26. Accordingly, neither Article IV, Section 14, of the City's Zoning Ordinance nor Ordinance 0-119-00 provides authority for the Building Official to deny Cherokee's Permit Application, and the Building Official's refusal to issue the demolition permit was without basis or lawful authority since a valid application to place the Real Property within a historical zoning district has not been. filed
COUNT IV: WRIT OF MANDAMUS 27. Plaintiff herby restates paragraphs 1-26 and incorporates them herein by reference. 28. This Court has the power to pass on the validity, legality and enforceability of the City's ordinances and regulations. 29. The Building Official has refused to grant Cherokee a demolition permit based on ordinances which are invalid and exceed the powers granted to the City by the State of Tennessee. 30. The granting of a demolition permit is a non-discretionary, ministerial art that the Building Official is required to perform upon application. 31. Cherokee has no adequate remedy for the wrongs complained of above except the writ of mandamus. 32. Cherokee is entitled to a writ of mandamus requiring the Building Official to issue to Cherokee the demolition permit applied for in the Permit Application. WHEREFORE, the Plaintiff therefore demands-, (1) That process issue against all Defendants; (2) That the Court declare dud Article IV, Section 14 of the City's zoning ordinances does not give the Building Official authority to deny a demolition permit where the structure to be demolished is not located within an existing historic overlay district; or alternatively that such ordinance is invalid and unenforceable; (3) That the Court declare that Ordinance 0-119-00 is invalid and unenforceable; (4) That the Court declare that no valid application to place the Real Property within a historical zoning district was made or filed; (5) That following a hearing, a writ of mandamus issue requiring the Building Official to issue the Demolition Permit as requested by the Permit Application submitted on February 20, 2002; (6) That upon the filing of this Verified Complaint, as provided for in Tenn. Code Plaintiff hereby restates paragraphs 1-26 and incorporates them herein by Ann. §29-25-102, an alternative writ of mandamus issue requiring the Building Official to issue the Demolition Permit as requested by the Permit Application submitted on February 20, 2002; or show cause why he has not done so, and upon his failure to do so, or upon a decision against him at the hearing, that a peremptory writ of mandamus issue requiring the Building Official to issue the Demolition Permit as requested by the Permit Application submitted on February 20, 2002; (7) That a show cause hearing be set; (8) That Plaintiff recover damages for wrongfully withholding the demolition permit; (9) That the costs be taxed against Defendants; and (10) That the Court award the Plaintiff such other further and general relief as is just, necessary, and proper. THIS IS THE FIRST APPLICATION FOR EXTRAORDINARY RELIEF Respectfully submitted CHEROKEE COUNTRY CLUB, INC. Charles A. Wagner III BPR # 1993 Martin Bailey, BPR # 15370 WAGNER MYERS & SANGER, P.C. 1801 First Tennessee Plaza. Knoxville, TN 37929 (865) 5254600 (865) 291-0419 (fax)
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