                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  March 8, 2011 Session

      READY MIX, USA, LLC. V. JEFFERSON COUNTY, TENNESSEE

                Appeal from the Chancery Court for Jefferson County
                                   No. 99-113



                No. E2010-00547-COA-R3-CV -FILED-JUNE 9, 2011




Charles D. Susano, Jr., J., dissenting.

       I cannot concur in the majority’s decision – as stated by it – “that Ready Mix was
required to exhaust the administrative remedies provided by statute and the ordinance by
appealing the zoning official’s stop work order to the Board of Zoning Appeals.” The
majority relies heavily upon our decision in State ex rel. Moore & Associates v. West, 246
S.W.3d 569 (Tenn. Ct. App. 2005). In Moore, the plaintiff alleged

              that the zoning administrator failed or refused to issue a
              certificate of compliance even though the developer had
              installed a Category B landscape buffer that complied with the
              requirements of the Metro ordinance, giving specifics as to the
              materials installed, their spacing, and the dimensions and nature
              of the buffer.

Id. at 576-77. The Moore plaintiff asked the court to declare that the buffer it had
established in connection with its newly-constructed hotel “complied with the [buffer]
requirements of the . . . Code [of the Metropolitan Government of Nashville and Davidson
County].” Id. at 577.

        The essence of the dispute in Moore and the one now before us in this case are as
different as night and day. Moore clearly involves a situation where the “experience and
expertise,” see id. at 580, of a board of zoning appeals would be important in looking at the
buffer requirements and then assessing whether the buffer built by the Moore plaintiff is in
compliance. That is the job of a board of zoning appeals. But what we are dealing with in
the instant case is a pure question of law – whether the doctrine of diminishing assets should
by adopted in Tennessee. If it should, then Ready Mix, based upon the past and present use
of its property, is entitled to a finding of a pre-existing and nonconforming use – in other
words, a “grandfathered” use under Tenn. Code Ann. § 13-7-208(b)(1) (Supp. 2010) and
Article 6.2 of the Jefferson County Zoning Resolution.

        The issue before us is more akin to a challenge to the validity of an ordinance – a
situation that does not require a prior exhaustion of administrative remedies. See Cherokee
County Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 479 (Tenn. 2004). Both involve
issues of law. By contrast, Moore involves a factual determination by a code enforcement
individual as to whether the plaintiff’s buffer is of the type contemplated by the applicable
ordinance. Clearly, the matters in Moore implicate the experience and expertise of such an
individual as well as the talents of a board of zoning appeals. Since the issue before us –
whether Tennessee should adopt the doctrine of diminishing assets – is clearly one of law,
it is more appropriately presented to one experienced in the law, such as the trial judge in this
case.

        This case does not involve a statute or ordinance requiring exhaustion of
administrative remedies. In the absence of such an edict, I would hold, under the unique
facts before us, that such exhaustion is not necessary or appropriate. There is an important
legal issue in this case that is at the heart of the resolution of this dispute. I see no need to
require the parties to waste their time dealing with an inquiry that is not important to the
ultimate issue before us. What the Supreme Court said in Cherokee County Club is pertinent
to the facts before us:

              . . . [Cherokee] d[oes] not, however, challenge the Building
              Official’s discretion in denying a demolition permit based on the
              ordinance. As a result, an administrative appeal to the Building
              Board of Adjustments and Appeals, which would have been
              limited to review of the Building Official’s discretion, would
              have afforded no review over the key issues and would have
              afforded no possible remedy.

       I would affirm the trial court’s decision. Accordingly, I respectfully dissent.




                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




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