Wednesday, May 27, 2009

Adjoining landowner did not have particularized interest in intervening in proceeding brought by Metro even when building permit was deemed invalid

A Nashville homeowner filed a petition in Circuit Court to intervene in a proceeding brought by the Metropolitan Government of Nashville and Davidson County to enjoin further construction on an uncompleted duplex located on property adjoining the homeowner's residence. The homeowner had previously challenged the developer's building permit in the Board of Zoning Appeals and obtained a ruling that the permit was invalid. The Circuit Court denied the motion to intervene and ultimately ruled that the developer could not be enjoined from completing the duplex because he had performed substantial work on it in good faith reliance on his building permit. The only issue on appeal is whether the trial court abused its discretion in denying the homeowner's petition to intervene. We affirm the trial court.

Opinion may be found at the TBA website:

"The court found that the developer had acted in good faith in reliance on the advice and approval of government employees and that the employees had themselves acted in good faith and made decisions that were consistent with their prior interpretations of the setoff ordinance. The court further found that the developer had engaged in substantial construction and had expended substantial funds before he learned of a challenge to the setback." Id.

"But Mr. Smith went on to insist that as an adjoining property holder, he had a particularized interest in preventing the developer from going ahead with the duplex, which differed from Metro’s generalized interest in seeing that its codes be enforced. Regardless of their separate motivations, the interests of Mr. Smith and the interests of Metro converged once the Board of Zoning Appeals ruled that the setback had been improperly determined. That interest was to enforce the setback as interpreted by the BZA. Mr. Smith has conceded that Metro was vigorous in pursuing the result that he desired. He also testified extensively at trial and, therefore, cannot complain that his concerns were not heard. We accordingly agree with the trial court that Mr. Smith was not entitled to intervene as of right under 24.01(1)." Id.