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Posted by: Brittany Sims on Aug 13, 2013

Court: TN Court of Appeals

Attorneys 1:

William H. Thomas, Jr., Memphis, Tennessee, Pro Se.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Larry M. Teague, Deputy Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Transportation.

Judge(s): CLEMENT

This appeal arises from a petition for judicial review of the decision of the Tennessee Department of Transportation to deny the petitioner’s application for four billboard construction permits on I-240 in Memphis, Shelby County, Tennessee. The dispositive issues concern the zoning classifications of the proposed billboard locations. The Department of Transportation denied the permits based upon the finding that none of the proposed billboard locations met the zoning requirements in Tennessee Code Annotated § 54-21-103(4) or Tenn. Comp. R. & Regs. 1680-2-3-.03(1)(a)1, or the definitions for “Zoned Commercial” or “Zoned Industrial” in Tenn. Comp. R. & Regs. 1680-2-3-.02(29). The trial court affirmed the Department’s denial of the permits, finding subsection (d) of 23 C.F.R. § 750.708, which states, “A zone in which limited commercial or industrial activities are permitted as an incident to other primary land uses is not considered to be a commercial or industrial zone for outdoor advertising control purposes” was controlling. The trial court also found the area was comprehensively zoned for residential, agricultural and flood plain uses, not commercial or industrial, and that “TDOT acted within its statutory authority in denying the petitioner’s application for permits,” and thus the court dismissed the petition. We affirm the decision to deny the permits based upon federal and state law.