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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
March 21, 2002 Session MARGARETTE J. ADAIR, ET AL. v. VINCENT T. SCALF d/b/a V & T TOPSOIL, ET AL.
Appeal from the Chancery Court for Davidson County No. 00-390-II Claudia Bonnyman, Special Chancellor

No. M2001-00677-COA-R3-CV - Filed February 7, 2003

This is an action to abate a temporary nuisance of dust and noise attributable to the removal, processing and sale of topsoil ostensibly incidental to the development of real property owned by the defendant Scalf adjacent to the residence of the plaintiff, and for damages. A declaratory judgment against the Metro Government that it failed to enforce its zoning regulations was denied. Metro Government cross-claimed for declaratory relief that Mr. Scalf's removal, processing and sale of topsoil on residential property was forbidden by Ordinance. This relief was granted. The judgment, as modified, is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified BEN H. CANTRELL, P.J., M.S., PATRICIA J. COTTRELL , J., AND JAMES L. WEATHERFORD , SR. J. Larry D. Ashworth and Peter D. Heil, Nashville, Tennessee, for the appellant, Vincent T. Scalf. David I. Komisar, Nashville, Tennessee, for the plaintiff-appellee, Margarette J. Adair. Philip D. Baltz, John L. Kennedy and David Diaz-Barriga, Nashville, Tennessee, for the defendantappellee, The Metropolitan Government of Nashville and Davidson County. OPINION PER CURIUM The Pleadings The plaintiff alleged that she owns and occupies as her residence a house and lot on West Hamilton Bend in Nashville, which is surrounded on three sides by a 73-acre tract owned by defendant Vincent Scalf, of which 70.19 acres are zoned for residential use, with the remainder zoned for commercial use. She alleged that in August 1995 Mr. Scalf was issued a grading permit

by The Metropolitan Government of Nashville and Davidson County (hereafter "Metro Government") to excavate and fill the "West Hamilton Borrow Site." The complaint alleges that most of the acreage owned by Mr. Scalf is within a flood plain. Zoning regulations permit the "cutting down" of high ground in proportion to the fill requirements - balancing - and in order to develop the portion of his land zoned for commercial use substantial filling was required. In 1996 Mr. Scalf commenced the removal and sale of topsoil from the residential acreage. He constructed a building thereon, advertising fill-dirt, sand, gravel, and mulch for sale. The plaintiff alleged that by 1998 Mr. Scalf was conducting a full-fledged topsoil business on residential property, for which the local Environmental Court issued a citation to him to show cause why he should not be enjoined from the practice. Following a hearing, an injunction was issued, but Mr. Scalf continued to sell topsoil, the removal and processing of which have caused the plaintiff discomfort and reduced the enjoyment and livability of her residence owing to the large quantities of dust generated by the operation. The plaintiff sought a declaratory judgment that the "mining extraction" and sale of topsoil is unlawful, and that the Metro Government has failed to enforce its zoning laws. In another Count the plaintiff alleges that Mr. Scalf created and maintained a public and private nuisance by mining and removal of topsoil in violation of zoning laws.1 A declaratory judgment that the Metro Government "failed to enforce its zoning laws grading permit requirement" was sought, with no other relief demanded. Mr. Scalf admitted that he removed and sold topsoil from the residential tract. He averred that he submitted a developmental plan for the commercially zoned property to the Metro Government, which issued him a grading permit in August 1995. He affirmatively pleaded the threeyear statue of limitations applicable to permanent nuisances. The Metro Government admitted that it issued a grading permit to Mr. Scalf in August 1995 which allowed "changes in the topography. . . ." Metro averred that "mineral extraction" is not a permitted use in property zoned residential, and further responded that its Codes Department had building plans indicating that Mr. Scalf was pursuing development of a portion of the property located at 3603 West Hamilton Road in preparation for construction of an office building. It is admitted that, in order to develop land within the flood plain, such land must be filled to a point above the flood elevation of the flood plain, which upon information and belief, would in this instance require approximately 15 feet of fill. No building plan was submitted prior to the issuance

The thrust of the complaint is directed to and focused on the removal and sale of topsoil only, with slight reference to the dust thereby generated, as contrasted to the weight of the evidence which described the quantity and effect of dust in substantial detail. The plaintiff did not seek an abatement of a temporary nuisance, but sought damages only. See Tenn. Code Ann.

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