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Bible Park Hopefuls Can’t Sue Over Zoning Permit

NASHVILLE (CN) - A Tennessee family cannot sue Rutherford County for sinking an $11 million contract to convert their 240-acre property into a Bible-based theme park, a federal judge ruled.

Even though the state appeals court has since found that the county board of commissioners should allow Steve Shelton and his family to rezone their property for commercial use, U.S. District Judge Thomas Wiseman determined that the Sheltons did not have a constitutionally protected property interest in the issuance of the permit.

The Shelton family stood to make $11 million in 2008 from the sale of 240 acres to BPU Holding, as long as they obtained the necessary permits and zoning alterations for the theme park.

"After much contentious discussion and public input," the ruling says, Rutherford County Attorney James Cope decided that a supermajority vote of the commission was needed to issue the permit because at least 20 percent of neighboring landowners protested the Sheltons' application.

The Rutherford County Commission voted 12-9 in favor of passing the application, two votes short of a supermajority.

As the Sheltons lobbied the commission and state courts to revisit their application, they filed a federal suit against Cope and the county for civil rights and state-law violations.

In the state action, the Sheltons argued that it was unfair to impose the supermajority vote on their application because Cope let ineligible "landowners" file protest petitions against their proposed Bible theme park development.

Eventually the Rutherford County Chancery Court vacated the commission's decision to deny the application, finding that Cope overstepped his authority in requiring the supermajority vote. It was up to the commission to make that determination, the court ruled.

The chancery court did not rule, however, on whether the defendants' actions had violated plaintiffs' constitutional rights.

Cope appealed, but the Tennessee Court of Appeals upheld the lower court's decision in October 2009 and said the Sheltons' application should have passed.

The court also vacated the chancery court's award of attorneys' fees to avoid endorsing the Sheltons' constitutional claims in federal court.

A month earlier, Wiseman had ruled to only dismiss the Sheltons' state-law claims for negligence and inverse condemnation. With the state appeals court ruling, the Sheltons and county asked Wiseman to grant summary judgment on the remaining constitutional claims.

Wiseman found on Tuesday that the Sheltons did not have a "legitimate claim of entitlement" because their proposed use of the land would substantially affect the area and was therefore subject to the zoning commission's discretion.

"The fact that the commission had such discretion means that plaintiffs did not have a 'legitimate claim of entitlement' or a 'justifiable expectation' in the approval of their zoning application sufficient to establish the existence of a constitutionally protected property or liberty interest," the ruling states.

Wiseman added that the plaintiffs did not "suddenly acquir[e]" a legitimate claim of entitlement or justifiable expectation when the commission denied their application after a majority of its members voted in favor of it - even though the Tennessee Court of Appeals ruled that the supermajority rule imposed on their application was unfair.

The judge also found that the commission's reliance on the supermajority provision of local zoning code was neither arbitrary nor capricious because the requirement had been in effect for 24 years.

"It was therefore not completely irrational for the county commission to rely upon that provision in denying plaintiffs' petition," the ruling states.

Wiseman's decision to grant Rutherford County's motion for summary judgment dismissed the remainder of the Sheltons' federal claims.

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