Rainey Bros. Construction Company v‪.‬

This matter is before the Court on an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.
This appeal arises from two cases which were filed simultaneously on May 27, 1976, in the Circuit Court at Shelby County,
Tennessee. However, the Supreme Court referred to the cases as "now consolidated" in its order granting permission for the
interlocutory appeal. The plaintiff, Rainey Brothers Construction Company, Inc. (Rainey Brothers), brings this appeal asserting
that the trial court erred in sustaining defendants' motions to dismiss the second amended complaints in both Circuit Court
actions and in not allowing the proposed amendments to each complaint pursuant the Rule 15 of the Tennessee Rules of Civil
Procedure. Rainey Brothers owns a 13 acre tract of land in Memphis on which it planned to build a 165 unit apartment complex. On December
22, 1969 the Memphis and Shelby County Board of Adjustment (the Board) approved construction of 165 apartments on the subject
property at an elevation level of 274.9 msl. A request was submitted to the Board by Rainey Brothers for an interpretation
of a condition on a previous application regarding the fill elevation level of the subject property. Pursuant to that request,
on August 27, 1975, the Board ruled that the property need only be filled to an elevation of 270 msl. as recommended by the
City of Memphis Engineering Department, rather than the previously required elevation of 274.9 msl. The Board relied upon
the written recommendation of the Deputy City Engineer, which states that the 270 msl elevation is consistent with other new
construction in the area. Following the Notice of Disposition lowering the fill elevation level of the subject property to
270 msl Rainey Brothers waited approximately 60 days before beginning construction in case an appeal was filed. No appeal
was filed within that time and Rainey Brothers began construction in accordance with a fill elevation level of 270 msl. Apparently,
there was a group of citizens who objected to the project and their interests were represented in a letter from a local attorney
to the City of Memphis Building Department in which objection was taken to the fact that no public hearing was held and no
notice was given to anyone of the change in a "substantial condition" in the Notice of Disposition issued regarding the subject
property. On April 28, 1976, eight months after the Board's ruling, the Board rescinded its action of August 27, 1975 and
reinstated the previously required elevation of 274.9 msl.