421 Corp. v Metropolitan Gov't of Nashville

• Decision Date: 26 April 2000
• Docket Number: 97-00212
• Citation: 36 S.W.3d 469
• Parties: 421 CORPORATION, ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
• Court: Tennessee Court of Appeals

421 CORPORATION, ET AL. v METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.

No. M1997-00212-COA-R3-CV

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Decided April 26, 2000

Direct Appeal from the Chancery Court for Davidson County No. 96-2234-II

Carol L. McCoy, Chancellor

This appeal involves a dispute between a sexually oriented business and a city over the business's desire to expand onto adjoining property. After the city's board of zoning appeals denied its application for a building permit because the business had not met the requirements for the expansion of a nonconforming use, the business filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County asserting that it had satisfied the city's standards for expanding a nonconforming use and that the board was selectively enforcing the city's land use regulations. The trial court, sitting without a jury, rejected both claims and affirmed the board's decision. On this appeal, the business renews the same arguments that proved unsuccessful below. We have determined that the board correctly interpreted the city's land use regulations and that the selective enforcement allegations fail to state a claim for which relief can be granted. Accordingly, we affirm the order dismissing the petition for writ of certiorari.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

Joel H. Moseley and Robert W. Rutherford, Nashville, Tennessee, for the appellants, 421 Corporation and Mike Sokolic.

James L. Murphy, Lizabeth D. Foster, and Francis H. Young, Nashville, Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson County, Tennessee and the Metropolitan Board of Zoning Appeals.

KOCH, J., delivered the opinion of the court, in which TODD, P.J., M.S., and CANTRELL, J., joined.

OPINION

421 Corporation operates a store named The Purple Onion that sells sexually oriented materials. The store is located at 2807 Nolensville Road in Nashville on property owned by Mike Sokolic. The Purple Onion's location does not comply with Nashville's current zoning ordinance restricting sexually oriented businesses primarily to the downtown area. However, Nashville has allowed The Purple Onion to continue in business on Nolensville Road as a nonconforming use because it was already doing business at that location when Nashville enacted its comprehensive zoning ordinance in September 1977.

Sometime after September 1977, Mr. Sokolic acquired the real property next door to The Purple Onion at 2809 Nolensville Road. The building on this property shares a common wall with the building housing The Purple Onion. At Mr. Sokolic's request, the tax assessor combined the two tracts into one and designated the tracts as 2807 Nolensville Road on the tax map. Mr. Sokolic and 421 Corporation later decided to expand The Purple Onion into the adjacent building by removing portions of the common wall. The zoning administrator declined to issue a building permit for the construction, and Mr. Sokolic requested the Metropolitan Board of Zoning Appeals to reverse the zoning administrator's decision. The board also declined to approve the proposed expansion of The Purple Onion because the expanded business would no longer be on the same property it occupied when it became a nonconforming use.

Mr. Sokolic and 421 Corporation filed a petition for writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the board's decision. They asserted that the board had misconstrued the provisions in the zoning ordinance regarding the alteration of nonconforming uses and that the city was selectively enforcing its zoning ordinance. In support of their latter contention, Mr. Sokolic and 421 Corporation claimed that Nashville was permitting two other sexually oriented businesses that did not qualify as nonconforming uses to operate illegally in the Nolensville Road area. The trial court granted Nashville's motion to dismiss the selective enforcement claim for failure to state a claim upon which relief can be granted. Then, following a hearing, the trial court upheld the board's action after concluding that both state law and the city ordinance required a nonconforming use to remain on the same property. Mr. Sokolic and 421 Corporation have appealed.

I. THE STANDARD OF REVIEW

We take up first the standard of review applicable to this appeal. The proper vehicle for reviewing decisions of local boards of zoning appeals is the common-law writ of certiorari. See McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990). This writ affords quite limited judicial review, see Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994), that consists of determining whether the administrative body exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support its decision. See Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 342-43 (Tenn. 1983); Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997); Hemontolor v. Wilson County Bd. of Zoning Appeals, 883 S.W.2d 613, 616 (Tenn. Ct. App. 1994).

Judicial review under a common-law writ of certiorari is limited to the record made before the board or agency, unless the court permits the introduction of additional evidence on the issue of whether the board or agency exceeded its jurisdiction, or acted illegally, capriciously, or arbitrarily. See Cooper v. Williamson County Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987); Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983). The reviewing courts will not reweigh the evidence, see Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980); Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn. Ct. App. 1996), examine the intrinsic correctness of the decision being reviewed, see McCord v. Nashville, C. & St. L. Ry., 187 Tenn. 277, 294, 213 S.W.2d 196, 204 (1948); Tarpley v. Traughber, 944 S.W.2d 394, 395 (Tenn. Ct. App. 1996), or substitute their judgment for that of the local officials. See Whittemore v. Brentwood Planning Comm'n, 835 S.W.2d 11, 15 (Tenn. Ct. App. 1992).

The common-law writ of certiorari likewise provides limited options for dealing with errors discovered in the proceedings being reviewed. Because courts should avoid dictating specific decisions to local zoning boards except in the most extraordinary circumstances, the most common judicial remedy in zoning cases is to remand the case to the zoning agency with instructions appropriate to the circumstances of the case. See 4 Robert M. Anderson, American Law of Zoning ' 27.39, at 598 (3d ed.1986). Rather than shouldering the local agency's responsibilities, the courts should insist that the agency carry out its task in an appropriate manner. The goal of a remand should be to place the parties and the agency in the position they would have been in had the agency not acted improperly. See Hoover v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d at 55.

II.

THE BOARD'S INTERPRETATION OF THE LOCAL ZONING ORDINANCE

AND RELIANCE ON STATE LAW

Mr. Sokolic and 421 Corporation assert that the board acted arbitrarily and illegally by misconstruing the zoning ordinance governing alterations of nonconforming uses and by relying on a state statute limiting the power of local governments to enforce their zoning ordinances against otherwise legal nonconforming uses. We have determined that the provisions in the zoning ordinance and state law relating to the alteration of nonconforming uses should be read in pari materia, and accordingly, that the board did not misconstrue the zoning ordinance.

A.

Local governments lack inherent power to control the use of private property within their boundaries. Their power derives from the State through specific delegation by the General Assembly. See State ex rel. SCA Chem. Servs. v. Sanidas, 681 S.W.2d 557, 562 (Tenn. 1984); Family Golf of Nashville, Inc. v. Metropolitan Gov't, 964 S.W.2d 254, 257 (Tenn. Ct. App. 1997). While local governments have considerable discretion to act within the scope of their delegated power, they cannot effectively nullify state law on the same subject by enacting ordinances that ignore applicable state laws, that grant rights that state law denies, or that deny rights that state law grants. See generally State ex rel. Beasley v. Mayor & Aldermen of Fayetteville, 196 Tenn. 407, 415-16, 268 S.W.2d 330, 334 (1954). Thus, local governments must exercise their delegated power consistently with the delegation statutes from which they derive their power. See Henry v. White, 194 Tenn. 192, 196, 250 S.W.2d 70, 71 (1952).

When the language of an ordinance is clear, the courts will enforce the ordinance as written. When, however, the language of an ordinance is ambiguous, the courts will resort to the customary principles of statutory construction. See Whittemore v. Brentwood Planning Comm'n, 835 S.W.2d at 15. Accordingly, the reviewing courts will construe a zoning ordinance as a whole and will give its words their natural and ordinary meaning. See Lions Head Homeowners Assoc., Inc. v. Metropolitan Bd. of Zoning Appeals, 968 S.W.2d 296, 301 (Tenn. Ct. App. 1997); Boles v. City of Chattanooga, 892 S.W.2d 416, 420 (Tenn. Ct. App. 1994). They will also seek the interpretation that is most consistent with the ordinance's general purposes, but they will resolve ambiguities in favor of the property owner's right to the unrestricted use of his or her property. See State ex rel. Morris v. City of Nashville, 207 Tenn. 672, 680, 343 S.W.2d 847, 850 (1961); State ex rel. Wright v. City of Oak Hill, 204 Tenn. 353, 356, 321 S.W.2d 557, 559 (1959).

The well-known in pari materia rules also apply to the construction of zoning ordinances. Thus, zoning ordinances dealing with the same subject should...