Capps v. Metropolitan Government of Nashville and Davidson County, No. M2007-01013-COA-R3-CV (Tenn. App. 12/31/2008)
| Decision Date | 31 December 2008 |
| Docket Number | No. M2007-01013-COA-R3-CV.,M2007-01013-COA-R3-CV. |
| Parties | STEPHANIE CAPPS d/b/a STEPHANIE'S CABARET and SMITH INVESTMENT GROUP, L.P. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY |
| Court | Tennessee Court of Appeals |
Sue B. Cain, Director of Law; J. Brooks Fox, Elizabeth A. Sanders, Assistant Metropolitan Attorneys, Nashville, TN, for Appellant.
Bob Lynch, Jr., Nashville, TN, for Appellee Stephanie Capps, d/b/a Stephanie's Cabaret
George A. Dean, Nashville, TN, for Appellee Smith Investment Group, L.P.
OPINION
This appeal involves a building permit that authorized interior rehabilitation of a building for eventual use as an adult entertainment establishment. A local zoning ordinance prohibits adult entertainment establishments from locating within five hundred feet of a church. The Nashville Union Rescue Mission is located directly across the street from the proposed adult entertainment establishment, and the Mission appealed the issuance of the building permit, claiming that it is a "church" within the meaning of the zoning ordinance. The board of zoning appeals concluded that the building permit was issued in error because the Nashville Union Rescue Mission is a church. The permit was revoked, and the landowner and lessee filed a petition for writ of certiorari in chancery court. The chancery court reversed the zoning board's decision and instructed the zoning board to re-issue the permit for adult entertainment use. We vacate the chancery court's order and reinstate the decision of the zoning board.
Smith Investment Group, L.P., (hereinafter, "SIG") is the owner of property located at 660 Lafayette Street, in Nashville, Tennessee. In September of 2003, SIG leased the property to Stephanie Capps and her husband, David Capps ("the Capps"). The Capps intended to convert the existing building on the property into an adult entertainment establishment to be known as "Stephanie's Cabaret." On July 21, 2004, the Capps received building permit number 2004-06458A from the Department of Codes Administration for the Metropolitan Government of Nashville and Davidson County ("the Codes Department"), which authorized "interior rehab" of the building for "adult entertainment." Construction pursuant to the building permit began in earnest on July 27, 2004.
On July 28, 2004, the Nashville Union Rescue Mission ("the Mission") filed an appeal to the Metropolitan Board of Zoning Appeals ("the BZA"), challenging the decision of the Metropolitan Zoning Administrator, Lon F. West, to issue the permit to the Capps for adult entertainment.1 Section 17.36.260 of the Metropolitan Code of Laws ("M.C.L.") provided that "no adult entertainment establishment shall be within five hundred feet (measured property line to property line) of any church, school ground, college campus, or park." The Mission is located directly across the street from the proposed location for Stephanie's Cabaret, and the Mission contended that it is a "church" within the meaning of the distance requirement.
On July 29, 2004, Mr. West hand delivered a letter to the construction site informing the Capps, SIG, and the construction company of the basis of the Mission's appeal. The letter also stated, in relevant part:
You are further notified that should the Board of Zoning Appeals decide in favor of the appellant, Permit #2004-06458A will be revoked and the use will not be allowed. Continued work under the permit will be done at your risk.
Nevertheless, the Capps continued with construction.
On September 2, 2004, the BZA held a hearing on the Mission's appeal challenging the Capps' permit, to determine whether the Mission is, in fact, a church. The term "church" is not defined within the zoning ordinances.2 The definition section of the Metropolitan Code of Laws provides that "[w]here words have not been defined, the definition found in the most current edition of Webster's Unabridged Dictionary shall be used." M.C.L. § 17.04.060. In addition, Mr. West, as the Zoning Administrator, possessed "the right to interpret the definition of [undefined terms]." M.C.L. § 17.04.060. The zoning code provided that "[a]ll provisions, terms, phrases and expressions contained in this zoning code shall be construed in order that the true intent and meaning of the metropolitan county council may be fully carried out." M.C.L. § 17.04.050.
The parties submitted the definition of "church" contained in Webster's Dictionary, which states, Mr. West explained that his office (the Codes Department) and the local planning commission had prepared a map displaying all churches, schools, college campuses, parks, and adult entertainment establishments.3 Mr. West stated that because the term "church" was undefined, he would look to the zoning ordinance's definition of "religious institution" to determine whether an organization was a church. Therefore, an organization was placed on the map as a church if it had obtained a permit as a "religious institution." In addition, he would place an organization on the map if it was listed as a church in the telephone book, or if, based on a visual observation, an organization's building looked like a church from the outside. Mr. West stated that, in his opinion, the Mission did not meet any of his three tests for being placed on the map as a church. Therefore, when the Capps applied for their building permit, Mr. West determined, based on the map, that an adult entertainment establishment was permissible at that location.
The Mission submitted various evidence in support of its contention that it is a church. One of the Mission's board members explained that chapel services are held at the Mission 365 days a year, and Christian counseling is offered. In addition, the Mission provides food, shelter, drug and alcohol rehabilitation, and a GED program. The Mission's chapel services are open to the public, but an individual must attend chapel service in order to spend the night at the Mission. The only exception to this requirement is when the temperature at night falls below 34 degrees. The Mission's representative stated that in 2003, there were 142,496 different individuals who attended the Mission's evening chapel services, 2,098 people who rededicated their lives at the Mission, and 820 people who prayed to receive salvation. The Mission employs thirteen ordained ministers.
The Mission submitted its charter of incorporation, recorded in the Secretary of State's office in 1954, stating that the Mission was incorporated "for the purpose of promoting the preaching and spreading of the Gospel of Jesus Christ by public gatherings, by radio, and personal work of all kinds; . . . providing temporary shelter and food for homeless persons, and, through spiritual and material aid, helping in their rehabilitation." The Mission's bylaws stated the purpose of the Mission as "Glorifying Jesus Christ by providing temporary shelter and food for homeless persons, providing spiritual and material aid to people in need, helping in their recovery, and promoting the preaching, teaching and spreading of His Gospel." The Mission's "Mission Statement" read:
Following God's command to love our neighbor as ourselves the Nashville Rescue Mission seeks to help the hurting of Middle Tennessee by offering food, clothing and shelter to the homeless and recovery programs to those enslaved in life degrading problems. Our goal is to help people know the saving grace of Jesus, and through Him, gain wisdom for living, find fulfillment in life and become a positive part of their community.
The Mission also introduced its application to the Internal Revenue Service for tax-exempt status as a 501(c)(3) organization, which was approved, in which the Mission described itself as "a church." The Mission was also granted tax-exempt status by the Tennessee Department of Revenue, and the Tennessee State Board of Equalization granted the Mission a "religious" property tax exemption. Approximately forty letters were submitted from citizens who considered the Mission to be a church. In addition, approximately 120 individuals had signed a petition which stated, "I attend regularly and consider the Nashville Rescue Mission my church." The Mission also submitted photographs of various Christian crosses displayed on all sides of its building and on its signs stating, "Nashville Rescue Mission." Other photographs showed the chapel inside the Mission, which seats 418 people, and also showed the pulpit.
The architect who applied for the Mission's building permit in 1999 testified that he listed the Mission's use as "transient housing" because of the Mission's dormitory spaces. However, the "purpose" listed on the Mission's building permit stated that renovation would take place "for dormitory, chapel, medical care, counseling and dining for `Nashville Union Rescue Mission.'" The architect again pointed out that there is no land use classification entitled, "church."
An attorney for the Mission explained that after learning about the Capps' permit and the fact that the Mission was not listed on the map prepared by the Codes Department, the Mission's representatives inquired about being placed on the map. They were told to apply for a use permit as a "religious institution."4 On July 29, 2004, the day after the Mission filed its appeal challenging the Capps' permit, the Codes Department issued permit number 2004-6745A to the Mission, which authorized "religious meetings activity" at the Mission and classified it as a "religious institution." The permit...
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