City of Brentwood v. Metropolitan Bd.

• Decision Date: 03 February 2004
• Docket Number: No. M2002-00514-COA-R3-CV.,M2002-00514-COA-R3-CV.
• Citation: 149 S.W.3d 49
• Parties: CITY OF BRENTWOOD, Tennessee, et al. v. METROPOLITAN BOARD OF ZONING APPEALS, et al.
• Court: Tennessee Court of Appeals

149 S.W.3d 49

CITY OF BRENTWOOD, Tennessee, et al. v. METROPOLITAN BOARD OF ZONING APPEALS, et al.

No. M2002-00514-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

May 7, 2003 Session.

February 3, 2004.

Permission to Appeal Denied by Supreme Court September 13, 2004.

James R. Tomkins, Nashville, Tennessee, and Roger A. Horner, Brentwood, Tennessee, for the appellants, City of Brentwood, Tennessee, Phil Hardeman, William J. Vaughn, Wesley Lamoureaux, and Clarence Reynolds.

Karl F. Dean, Director of Law, J. Brooks Fox and John L. Kennedy, Nashville, Tennessee, for the appellees, The Metropolitan Board of Zoning Appeals and The Metropolitan Government.

Lawrence P. Leibowitz and Pamela P. Gibson, Knoxville, Tennessee, for the appellee, Lamar Advertising Company.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and PATRICIA J. COTTRELL, J., joined.

This appeal involves the efforts of the City of Brentwood to stop the construction of a billboard located in Davidson County. After Nashville's zoning administrator granted a building permit for the billboard, the City of Brentwood appealed to the Metropolitan Board of Zoning Appeals. When the Board affirmed the building permit, the City of Brentwood and four neighboring property owners filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's decision. The trial court granted the motions to dismiss filed by the Board and the owner of the billboard on the ground that the City of Brentwood and the individual property owners lacked standing. We have determined that the trial court erred by determining that the City of Brentwood and its public officials lacked standing to seek judicial review of the Board's decision.

I.

On May 10, 2000, Nashville's zoning administrator issued a building permit to Lamar Advertising Company to construct a 14' by 48' billboard on property owned by Corky's Restaurant near the intersection of Old Hickory Boulevard and Franklin Road. The property is located entirely in Davidson County but is close to the boundary line between Davidson County and the City of Brentwood which is in Williamson County. The City of Brentwood is one of the upscale, affluent cities ringing Nashville, and the particular intersection where the billboard is to be located is a gateway to Brentwood from the north.

Brentwood has expended large sums to establish its "Franklin Road corridor program" for the purpose of enhancing the area surrounding this intersection.¹ It objected to Lamar Advertising's billboard because it was inconsistent with its capital improvements to the Franklin Road corridor. On September 1, 2000, Brentwood filed an appeal from the zoning administrator's decision with the Metropolitan Board of Zoning Appeals. It asserted that the proposed billboard violated Metropolitan Government of Nashville & Davidson County, Tennessee Code § 17.32.150(B)(13) (2001) ("Metro Code") which prohibited billboards along public streets or highways designated as a scenic route.

The Board held a hearing on November 2, 2000. After presentations by both Brentwood and Lamar Advertising, the Board decided that the billboard was actually "along" Franklin Road rather than Old Hickory Boulevard and, therefore, that it did not violate Metro Code § 17.32.150(B)(13) because Franklin Road had not been designated as a scenic route. Accordingly, the Board affirmed issuing Lamar Advertising a building permit.

On December 29, 2000, Brentwood² and four private property owners³ filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's decision. The trial court permitted Lamar Advertising to intervene as a party. Thereafter, the Board and Lamar Advertising filed Tenn. R. Civ. P. 12.02(6) motions asserting that all the petitioners lacked standing to seek review of the Board's November 2, 2000 decision. The trial court granted the motion and dismissed the petition. All the petitioners have appealed.

II. THE STANDARD OF REVIEW

The sole purpose of a Tenn. R. Civ. P. 12.02(6) motion is to test the sufficiency of the complaint, not the strength of the plaintiff's evidence. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999); Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn.1999). It requires the courts to review the complaint alone, Daniel v. Hardin County Gen. Hosp., 971 S.W.2d 21, 23 (Tenn.Ct.App.1997), and to look to the complaint's substance rather than its form. Kaylor v. Bradley, 912 S.W.2d 728, 731 (Tenn.Ct.App.1995). Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the alleged facts will not entitle the plaintiff to relief or when the complaint is totally lacking in clarity and specificity. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn.Ct.App.1992).

A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual allegations in the complaint but asserts that no cause of action arises from these facts. Winchester v. Little, 996 S.W.2d 818, 821-22 (Tenn.Ct.App.1998); Smith v. First Union Nat'l Bank, 958 S.W.2d 113, 115 (Tenn.Ct.App.1997). Accordingly, courts reviewing a complaint being tested by a Tenn. R. Civ. P. 12.02(6) motion must construe the complaint liberally in favor of the plaintiff by taking all factual allegations in the complaint as true, Stein v. Davidson Hotel, 945 S.W.2d 714, 716 (Tenn.1997), and by giving the plaintiff the benefit of all the inferences that can be reasonably drawn from the pleaded facts. Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 5-6(g), at 254 (1999). On appeal from an order granting a Tenn. R. Civ. P. 12.02(6) motion, we must likewise presume that the factual allegations in the complaint are true, and we must review the trial court's legal conclusions regarding the adequacy of the complaint without a presumption of correctness. Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d at 554; Stein v. Davidson Hotel, 945 S.W.2d at 716.

III. THE BOARD'S AND LAMAR ADVERTISING'S WAIVER OF THE CHALLENGE TO STANDING

Brentwood and the individual property owners make a technical argument that the Board and Lamar Advertising waived their respective rights to question their standing to challenge the construction of the billboard. They assert that the record does not show that either the Board or Lamar Advertising questioned Brentwood's standing during the November 2, 2000 hearing. The Board counters that it was not required to raise the issue because it was the adjudicator, not a party to the proceeding. Lamar Advertising responds that it did, in fact, raise the issue of standing.

This question is complicated by the Board's inability to provide a "complete transcript of the proceedings in the cause, containing also all the proof submitted before the board or commission" as required by Tenn.Code Ann. § 27-9-109(a) (2000). This obligation falls squarely on the Board's shoulders, not the parties'. Lewis v. Bedford County Bd. of Zoning App., No. M2003-00537-COA-R3-CV, 2004 WL 63439, at *5 (Tenn.Ct.App. Jan.13, 2004). While the Board customarily prepares a transcript of its proceedings, it did not do so in this case because the recorder malfunctioned. Accordingly, the Board's secretary prepared a "narrative" of the proceeding. The narrative contains a summary of the evidence presented by the parties and states that "[t]he appellants made their arguments with considerable dialogue with the Board." However, it does not specifically state that standing was discussed.

We have determined that the Board is not in a position to question Brentwood's standing to seek judicial review of its decision. The Board, as a governmental entity, has the prerogative to determine whether applicants appearing before it are entitled to invoke its authority. It may and should decline to consider applications filed by persons or entities who do not meet the applicable legal requirements. By addressing the merits of Brentwood's application, the Board must necessarily have concluded that Brentwood qualified as an "applicant" under Metro Code § 17.40.275 (2001). Having made this determination, the Board cannot later insulate its decisions from judicial review by asserting that Brentwood has no standing to seek judicial review of an administrative proceeding in which it actively participated with the Board's permission.

Lamar Advertising's challenge to Brentwood's standing is on a different footing. Parties to administrative proceedings must raise all objections to procedural errors during the hearing in order to preserve these questions for later appellate review. McClellan v. Board of Regents, 921 S.W.2d 684, 690 (Tenn.1996). Thus, to raise the issue of Brentwood's standing to file the petition for common-law writ of certiorari, Lamar Advertising must have argued to the Board that Brentwood did not have standing to request the Board to review the zoning administrator's decision.

Brentwood does not assert that Lamar Advertising failed to raise this issue during the proceedings before the Board. Rather, it states only that the record does not show that Lamar Advertising raised the issue. The difference is not so subtle that it escapes us. Brentwood had the burden of proving that Lamar Advertising waived its opportunity to raise the standing question. Tallent v. Tennessee Farmers Mut. Ins. Co., 785 S.W.2d 339, 344 (Tenn.1990); Smith v. Smith, 989 S.W.2d 346, 348 (Tenn.Ct.App.1998). In light of the admittedly incomplete record and Brentwood's failure to contradict Lamar Advertising's vigorous assertion that it raised the question of standing before the Board, we have concluded that Brentwood has failed to demonstrate that Lamar Advertising waived its right to question its standing to seek judicial review of the Board's decision....