Demonbreun v. Metro. Bd. of Zoning Appeals

• Court: Tennessee Court of Appeals
• Writing for the Court: PATRICIA J. COTTRELL
• Decision Date: 10 June 2011
• Docket Number: No. M2009-00557-COA-R3-CV,M2009-00557-COA-R3-CV
• Citation: Demonbreun v. Metro. Bd. of Zoning Appeals, No. M2009-00557-COA-R3-CV (Tenn. App. Jun 10, 2011)
• Parties: RICHARD A. DEMONBREUN v. METROPOLITAN BOARD OF ZONING APPEALS

RICHARD A. DEMONBREUN v. METROPOLITAN BOARD OF ZONING APPEALS

No. M2009-00557-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Filed: June 10, 2011

November 5, 2009 Session

Appeal from the Circuit Court for Davidson County

No. 08C-3867 Joseph P. Binkley, Jr., Judge

The Metropolitan Nashville Board of Zoning Appeals refused to grant a special exception permit to allow a Nashville businessman to operate a Historic Home Events business in a residential neighborhood. The Board stated that its decision was based on the businessman's history of non-compliance with the conditions it had imposed on earlier permit grants and renewals. The businessman filed a petition for writ of certiorari in the Circuit Court of Davidson County. After a hearing, the court found that four of the BZA members had acted out of ulterior motives, i. e. ,their displeasure and frustration with the applicant, and it granted the requested permit, subject to a number of restrictions. We hold that the BZA may take into consideration prior activity at the location in the context of the impact of those activities on the public health, safety, and welfare. Because herein the BZA did not relate any specific prior conduct to a public harm and because most of the activities discussed at the hearing had occurred prior to previous permit grants and renewals, we conclude that the denial was arbitrary. Accordingly, we affirm the trial court.

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

PATRICIA J. COTTRELL, P.J.,M.S., delivered the opinion of the court, in which ANDY D. BENNETT and RICHARD H. DINKINS, JJ., joined.

Sue B. Cain, Director of Law, The Department of Law of the Metropolitan Government of Nashville and Davidson County, J. Brooks Fox, Christopher Michael Lackey, Elizabeth Anne Sanders, for the appellant, Metropolitan Board of Zoning Appeals.

Richard A. Demonbreun, Nashville, Tennessee, Pro Se.

OPINION

I. BACKGROUND

Richard Demonbreun bought a large home located at 746 Benton Avenue in Nashville's historic Woodland-in-Waverly neighborhood. He renovated the home at considerable expense, with the intention of establishing a bed and breakfast and using the home to host special events like weddings and conferences. He named it the Timothy Demonbreun House to honor his great-great-great-great grandfather, one of the founders of Nashville.

In 1999, Mr. Demonbreun petitioned the Board of Zoning Appeals ("BZA") for a special exception permit to use the property as a "Historic Homes Events" site, which would allow him to legally operate his planned business. The BZA granted the permit, subject to eight conditions, which were related to traffic and noise, as well as to limitations on the frequency, size and hours of events hosted at the site. The duration of the permit was one year, to give the BZA the opportunity to review the permit and see how the conditions were working.

In 2000, the BZA again granted Mr. Demonbreun a permit, subject to the same conditions and expiration period. When Mr. Demonbreun filed his third permit application in 2001, however, some nearby residents objected, complaining that his failure to comply with some of the conditions set out in the earlier permits disturbed their peace and quiet. After hearing those complaints, the BZA denied the permit.

In accordance with the rules of the BZA, the landowner reapplied for the permit six months after the denial. The BZA conducted an extensive hearing on the new application, during which both supporters and opponents of the permit expressed their views. The Board then voted to grant the permit, "for a period of time not to exceed one year" and subject to a set of similar conditions to those previously imposed.

Mr. Demonbreun filed a petition for writ of certiorari in the Circuit Court of Davidson County, challenging the time limitation on the permit and other conditions imposed on the operation of his business. The trial court found that the time limit and most of the challenged conditions were not supported by material evidence and removed them from the permit.

The BZA then appealed to this court, contending that there was ample evidence to support all the conditions that it had imposed on the permit. We found that the one-year limitation on the permit was supported by material evidence in the record, as were all but two of the conditions imposed by the BZA. Our opinion affirming the trial court in part andreversing it in part is found at Demonbreun v. Metro Bd of Zoning Appeals, 206 S.W.3d 42 (Tenn. Ct. App. 2005).

II. CURRENT PROCEEDINGS

Mr. Demonbreun apparently received several subsequent annual permit approvals, including one which was granted in 2006.¹ He did not apply for or receive a renewal of his permit in 2007, because he had signed a contract to sell his residence and his business to Ms. Ann Coleman. Ms. Coleman herself applied for a permit, which the BZA granted on May 31, 2007, "for a period of time not to exceed one year." The permit included conditions similar to those imposed on Mr. Demonbreun.

Ms. Coleman operated the business under the new permit for about six months. Unfortunately, and unbeknownst to the BZA, she had not closed on the purchase of the property at the time her permit was granted. She ultimately backed out of the transaction when she was unable to obtain sufficient financing to complete the purchase. Mr. Demonbreun then applied for a new permit in his own name.

The BZA conducted a public hearing on March 20, 2008. Five board members were present. They voted 2-1 to deny Mr. Demonbreun's application for a special exception permit, with two members abstaining. The Board accordingly issued an initial order denying the application. The Board met in executive session on April 3 and April 1 7, 2008, after which it issued a final order denying the application by operation of law because the applicant did not get four affirmative votes within thirty days of the hearing, as is required by the BZA's rules of procedure.

Mr. Demonbreun filed another permit application within six months. In the interim, neighbors filed two complaints against him in General Sessions Court for holding events on his premises even though he no longer possessed a valid permit. The court found him guilty of both violations, and fined him $50 for each one.

The BZA conducted a public meeting on November 20, 2008, which included a hearing on Mr. Demonbreun's most recent application. His case was the last one heard on a docket of five cases. The BZA gave the proponents and the opponents of the application a total of 15 minutes each to express their views. The time limits were strictly adhered to. Mr. Demonbreun was the first to speak. He asserted that over the years he had conducted over 340 events on his premises, and that he was guilty of only a few isolated or inadvertent violations of the conditions imposed on his special exception permits.

One violation was the erection of tent on his front lawn for a November 2001 wedding. Another violation occurred when a tour bus for the band Alabama drove down Benton Avenue in July of 2002, despite the no-tour bus restriction on Mr. Demonbreun's permit. He claimed that he was unaware that the bus was coming and that he immediately came out into the street and told the bus to leave the neighborhood. In December of 2005, Mr. Demonbreun hosted a small wedding for a bride with a limited budget. He stated that he allowed the waiver of the valet parking requirement of such events because "I have a soft heart," and that he himself parked thirteen cars on his curb and in his driveway.

As for the two gatherings he had hosted which led to complaints in General Sessions Court, Mr. Demonbreun admitted that he allowed out-of-town relatives of a senior graduating from a local high school to use the house on May 1 9, 2008 for a family gathering prior to their departure for the graduation ceremony. He stated that because of the gathering one of the neighbors called the police, but that by the time the police had arrived, his guests had gone. He also admitted that he rented some rooms in the house to a marketing company on August 4, 2008 for a lengthy indoor meeting or a retreat, which involved about twelve people.²

Mr. Demonbreun complained that a few neighbors in particular were determined to drive him out of the neighborhood for reasons of their own, and were prepared to pounce on any perceived irregularity in his operation to accomplish their purpose. In particular, he alleged that William S. Cochrane, Jr., who lived directly across the street from Mr. Demonbreun, was determined to drive him out of business because he operated a competing bed and breakfast in another county, and that Mr. Cochrane had gone so far as to try to sabotage a wedding in progress.

In his own presentation to the Board, Mr. Cochrane cited the same violations that Mr. Demonbreun had mentioned, as well as a 2006 incident in which Mr. Demonbreun used amplified music outdoors in alleged violation of another restriction.³

It was apparent from the comments made by opponents of his application that Mr. Demonbreun had alienated many of his neighbors, who regarded him as pushy and aggressive. Several neighbors said that they did not object to having a special events locationin their neighborhood, but only to his role in it. One neighbor stated that "he seems to think that the rules don't apply to him," and she complained that "he's made promises to have Easter egg hunts, to have computer rooms for kids, and never fulfills his promise to give a donation to the neighborhood association." Even one neighbor who spoke in favor of granting the application stated that, "Mr. Demonbreun is a pretty intense guy . . . when something means a lot to him, he tends to push the envelope."

Mr. Demonbreun and his opponents both submitted packets of documents to the BZA. Mr. Demonbreun's packet included a petition in support of allowing the continuing operation of his business subject...