Demonbreun v. Metropolitan Bd. Zoning App.

• Decision Date: 07 December 2005
• Citation: 206 S.W.3d 42
• Parties: Richard A. DEMONBREUN v. METROPOLITAN BOARD OF ZONING APPEALS of the Metropolitan Government of Nashville and Davidson County, Tennessee.
• Court: Tennessee Court of Appeals

206 S.W.3d 42

Richard A. DEMONBREUN v. METROPOLITAN BOARD OF ZONING APPEALS of the Metropolitan Government of Nashville and Davidson County, Tennessee.

Court of Appeals of Tennessee, Middle Section, at Nashville.

October 10, 2005 Session.

December 7, 2005.

Permission to Appeal Denied by Supreme Court June 26, 2006.

COPYRIGHT MATERIAL OMITTED

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

Robert W. Rutherford, Nashville, Tennessee, for the appellee, Richard A. Demonbreun.

OPINION

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

The Metropolitan Davidson County Board of Zoning Appeals ("the BZA") granted Richard A. Demonbreun ("the Landowner") a special exception permit to use his residentially-zoned property as a special event site. The Landowner filed a petition for writ of certiorari and supersedeas, challenging the validity of several restrictions¹ imposed upon the permit. The trial court held that several of the restrictions were unsupported by material evidence, and thus, according to the trial court, were arbitrarily imposed by the BZA. The BZA appeals the trial court's determination with respect to the conditions found to be arbitrary. We affirm in part and reverse in part.

I.

The Landowner owns a half-acre piece of property located at 746 Benton Avenue in southeast Nashville. The property lies within an R6, residentially-zoned district and specifically in the Woodland-in-Waverly residential neighborhood. Woodland-in-Waverly is a historic urban neighborhood showcasing houses built as early as the 19th century. The Landowner's property, which he bought in 1995, includes a house built in 1906 and one of the few functioning original carriage houses in Davidson County.

In 1999, the Landowner petitioned the BZA for a special exception permit to use his newly renovated property as a "Historic Home Events" site, which permit would enable him to accommodate weddings, parties, and other special event functions on the property. The BZA granted the Landowner the permit but included the following conditions: (1) the permit would expire in one year, in order to give the BZA a chance to review the permit and see how the conditions were working; (2) the permit was for the Landowner's use only; (3) valet parking was required if more than 25 people attended an event; (4) large buses were not allowed on the street, but shuttle buses were permitted; (5) the number of people attending an event was subject to a maximum of the number of parking spaces times two with a 150-person cap; (6) a maximum of two events were permitted each week; (7) each event had to end and cleanup had to commence by 9:00 p.m. on weeknights and by 11:00 p.m. on Friday and Saturday nights; and (8) no tents were allowed in the front yard. In 2000, the BZA again granted the Landowner's permit with the same conditions; however, in 2001, the BZA unanimously denied the Landowner's third permit application because of testimony from Woodland-in-Waverly residents regarding his noncompliance with certain permit conditions. Pursuant to the rules of the BZA, the Landowner reapplied for the permit six months after the 2001 denial. The latter application is the one presently before us.

On July 3, 2002, the BZA held a public hearing on the Landowner's new application. The BZA heard from numerous witnesses, both in support of and in opposition to the application. The record before the BZA also includes numerous letters and emails, which were sent to the BZA by supporting and opposing residents living in the Woodland-in-Waverly neighborhood. At the conclusion of the hearing, the BZA, by a vote of four-to-one, granted the Landowner's application, noting that he had satisfied the necessary criteria for a special exception permit to operate "Historic Home Events" on his property. This time the BZA imposed the following set of slightly-different conditions on the permit: (1) the permit was issued for a period of time not to exceed one year; (2) the permit was for the Landowner's use only; (3) valet parking was required for all events with more than 25 people in attendance; (4) large buses were not allowed on the street, but shuttle buses were permitted; (5) the maximum number of people allowed at each event was not to exceed the number of parking spaces under contract times two with a 150-person maximum; (6) a maximum of two events were permitted each week; (7) events and event cleanup had to be completed by 9:00 p.m. on weeknights and by 11:00 p.m. on Friday and Saturday nights; (8) no social business/activity of any kind could be conducted in the front yard; and (9) no other residential property could be used in conjunction with the permit.

The Landowner subsequently filed a petition for writ of certiorari and supersedeas, asserting that the evidence failed to justify certain aspects of conditions (1), (4), (5), (6), (7), and (8). The trial court granted the Landowner's petition. In its memorandum opinion filed August 31, 2004, the trial court held that most of the conditions challenged by the Landowner "were not based on material evidence but on opinions, beliefs and other matters not a part of the record." Specifically, the trial court found that the one-year time limit on the permit, the 150-person maximum per event, the limit on two events per week, the time-of-day limitation by which completion of event cleanup was required, and the prohibition on activities in the front yard were unsupported by material evidence. The BZA appeals the trial court's determination with respect to these five conditions. It claims that there was ample material evidence to support all of the restrictions imposed by it on the Landowner's permit.

II.

The dispositive issue on this appeal is whether the trial court erred in finding that five of the BZA's conditions were unsupported by material evidence. The question of whether there is sufficient evidence to sustain a zoning action is a question of law. MC Props., Inc. v. City of Chattanooga, 994 S.W.2d 132, 134 (Tenn. Ct.App.1999). Hence, appellate review is de novo with no presumption of correctness. Id.

III.

Judicial review of an action by an administrative body is by way of the common law writ of certiorari. See Tenn.Code Ann. § 27-8-101 (2000); see also McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn.1990). In such a review, the action of the administrative body may be reversed or modified only upon a determination that the action was: (1) in violation of constitutional or statutory provisions; (2) in excess of statutory authority; (3) an unlawful procedure; (4) arbitrary or caprious; or (5) unsupported by material evidence. Massey v. Shelby County Retirement Bd., 813 S.W.2d 462, 464 (Tenn.Ct. App.1991).

Our scope of review of this matter is no broader than that of the trial court. "Whether [an] action by [a] local governmental body is legislative or administrative in nature, the court should refrain from substituting its judgment for the broad discretionary authority of the local governmental body." McCallen, 786 S.W.2d at 641-42. Courts are not permitted to reweigh the evidence or scrutinize the intrinsic correctness of the decision. Lafferty v. City of Winchester, 46 S.W.3d 752, 759 (Tenn.Ct.App.2000). However, a court should invalidate a decision that is clearly illegal, arbitrary, or capricious. McCallen, 786 S.W.2d at 642.

If there is no evidence to support an action of an administrative board, it is arbitrary. Sexton v. Anderson County, 587 S.W.2d 663, 667 (Tenn.Ct.App. 1979). The board's determination must be supported by "more than a scintilla or glimmer of evidence. . . . It must be of a substantial, material nature." Pace v. Garbage Disposal Dist., 54 Tenn.App. 263, 390 S.W.2d 461, 463 (1965). The "material evidence" standard requires "such relevant evidence as a reasonable mind might accept as adequate to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration." Id. We are further mindful that "mere beliefs, opinions and fears of neighborhood residents do not constitute material evidence." Mullins v. City of Knoxville, 665 S.W.2d 393, 396 (Tenn.Ct. App.1983).

IV.

Our analysis of whether the trial court erred in its findings begins with a review of the authority under which the BZA was operating in the instant case. Local governmental entities are specifically authorized to prescribe guidelines and standards for zoning boards to follow in issuing special exception permits. See Tenn.Code Ann. §§ 13-7-206(a), -207(2).² The zoning law for Nashville and Davidson County provides the following with respect to the BZA's issuance of such permits:

A. Burden of Proof. A special exception permit shall not be considered an entitlement, and shall be granted by the board of zoning appeals only after the applicant has demonstrated to the satisfaction of the board that all of the required standards are met.

B. Ordinance Compliance. The proposed use shall comply with all applicable regulations, including any specific standards for the proposed use set forth in this title, unless circumstances qualify the special exception for a variance in accordance with Chapter 17.40, Article VIII. Any accessory use to a special exception must receive express authorization from the board of zoning appeals.

C. Integrity of Adjacent Areas. A special exception use permit shall be granted provided that the board finds that the use is so designed, located and proposed to be operated that the public health, safety and welfare will be protected. The board shall determine from its review that adequate public facilities are available to accommodate the proposed use, and that approval of the permit will not...