Harding Academy v. Metro. Gov. Of Nashville, E2005-01043-SC-S09-CV.

• Decision Date: 14 May 2007
• Docket Number: No. E2005-01043-SC-S09-CV.,E2005-01043-SC-S09-CV.
• Parties: HARDING ACADEMY v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY.
• Court: Tennessee Supreme Court

222 S.W.3d 359

HARDING ACADEMY v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY.

No. E2005-01043-SC-S09-CV.

Supreme Court of Tennessee, at Nashville.

February 2, 2007 Session.

May 14, 2007.

George Arthur Dean (at trial), John C. Hayworth, John Lee Farringer, IV, and Robert J. Walker, Nashville, Tennessee, for the appellant, Harding Academy.

Karl F. Dean, Director of Law, and J. Brooks Fox, John L. Kennedy, Laura T. Kidwell, Megan A. Landreth, and Theodore G. Morrissey, Metropolitan Attorneys, for the appellee, Metropolitan Government of Nashville and Davidson County.

OPINION

JANICE M. HOLDER, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and CORNELIA A. CLARK and GARY R. WADE, JJ., joined.

The plaintiff applied for nine demolition permits, which the city initially issued. Two days later, however, the city revoked the permits based upon the "pending ordinance doctrine." At the time the plaintiff applied for the demolition permits, an application proposing a zoning change had been filed with the city's planning commission, but no action regarding the application had taken place other than the scheduling of a hearing before the city's historic zoning commission to discuss the proposal and the publishing of a notice to residents about such meeting. The city's historic zoning commission had not yet considered the zoning change application; consequently, the matter had not been referred to the city council for its consideration. We hold that the pending ordinance doctrine is inapplicable because the ordinance at issue was not sufficiently pending at the time the plaintiff applied for the demolition permits. The city's revocation of the permits was therefore improper. Because the city unlawfully revoked the demolition permits, the plaintiff is entitled to reissuance of the permits notwithstanding the subsequent enactment of a zoning ordinance that could prohibit demolition. The plaintiff must be given a reasonable opportunity to demolish the structures when the city reissues the permits. Accordingly, we affirm the judgment of the Court of Appeals as modified and remand this case to the trial court for the entry and enforcement of a decree ordering the city to reissue the revoked demolition permits to the plaintiff.

I. Factual and Procedural Background

The plaintiff in this case, Harding Academy ("Harding"), is a private elementary and middle school that has its campus in the Belle Meade Links Triangle area of Nashville, Tennessee. The defendant is the Metropolitan Government of Nashville and Davidson County ("Metro"). In 1991, Harding began acquiring residential lots near its campus and had acquired eleven residential lots by January 2003. In February 2003, Harding asked Metro's Board of Zoning Appeals to grant recreation center status to its properties, which would allow Harding to maintain athletic fields on its properties. An appeal was filed by a neighborhood group challenging the interpretation of the Director of Metro's Department of Codes Administration ("Codes Director") that use of the properties qualified as a "recreation center." In March 2003, the district's representative, Metro Councilwoman Lynn Williams, urged Harding to withdraw its application for recreation center status in an attempt to reach an amicable resolution of the dispute with the neighborhood group. Harding withdrew its application in March 2003, but no resolution was reached. On April 10, 2003, Councilwoman Williams filed with Metro's Planning Commission an application on behalf of the neighborhood to have the Belle Meade Links Triangle area declared a neighborhood conservation overlay district. On April 23, 2003, notice was sent advising property owners of a hearing scheduled for May 14, 2003, before the Historic Zoning Commission regarding the proposed historic conservation overlay. This notice is not part of the record.

On May 1, 2003, Harding applied to the Metro Department of Codes Administration for permits authorizing the demolition of nine structures on the residential lots Harding had purchased. On May 2, 2003, the Department of Codes Administration referred five of the nine permit requests to the Historic Zoning Commission for review, which requests were not acted upon by the Historic Zoning Commission. On May 6, 2003, the Codes Director issued Harding the nine demolition permits it had requested. Two days later, on May 8, 2003, the Codes Director notified Harding that he was revoking the demolition permits that were issued to Harding, explaining that revocation was pursuant to advice from Metro's Department of Law and was consistent with the "pending legislation doctrine." Harding timely appealed Metro's revocation of the demolition permits.

On May 14, 2003, the Historic Zoning Commission approved the proposed zoning change, and on May 20, 2003, the neighborhood conservation overlay ordinance for the Belle Meade Links Triangle passed its first reading before the Metro Council. After the historic conservation overlay application was filed and prior to the first reading of the ordinance, building permits for new construction in the same neighborhood came before the Historic Zoning Commission staff. These building permits were issued by Metro, and unlike the permits issued to Harding, they were not subsequently revoked.

On June 10, 2003, the Metro Board of Fire and Building Code Appeals heard Harding's appeal. The Codes Director testified that Chapter 16.04.120 of the Metro Code authorizes the Codes Director to revoke permits issued in error and that Metro's Department of Law informed him that issuance of the nine demolition permits to Harding was in error because there was legislation currently pending seeking to place an historic conservation overlay on the subject properties. The Metro Board of Fire and Building Code Appeals voted to uphold the revocation of the nine demolition permits issued to Harding. Harding filed a writ of certiorari seeking a ruling that Metro's revocation of the demolition permits "was in excess of its jurisdiction, illegal or arbitrary and capricious."

Meanwhile, on July 15, 2003, the historic conservation overlay ordinance passed its third and final reading before the Metro Council. The adopted ordinance states that it will "take effect immediately after its passage" and also states, "Effective Date: July 19, 2003." The facts recited above are undisputed by the parties. In enacting the historic conservation overlay ordinance, the parties agree that Metro complied with the applicable statutes.

On July 29, 2004, the trial court issued a "Memorandum and Order" reversing Metro's decision. The trial court ordered the Codes Director to reissue the demolition permits to Harding, finding that the revocation of the permits based upon the "pending legislation doctrine" was arbitrary and capricious. The Court of Appeals affirmed the trial court's ruling under different reasoning. The intermediate appellate court concluded that the trial court erred in holding that Metro could not rely upon the "pending legislation doctrine" to revoke the demolition permits. The Court of Appeals, however, agreed with the trial court that Metro's revocation of the permits was exercised in an arbitrary and capricious manner. The Court of Appeals' opinion affirms the trial court's order that Metro's Department of Codes Administration reissue the demolition permits to Harding. However, a footnote in the Court of Appeals' opinion stating that "our holding should not be construed to mean that Harding Academy is now permitted to carry out its planned demolition of the structures on the property at issue" has caused confusion as to whether Harding may demolish the structures when the permits are reissued. We granted permission to appeal.

II. Analysis

At issue in this case is the propriety of Metro's decision to revoke the nine demolition permits that were issued to Harding. Judicial review of a decision by a local board of zoning appeals, an administrative body, is obtained by filing a petition for a 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). This writ provides a limited scope of review by the courts. Willis v. Tenn. Dep't of Corr., 113 S.W.3d 706, 712 (Tenn. 2003). Review of Metro's action in this case is limited to determining whether the board exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support its decision. Lafferty v. City of Winchester, 46 S.W.3d 752, 759 (Tenn.Ct.App.2000). In proceedings involving a common law writ of certiorari, illegal, arbitrary, or fraudulent actions include: 1) the failure to follow the minimum standards of due process; 2) the misrepresentation or misapplication of legal standards; 3) basing a decision on ulterior motives; and 4) violating applicable constitutional standards. Hoover, Inc. v. Metro. Bd. of Zoning Appeals, 924 S.W.2d 900, 905 (Tenn.Ct.App.1996). Because the basis for Metro's revocation of the demolition permits involves a question of law, we review the record de novo with no presumption of correctness given to Metro's decision to uphold the revocation of the permits. Lafferty, 46 S.W.3d at 759.

Our review is limited to the record produced by the zoning board unless the reviewing court has permitted the introduction of additional evidence on the issue of whether the board exceeded its jurisdiction or acted illegally, capriciously, or arbitrarily. Moore v. Metro. Bd. of Zoning Appeals, 205 S.W.3d 429, 435 (Tenn.Ct.App.2006). We may not reweigh the evidence, examine the intrinsic correctness of the decision being reviewed, or substitute our judgment for that of the local officials. Id. If no evidence supports the action of the administrative board, then that action is arbitrary. Demonbreun v. Metro. Bd. of Zoning Appeals, 206 S.W.3d 42, 46 ...