Lions Head Homeowners' Ass'n v. Metropolitan Bd. of Zoning Appeals

• Decision Date: 01 October 1997
• Citation: 968 S.W.2d 296
• Parties: LIONS HEAD HOMEOWNERS' ASSOCIATION, A not for profit Tennessee Corporation, White Bridge Neighborhood Association, Inc., Friends of Richland Creek, Inc., Mike Lamb, and The Dominican Campus, Plaintiffs/Appellants, v. METROPOLITAN BOARD OF ZONING APPEALS, Metropolitan Government of Nashville, Davidson County, Tennessee, and the Martin Companies, Inc., Defendants/Appellees.
• Court: Tennessee Court of Appeals

Page 296

968 S.W.2d 296

LIONS HEAD HOMEOWNERS' ASSOCIATION, A not for profit Tennessee Corporation, White Bridge Neighborhood Association, Inc., Friends of Richland Creek, Inc., Mike Lamb, and The Dominican Campus, Plaintiffs/Appellants, v. METROPOLITAN BOARD OF ZONING APPEALS, Metropolitan Government of Nashville, Davidson County Tennessee, and the Martin Companies Inc., Defendants/Appellees.

Court of Appeals of Tennessee Middle Section at Nashville.

Oct. 1, 1997.

Permission to Appeal Denied by

Supreme Court April 13, 1998.

George E. Barrett, Barrett, Johnston & Parsley, Phillip A. Purcell, Nashville, Tennessee, for Appellant.

Thomas G. Cross, Nashville, Tennessee, for Metropolitan Board of Zoning Appeals and Metropolitan Government of Nashville and Davidson County.

Hugh C. Howser, Jr., Trabue, Sturdivant & DeWitt, Nashville, Tennessee, for The Martin Companies, Inc.

OPINION

KOCH, Judge.

This appeal stems from a decision of the Metropolitan Board of Zoning Appeals to grant a conditional use permit for a medical office building and parking garage adjacent to St. Thomas Hospital. The homeowners' association of a neighboring condominium development and other parties who opposed the project filed a petition for a writ of certiorari in the Chancery Court for Davidson County. The trial court heard the case without a jury and upheld the Board's decision to grant the conditional use permit. On this appeal, the project's opponents take issue with the procedures followed by the Board in granting the conditional use permit and also assert that the project does not comply with the Zoning Ordinances for the Metropolitan Government of Nashville and Davidson County. We affirm.

I.

The Knights of Columbus Council 544 maintain their clubhouse on a 6.2 acre tract on Bosley Springs Road ¹ immediately behind St. Thomas Hospital in Nashville. The property adjoins Richland Creek and is located in a floodplain. ² It is also in a district zoned MO (Medical office and service district). ³ The Martin Companies, Inc. ("Martin"), a Nashville developer, obtained an option for the property intending to construct a ten story, 261,000 square foot medical office building and 400,000 square foot parking garage. However, before it could begin construction, Martin was obliged to obtain a conditional use permit from the Metropolitan Board of Zoning Appeals.

The Board of Zoning Appeals conducted a public hearing concerning the project on March 30, 1995. A representative of the Knights of Columbus and several representatives of Martin spoke in favor of the development and answered the Board members' questions about the project's impact on the surrounding community. Other property owners and organizations, including St. Thomas Hospital, the Dominican Campus, the Friends of Richland Creek, the Cherokee Park Neighborhood, the White Bridge Neighborhood Association, and the Kenner Avenue Neighborhood Group opposed the project because of concerns over its impact on area traffic.

At the time of the hearing, the city's Traffic and Parking Division had approved the project subject to several conditions, even though the Metropolitan Planning Commission had not given the project a favorable recommendation. The Tennessee Department of Transportation had not acted on Martin's proposed modifications to Harding Road. At the close of the proof, the chair of the Board of Zoning Appeals moved to approve the conditional use permit. Three Board members voted in favor of the project, three voted against, and one member abstained. After some discussion concerning the voting procedure, ⁴ the Board of Zoning Appeals voted to defer further consideration of the project until April 27, 1995, in the hope that the Tennessee Department of Transportation would have completed its Advanced Planning Report.

The Department of Transportation's Advanced Planning Report had not been released by the time the Board of Zoning Appeals reconvened on April 27, 1995. After considering the comments of two members of the Metropolitan Council who opposed the project, the Board, by a vote of five to two, granted Martin a conditional use permit subject to several conditions intended to lessen the project's impact on the traffic in the area. ⁵ With regard to the project's compliance with the Advance Planning Report, the Board member who moved to grant the conditional use permit explained that "if the advanced traffic study has something in it that their proposed plan would not conform to then, by the very nature of this motion, they don't have a conditional use permit."

The Lions Head Homeowners' Association and other opponents of the project filed suit in the Chancery Court for Davidson County seeking review of the decision of the Board of Zoning Appeals. The trial court considered the record made before the Board and upheld the decision to grant the conditional use permit. The opponents have appealed to this court.

II. THE CONTENTS OF THE RECORD ON APPEAL

At the outset, we take up Lions Head Homeowners' Association's assertion that the trial court erred by denying its motion to strike the record of the proceedings before the Board of Zoning Appeals because it was not timely filed. We need not tarry long with the seemingly self-defeating argument ⁶ because the Board filed the record as soon as practicable and because Lions Head Homeowners' Association was not prejudiced by the time taken by the Board to prepare and file the record.

Tenn.Code Ann. § 27-9-109(a) (1980) provides that boards whose decisions are being reviewed in a certiorari proceeding file a complete record of the proceedings with the reviewing court "immediately upon the grant of a writ." While we have not had occasion to construe this particular requirement, the Tennessee Supreme Court has construed similar language ⁷ to require that the record be filed "as soon as practicable." Cooper v. Alcohol Comm'n, 745 S.W.2d 278, 281 (Tenn.1988). The supreme court also indicated that its decision to set aside the reversal of a local administrative agency's decision because of delay in filing the record was heavily influenced by the lack of prejudice to the petitioner. See Cooper v. Alcohol Comm'n, 745 S.W.2d at 282.

In this case, the Board of Zoning Appeals filed the record with the trial court approximately five and one-half months after the project's opponents filed their petition for writ of certiorari. The record was 492 pages long, and included over two hundred pages of oral testimony that the Board was required to have transcribed. The record shows that the Board's staff began compiling the record shortly after the petition for writ of certiorari was filed and that the record had been filed with the trial court for approximately six months before the trial court hearing. The project's opponents have not claimed that they were prejudiced by this delay, and indeed, it is difficult for us to conceive how they could have been prejudiced because the project has not moved forward since these proceedings were commenced. Accordingly, we find that the trial court correctly denied the motion to strike the record of the proceedings before the Board of Zoning Appeals.

III.

APPLICATION OF METRO. CODE § 17.124.140(C) (1994)

Lions Head Homeowners' Association and the project's other opponents take issue with the Board of Zoning Appeals' decision that Martin was not required to satisfy the three requirements in Metro.Code § 17.124.140(C) and with its alternative conclusion that the project actually satisfied these requirements. Our primary inquiry concerns the applicability of Metro.Code § 17.124.140(C)'s requirements to this project. Because we have determined that these requirements do not apply to Martin's project, we need not address the latter issue.

A.

Prior to 1992, the zoning ordinances permitted owners of property in an MO zoning classification to construct certain types of buildings and structures whose maximum floor area ratio ⁸ did not exceed 1.0. See Metro.Code § 17.64.020(B) (1992). Property owners desiring to construct one of these buildings were required to obtain a conditional use permit from the Board of Zoning Appeals and thus were required to satisfy the Board that the project:

A. Is so designed, located, and proposed to be operated that the public health, safety and welfare will be protected;

B. Will not adversely affect other property in the area in which it is located;

C. Is within the provision of "conditional uses" as set out in this title; and

D. Conforms to all applicable provisions of this title for the district in which it is to be located and necessary for public convenience in that location.

Metro.Code § 17.124.040 (1995). The zoning ordinances, as they read at the time, did not permit any project whose floor area ratio exceeded 1.0.

In 1992, St. Thomas Hospital requested the Metropolitan Council to permit the construction of larger buildings on smaller lots with an MO zoning classification. ⁹ With the Metropolitan Planning Commission's blessing, the Metropolitan Council amended the zoning ordinances to permit projects on property with an MO zoning classification whose maximum floor area ratio did not exceed 1.5 subject to three conditions in addition to those already contained in Metro.Code § 17.124.040. This amendment, now found in Metro.Code § 17.124.140(C) ¹⁰ states, in part, that

In the MO district the board may authorize site development plans proposing a floor area ratio of up to and including 1.5, provided that:

1. The principal access of the facility shall be to any street designated on the major street plan adopted by the metropolitan planning commission;

2. The facility shall abut or be across a public right-of-way from areas policied by the general plan for either nonresidential, mixed-use, or high-density residential uses;

3. The application, at the time of filing, shall contain a traffic impact study that has been approved by the staff of the traffic and parking...