THE METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY, TN, ET AL.
THE BOARD OF ZONING APPEALS OF NASHVILLE & DAVIDSON COUNTY, TN, ET AL.
Session Date April 22, 2014
Appeal from the Chancery Court for Davidson County No. 120103I Claudia Bonnyman, Chancellor
Nancy King Crawford and George A. Dean, Nashville, Tennessee, for the appellant, Lamar Tennessee, LLC d/b/a Lamar Advertising.
Saul Solomon, Lora Barkenbus Fox, and Emily Herring Lamb, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County, Tennessee.
James R. Tomkins, Nashville, Tennessee; and Roger A. Horner, Brentwood, Tennessee, for the appellee, City of Brentwood, Tennessee.
Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P. J., M. S., and Laurence M. McMillan, Jr., Sp. J., joined.
RICHARD H. DINKINS, JUDGE
In 2000 Lamar Tennessee, LLC ("Lamar"), a company which advertises products through the use of billboards, built a standard billboard on property located in a "CS"– Commercial Service– district in Metropolitan Nashville ("Metro"). In 2006 the zoning was changed from "CS" to "MUL"–Mixed Use Limited, a district in which billboards are not permitted; in accordance with Tenn. Code Ann. § 13-7-208, Lamar continued to use the billboard. In 2008 the Metropolitan Code was amended to add lighting restrictions, one of which prohibited LED message boards and digital display signs on property in MUL districts.
On May 6, 2011, Lamar applied to Metro's Department of Codes and Building Safety for a permit to replace its existing billboard with a digital one. The application was denied by the zoning administrator on the ground that the change from standard to digital was a "change from one non-conforming use to another"; Lamar appealed the decision to the Metro Board of Zoning Appeals ("BZA"). The hearing took place on August 18; in the course of the meeting the BZA was advised that the case "has been withdrawn by staff, that billboard is legally nonconforming and is permitted, as a matter of right, to change their billboard from static to digital." An order memorializing the action was entered on August 19.
On August 23 Lamar was advised by letter from Joel Hargis, the Zoning Examination Chief of the Department, that the permit had been revoked because "it was issued in violation of § 17.32.050 H(2) of the Metro Zoning Ordinance." Lamar appealed the revocation to the BZA; following a hearing on October 20, the BZA entered an order on November 23, 2011 holding that the permit had been revoked in error.
On January 23, 2012, Metro filed a petition for writ of certiorari in Chancery Court, alleging that the BZA's decision was contrary to law and would violate the Metro zoning code; the City of Brentwood was permitted to intervene as a petitioner and filed a petition seeking to invalidate the BZA's action. Following a hearing, the court held that Lamar could continue to use the billboard as it had prior to the 2006 zoning change from CS to MUL but that it could not light the billboard digitally; accordingly, the court reversed the BZA's action. Lamar filed a motion to alter or amend the judgment, which was denied by order entered March 19, 2013. Lamar filed a timely notice of appeal.
II. STANDARD OF REVIEW
The vehicle for seeking review of local boards of zoning appeals decisions is by common law writ of certiorari. Hoover, Inc. v. Metro. Bd. of Zoning Appeals of Davidson Cnty., 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997). Under this standard of review, the trial court reviews the lower tribunal's decision only to determine whether that decision maker exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support its decision. Id; Hoover v. Metro Bd. of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn. Ct. App. 1996); Hemontolor v. Wilson County Bd. of Zoning Appeals, 833 S.W.2d 613, 616 (Tenn. Ct. App. 1994). Our review on appeal can be no broader or more comprehensive than the trial court's review. Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980); Jacks v. City of Millington Bd. of Zoning Appeals, 298 S.W.3d 163, 167 (Tenn. Ct. App. 2009).
Application of a statute or ordinance to the facts is a question of law that is properly addressed to the courts. Sanifill of Tenn., Inc. v. Tenn. Solid Waste Disposal Control Bd., 907 S.W.2d 807, 810 (Tenn. 1995). As to issues of law, our review is de novo, with no presumption of correctness. Tenn. R. App. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Lamar argues that Metro lacks standing to bring this certiorari proceeding because the BZA is an arm of Metro with no independent legal existence and, therefore, ...