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Green Hills Neighborhood Association v. Metropolitan Government of Nashville and Davidson County Tennessee

Court of Appeals of Tennessee, Nashville

May 18, 2015

GREEN HILLS NEIGHBORHOOD ASSOCIATION, ET AL.
v.
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY TENNESSEE, ET AL.

Session Date January 22, 2015

Appeal from the Chancery Court for Davidson County No. 14577IV Russell T. Perkins, Chancellor

Peter H. Curry, Nashville, Tennessee, for the appellant, Green Hills Neighborhood Association and Cecelia Smith.

John L. Farringer, IV, Nashville, Tennessee, for the appellee, Green Hills Mixed Use, LLC.

Saul Solomon, Director of Law; J. Brooks Fox, Lora Barkenbus Fox, Catherine J. Dundon, Nashville, Tennessee, for the appellee, The Metropolitan Government of Nashville and Davidson County, et al.

Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

OPINION

RICHARD H. DINKINS, JUDGE

I. Factual Background

On February 13, 2014, Green Hills Mixed Use, LLC ("Green Hills") submitted an application to the Metropolitan Nashville Planning Department ("the Department") for approval of a proposed 2.67 acre mixed-use development at the corner of Hillsboro Pike and Richard Jones Road in Nashville. The property on which the development is to be built is located in a Shopping Center Regional ("SCR") base zone and includes an urban design overlay designated as the Green Hills Urban Design Overlay ("Green Hills UDO").[1] The development includes two four-story commercial buildings, one of which fronts on Hillsboro Pike and the other which fronts on Richard Jones Road, an 11-story residential building, and a 17-story residential tower; both residential buildings are located at the rear of the tract.

After submitting the application, Green Hills received comments from Department staff members and various other Metropolitan Government ("Metro") agencies requesting revisions to portions of the plan; Green Hills submitted an amended plan on March 17. On March 20, Richard Bernhardt, Executive Director of the Department, sent a letter to Southern Land Company stating, "On behalf of the Metropolitan Planning Commission and pursuant to Rule VIII E, the final site plan dated March 17, 2014 . . . has been approved with [certain] conditions."[2]

On March 27, 2014, the Metropolitan Planning Commission ("the Commission") met; a portion of the agenda was set aside for "OTHER BUSINESS: ITEM 14-Presentation of 4000 Hillsboro Pike in the Green Hills UDO." Another section of the agenda, also titled "Other Business, " included the item "Accept the Director's Report and Approve Administrative Items." Prior to the presentation of the Green Hills UDO, Doug Sloan, Deputy Director of the Department, advised the Commission that the project had already been "administratively approved, " that it was an item for approval by the Commission, and that, because the project was not a rezoning or a policy change, a public hearing was not required. Thereafter, Andrew Collins, a Planner II for the Department, presented the request for approval, stating that the project met "all of the standards of the UDO and base zoning" and that it was developed under the property's existing entitlements; the Commission voted unanimously to approve the request.

On April 21, 2014, the Green Hills Neighborhood Association and Cecelia Smith ("Petitioners") filed a petition for a writ of certiorari in Davidson County Chancery Court pursuant to Tenn. Code Ann. § 27-8-101 and § 27-9-101, seeking review the Commission's approval of the plan; the petition named Metro, the Commission, and SLC Philadelphia, LLC as respondents.[3] Petitioners alleged that the Commission violated the procedures required to approve the plan; that the plan lacked the details required for approval; that the 17-story tower violated various height restrictions in the Metro zoning code and the Green Hills UDO; and that Green Hills was not entitled to certain development incentives contained in the UDO.[4] The writ issued and the record of the Commission was duly certified and filed with the court.

On July 16, 2014, the court held a hearing and, on July 18, entered an order affirming the Commission's action and dismissing the writ with prejudice. Petitioners appeal, contending that the Commission illegally delegated its authority to approve the final site plans to the Executive Director, that the staff misinterpreted and misapplied the UDO standards when ...


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