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Hirt v. Metropolitan Board of Zoning Appeals of Metropolitan Government of Nashville and Davidson County Tennessee

Court of Appeals of Tennessee, Nashville

December 15, 2016

ANDREW HIRT, ET AL.
v.
METROPOLITAN BOARD OF ZONING APPEALS OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY TENNESSEE

          Session September 21, 2016

         Appeal from the Chancery Court for Davidson County No. 13-1330-III Ellen H. Lyle, Chancellor

         This appeal concerns a local zoning board's denial of a permit to replace an old billboard with a new digital billboard. After the zoning board denied the permit for the new billboard, the applicants who had requested the permit filed a petition for a writ of certiorari in chancery court. The chancery court found no basis to disturb the zoning board's denial of a permit based upon its review of the administrative record. Although the applicants have appealed from the chancery court's decision, we conclude that we cannot reach the merits of their appeal. Because the applicants did not file a petition for a writ of certiorari that complied with Tennessee Code Annotated section 27-8-106 within sixty days of the zoning board's order, we conclude that the chancery court was without subject matter jurisdiction to review the zoning board's actions. We accordingly vacate the chancery court's order and dismiss this case.

         Tenn. R. App. P. 3 Appeal as of Right: Judgment of the Chancery Court Vacated and Dismissed

          G. Kline Preston, IV, Nashville, Tennessee, for the appellants, Andrew Hirt and BMP Partnership II.

          J. Brooks Fox and Catherine J. Pham, Nashville, Tennessee, for the appellees, Metropolitan Board of Zoning Appeals of the Metropolitan Government of Nashville and Davidson County Tennessee.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE.

         Background and Procedural History

         The Appellants are the owners of a parcel of land located municipally at 4500 Harding Pike, Nashville, Tennessee 37205. This land is located adjacent to the intersection of White Bridge Pike and Harding Pike and is the former site of a billboard. In recent years, the billboard at the site had been used to advertise a hospital's emergency room wait time.

         In June 2013, the Appellants applied to the Metropolitan Government Department of Codes and Building Safety for a permit to replace the old billboard that had existed on the site with a new LED digital billboard that was proposed to be located closer to the street. After the Zoning Administrator denied the Appellants' request for a permit, the Appellants appealed to the Metropolitan Board of Zoning Appeals ("BZA"). On July 22, 2013, the BZA entered an order upholding the Zoning Administrator's decision to deny a permit.

         On September 20, 2013, the Appellants filed a petition for a writ of certiorari in the Davidson County Chancery Court. Within their petition, the Appellants contended that the BZA had acted capriciously, illegally, and arbitrarily in denying their application for a permit and contended that its decision was not supported by the evidence. The Appellants also generally contended that the BZA had violated their equal protection rights and asserted that other permit applicants had been granted permits in identical factual circumstances. After the Appellants filed an amended petition for a writ of certiorari on November 12, 2013, the trial court issued a writ of certiorari directing the BZA to make a complete record of its proceedings regarding the subject property available for review.

         Following the filing of the administrative record from the BZA in the trial court, the Appellants filed a motion to supplement the record to include applications for zoning permits the BZA had previously approved that were allegedly identical and/or similar to the Appellants' application. The Appellants asserted that such proof would be relevant to show that the BZA had acted capriciously and arbitrarily in denying their application for a permit. The trial court eventually denied the motion to supplement the record by finding that there were no "common circumstances between the [proposed evidence] and the [Appellants'] Petition."

         On July 29, 2015, the trial court entered an order upholding the BZA's decision to deny the requested permit. Although the Appellants subsequently filed a motion to alter or amend the trial court's ruling pursuant to Rule 59 of the Tennessee Rules of Civil Procedure, the trial court denied ...


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