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Metropolitan Government of Nashville v. Board of zoning appeals of Nashville

Court of Appeals of Tennessee, Nashville

May 2, 2017

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

          Session Date April 11, 2017

         Appeal from the Chancery Court for Davidson County No. 12-910-II Carol L. McCoy, Chancellor

         A billboard company and the owners of the property upon which two billboards sit ("the defendants") appeal the decision of the trial court holding that the board of zoning appeals erred in issuing building permits to the defendants to allow them to replace static display billboards with digital display billboards. Because we agree with the trial court's conclusion that the ordinance at issue is a lighting regulation, not a zoning regulation, and that Tenn. Code Ann. § 13-7-208 therefore does not apply, we affirm the trial court's decision.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Garrett E. Asher, Nashville, Tennessee, for the appellants, CBS Outdoor, Inc., Felix Z. Wilson II Revocable Living Trust, and Equitable Trust Company.

          Lora Barkenbus Fox and Catherine J. Pham, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County, Tennessee.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and John W. McClarty, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         In March 2012, CBS Outdoor, Inc. ("CBS") applied to the Department of Codes and Building Safety ("the Department") of the Metropolitan Government of Nashville and Davidson County ("Metro") for two building permits to replace existing static display billboards with digital display billboards. The two billboards are located on properties owned by the Felix Z. Wilson II Revocable Trust and the Equitable Trust Company ("the Property Owners"). One of the properties is located at 2730 Locust Street and is zoned IWD (Industrial, Warehousing/Distribution). The other property is at 700 Clinton Street and is zoned CF/UZO (Commercial, Core Frame/Urban Zoning Overlay).

         The Department denied the permits, and CBS appealed to the Board of Zoning Appeals ("BZA"), which voted to issue both permits. Metro filed a petition for writ of certiorari in chancery court seeking a review of the BZA orders, and the chancery court dismissed the petition for lack of standing. This Court reversed the chancery court's decision on standing, and the Supreme Court affirmed. See Metro. Gov't of Nashville & Davidson Cnty. v. Bd. of Zoning Appeals of Nashville & Davidson Cnty., 477 S.W.3d 750, 753 (Tenn. 2015). The matter was then remanded to the chancery court for a ruling.

         On remand, Metro argued that the BZA permits violated a Metro ordinance requiring 2, 000 feet between digital billboards and a set distance between digital billboards and residential property. CBS did not dispute that the proposed digital billboards failed to comply with the Metro ordinance, but asserted that the proposed billboards qualified as a nonconforming use protected by the grandfather clause in Tenn. Code Ann. § 13-7-208. The trial court determined that the BZA "erred in issuing permits to CBS to allow conversion of its static billboards in violation of the distance requirements in the Metro Code." CBS and the Property Owners appealed.

         Standard of Review

         Review of a decision of a local board of zoning appeals is by common law writ of certiorari. Hoover, Inc. v. Metro. Bd. of Zoning Appeals for Davidson Cnty., 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997). A reviewing court may grant relief only when the board, exercising judicial functions, has exceeded its jurisdiction or acted illegally, arbitrarily, or fraudulently. Tenn. Code Ann. § 27-8-101; McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990). The scope of review by the appellate courts is no broader than that of the chancery court in these cases with respect to evidence presented before the board. Watts v. Civil Serv. Bd., 606 S.W.2d 274, 277 (Tenn. 1980).

         In this case, the facts are not in dispute. The trial court (like the BZA) applied the Metro ordinance and pertinent statute, Tenn. Code Ann. § 13-7-208, to the facts before it. Application of a statute or ordinance to the facts presents a question of law. 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).

         Analysis

         The dispositive issue here is whether the grandfather clause in Tenn. Code Ann. § 13-7-208 applies. To answer this question, we must determine whether the ordinance at issue qualifies as a zoning provision or a safety provision.[1] If the ordinance is a zoning ordinance, the grandfather clause may apply; if it is a safety ordinance, the grandfather clause will not come into play. Metro argues that the ordinance contains lighting restrictions, not zoning changes.

         The ordinance at issue here provided, in pertinent part, as follows:

         Prohibited signs.

It is unlawful to erect, cause to be erected, maintain or cause to be maintained, any sign not expressly authorized by, or exempted from, this title. Any prohibited sign(s) may be removed by the zoning administrator or his designee after notice to the property owner or occupant to remove such sign(s) within three days. The following signs are expressly prohibited:
. . . .
G
. . . . .
2. Signs with any copy, graphics, or digital displays that change messages by electronic or mechanical means, other than tri-face billboards, shall not be permitted in the CA, CS, CF, CC, SCR, IWD, IR and IG districts unless the following distance requirements are satisfied, based upon the overall height of the sign:
a. Signs four feet or less in height shall not be less than one hundred feet from any agriculturally or ...

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