METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE
BOARD OF ZONING APPEALS OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.
Session Date April 11, 2017
from the Chancery Court for Davidson County No. 12-910-II
Carol L. McCoy, Chancellor
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Garrett E. Asher, Nashville, Tennessee, for the appellants,
CBS Outdoor, Inc., Felix Z. Wilson II Revocable Living Trust,
and Equitable Trust Company.
Barkenbus Fox and Catherine J. Pham, Nashville, Tennessee,
for the appellee, Metropolitan Government of Nashville and
Davidson County, Tennessee.
D. Bennett, J., delivered the opinion of the Court, in which
Richard H. Dinkins and John W. McClarty, JJ., joined.
D. BENNETT, JUDGE
and Procedural Background
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).
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.
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.
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).
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).
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. 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.
ordinance at issue here provided, in pertinent part, as
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
. . . .
. . . . .
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