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The Metropolitan Government of Nashville And Davidson County v. RSF Investors, LLC

Court of Appeals of Tennessee, Nashville

July 14, 2017

THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
v.
RSF INVESTORS, LLC

          May 24, 2017 Session

         Appeal from the Circuit Court for Davidson County No. 13C-2264 Kelvin D. Jones, Judge

         This appeal arises from an enforcement action by the Metropolitan Government of Nashville and Davidson County ("Metro") against the owner of a restaurant located within the Broadway Historic Preservation District in Nashville, Tennessee. Metro commenced the action to require the owner to comply with Metropolitan Code of Laws (M.C.L) § 17.40.410 and the preservation permit the Metropolitan Historic Zoning Commission ("the Commission") issued upon the application of the owner. Following discovery, the parties filed cross motions for summary judgment. The trial court granted Metro's motion and denied the owner's motion. The order required the owner to remove the portion of the installation that did not comply with the permit. This appeal followed. The owner raises three principal issues. It contends: (1) the glass panels it was ordered to remove do not fall within the purview of the Commission; (2) Metro cannot enforce a permit that has expired; and (3) summary judgment is inappropriate because material facts are in dispute. Metro contends we lack jurisdiction to hear this appeal because the appeal is untimely. We have determined the appeal is timely, and the issues raised by the owner are unavailing. Therefore, we affirm.

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

          Steven J. Meisner, Nashville, Tennessee, for the appellant, RSF Investors, LLC.

          Lora Barkenbus Fox and Patrick J. Bradley, Nashville, Tennessee, for the appellee, The Metropolitan Government of Nashville and Davidson County.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         The defendant, RSF Investors, LLC ("RSF"), owns real property located at the corner of Fifth Avenue South and Broadway in downtown Nashville, Tennessee, where it operates a restaurant and bar, Rippy's Smokin' Bar and Grill ("Rippy's"). The building is located within the Broadway Historic Preservation District where the Metropolitan Historic Zoning Commission ("the Commission") has jurisdiction "to insure the ongoing preservation of structures of historic value." M.C.L. § 17.36.100. Prior to 2010, the building was one story. In 2010, RSF commenced construction of a rooftop addition without applying for a preservation permit from the Commission. On March 5, 2010, the Historic Zoning Administrator sent a letter to RSF requesting the removal of the addition or that RSF immediately apply for a preservation permit so the Commission could determine if the addition complied with the Broadway Historic Zoning Overlay. In May 2010, RSF applied for a preservation permit; however, it did not halt construction.

         When RSF's application for a permit came on for hearing before the Commission in July 2010, members of the Commission expressed concern with the appearance of the canopy that RSF had constructed. Specifically, they stated that it did not comport with the architectural character of the neighborhood, and they wanted a design that would blend in with the first floor of the building. Having anticipated this concern, RSF presented an architectural design for the second floor canopy that divided the second story into bays that matched the first-floor bays and concealed the canopy with a wooden fascia. The architectural design as reflected on the plans was well received by the Commission members; however, RSF also requested permission to install clear, drop-down plastic panels inside the canopy frame for use during inclement weather. As the representative for RSF explained:

We feel that now that the canopy is hidden from view that there's no harm to the district in being able to drop down see-through plastic on the side panels during inclement weather only…. And the drop-down plastic … would be inside the canopy frame and then rolled down and snapped to the floor. It sits two feet … inside from the Broadway façade and about a foot and a half from the 5th Avenue façade. So it's certainly more inward from the façade than anything else, any other feature.

         Following a discussion, the Commission agreed to issue a permit approving the architectural design as reflected on the plans but the Commission denied the request to install see-through plastic panels. As the Commission members explained, they wanted specifics about the design and the materials that RSF would use to enclose the canopy before considering such a request.

         At the conclusion of the hearing, the Commission issued a permit approving the architectural design as reflected on the plans; however, the permit specifically precluded the following: "The canopy and/or the openings shall not be enclosed without review and permit from the [Commission]." RSF did not appeal the Commission's decision and, as permitted, RSF completed the improvements to the second story canopy by dividing it into bays that matched the first-floor bays and by concealing the canopy with a wooden fascia. However, RSF also hung clear plastic panels inside the canopy frame in direct contravention of the permit.

         Upon learning of the installation of the plastic panels, the Commission sent a letter notifying RSF that the unauthorized plastic panels must be removed. RSF responded by removing the plastic panels. Thereafter, the Commission inspected the building and found it in compliance with the permit.

         Several months later, and more than a year after the Commission issued the permit, RSF re-installed the plastic drop-down panels. Upon learning that the plastic panels had been re-installed, the Metropolitan Government of Nashville and Davidson County ("Metro') commenced this action by filing a civil warrant in General Sessions Court seeking an injunction requiring the removal of the plastic panels. The General Sessions Court found in Metro's favor and permanently enjoined RSF from "using plastic, vinyl, or any other tarp or covering at the subject property in violation of Metro Code." RSF appealed that ruling to the Circuit Court of Davidson County.

         In the interim, RSF replaced the plastic panels with clear glass panels that it attached to a track installed a few inches inside the canopy frame. Metro then filed an amended complaint alleging the glass installation violated the preservation permit. RSF filed an answer asserting, inter alia, that the Commission lacked jurisdiction to regulate the installation of the interior glass panels.[1]

         Following discovery, Metro filed a motion for summary judgment contending that RSF violated the permit by enclosing the canopy with the glass panels. In support of its motion, Metro relied on several exhibits including, inter alia, a copy of the preservation permit issued to RSF, a transcript from the July Commission meeting, and a copy of the Broadway Historic Preservation District Design Guidelines ("the Historic Preservation Guidelines"). Metro relied on the transcript from the July hearing to show that RSF acknowledged the Commission's authority to regulate the interior panels when it requested permission from the Commission to install them. As for the jurisdictional issue, the Commission noted that when it rejected the request, as clearly stated in the preservation permit, RSF had the right to appeal that decision but did not; therefore, the issue was res judicata.

         RSF responded by filing a cross motion for summary judgment in which it asserted three grounds for dismissal of the complaint. RSF argued that the Commission did not have the authority to regulate the interior of RSF's building, and the glass panels were within the interior of the building. RSF contended that its installation of the glass panels did not violate the permit because the permit, which was for one year, had expired prior to the installation. RSF also argued that the panels did not form an enclosure as defined by the construction trade or the Metropolitan Code of Laws; thus RSF did not violate the permit.

         In support of the last argument, RSF submitted an affidavit from Steve DiLeo, the project manager responsible for the glass installation, and the deposition of Byron Hall, the Chief Inspector for Metro Codes. Mr. DiLeo testified that the glass panels were installed on the interior of the structure and did not "enclose" the second floor as that term is generally used in the commercial construction trade in Tennessee. Mr. Hall, likewise, testified that the installation was not affixed to the exterior of the structure and did not "enclose" the second story according to the definition followed by Metro Codes. However, Mr. Hall also testified that Metro Codes did not conduct inspections for the Commission: "We don't do Historic inspections, no. Our inspections come along with our permits, which are mainly structure and … we're … looking at structure, period." Similarly, Robin Zeigler, the Metro Historic Zoning Administrator, testified in a deposition submitted by RSF that the Commission used its own design guidelines and did not use the definitions provided by Metro Codes, despite the fact that the Commission's guidelines did not define "enclosed."

         As for RSF's argument that the Commission lacked the authority to regulate the interior of the RSF structure, the Commission noted that RSF submitted to its jurisdiction by applying for the permit in 2010. Moreover, if RSF was aggrieved by the Commission's order and the restrictions in the permit, RSF was required to appeal the Commission's decision within sixty days of the entry of the order, and it did not. Because the Commission's decision became final, that decision could not be collaterally attacked.

         In an order entered on May 26, 2016, the trial court granted Metro's motion for summary judgment, finding the Commission's decision to be final and thus immune from RSF's claim that the Commission "did not have the authority to regulate the enclosures of the second story openings and/or canopy." The trial court also determined that it was "self-evident that the current installation of glass, as well as the previous installation of plastic, encloses the openings and/or canopy on the second story, " in violation of the permit. The trial court required RSF to remove the glass panels, and it permanently enjoined RSF from re-installing the panels unless and until it obtained the appropriate permit from the Commission.

         RSF timely filed a motion to alter or amend the May order, arguing that the trial court should remove the permanent injunction language from its order since Metro had not mentioned a remedy in its summary judgment motion nor was it discussed at the motion hearing. RSF also argued that the order should be amended because the trial court erred: (1) by enforcing the permit despite the fact that it had expired before RSF installed the plastic panels; and (2) by summarily dismissing the case since it was disputed whether the installation constituted an enclosure in violation of the permit.

         On July 22, 2016, the trial court entered a second order that also granted summary judgment in favor of Metro but the relief granted to Metro was different from that stated in the May order.[2] Later that day, Metro filed a Motion and Memorandum of Law for Mandatory and Permanent Injunction.

         In a third order entered on August 4, 2016, the court ruled on RSF's first motion to alter or amend by decreeing that "the Order entered by the Court on May 26, 2016 is set aside and the Order [prepared by RSF and entered on July 22, 2016] will be entered by the Court."[3] Furthermore, and significantly, the August order expressly stated that "[a]ll other issues raised in [RSF's] Motion are reserved."

         On August 19, 2016, RSF filed a motion to alter or amend the July order, arguing, again, that the trial court erred by enforcing the expired permit and by finding that the panels enclosed the canopy. Metro filed a response in opposition to the motion along with a notice that it was striking its motion for a permanent injunction. Following a hearing, the trial court denied RSF's motion to alter or amend.

         On September 29, 2016, the trial court entered its fourth and final order granting summary judgment to Metro. The court ruled that RSF could not challenge the Commission's authority to regulate the installation because it failed to timely petition for a writ of certiorari within sixty days of the permit's issuance. The September order also stated that it constituted the trial court's final judgment. RSF filed its notice of appeal within thirty days of the entry of that order.

         Analysis

         RSF presents three ...


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