CONOLY BROWN, ET AL.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL.
Session September 5, 2017
from the Chancery Court for Davidson County No. 16-0180-I
Claudia Bonnyman, Chancellor
individuals purchased commercial property for the purpose of
housing a business offering "flex loans" to
consumers; the property owners were denied a building permit
because the Zoning Administrator concluded that "flex
loans" constituted cash advances, and consequently, the
property owners' intended use violated the requirement in
the Metropolitan Nashville and Davidson County Code of
Ordinances that cash advance, check cashing, or title loan
businesses be at least 1, 320 feet apart. The property owners
appealed to the Board of Zoning Appeals, which affirmed the
decision of the administrator. The property owners then
petitioned for certiorari review in Davidson County Chancery
Court; the court granted the writ and, after a hearing,
affirmed the Board's decision. Finding that the decision
of the Board is supported by substantial and material
evidence and is not arbitrary or capricious, we concur with
the decision of the trial court and affirm the Board's
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
H. Curry, Nashville, Tennessee, for the appellants, Conoly
Brown and David Anthony Hood.
Cooper, Director of Law; Lora Barkenbus Fox and Catherine J.
Pham, Metropolitan Attorneys, Nashville, Tennessee, for the
appellees, Metropolitan Government of Nashville &
Davidson Co. and Board of Zoning Appeals of Nashville &
Richard H. Dinkins, J., delivered the opinion of the court,
in which D. Michael Swiney, C.J., and Frank G. Clement, Jr.,
P.J., M.S., joined.
RICHARD H. DINKINS, JUDGE
Factual and Procedural Background
Brown and David Hood ("Petitioners") own Tennessee
Quick Cash, Inc., which operates retail consumer lending
stores. In September 2015, Petitioners purchased commercial
property at 2535 Lebanon Pike in Nashville, where they
intended to open a business offering "flex loans"
to the public; they applied for a building permit for
the Property. Section 17.16.050 (D) (1) of the Metropolitan
Nashville and Davidson County Code of Ordinances ("the
Code"), provides that no "cash advance, "
"check cashing, " and "title loan"
businesses may be located within 1, 320 feet of each other.
At the time of Petitioners' application, Title 17 of the
Code, which governs zoning, did not define "flex
loan"; as a consequence, the Zoning Administrator had to
determine which of the existing land use classifications
"flex loans" was most similar. During the
review, the Zoning Administrator concluded that a "flex
loan" is most closely akin to a "cash
advance" and classified it as such; because their
property was located less than 1, 320 feet from one of these
businesses, Petitioners' application for a building
permit was denied. Petitioners appealed the Zoning
Administrator's decision to the Board of Zoning Appeals
("the Board"); in due course, the Board met, heard
Petitioners' appeal, and upheld the decision of the
filed a Petition for Writ of Certiorari ("the
Petition") in Davidson County Chancery Court, asserting
two grounds on which it should be granted:
A. The artificial distinction between the exact same uses
based on state licensing requirements is unconstitutional,
being both a violation of the Equal Protection and Due
Process provisions of the State and Federal
B. The finding that a flex loan business use should be
classified as a cash advance use rather than as a financial
institution use is erroneous as a matter of law; violates the
Metro Zoning Code; and is illegal, arbitrary and capricious.
court issued the writ and held a hearing, at the conclusion
of which it announced its ruling from the bench. A final
order, incorporating the oral ruling was duly entered, with
the court concluding that the "Board's decision was
based on sufficient evidence and was a reasonable exercise of