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Brown v. Metropolitan Government of Nashville and Davidson County

Court of Appeals of Tennessee, Nashville

January 23, 2018

CONOLY BROWN, ET AL.
v.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL.

          Session September 5, 2017

         Appeal from the Chancery Court for Davidson County No. 16-0180-I Claudia Bonnyman, Chancellor

         Two 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 decision.

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

          Peter H. Curry, Nashville, Tennessee, for the appellants, Conoly Brown and David Anthony Hood.

          John 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 & Davidson Co.

          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.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural Background

         Conoly 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[1]; 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.[2] During the review, the Zoning Administrator concluded that a "flex loan" is most closely akin to a "cash advance"[3] and classified it as such; because their property was located less than 1, 320 feet[4] 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 Zoning Administrator.

         Petitioners 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 Constitutions.[5]
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.

         The 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 judgment"; ...


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