IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 10, 2005 Session
RICHARD A. DEMONBREUN v. METROPOLITAN BOARD OF ZONING
APPEALS OF THE METROPOLITAN GOVERNMENT OF NASHVILLE
AND DAVIDSON COUNTY, TENNESSEE
Appeal from the Circuit Court for Davidson County
No. 02C-1999 Carol Soloman, Judge
No. M2004-02402-COA-R3-CV - Filed December 7, 2005
The Metropolitan Davidson County Board of Zoning Appeals (“the BZA”) granted Richard A.
Demonbreun (“the Landowner”) a special exception permit to use his residentially-zoned property
as a special event site. The Landowner filed a petition for writ of certiorari and supersedeas,
challenging the validity of several restrictions1 imposed upon the permit. The trial court held that
several of the restrictions were unsupported by material evidence, and thus, according to the trial
court, were arbitrarily imposed by the BZA. The BZA appeals the trial court’s determination with
respect to the conditions found to be arbitrary. We affirm in part and reverse in part.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part; Reversed in Part; Case Remanded
CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.
Karl F. Dean, Director of Law, J. Brooks Fox and John L. Kennedy, Metropolitan Attorneys,
Nashville, Tennessee, for the appellant, The Metropolitan Board of Zoning Appeals of The
Metropolitan Government of Nashville and Davidson County.
Robert W. Rutherford, Nashville, Tennessee, for the appellee, Richard A. Demonbreun.
OPINION
1
W e will use the terms “restriction” and “condition” interchangeably in this opinion.
I.
The Landowner owns a half-acre piece of property located at 746 Benton Avenue in southeast
Nashville. The property lies within an R6, residentially-zoned district and specifically in the
Woodland-in-Waverly residential neighborhood. Woodland-in-Waverly is a historic urban
neighborhood showcasing houses built as early as the 19th century. The Landowner’s property,
which he bought in 1995, includes a house built in 1906 and one of the few functioning original
carriage houses in Davidson County.
In 1999, the Landowner petitioned the BZA for a special exception permit to use his newly
renovated property as a “Historic Home Events” site, which permit would enable him to
accommodate weddings, parties, and other special event functions on the property. The BZA granted
the Landowner the permit but included the following conditions: (1) the permit would expire in one
year, in order to give the BZA a chance to review the permit and see how the conditions were
working; (2) the permit was for the Landowner’s use only; (3) valet parking was required if more
than 25 people attended an event; (4) large buses were not allowed on the street, but shuttle buses
were permitted; (5) the number of people attending an event was subject to a maximum of the
number of parking spaces times two with a 150-person cap; (6) a maximum of two events were
permitted each week; (7) each event had to end and cleanup had to commence by 9:00 p.m. on
weeknights and by 11:00 p.m. on Friday and Saturday nights; and (8) no tents were allowed in the
front yard. In 2000, the BZA again granted the Landowner’s permit with the same conditions;
however, in 2001, the BZA unanimously denied the Landowner’s third permit application because
of testimony from Woodland-in-Waverly residents regarding his noncompliance with certain permit
conditions. Pursuant to the rules of the BZA, the Landowner reapplied for the permit six months
after the 2001 denial. The latter application is the one presently before us.
On July 3, 2002, the BZA held a public hearing on the Landowner’s new application. The
BZA heard from numerous witnesses, both in support of and in opposition to the application. The
record before the BZA also includes numerous letters and emails, which were sent to the BZA by
supporting and opposing residents living in the Woodland-in-Waverly neighborhood. At the
conclusion of the hearing, the BZA, by a vote of four-to-one, granted the Landowner’s application,
noting that he had satisfied the necessary criteria for a special exception permit to operate “Historic
Home Events” on his property. This time the BZA imposed the following set of slightly-different
conditions on the permit: (1) the permit was issued for a period of time not to exceed one year; (2)
the permit was for the Landowner’s use only; (3) valet parking was required for all events with more
than 25 people in attendance; (4) large buses were not allowed on the street, but shuttle buses were
permitted; (5) the maximum number of people allowed at each event was not to exceed the number
of parking spaces under contract times two with a 150-person maximum; (6) a maximum of two
events were permitted each week; (7) events and event cleanup had to be completed by 9:00 p.m.
on weeknights and by 11:00 p.m. on Friday and Saturday nights; (8) no social business/activity of
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any kind could be conducted in the front yard; and (9) no other residential property could be used
in conjunction with the permit.
The Landowner subsequently filed a petition for writ of certiorari and supersedeas, asserting
that the evidence failed to justify certain aspects of conditions (1), (4), (5), (6), (7), and (8). The trial
court granted the Landowner’s petition. In its memorandum opinion filed August 31, 2004, the trial
court held that most of the conditions challenged by the Landowner “were not based on material
evidence but on opinions, beliefs and other matters not a part of the record.” Specifically, the trial
court found that the one-year time limit on the permit, the 150-person maximum per event, the limit
on two events per week, the time-of-day limitation by which completion of event cleanup was
required, and the prohibition on activities in the front yard were unsupported by material evidence.
The BZA appeals the trial court’s determination with respect to these five conditions. It claims that
there was ample material evidence to support all of the restrictions imposed by it on the Landowner’s
permit.
II.
The dispositive issue on this appeal is whether the trial court erred in finding that five of the
BZA’s conditions were unsupported by material evidence. The question of whether there is
sufficient evidence to sustain a zoning action is a question of law. MC Props., Inc. v. City of
Chattanooga, 994 S.W.2d 132, 134 (Tenn. Ct. App. 1999). Hence, appellate review is de novo with
no presumption of correctness. Id.
III.
Judicial review of an action by an administrative body is by way of the common law writ of
certiorari. See Tenn. Code Ann. § 27-8-101 (2000); see also McCallen v. City of Memphis, 786
S.W.2d 633, 639 (Tenn. 1990). In such a review, the action of the administrative body may be
reversed or modified only upon a determination that the action was: (1) in violation of constitutional
or statutory provisions; (2) in excess of statutory authority; (3) an unlawful procedure; (4) arbitrary
or caprious; or (5) unsupported by material evidence. Massey v. Shelby County Retirement Bd., 813
S.W.2d 462, 464 (Tenn. Ct. App. 1991).
Our scope of review of this matter is no broader than that of the trial court. “Whether [an]
action by [a] local governmental body is legislative or administrative in nature, the court should
refrain from substituting its judgment for the broad discretionary authority of the local governmental
body.” McCallen, 786 S.W.2d at 641-42. Courts are not permitted to reweigh the evidence or
scrutinize the intrinsic correctness of the decision. Lafferty v. City of Winchester, 46 S.W.3d 752,
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759 (Tenn. Ct. App. 2000). However, a court should invalidate a decision that is clearly illegal,
arbitrary, or capricious. McCallen, 786 S.W.2d at 642.
If there is no evidence to support an action of an administrative board, it is arbitrary. Sexton
v. Anderson County, 587 S.W.2d 663, 667 (Tenn. Ct. App. 1979). The board’s determination must
be supported by “more than a scintilla or glimmer of evidence. . . . It must be of a substantial,
material nature.” Pace v. Garbage Disposal Dist., 390 S.W.2d 461, 463 (Tenn. 1965). The
“material evidence” standard requires “such relevant evidence as a reasonable mind might accept
as adequate to support a rational conclusion and such as to furnish a reasonably sound basis for the
action under consideration.” Id. We are further mindful that “mere beliefs, opinions and fears of
neighborhood residents do not constitute material evidence.” Mullins v. City of Knoxville, 665
S.W.2d 393, 396 (Tenn. Ct. App. 1983).
IV.
Our analysis of whether the trial court erred in its findings begins with a review of the
authority under which the BZA was operating in the instant case. Local governmental entities are
specifically authorized to prescribe guidelines and standards for zoning boards to follow in issuing
special exception permits. See Tenn. Code Ann. §§ 13-7-206(a), -207(2).2 The zoning law for
Nashville and Davidson County provides the following with respect to the BZA’s issuance of such
permits:
A. Burden of Proof. A special exception permit shall not be
considered an entitlement, and shall be granted by the board of zoning
appeals only after the applicant has demonstrated to the satisfaction
of the board that all of the required standards are met.
B. Ordinance Compliance. The proposed use shall comply with all
applicable regulations, including any specific standards for the
proposed use set forth in this title, unless circumstances qualify the
special exception for a variance in accordance with Chapter 17.40,
2
Tenn. Code Ann. § 13-7-206(a)(1999) states that
[t]he zoning ordinance may provide that the board of appeals may, in appropriate
cases and subject to the principles, standards, rules, conditions and safeguards set
forth in the ordinance, make special exceptions to the terms of the zoning
regulations in harmony with their general purpose and intent. . . .
Tenn. Code Ann. § 13-7-207(2) (1999) further provides that the local zoning board of appeals has the power to “[h]ear
and decide, in accordance with the provisions of any such ordinance, requests for special exceptions. . . .
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Article VIII. Any accessory use to a special exception must receive
express authorization from the board of zoning appeals.
C. Integrity of Adjacent Areas. A special exception use permit shall
be granted provided that the board finds that the use is so designed,
located and proposed to be operated that the public health, safety and
welfare will be protected. The board shall determine from its review
that adequate public facilities are available to accommodate the
proposed use, and that approval of the permit will not adversely affect
other property in the area to the extent that it will impair the
reasonable long-term use of those properties. The board may request
a report from the metropolitan planning commission regarding long-
range plans for land use development.
D. Design and Architectural Compatibility. The operational and
physical characteristics of the special exception shall not adversely
impact abutting properties, including those located across street
frontages. Site design and architectural features which contribute to
compatibility include, but are not limited to, landscaping, drainage,
access and circulation, building style and height, bulk, scale, setbacks,
open areas, roof slopes, building orientation, overhangs, porches,
ornamental features, exterior materials and colors.
E. Natural Features. Special exception uses in residential zone
districts must comply with the nonresidential tree protection
regulations and other natural site features shall be preserved to the
greatest extent possible so as to minimize the intrusion of
nonresidential structures and parking areas.
F. Historic Preservation. Features of historical significance shall not
be adversely affected by the granting of any special exception. The
metropolitan historic zoning commission shall be consulted regarding
those features essential to preserve the historical integrity of a
building or site of historical significance.
G. Traffic Impact. The applicant shall demonstrate how the
proposed use will not adversely affect the safety and convenience of
vehicular and pedestrian circulation in the area. The board of zoning
appeals may require a traffic impact study for any special exception
land use.
* * *
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I. Hazard Protection. The proposed use shall reasonably protect
persons and property from erosion, flooding, fire, noise, glare or
similar hazards.
J. Special Conditions. Notwithstanding a finding by the board of
zoning appeals that a special exception application satisfies the
minimum development standards of this article, the board may
restrict the hours of operation, establish permit expiration dates,
require extraordinary setbacks and impose other reasonable
conditions necessary to protect the public health, safety and welfare.
Metro Code of Laws (“M.C.L.”) § 17.16.150 (emphasis added). The grant of a special exception
permit to operate “Historic Home Events” is further subject to the following set of standards and
limitations:
C. Historic Home Events.
1. Lot Size. The minimum bulk standard for the zone district shall
apply.
2. Location. The events shall be within a historically significant
structure, as determined by the historic zoning commission.
3. Parking. Where the minimum parking space standard requires
additional parking area to be constructed, such area shall comply with
the perimeter parking lot landscaping according to Chapter 17.24 of
this code. In urban settings, the board of zoning appeals may
consider on-street parking to satisfy the minimum parking standard,
provided there is a finding of sufficient available public space.
4. Signs. Signs for advertising shall not be permitted.
5. Meals. Meal service shall be restricted to patrons of the special
event only, and not to the general public.
6. Owner-Occupied. The owner of the property must reside
permanently in the historic home. Where there is more than one
owner of the home, or where an estate, corporation, limited
partnership or similar entity is the owner, a person with controlling
interest, or possessing the largest number of outstanding shares
owned by any single individual or corporation, shall reside
permanently in the historic home. If two or more persons own equal
shares that represent the largest ownership, at least one of the persons
shall reside permanently in the historic home.
7. Frequency of Events. The board of zoning appeals may limit the
number and frequency of events to minimize disturbance to
surrounding properties.
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M.C.L. § 17.16.160.C. (emphasis added). As noted earlier, the BZA found that the Landowner
satisfied the criteria for the special exception permit, but, as authorized by the above-emphasized
provisions, the BZA also chose to impose certain conditions on the permit. Our focus is, therefore,
upon whether the evidence supports the BZA’s imposition of the conditions, which were challenged
by the Landowner and found to be arbitrary by the trial court.
The first condition we address is the BZA’s limitation of the permit to “a period of time not
to exceed one year.” The Landowner agrees with the trial court’s conclusion that the record contains
no justification for this condition. He argues that this condition is in the nature of enforcement and
beyond the jurisdiction of the BZA. We agree with the BZA’s argument that there is material
evidence to support this restriction on the Landowner’s permit. The governing ordinance authorizes
the BZA to establish permit expiration dates. M.C.L. § 17.16.150.J. The BZA has an interest in
ascertaining whether a permit holder is abiding by its standards and conditions. Furthermore,
nothing in the applicable zoning law precludes the BZA’s establishment of a permit expiration date
solely for the purpose of review and enforcement purposes.
While acknowledging the BZA’s authority to impose an expiration date on the permit, the
trial court held that the record was devoid of evidence justifying the BZA’s imposition of a one-year
expiration. We do not agree. In addition to presenting evidence regarding noise, traffic, and parking
problems caused by the Landowner’s events, the opposition testified to, and presented charts, letters,
and emails reflecting, the Landowner’s previous noncompliance with permit conditions and his
continued operation after the BZA’s denial in 2001. Evidence also established that the Landowner
continued to operate after he was served with a cease-and-desist notice in April, 2002. The
Landowner admitted certain violations of the permit and also acknowledged that, for a period of
time, he had operated his facility without a permit. In light of the Landowner’s documented history
of noncompliance and the continued complaints by neighboring residents, the BZA could reasonably
conclude that a review of the permit within twelve months was necessary and appropriate. Thus, we
hold that the condition providing that the permit is “for a period of time not to exceed one year” is
supported by material evidence.
We next consider the BZA’s capping of the maximum number of guests allowed to attend
an event at 150 people. The trial court “was unable to find any evidence whatsoever upon which this
condition was based.” We disagree. The evidence before the BZA included the testimony, emails
and letters of numerous Woodland-in-Waverly residents stating their opposition to the Landowner’s
continued use of his property for “Historic Home Events” because of noise and other disturbances
caused by the events. One neighbor testified that the noise had kept his child up at night, and that
he and his two-year-old had encountered intoxicated guests while walking in the neighborhood one
day. Another neighbor emailed a complaint to the BZA noting a particular event with many cars and
people in attendance, the presence of a “VERY loud” band, and the use of a microphone in the front
yard. (Capitalization in email). Yet another neighbor testified to witnessing a line of event traffic
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make U-turn after U-turn on a narrow neighborhood street. The opposition’s complaints and
statements regarding specific disturbances and the fact that the residents of the Woodland-in-
Waverly neighborhood live in such close proximity to one another supports the BZA’s imposition
of this condition. The BZA had evidence from which it could reasonably conclude that events
tended to disturb the surrounding residents; and logic would reflect that there is a natural relationship
between the number of people at an event and the magnitude of the disturbance.
The BZA argues that there is material evidence to support the restriction limiting the
Landowner to two events per week. The rationale behind the Landowner’s challenge to this
condition was that, because the evidence suggested that smaller events (i.e., retreats and luncheons)
had no adverse impact on the neighborhood, the BZA’s failure to differentiate between small events
and large events was arbitrary. The trial court determined that the evidence did not support the
condition limiting the Landowner to two events per week, and that “the evidence would more
reasonably sustain a contrary position.” Given our limited scope of review in this case, we cannot
agree with the trial court’s determination that this condition was unsupported by material evidence.
The BZA’s condition limiting the Landowner to two events per week is not rendered arbitrary or
unsupported by material evidence simply because the record also would have supported two different
approaches, one for small events and one for large events. All that must exist for this condition to
be upheld is “such relevant evidence as a reasonable mind might accept as adequate to support” the
two events per week limitation. Pace, 390 S.W.2d at 463. The opposition’s testimony and evidence
regarding general, and specific, disturbances caused by the Landowner’s events could lead the BZA
to reasonably conclude that a limit on the number of events held each week was appropriate. See
M.C.L. § 17.16.160.C.7. (noting that the BZA can limit the number and frequency of events to
minimize disturbance to surrounding properties).
We next consider the BZA’s condition requiring the completion of events and event cleanup
by 9:00 p.m. on weeknights and 11:00 p.m. on weekends. The Landowner argues that there is no
material evidence to support this condition. The trial court found “that some evidence exists in the
record which would justify limiting the time for events, but that no evidence exists regarding the
clean up afterward.” Thus, the trial court held that “the totality of that portion of the [BZA’s permit]
regarding time limits on clean up” was unsupported by material evidence. We agree with the trial
court’s conclusion regarding this condition. Testimony and emails note instances of late night noise
caused by loud music and the like on the Landowner’s property; however, the record is devoid of
testimony or documented complaints suggesting that event cleanup activities were the cause of any
such disturbances. We hold there is material evidence to support the BZA’s time restriction on the
actual events, but not on event cleanup activities.
The final challenged condition is the BZA’s prohibition on “social business/activity of any
kind to be conducted in the front yard.” The trial court was not “persuaded that material evidence
was presented to the [BZA] which would support such a condition.” The only evidence in the record
which relates to this condition is as follows: most weddings held at the Landowner’s property occur
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in the front yard; the Landowner’s 1999 and 2000 special exception permit included a prohibition
on “tents in the front yard”; the Landowner admitted that he violated this condition on at least one
occasion; testimony and pictures establish that the Landowner placed a large white curtain around
the perimeter of the front yard for one event; and there were complaints regarding crowds, chairs,
and microphone use in the front yard. While there is evidence from which the BZA could have
reasonably concluded that activities in the front yard should be restricted,3 we find a lack of evidence
supporting a blanket prohibition of activities, regardless of type or size, on this valuable part of the
Landowner’s property. Accordingly, we affirm the trial court’s judgment with respect to this blanket
prohibition.
The BZA further argues that, because the Landowner promised, during the BZA’s hearing,
to “walk the chalk” and “comply with any conditions” imposed by the BZA, he is required to comply
with the challenged conditions. It is true that the Landowner personally pledged to abide by any
conditions if the BZA would again grant him a special exception permit; but the Landowner’s pledge
cannot be construed as carte blanche to impose any and all restrictions as may seem appropriate to
the BZA regardless of whether there is material evidence to support them. His pledge certainly
cannot be seen as an agreement to abide by arbitrarily-imposed restrictions.
V.
The BZA also raises the issue of whether the trial court erred in issuing its writ of
supersedeas at the outset of this case. The trial court’s writ ordered the BZA to desist from enforcing
the conditions challenged by the Landowner until the trial court determined the merits of the
challenged conditions. The BZA moved to dissolve the writ of supersedeas in August, 2002, and
in February, 2004, but the trial court denied both motions. The BZA argues that the trial court’s writ
exceeded the court’s authority to maintain the status quo when it gave the Landowner the right to
conduct his events without several of the conditions imposed by the BZA. See McKee v. Bd. of
Elections, 116 S.W.2d 1033, 1037 (Tenn. 1938) (stating that the writ of supersedeas does not have
authority “beyond that of a stay order, maintaining the status quo as of the time of its issuance, . . .”).
The issue of whether the writ of supersedeas was too expansive is now moot. Accordingly, we
decline to address it.
3
W e decline to state what we think those restrictions might be. It is not for us to impose new conditions not
imposed by the BZA. The only question for us is whether there is material evidence to support a given condition. We
do not find material evidence to support a condition absolutely forbidding the Landowner to use his front yard in
connection with all events, regardless of type or size.
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VI.
The judgment of the trial court finding no material evidence to support the requirement of
the completion of event cleanup activities by a certain time and the prohibition on the Landowner’s
“social business/activity” use of his front yard is affirmed. The judgment of the trial court finding
no material evidence to support the one-year limitation on the Landowner’s special exception permit,
the 150-person limitation on the number of guests allowed to attend an event at the Landowner’s
property, and the two-event limitation per week is reversed. This case is remanded to the trial court
for such further proceedings, if any, as may be required, consistent with this opinion. Exercising our
discretion, we tax the costs on appeal one-half to the appellant, the BZA, and one-half to the
appellee, Richard A. Demonbreun.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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