IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 7, 1998 Session
ROBERT LAFFERTY, ET AL. v. CITY OF WINCHESTER, ET AL.
Appeal from the Circuit Court for Franklin County
No. 10,025-CV J. Curtis Smith, Judge
No. M1997-00224-COA-R3-CV - Filed December 7, 2000
This appeal involves a dispute between the owners of a bed and breakfast and the City of Winchester
regarding a proposed expansion of the business’s bar and banquet facilities. When the city’s Board
of Zoning Appeals declined to approve the expansion, the owners of the bed and breakfast filed a
petition for a common-law writ of certiorari in the Circuit Court for Franklin County challenging the
Board’s decision. After reviewing the record of the proceedings before the Board, the trial court
determined that the Board acted within its discretion when it declined to approve the proposed
expansion of the bed and breakfast. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
WILLIAM C. KOCH , Jr., J., delivered the opinion of the court, in which HENRY F. TODD , P.J., M.S.,
and BEN H. CANTRELL , J., joined.
Robert S. Peters, Winchester, Tennessee, for the appellants, Robert Lafferty and Phyllis Lafferty.
Thomas C. Faris, Winchester, Tennessee, for the appellee, City of Winchester.
OPINION
Wade and Stephanie Anderton owned an architecturally significant house located on State
Highway 50 in Franklin County. The house was built before the Civil War and was situated on a one
and one-half acre tract. In early 1994, the Andertons decided to convert the house into a bed and
breakfast and obtained a business license for their new endeavor. In March 1994, the City of
Winchester annexed the Andertons’ property. Although the city eventually zoned the property as
“municipal R-1, Low Density Residential,” it “grandfathered” in the Andertons’ incipient bed and
breakfast as a nonconforming commercial use.1
1
A person’s lawful use of property existing before the enactment of a zoning ordinance is commonly referred
to as a “nonconforming use.” 1 Kenneth H . Young, Anderson’s American Law of Zoning § 6.01 (4th ed. 1995)
(“American Law of Zoning”). A nonconforming use is conside red “grand fathered” w hen the use is sp ecifically exempted
from the ordinance’s application on grounds that the prope rty was being use d that way whe n the ordina nce took e ffect.
Town of Oron o v. LaP ointe, 698 A.2d 1059, 106 2 (Me. 1997) and B ryan A. Garner, A Dictionary of Modern Legal
Usage 390 (2nd ed. 1995).
Later in 1994, Robert and Phyllis Lafferty purchased the property and entered into an
informal partnership with the Andertons to develop the bed and breakfast, which had been named
the Antebellum Inn. The Laffertys and the Andertons presented plans to the city planning
commission showing that the inn would have three rented bedrooms and a dining facility large
enough to accommodate as many as one hundred and twenty-five persons. They told the commission
that the inn would be a lodging and dining establishment that could accommodate social events such
as wedding receptions and private parties. They also stated that the inn could be used as a meeting
place for other organizations such as charities and civic clubs. In August 1994, the commission
approved the proposed site plan for the Antebellum Inn. Even though the commission considered
zoning the property as commercial,2 it elected to leave the inn as a grandfathered, nonconforming
commercial use in a residential zone.
The Antebellum Inn could not serve alcoholic beverages when it first opened. However, after
it opened, the residents of Winchester approved the sale of liquor-by-the-drink, and the city began
to license establishments to sell alcoholic beverages for on-premise consumption. The Laffertys,
who by this time were the sole operators of the Antebellum Inn, sensed that serving alcoholic
beverages would increase their business. Accordingly, they applied for a liquor license and also
sought the city’s permission to construct a 20’ × 20’ one-story addition to provide space for an ice
machine, coolers, and storage space for the beverages. The city approved the site plan for the 20’
× 20’ addition. However, without the city’s knowledge, the Laffertys, going way beyond the plan
they had submitted to the city, constructed a two-story, 20’ × 38’ addition to the inn. Once the
addition was completed, the Laffertys turned it into a bar called the Green Door Pub. The pub had
an outside entrance which enabled its patrons to enter and leave the pub without entering the inn.
The Laffertys, by their own admission, were having a difficult time operating the Antebellum
Inn solely as a bed and breakfast with occasional social functions. They saw the Green Door Pub
as the key to profitability. In time, the Laffertys began to play up the bar side of their business. Like
many bars, they sometimes featured live music on the weekends, so that, as Ms. Lafferty put it,
people “[could] dance if they want[ed] to.” They also constructed a gazebo with a concrete floor for
outdoor events. These events sometimes featured live music and attracted patrons who would pay
a cover charge to attend.
The outdoor events at the Laffertys’ bar occasionally became loud enough to provoke
complaints from the neighbors. Eventually, the Laffertys decided to deal with these complaints by
building a 38’ × 40’ banquet room “with maximum allowance sound absorption” and to move their
outdoor activities inside. The Laffertys began constructing the foundation for the new addition
before they obtained a building permit. When the building inspector discovered that they had already
started construction, he directed the Laffertys to stop work until they obtained the city’s approval to
expand their business. The Laffertys did not completely abide by the stop-work order after it was
issued.
2
The commission would have been required to engage in sp ot zoning ha d it decided to zone the in n prope rty
residential. Spot zon ing refers to the practice of singling out a piece of property for a use classification totally different
from that of the surrounding area. 1 American Law of Zoning § 5.12.
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Stymied by the stop-work order, the Laffertys eventually submitted plans for the proposed
addition to the Board of Zoning Appeals. The plans called for a large, basically unpartitioned,
rectangular room interrupted only by a set of bathrooms and a small area for an ice machine. The
Board conducted a ninety minute hearing concerning the Laffertys’ proposed addition. According
to the Board’s minutes, Ms. Lafferty
informed the Board that there was live music on special occasions.
The live music occurred only when specified by a lessee as a part of
a catering contract for a special event, i.e., wedding reception, etc.
Mrs. Lafferty also explained that the proposed addition would allow
their outdoor activities to move inside, thereby closing in the music
and eliminating the noise.
Others present at the meeting complained about the noise and traffic congestion caused by the Green
Door Pub.3 The Board began its deliberations after both sides had their say. The Board members
found themselves in a quandary because, while they continued to favor the original concept of the
bed and breakfast with occasional social functions, they believed that the current activities at the
Green Door Pub were beyond what they originally envisioned. Eventually, the Board denied the
Laffertys’ application for a building permit without a dissenting vote.4
3
The Bo ard’s minutes summarized these comments as follows:
Mr. Steve Waldron, developer/owner of [neighboring] North Point
Subdivision, stated that the noise was not the only issue. Another [issue] was the
devaluati on of neighbo ring prop erty values. M r. Wald ron ha[d] six or seven lo ts
facing the Antebellum Inn. James Weaver, [another] neighbor, stated that the police
records [would] show that there [were] complaints about activities at the Inn. Mr.
Wade Anderton, one of the nearest neighbors, stated that [the Inn was] no longer
a “Bed and Breakfast.” He also stated that he was assured as a former partner of the
Laffertys that the zoning would rem ain R-1 [Low -Density Residential] and felt that
the neighboring property would devalu[e] due to [the proposed] expansion. He also
wanted it noted that he had attended events where a coverage charge was collected,
drinks were served to the public a nd live music w as present. Judy Baker, [another]
neighbor, commented that she objected to the drinking and dancing happening
nightly.
4
The Bo ard’s minutes summarized the Board’s delibera tion and vote as follows:
Mayor Bean, attempting a compromise, stated that maybe everything
moving inside would help resolve some of the issues. [Board member] Richard
Bagb y made the motion to recognize the quality of the establishment, etc. but to
reject the expansion based upon [the city’s] initial understandings of the activities
regarding the Antebe llum Inn. [Board member] Thom as Elliott seconded the
motion. In discussion [Board member] Bill Cowan stated that in good faith, the
original concept of a ‘bed an d breakfast’ and a restaurant facility was allowed as a
nonconforming use. Howe ver, recent ac tivities may have g one beyo nd that conc ept.
[Chairperson] Jackie Ro se abstained from the vote. A ll other mem bers voted in
favor of said motion [rejecting the proposed expansion].
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After the Board declined to issue the building permit for their expansion, the Laffertys filed
a pro se action in the Circuit Court for Franklin County seeking to enjoin the city from enforcing the
building inspector’s stop-work order. The trial court initially issued a restraining order but promptly
dissolved it when the city protested. The Laffertys then hired a lawyer and, on December 2, 1996,
filed a petition for a common-law writ of certiorari requesting the trial court to review the Board’s
refusal to permit the construction of the 38’ × 40’ addition. They also requested that the certiorari
proceeding be consolidated with their pending pro se action. The trial court granted the writ of
certiorari but dismissed the pro se action with prejudice after concluding that the common-law
certiorari proceeding supplanted the Laffertys’ pro se suit.
Following a hearing in May 1997, the trial court entered an order containing the following
findings and conclusions. First, the trial court found that the original designation of the Antebellum
Inn as a bed and breakfast was, for zoning purposes, a permissible nonconforming commercial use
in a residential area. Second, it found that the Laffertys were operating a bar in addition to the bed
and breakfast contrary to the representations they had made to the beer board and the planning
commission.5 Third, the trial court found that the current structure contained more than enough
room for the operation of the bed and breakfast. Accordingly, the trial court concluded that “the new
proposed building [was] not a reasonable extension of a pre-existing nonconforming use” and,
therefore, that the Board had acted within its discretion when it refused to approve the Laffertys’
latest proposed addition. The trial court capped off its ruling by directing the Laffertys to remove
the foundation for the 38’ × 40’ addition that had been constructed before the stop-work order had
been issued.
I.
Our inquiry in this case is straightforward. The Antebellum Inn sits in a residential area of
the City of Winchester. Because the inn existed, at least nascently, when the city annexed the
property, it has been permitted to continue to operate as a commercial bed and breakfast
establishment even though it is located in an area zoned residential. As a nonconforming use, the
inn may expand but only as a bigger and better bed and breakfast. Without the approval of the
Board, it cannot transform itself into something other than a bed and breakfast. The central issue in
this lawsuit is whether the Laffertys seek to expand the Antebellum Inn beyond what the zoning laws
permit or, as succinctly stated by the Board’s lawyer at trial, whether the Laffertys “have pushed the
envelope beyond where it should ever have been.”
This court recognizes that zoning is a fact of modern life. The days of Uncle Dave Macon,
when most Tennesseans lived on more or less remote farms or in small communities, are gone.
Towns, urban centers, and subdivisions, have largely replaced the rural environment of the past.
Increasingly, local governments of all stripes have undertaken to harness local growth and to
encourage orderly development through the use of planning and zoning measures. Lee S. Greene,
et al., Government in Tennessee 351 (4th ed. 1982) (“Government in Tennessee”). As the pressure
to convert farmland into subdivisions, apartment complexes, condominiums, and shopping centers
5
In the trial court’s words, the Laffertys “crossed over the line of the [permitted nonconforming] use when the
bar facility was co nstructed an d they got into th e nightclub b usiness.”
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has increased, zoning ordinances have become major tools to implement land-use planning at the
local level. Government in Tennessee at 357-63.
Local governments lack the inherent power to control the use of private property within their
boundaries. This power belongs to the State of Tennessee. However, the General Assembly may
delegate the power to local governments, Henry v. White, 194 Tenn. 192, 196, 250 S.W.2d 70, 71
(1952); Anderson County v. Remote Landfill Servs., Inc., 833 S.W.2d 903, 909 (Tenn. Ct. App.
1991), and, in fact, began doing so in 1935. KLN Assocs. v. Metropolitan Dev. & Hous. Agency, 797
S.W.2d 898, 902 n.3 (Tenn. Ct. App. 1990). Local governments’ power to employ zoning measures
to control the use of land in their boundaries is now firmly established. Draper v. Haynes, 567
S.W.2d 462, 465 (Tenn. 1978).
Zoning ordinances are now the most prevalent type of local land use control. 1 American
Law of Zoning § 1.14. In the most general terms, zoning involves the territorial division of land into
districts according to the character of the land and buildings, their suitability for particular purposes,
and the uniformity of these uses. Family Golf of Nashville, Inc. v. Metropolitan Gov’t of Nashville,
964 S.W.2d 254, 258 (Tenn. Ct. App. 1997). Zoning regulations focus primarily on the use of the
property and the architectural and structural designs of the buildings. In re Sundance Mountain
Ranches, Inc., 754 P.2d 1211, 1213 (N.M. 1988); Kaufmann v. Planning & Zoning Comm’n, 298
S.E.2d 148, 153 (W. Va. 1982); 1 E.C. Yokley, Zoning Law & Practice §§ 1-2 (4th ed. 1978).
Rarely, if ever, have local governments enacted zoning ordinances on a completely clean
slate. Property is usually already in use when it is first zoned, and so it is inevitable that ideal zoning
theory will clash with the existing use of particular pieces of property. In order to avoid the legal
problems that would attend a local government’s efforts to force a private property owner to
discontinue an otherwise permissible use of property, Tenn. Code Ann. § 13-7-208(b) (1999)
requires local governments to permit certain types of pre-existing nonconforming uses to continue
even if they are inconsistent with the zoning classification of the surrounding property.
Property owners whose property qualifies as a nonconforming use under Tenn. Code Ann.
§ 13-7-208(b) may expand their business operations or may even reconstruct their business premises,
as long as they continue to be engaged in the same business that they were engaged in when the
zoning ordinance was passed. 421 Corp. v. Metropolitan Gov’t of Nashville, No. M1997-00212-
COA-R3-CV, 2000 WL 488137, at *4 (Tenn. Ct. App. Apr. 26, 2000); Tenn. Code Ann. §§ 13-7-
208(c), (d). However, these provisions do not permit an established nonconforming use to be
changed to some other nonconforming use. 1 American Law of Zoning § 6.36. Thus, like many
other local zoning ordinances, Winchester’s zoning ordinance requires that a property owner who
desires to change the use of property from one nonconforming use to another nonconforming use
must first obtain the written approval of the Board of Zoning Appeals. Winchester, Tenn. Zoning
Ordinance § 6.020 (1988).
Whether characterized as administrative or quasi-judicial, Wilson County Youth Emergency
Shelter, Inc. v. Wilson County, 13 S.W.3d 338, 342 (Tenn. Ct. App. 1999), decisions by local zoning
boards and officials involve the exercise of the local government’s police power to protect the health,
safety, and welfare of their citizens. Draper v. Haynes, 567 S.W.2d at 465; Hoover, Inc. v.
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Metropolitan Bd. of Zoning, 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997). In recognition of the policy
that favors permitting the community decision-makers closest to the events to make the decision, the
courts refrain from substituting their judgments for the broad discretionary power of the local
governmental body. McCallen v. City of Memphis, 786 S.W.2d 633, 641-42 (Tenn. 1990);
Whittemore v. Brentwood Planning Comm’n, 835 S.W.2d 11, 15 (Tenn. Ct. App. 1992).
The common-law writ of certiorari provides the procedural vehicle for reviewing the
decisions by local zoning boards. This writ affords quite limited judicial review. 421 Corp. v.
Metropolitan Gov’t of Nashville, 2000 WL 488137, at *2. It empowers the courts to determine
whether the local zoning board exceeded its jurisdiction; followed an unlawful procedure; acted
illegally, arbitrarily, or fraudulently; or acted without material evidence to support its decision.
Fallin v. Knox County Bd. of Comm’rs, 656 S.W.2d 338, 342-43 (Tenn. 1983); Hoover, Inc. v.
Metropolitan Gov’t of Nashville, 955 S.W.2d at 54; Hemontolor v. Wilson County Bd. of Zoning
Appeals, 883 S.W.2d 613, 616 (Tenn. Ct. App. 1994).
When the evidentiary foundation for a local zoning board decision is challenged using the
common-law writ, the sufficiency of the evidence is a question of law. Hence, the courts must
review the record de novo without presuming that the board’s finding is correct. Wilson County
Youth Emergency Shelter, Inc. v. Wilson County, 13 S.W.3d at 342. This review does not permit the
courts to reweigh the evidence, Hoover, Inc. v. Board of Zoning Appeals, 924 S.W.2d at 904, or to
scrutinize the intrinsic correctness of the decision. 421 Corp. v. Metropolitan Gov’t of Nashville,
2000 WL 488137, at *2. It envisions that the court will review the record independently to
determine whether it contains “such relevant evidence that a reasonable mind might accept as
adequate to support a rational conclusion.” Hedgepath v. Norton, 839 S.W.2d 416, 421 (Tenn. Ct.
App. 1992). A decision by a local zoning board will be considered arbitrary only when there is no
evidence in the record to support it. Sexton v. Anderson County, 587 S.W.2d 663, 667 (Tenn. Ct.
App. 1979).
II.
Winchester’s Board of Zoning Appeals knew that the Laffertys’ property was in an area
zoned residential and that the commercial use of their property as a bed and breakfast had been
grandfathered in as a nonconforming use. The Board also knew about the first addition to the inn
and that the Laffertys had misrepresented that the addition was nothing more than added storage
space when, in fact, it was intended to be used for a bar called the Green Door Pub. At the hearing,
the Board learned that the Laffertys regularly held dances at the Green Door Pub for which they
imposed a cover charge. The Board also learned that the Laffertys had actually started to build
another large addition to expand their bar without first obtaining the city’s approval and that they had
continued to erect the addition even after the stop-work order was issued.
In addition to the Laffertys’ less than candid dealings with the city officials, the Board heard
complaints from their neighbors that the live music at the Green Door Pub created a noise problem
in the neighborhood. The Laffertys’ neighbors told the Board that they objected to what one woman
described as “the drinking and dancing happening nightly.” They also expressed their concern that
the operation of the Green Door Pub was harming the value of their property.
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We are mindful that the mere complaints and fears of neighboring property owners do not
provide the material evidence necessary to support a board’s denial of an otherwise proper request.
Wilson County Youth Emergency Shelter, Inc. v. Wilson County, 13 S.W.3d at 342-43; Hedgepath
v. Norton, 839 S.W.2d at 421. As we have said before, “it is not a function of the Board to conduct
a referendum on public attitudes relative to the petition.” Sexton v. Anderson County, 587 S.W.2d
at 664 n.1. In this case, however, the Board was not simply reacting to the neighbors’ complaints.
If anything, the surrounding property owners’ complaints regarding the nightly activities at the Green
Door Pub corroborated the Board’s impression that the Laffertys’ pub had, in one Board member’s
words, “gone beyond [the original] concept” of a lodging place that catered small, private get-
togethers.
The most telling material evidence supporting the Board’s action are the undisputed
circumstances surrounding the construction and subsequent use of the first addition to the inn. The
Laffertys portrayed this addition one way in order to obtain approval for it, and then, after obtaining
approval, they used the addition for something completely different. Accordingly, the Laffertys were
able to transform a one-story 20’ × 20’ storage addition into a two-story public bar with a separate
outside entrance. The Laffertys high-handedness no doubt weighed on the Board’s mind in
considering their request for another addition and undermined the credibility of their explanation
about their plans for the 38’ × 40’ addition to the Green Door Pub. It seems logical to us that at
some point the Board looked at what was before it, considered the track record of the property
owners, remembered what had happened with the first addition, and began to think, “We’ve been
down this road before.”
In a common-law certiorari proceeding such as this one, it is not necessary that we agree with
the Board’s refusal to approve the Laffertys’ proposed 38’ × 40’ addition to the Green Door Pub.
It is only necessary that we find that the Board did not act illegally, arbitrarily, or capriciously. The
record contains material evidence from which the Board could have rationally concluded that the
proposed addition would have further expanded the Antebellum Inn into a commercial activity quite
different from its original nonconforming use – a bed and breakfast that would be able to
accommodate occasional small social events. Accordingly, the Board could rightly withhold
approval of the expansion on grounds that it would have changed the way the property was being
used to a different nonconforming use. Therefore, we agree with the trial court’s conclusion that the
Board did not err by rejecting the Laffertys’ latest plan to add another room to the west side of the
Antebellum Inn.
III.
We affirm the judgment and remand the case to the trial court for whatever further
proceedings consistent with this opinion may be required. We also tax the costs of this appeal to
Robert Lafferty and Phyllis Lafferty, jointly and severally, and to their surety for which execution,
if necessary, may issue.
__________________________________
WILLIAM C. KOCH, JR., JUDGE
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