Lafferty v. City of Winchester

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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