Barbara J. Todd v. Metropolitan Historic Zoning Commission of the Metropolitan Government of Nashville and Davidson County, Tennessee

12/19/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 7, 2024 Session

BARBARA J. TODD v. METROPOLITAN HISTORIC ZONING

COMMISSION OF THE METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

Appeal from the Chancery Court for Davidson County

No. 20-0918-IV Russell T. Perkins, Chancellor

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No. M2023-01714-COA-R3-CV

___________________________________

After a hearing before the Metropolitan Historic Zoning Commission, the appellant

homeowner was ordered to remove a covered porch addition that was constructed without

a preservation permit, as the Commission determined that the addition did not comply with

the applicable design guidelines. The homeowner filed a petition for writ of certiorari, and

the chancery court held a de novo hearing on the matter. After the evidentiary hearing, the

chancery court likewise determined that the unpermitted covered porch did not meet the

applicable design guidelines, and the court ordered its removal. The homeowner appeals,

arguing that her due process rights were violated due to untimely notice of the hearing

before the Commission and that the chancery court erred in finding that her covered porch

was not in compliance with the guidelines. We affirm.

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

and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Adam G. LaFevor, Nashville, Tennessee, for the appellant, Barbara J. Todd, Trustee of the

Barbara Todd 2017 Trust.

Catherine J. Pham, Kelli F. Woodward, and Abby Greer, Nashville, Tennessee, for the

appellee, Metropolitan Historic Zoning Commission.

OPINION

I. FACTS & PROCEDURAL HISTORY

Barbara Todd, Trustee of the Barbara Todd 2017 Trust, purchased a home at 1013

Paris Avenue in Nashville in October 2019. The previous owner had recently added a rear

addition and a separate side addition to the home. At closing, the seller agreed to finish a

few construction items that remained unfinished. Ms. Todd eventually resorted to litigation

to resolve disputes over these issues, and she hired another contractor, Paul Martin, to

complete some remaining work at the home. Ms. Todd also directed Mr. Martin to convert

an uncovered deck at the rear corner of the home, between the newly constructed side and

rear additions, into a covered porch with an outdoor fireplace and masonry chimney.

Ms. Todd’s home is a circa 1910 Victorian cottage that lies within the Waverly-

Belmont Neighborhood Conservation Zoning Overlay. The previous owner’s architect had

obtained a preservation permit from the Historic Zoning Commission approving the

construction of the rear and side additions to the home.1 However, that permit was

“clos[ed] out” upon final inspection of the additions by Commission staff prior to Ms.

Todd’s purchase of the home. Mr. Martin was aware that Ms. Todd’s property was within

the zoning overlay when he took on the project, but he did not review the preservation

permit that had previously been issued, nor did he apply for a new preservation permit.

On July 23, 2020, the previous contractor who was involved with the home

contacted staff at the Historic Zoning Commission to convey some concerns regarding

what he had observed in the ongoing construction of the covered porch. He first informed

the Commission staff that he was no longer working on the house and sought to ensure that

the permits previously obtained had been canceled or closed out. The contractor also

explained that he had been “specifically told we could NOT cover the rear deck” behind

1

Tennessee Code Annotated section 13-7-407(a) provides:

All applications for permits for construction, alteration, repair, rehabilitation, relocation or

demolition of any building, structure or other improvement to real estate situated within a

historic zone or district shall be referred to the historic zoning commission or the regional

historic zoning commission, which shall have broad powers to request detailed

construction plans and related data pertinent to thorough review of the proposal. The

historic zoning commission or the regional historic zoning commission may also be

authorized to review the construction, alteration, rehabilitation, relocation or demolition of

any building, structure or other improvement on real property, whether privately or

publicly owned, which is situated in a historic district or zone, and for which a permit is

not required. No construction, alteration, repair, rehabilitation, relocation or demolition of

any building, structure or other improvement to real property situated within a historic

district or zone, for which the historic zoning commission or the regional historic zoning

commission has been granted the authority to review and to grant or deny a certificate of

appropriateness, shall be performed without the issuance of a certificate of appropriateness.

The document that was previously called a “certificate of appropriateness” is now called a “preservation

permit.”

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the side addition because it would violate the applicable design guidelines related to side

additions and cover the rear corner of the original historic house, and yet the new contractor

appeared to be doing just that.2 Thus, the previous contractor inquired as to whether a

preservation permit had been granted for this work and why such an addition was now

being allowed.

Upon investigation by the staff of the Historic Zoning Commission that same day,

staff member Fred Zahn sent the following email to the Historic Zoning Administrator,

Robin Ziegler:

Spoke with contractor, Paul Martin, and asked about violation. He said the

work had been started by a previous contractor who left the job 1/2 complete,

and that he had misunderstood what has and has not been approved. He is

stopping work on it and intends to create as-built drawings of the porch and

apply by Aug. 3rd to be heard for retroactive approval of the structure by

the MHZC at the Aug. 19th meeting.

(emphasis added). Ms. Ziegler responded and asked if Mr. Martin was aware that the

project would likely be recommended for disapproval and inquired as to whether there was

any discussion about correction. Mr. Zahn responded:

Yes, I told him it was my understanding that element of the larger project

had been discussed previously and removed from the application. It is

essentially done and he is no worse off at least asking to retain. If the

commission disapproves then he is where he is today. I explained that we do

not review “decks” in a conservation overlay, but the roof structure made it

a “porch” which would require approval.

2

Pursuant to Tennessee Code Annotated section 13-7-406, “[p]rior to the establishment of any historic

district or zone, the historic zoning commission . . . also shall adopt for each such proposed district or zone

a set of review guidelines, which it will apply in ruling upon the granting or denial of a certificate of

appropriateness as provided for in this part.” Regarding the guidelines, Tennessee Code Annotated section

13-7-408 further provides, in relevant part:

In its review of any such work to be undertaken in a historic district or zone, the historic

zoning commission . . . shall apply the applicable review guidelines and give prime

consideration to:

(1) Historic or architectural value of the present structure;

(2) The relationship of the exterior architectural features of such structure to the rest

of the structures, to the surrounding area, and to the character of the district;

(3) The general compatibility of exterior design, arrangement, texture, and materials

proposed to be used; and

(4) Any other factor, including aesthetic, which is reasonably related to the purposes

of this part.

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All of these emails are dated July 23.

On August 5, another staff member, Sean Alexander, emailed Mr. Martin and asked

what information Mr. Martin could provide about the porch addition. Mr. Alexander

explained in his email that in a conservation overlay, any new construction, including

additions, needs to be reviewed and approved by the Commission. According to Mr.

Martin, he called Mr. Alexander to discuss the matter by phone. On August 13, when the

Commission posted its agenda for its upcoming meeting, Mr. Alexander sent another email

to Mr. Martin, informing him that his “application for approval after-the-fact” was on the

agenda for the August 19 meeting. Due to Covid-19 restrictions in place at the time, the

meeting would be held virtually via teleconference. The email explained that each

applicant would have up to ten minutes to present his or her position to the Commission,

and the Commission would consider any drawings or information sent in advance of the

meeting. The email informed Mr. Martin that the Commission staff would be

recommending removal of the unpermitted porch within sixty days because it wrapped the

back corner between the two additions continuously, which was inconsistent with previous

Commission approvals and did not meet the design guidelines applicable to rear and side

additions. Mr. Martin responded to this email and stated that he and Ms. Todd both desired

to speak and address the Commission.

At the August 19 meeting of the Historic Zoning Commission, Ms. Ziegler began

by presenting the position and recommendation of staff regarding the project. She

explained that a rear addition and a separate side addition had been approved in July 2018,

but the two additions were distinct with an uncovered deck in the area between them. She

said the two additions passed final inspection, and the permit for that project was closed.

She stated that in July 2020, Commission staff observed the construction of a covered porch

in progress, which connected the rear addition to the side addition. Ms. Ziegler explained

that in situations where a side addition is deemed appropriate for a home, the Commission

typically says that the side addition needs to be separate from the rear addition rather than

having a single addition essentially wrapping the corner of the home continuously from the

rear to the side. She explained that Ms. Todd’s covered porch addition made the rear and

side additions continuous, which was not consistent with previous Commission approvals

or the sections of the design guidelines that govern rear and side additions. Thus, the staff

recommendation was for removal of the unpermitted porch within sixty days.

Mr. Martin addressed the Commission next. He began by stating, “We’ve kind of

been in a state of confusion.” Mr. Martin explained that he “took over this project” after

Ms. Todd purchased the home. He stated that the homeowner had been “shown” a set of

plans that included a covered porch on the rear. He stated that he was brought on to finish

a list of items, and this was one of those items. Mr. Martin claimed that he had “asked for”

the building and historical permit to be “transferred over,” and it was his understanding

that this porch was part of the previous permit. Thus, Mr. Martin stated that he was “kind

of in shock” when he was contacted by Commission staff about the project. He said that

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he and Ms. Todd had “immediately called an architect” and tried to get them out but “this

has all happened over the last week and a half,” and the architect could not come out until

Friday. He added that “we thought we were doing what was planned by the original builder

during the purchase” and “didn’t realize that – that those two things weren’t connecting.”

Ms. Todd also spoke. She began by stating that this experience was “quite a shock”

to her and that she was “bewildered.” She noted the problems she had experienced with

the previous owner and the litigation that resulted. Ms. Todd claimed she had asked many

times for the survey of the lot and plans for the house, but the owner “never provided me

anything.” She said she had no idea she was “imposing upon anything.” Ms. Todd said

she had not been given enough time to “formulate a game plan” and hoped that the matter

could be deferred to a later date so that she could gather some information and determine

how to approach the matter.

The Commissioners then proceeded to ask questions of Ms. Todd, Mr. Martin, and

Ms. Ziegler.3 Ms. Todd reiterated that she “saw plans” when she made the offer on her

house, but after she closed, the previous owner refused to give them to her. She claimed

that the previous owner was in the wrong, she was simply “caught in the middle,” and she

had no intention of doing anything that was not approved. However, Ms. Ziegler explained

that “the drawings are attached to the permit.” Mr. Martin again expressed confusion about

why the previous permit was closed. A Commissioner pointed out, however, that in a

situation where a new builder takes over a project, he or she must follow the previous

permit, do only what was previously permitted, and limit construction to what has been

approved by the Commission. So, if Mr. Martin claimed to be following the previous

permit or believed it was transferred, the Commissioner questioned how the uncovered

porch and chimney could have been added when they were not allowed under the previous

permit. Another Commissioner agreed, explaining that when a contractor changes, the new

contractor must build “to that set of drawings that has been approved.”

Mr. Martin again stated that the previous contractor “had a set of plans with this on

it.” However, he then explained that he had learned, in his discussions with Mr. Zahn, that

the covered porch “was something that was originally applied for and then rejected.” Mr.

Martin explained that this information had not been shared with him previously and “that

is where the confusion comes in.” He stated, “I saw a set of plans with this on it, and so it

was my belief that that is what was approved. . . . We had no clue that that was not an

approved set of plans.” Mr. Martin said he did not know at the time that those plans were

rejected, nor did he know that the preservation permit was closed out.

3

Ms. Ziegler explained that the Commission staff decided not to classify this situation as a “show cause”

matter because the permit from the previous work had already been closed out before this work began.

Thus, in their view, it was not a situation in which someone with a permit had deviated from its scope but

rather someone doing work without applying for a permit.

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A Commissioner stated that to the extent there was any misrepresentation, it would

have been by the seller because the preservation permit did not include the covered porch,

but in that event, a buyer’s recourse is against the seller. He also opined that the

Commission was “not in a position” to retroactively allow something that is not reflected

on any set of drawings submitted to or approved by the appropriate authorities. The

Commissioners discussed Ms. Todd’s request for a deferral but expressed concern about

having to “rehear” the matter and the possibility of reviewing “anything new” done to the

project in the interim. After again discussing a homeowner’s recourse against a seller, the

Commissioners conveyed their sympathy for Ms. Todd’s situation but emphasized their

duty to apply the guidelines of the overlay. The Commissioners unanimously approved

the staff’s recommendation of removal of the covered porch because of its failure to comply

with the guidelines, although they extended the removal window to ninety days.

Ms. Todd timely filed a petition for writ of certiorari in chancery court. She sought

a trial de novo pursuant to Tennessee Code Annotated section 13-7-409, which provides:

Anyone who may be aggrieved by any final order or judgment of the historic

zoning commission . . . may have such order or judgment reviewed by the

courts by the procedure of statutory certiorari, as provided in title 27, chapter

8.4

The chancery court issued the writ and directed the Commission to certify and forward the

record of the administrative proceedings to the court. Prior to the trial date, Ms. Todd filed

a brief arguing that her due process rights were violated because she only received notice

of the hearing before the Commission three business days before it was held. She also

argued that the covered porch addition was “not addressed” by the design guidelines. The

Metropolitan Government of Nashville and Davidson County (“Metro”) filed a brief on

behalf of the Commission, pointing out that Ms. Todd’s contractor was informed of the

violation on July 23, almost a month before the meeting, and he reportedly indicated to

staff that he would prepare drawings for review at the August 19 meeting. Alternatively,

Metro argued that Ms. Todd had no interest entitled to the protections of due process

because she had no permit. Finally, Metro argued that the Commission reasonably applied

4

Regarding Tennessee Code Annotated section 13-7-409, this Court has explained:

A chancery court’s review under the statutory writ is by trial de novo. McCallen v. City of

Memphis, 786 S.W.2d 633, 638 (Tenn. 1990). Here, “de novo” means that the chancery

court’s review is not limited to the administrative record. Tennessee Waste Movers, Inc. v.

Loudon County, 160 S.W.3d 517, 520 (Tenn. 2005). The chancery court holds a new

hearing “based upon the administrative record and any additional or supplemental evidence

which either party wishes to adduce relevant to any issue.” Id. (quoting Frye v. Memphis

State Univ., 671 S.W.2d 467, 469 (Tenn. 1984)).

MJM Real Est. Invs., LLC v. Metro. Gov’t of Nashville & Davidson Cnty., No. M2017-01166-COA-R3-

CV, 2018 WL 1560650, at *3 (Tenn. Ct. App. Mar. 29, 2018).

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the design guidelines in concluding that the porch addition was impermissible.

The chancery court conducted an evidentiary hearing on June 30, 2021. During

opening statements, Ms. Todd again raised her argument regarding due process, claiming

that she only had notice of the August 19 Commission hearing three business days before

it occurred. In response, Metro pointed out that Ms. Todd had a statutory right to a de novo

trial in chancery court, so the court could “hear it de novo and address the issue now,” and

there was no need to send the matter back to the Commission due to any insufficient notice.

Thus, according to Metro, any alleged error was “cured essentially” by the de novo review

in chancery court.

Only three witnesses testified in chancery court: Ms. Todd, Mr. Martin, and Sean

Alexander, who was on staff with the Commission. Aside from the administrative record,

the chancery court admitted various exhibits submitted by the parties. In particular, we

note the following photographs that depict the uncovered deck as it previously existed and

the portions of the newly constructed covered porch addition that are now visible from the

street:

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Ms. Todd was the first to testify at the hearing in chancery court. She explained the

circumstances surrounding her purchase of the property and said she thought there was

going to be a back porch on the house when she contemplated the purchase. However,

when asked “if there ever were drawings of the covered porch,” Ms. Todd said she was not

aware of any and had never seen any. She said that the first contractor did not leave plans

despite her repeated requests for them. Thus, Ms. Todd said that she understood there

would be a covered porch from speaking with the original owner, but she had not seen any

plans showing one.

Ms. Todd testified that her wooden uncovered deck had been replaced with an

enclosed porch with cement flooring. She explained that the original corner of her house

was “not disturbed” and “just has a roof” over it now. When asked if she knew, when they

began construction, that a permit would be required for such work, Ms. Todd said she had

no idea. She believed that the first contractor had pulled permits. Ms. Todd acknowledged

that she contacted the Codes Department about canceling some permits due to the pending

litigation with her previous contractor, but she conceded that she did not “know the

specifics” about the permits. Ms. Todd admitted that she had “authorized Mr. Martin to

pull permits on [her] behalf” after she terminated the first contractor.5 She said she did not

5

The administrative record contains a building permit from Metro’s Department of Codes and Building

Safety issued March 2, 2020, and it listed the applicant as Paul Martin Builders, LLC. It stated, “I hereby

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personally review any of the permits.

Ms. Todd testified that she did not learn about the August 19 Commission hearing

until Monday August 17, so she only had about two days’ notice. She testified that she

“panicked” and “scrambled” to find an architect, but no one was available at that time. Ms.

Todd noted that she had requested a deferral of the hearing but the Commission proceeded

anyway. It was her understanding that Mr. Martin “found out about the hearing” on the

previous Thursday, August 13. However, Ms. Todd admitted she had since learned that

Mr. Martin was informed of the need to stop work on the property on July 23.

Given Ms. Todd’s testimony that she sought a deferral of the Commission hearing

in order to gather more information, she was asked on cross-examination to describe what

information she had gathered in the ten months since the Commission hearing. Ms. Todd

said she had contacted the lawyer who was representing her in chancery court, and she had

also “tried to contact an architect” but never hired one. She did not have any drawings of

the porch prepared. Still, when asked if she was “planning on presenting everything” to

the chancery court that day, Ms. Todd responded affirmatively, noting that she hoped the

matter was resolved that day. Ms. Todd was asked, “[W]hat are you asking This Court to

do?” She responded, “I’m asking This Court to allow me to keep my porch.”

Mr. Martin also testified. When asked if he ever saw any plans for the house that

depicted a covered porch, Mr. Martin responded affirmatively. He testified that he saw the

plans before he commenced work. Mr. Martin said he did not know that the plans he saw

had been denied until after he already constructed the porch. Mr. Martin described his

conversation with Mr. Zahn, who told him, “Oh, those were plans that were submitted, but

they weren’t approved. You got the wrong set of plans.” He said Mr. Zahn discussed

potential alternatives and suggested talking to an architect. Mr. Martin said he stopped

work on the project in response to this conversation because he realized “there was an

issue” and did not want to proceed further. He testified that he told Ms. Todd about the

issue but could not recall when.

Even though Mr. Martin had stopped work on the project, he testified that “the first

time [he was] notified that [he was] going to be at a commission meeting” was on August

13, when he received the email with the August 19 meeting agenda. He insisted, “I didn’t

know that we were going to have to go before the commission until that email came.” Mr.

Martin testified that he called Sean Alexander and asked for a deferral so that he could

contact an architect, and Mr. Alexander told him that he would have to get back to him.

Mr. Martin said the next time he emailed Mr. Alexander, he received an out of office email

certify that I am the agent of the owner, or other person in control of this property, and that the information

given herein, and as shown on the application and the permit, is true; and that I am authorized by said

owner, or other person in control of this property, to obtain this permit.” However, the building permit

stated that no exterior work was included in the scope of the permit.

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notification, so the two never communicated again.

Like Ms. Todd, Mr. Martin testified that the original corner of Ms. Todd’s home

was not altered; he simply “put a roof on top of it.” He also added two walls and an outdoor

fireplace. He said he was not familiar with the term “wrapping the corner.” However, it

was his understanding that the Commission did not want the porch to connect the original

corner of the house with the addition. Based on his experience as a licensed contractor

who had worked in historic neighborhoods, Mr. Martin opined that a permit was not needed

in order to build “an exterior chimney off a back porch.” He was not aware of anything in

the design guidelines regulating outdoor fireplaces. Mr. Martin explained that to his

knowledge, the guidelines “just apply to things that can be seen from a public right-of-

way.” Mr. Martin testified that none of the covered porch could be seen from the public

right-of-way from “the front” of the house.

During cross-examination, Mr. Martin acknowledged that he had only been

involved with seven to ten preservation permits in his career, and he had only appeared

before the Commission twice, with both of those appearances being for what the

Commission characterized as violations. Mr. Martin admitted that he knew, when he took

on this project, that the previous work had required a preservation permit, and yet he did

not review the preservation permit that had been issued. Instead, he “saw” plans at the

house that he believed were left by the original contractor and “used them as a guideline”

in building the porch, only to learn later that they were not the final plans approved by the

Commission. He said he did not have a copy of those plans at the time of trial and did not

know what happened to them. However, Mr. Martin said he was in possession of them

prior to the August 19 Commission meeting. When asked why he needed an architect if

he already possessed plans showing the covered porch, Mr. Martin said it was his

understanding that “we needed an architect to come up with some sort of compromise that

Historic could be happy with.” Mr. Martin testified he had not retained an architect in the

ten months since the date of the Commission hearing because he left the matter up to Ms.

Todd.

The final witness to testify was Sean Alexander, a historic preservationist on staff

with the Commission since 2007. Ms. Todd had no objection to him being deemed an

expert in historic preservation, specifically for Nashville. Mr. Alexander was not involved

with the property at the time of the preservation permit authorizing the rear and side

additions, but he had reviewed the matter upon discovery of the covered porch being

constructed without a permit and considered it as an “after-the-fact review.” Mr. Alexander

acknowledged that in the typical case, an applicant applies for a permit, with the

understanding that doing so will place the matter on the agenda. He explained that in

situations in which work is being done without a permit, no application has been submitted

to the Commission, so the Commission is essentially requesting that the person come

before the Commission for review. He noted that Commission meetings are held “on the

third Wednesday” of the month, and agendas are typically posted on Wednesdays or

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Thursdays during the week before the meeting. Mr. Alexander testified that, based on the

administrative record of the emails exchanged during that time, Mr. Martin was informed

by Mr. Zahn that he would need to go before the Commission long before the official

agenda was sent to him on August 13. He did not recall Mr. Martin ever asking him for

any deferral prior to the Commission meeting.

Mr. Alexander had prepared the staff recommendation to disapprove the porch, but

he was out of town on the day of the Commission meeting, so Robin Ziegler had presented

his presentation. Mr. Alexander testified that the applicable design guidelines state that an

addition to a home should generally be located at the rear in such a way that it will not

disturb the front or side facades. The guidelines provide that side additions may be

permitted if the lot is wide enough. However, he said that the guidelines also explain how

additions should be physically distinguished from the historic building itself and should

generally fit within the shadow line or silhouette of the building. Mr. Alexander also

explained that the design guidelines have a section specifically addressing rear additions

and a separate section addressing side additions. Thus, he emphasized that “these are

separate headings because they are treated as separate additions.” He added, “You can do

a rear addition, and you can do a side addition.”

Mr. Alexander explained that the Commission had approved a rear addition and a

separate side addition for Ms. Todd’s home in 2018. However, the staff recommendation

from that project noted that the addition would be beyond the midpoint of the home, it

would be minimally visible from the street, etc. The side addition was “contained within

the side wall of the structure,” set forward from the rear of the structure, and separate and

independent from the rear addition. The drawings showed the location of the uncovered

deck, but the Commission does not review uncovered decks.

Mr. Alexander testified that “wrapping the corner” refers to construction that goes

from the rear addition and connects to the side. In other words, it is not a distinct side

addition or a rear addition; it is one addition that “engulfs” two sides of the house. Mr.

Alexander testified that Ms. Todd’s newly constructed covered porch addition “blurred the

space” between a rear addition and a side addition and is “essentially both or neither.” He

said it “sort of straddles” the section on rear additions and the section on side additions.

Still, Mr. Alexander explained that all of the design guidelines “work together” and that

one of their primary purposes is to allow additions to enlarge homes in a way that will not

permanently impair the historic form of a structure. Thus, he explained that the goal is to

preserve the corners of historic houses because engulfing a corner is less removable and

has a more permanent impact on the historic form.6 He recalled “a few, very small number”

6

Mr. Alexander noted Mr. Martin’s testimony that the roof of Ms. Todd’s porch could be removed without

disturbing the historic corner of the house, but he questioned whether this was accurate when it came to the

corner, eave, soffit, and fascia, as the roof appeared to be “built up over the corner of the roof.” He also

explained that Mr. Martin did not simply add a roof; he had also replaced the floor, did work to the

foundation of the porch, added a chimney, and added a wall with siding that tied into a portion of the

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of homes with rather unique circumstances in which additions had been approved that

wrapped a corner, noting that such circumstances might include very shallow lots, having

previous additions that already impacted the corners, etc.

Mr. Alexander conceded that the “controlling” part of the design guidelines

themselves did not contain the phrase “wrapping the corner.” Instead, it was only in

italicized text that had been added to the document to serve as guidance to applicants about

how the guidelines have been interpreted based on precedents or traditions that developed

over time. Mr. Alexander explained that the guidelines themselves are adopted by the

Historic Zoning Commission, while the italicized guidance is not. Accordingly, he agreed

that express language regarding wrapping the corner was not in the “mandatory” part of

the guidelines. However, he noted that new guidelines had recently been revised to

expressly state in non-italicized language that “an addition is designed to leave the corners

of the building visible and intact and does not wrap the corner.” Mr. Alexander said that

the prohibition on wrapping a corner between rear and side additions was “such a long and

consistently upheld precedent” that the Commission decided to include it in the guidelines

when they were revised.

Mr. Alexander was also asked by counsel for Ms. Todd about how the guidelines

apply to work that cannot be seen from a public right-of-way. The first pages of the

guidelines contained general bullet points in the margin listing items that are reviewed and

items that are not reviewed in a neighborhood conservation zoning overlay. Under “What

is Reviewed,” it included “Additions – increased footprint, height or building envelope of

an existing structure.” Under “What is Not Reviewed,” it listed “Work that cannot be seen

from the public right-of-way (not including alleys).” However, for this bullet point, it

added, “To avoid a possible violation, the project should be evaluated by staff for assurance

that a Preservation Permit is not necessary.” When counsel asked Mr. Alexander if this

means that “you only govern what’s seen from the street,” Mr. Alexander disagreed. He

pointed out that the guidelines also stated, “These guidelines shall apply only to the

exteriors of buildings and to new construction that would have at least a portion visible

from a public right-of-way.” As such, Mr. Alexander clarified that the guidelines apply if

at least a portion is visible. He agreed that if no portion of an addition was visible from the

street, then it would not necessarily need a preservation permit.

For Ms. Todd’s covered porch, Mr. Alexander testified that a portion of the addition

is visible from the public right-of-way. He clarified that the guidelines apply when

anything is visible from “the public right-of-way,” and this is not limited to the view when

standing directly in the front and center of a house. Instead, this could include the sidewalk

or street running along the front of a property, as seen from a reasonable distance, including

one or two houses down the street. Referencing a photograph, he stated that one could see,

from the right-of-way, the chimney constructed by Mr. Martin, a portion of a wall, “this

approved addition.

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entire section of roof,” a bit of siding, and “the gutter and eave of that portion of the roof.”

Because a portion of the addition was visible, he opined that the guidelines applied to

enable the Commission to review the exterior. He also explained that the guidelines apply

to the addition, so they would also apply to the chimney that is part of the addition.

Finally, Mr. Alexander was asked if he was aware that Ms. Todd had offered to

remove all portions of the gutters and the roof that could be seen from a public right-of-

way. Mr. Alexander responded, “I was not aware of that.” He acknowledged that he read

something to that effect in Ms. Todd’s pretrial brief, but he said that information had never

been communicated to him by either Ms. Todd or Mr. Martin. When asked if Ms. Todd

was given ninety days to try to work out a solution, Mr. Alexander disagreed with counsel’s

characterization and said that she had ninety days to remove the porch. Mr. Alexander

again testified that he “did not see, read or receive any communication” from Ms. Todd’s

representation regarding a “solution.” However, he noted that once the Commission has

made a decision, a staff member could not override or supersede that decision. He said an

applicant could ask for a rehearing or appeal the decision. Mr. Alexander was then asked

if it would “surprise [him] to know” that Ms. Todd offered to remove all portions of the

roof and gutter visible from the right-of-way and that offer was declined, and Mr.

Alexander said he would be surprised if he was to hear that was the case. However, Mr.

Alexander reiterated that he was not aware of Ms. Todd making any proposals to make

revisions to the structure or remove portions of it.

In closing arguments, Ms. Todd maintained that her due process rights were violated

by untimely notice of the hearing before the Commission, and she argued that the

guidelines were not “applied correctly” by the Commission. Metro argued that Ms. Todd’s

contractor, Mr. Martin, had timely notice. Additionally, Metro argued that Ms. Todd had

nearly a year to prepare for the de novo hearing in chancery court, and she still did not have

an architect or any drawings to present to the court with any proposal. Metro argued that

counsel’s questions about possible options or other proposals were not properly before the

court, as Ms. Todd simply testified that she wanted to keep her porch. Considering Mr.

Alexander’s testimony regarding the meaning of the guidelines, Metro asked the court to

find that the uncovered porch addition was not permitted under the guidelines and should

be removed. The chancery court took the matter under advisement at the conclusion of the

hearing.

On November 9, 2023, the chancery court entered its written order.7 At the outset,

the court noted that appeals from decisions of the Historic Zoning Commission are by

statutory certiorari pursuant to Tennessee Code Annotated section 13-7-409, and review in

chancery court is de novo. The chancery court explained that the court’s review was not

limited to the administrative record, but instead, the court holds a new hearing based on

7

The record does not indicate why two years elapsed between the de novo hearing and the entry of the

chancery court’s written order.

- 13 -

the administrative record and any additional or supplemental evidence either party wishes

to adduce relevant to any issue.

The chancery court found that the previous owner of Ms. Todd’s home had

remodeled the structure, the renovation was properly permitted, and it included a rear

addition and a side addition. The court found that Commission staff inspected that project

and marked it satisfactorily completed prior to Ms. Todd’s purchase of the home. The

court found that Ms. Todd engaged Mr. Martin, after closing, to complete some work at

the property and construct a covered rear porch. It found that Commission staff observed

construction at Ms. Todd’s home on July 23, 2020, “for which no new plans had been

reviewed and no permit had been issued.” This included a covered porch with a masonry

chimney that connected the additions, “wrapping the corner.” The chancery court found

that Mr. Martin also received an email from Sean Alexander on August 5, 2020, notifying

him that the construction of the covered porch was a violation. The court found that Mr.

Martin had agreed to stop work on the porch “and explained his intention to apply for

retroactive approval of the structure, which application was to be heard at the

Commission’s August 19, 2020 meeting.”

Next, the chancery court’s order detailed what occurred at the Commission meeting

on August 19, 2020, where the Commission considered the matter as a request for approval

after-the-fact. The court described the staff recommendation to require removal of the

porch for failure to comply with the design guidelines. The court noted that the

Commission ultimately voted to require removal of the porch within ninety days. The

chancery court noted that the matter came before the court for an evidentiary hearing on

June 30, 2021.

The court first addressed Ms. Todd’s argument that her due process rights were

violated due to a lack of timely notice of the August 19, 2020 hearing. The court found

that Ms. Todd’s right to due process was “implicated.” However, it explained that basic

due process requires notice reasonably calculated under all the circumstances to apprise

interested parties of the pendency of the action and afford them an opportunity to present

objections. The court also noted that the purpose of due process requirements is to notify

an individual in advance to allow adequate preparation and reduce surprise. Although Ms.

Todd claimed that she only had notice six days (three business days) before the meeting,

the chancery court found that Mr. Martin was given adequate notice. The court found that

this was “clearly evidenced” by the email in the administrative record dated July 23, 2020,

from Mr. Zahn to Ms. Ziegler, which stated:

Spoke with contractor, Paul Martin, and asked about violation. He said the

work had been started by a previous contractor who left the job 1/2 complete,

and that he had misunderstood what has and has not been approved. He is

stopping work on it and intends to create as-built drawings of the porch and

apply by Aug. 3rd to be heard for retroactive approval of the structure by the

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MHZC at the Aug. 19th meeting.

The chancery court found that this email demonstrated that Mr. Martin was aware of the

violation and the upcoming hearing approximately one month beforehand. The court found

that Mr. Martin agreed to stop work and stated his intention of having drawings prepared

and applying for retroactive approval by August 3, and therefore, Ms. Todd had adequate

time to prepare for the August 19 meeting. The court found that Mr. Martin also received

an email from Mr. Alexander on August 5, and he received another notice on August 13

that the addition was on the agenda for the August 19 meeting. The court noted that Mr.

Martin and Ms. Todd both spoke at the meeting and were afforded an opportunity to be

heard. As such, the court found that Ms. Todd was afforded procedural due process.

Next, the chancery court considered Ms. Todd’s argument that the design guidelines

“do not address the covered porch and chimney at issue.” The court found that the property

is located within the Waverly-Belmont Neighborhood Conservation Zoning Overlay, and

therefore, construction or alteration of any structure on the property must be approved by

the Commission pursuant to Tennessee Code Annotated section 13-7-407. The court

quoted the following sections of the design guidelines governing additions:

IV. ADDITIONS

A. Location

1. Generally, an addition should be situated at the rear of a building in such

a way that it will not disturb either front or side facades. Additions should

be physically distinguished from the historic building and generally fit within

the shadow line of the existing building.

a. Connections to additions should, as much as possible, use existing

window and door openings rather than remove significant amounts of

rear wall material.

b. Generally rear additions should inset one foot, for each story, from

the side wall.

2. When a lot width exceeds 60 feet or the standard lot width on the block, it

may be appropriate to add a side addition to a historic structure.

a. The addition should sit back from the face of the historic structure

(at or beyond the midpoint of the building) and should be subservient

in height, width and massing to the historic structure.

b. Side additions should be narrower than half of the historic building

width and exhibit a height of at least 2’ shorter than the historic

building.

c. To deemphasize a side addition, the roofing form should generally

be a hip or side-gable roof form.

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B. Massing

1. In order to assure tha[t] an addition has achieved proper scale, the addition

should generally be shorter and thinner than the existing building.

Exceptions may be made when unusual constraints make these parameters

unreasonable, such as an extreme grade change or an atypical lot parcel shape

or size. In these cases, an addition may rise above or extend wider than the

existing building; however, generally the addition should not be higher and

extend wider.

a. When an addition needs to be taller:

Whenever possible, additions should not be taller than the historic building;

however, when a taller addition is the only option, additions to single story

structures may rise as high as 4’ above ridge of the existing building at a

distance of 40’ from the front edge of the existing building. In this instance,

the side walls and roof of the addition must set in as is typical for all

additions. The portion of the roof that can been seen should have a hipped,

side gable or clipped gable roof to help decrease the visual mass of the

addition.

b. When an addition needs to be wider:

Rear additions that are wider than an existing historic building may be

appropriate when the building is narrower than 30’ or shifted to one side of

the lot. In these instances, a structural alcove or channel must separate the

existing building from the new addition. The structural alcove should sit in a

minimum of 1’ and be at least twice as long as it is deep.

A rear addition that is wider should not wrap the rear corner. It should only

extend from the addition itself and not the historic building.

....

F. A new addition should be constructed in such a manner that if the addition

were to be removed in the future, the essential form and integrity of the

original structure would be unimpaired. Connections should, as much as

possible, use existing window and door openings rather than remove

significant amounts of rear wall material.

The court found that “[t]he Commission has treated these Guidelines as allowing two

separate additions – a rear addition and a side addition -- but not a singular addition that

attaches to the rear of a historic house, wraps the corner, and attaches to the side.” It found

that this interpretation “is in keeping with Section IV.B.1.b of the Guidelines.” The

chancery court specifically noted, however, that the references in the guidelines that appear

in italics contain interpretive information that is meant to make the guidelines easier to

understand and are not part of the guidelines themselves.

- 16 -

The chancery court also considered Ms. Todd’s contention that outdoor fireplaces

or rear porches are not restricted by the guidelines. The court noted that the guidelines

define the term “addition” as including “[a]n alteration that changes the exterior height of

any portion of an existing building, such as skylights, covered porches, covered decks,

carports and porte cocheres.” (emphasis added). The guidelines further define “new

construction” to include any “addition.” Thus, the court found that the covered porch and

chimney “are clearly additions or structures” within the meaning of the guidelines, so they

must comply with the requirements for new construction. The court explained that the

guidelines apply to new construction that would have at least a portion visible from a public

right-of-way. And, the court found that a two-foot portion of a wall, a two-foot portion of

gutter, and the chimney of the covered porch are all visible from a public right-of-way, so

the guidelines apply. Because the uncovered porch wraps the corner of Ms. Todd’s home

continuously, the chancery court concluded that it does not meet the guidelines applicable

to rear and side additions. As a result, the court required removal of the porch within ninety

days. Ms. Todd timely filed a notice of appeal to this Court.

II. ISSUES PRESENTED

Ms. Todd presents three issues for review on appeal, which we quote from her brief:

1. Whether the Trial Court erred in finding that the due process rights of

Petitioner/Appellant, Barbara J. Todd, Trustee of the Barbara Todd 2017

Trust (“Ms. Todd”) were not violated when Ms. Todd only received actual

notice of the hearing before the Metropolitan Historic Zoning Commission

five (5) calendar days (three (3) business days) prior to the hearing.

2. Whether the Trial Court erred in imputing notice issued to contractor

Paul Martin as notice to Ms. Todd.

3. Whether the Trial Court erred in finding that Ms. Todd’s covered

porch was not in compliance with the Guidelines, based upon the Trial

Court’s reliance on italicized and noncontrolling portions of the Guidelines.

In its posture as appellee, Metro argues that the chancery court’s decision should be

affirmed. For the following reasons, we affirm the decision of the chancery court and

remand for further proceedings.

III. STANDARD OF REVIEW

This Court has described our standard of review on appeal in cases involving

decisions of historic zoning commissions as follows:

Tenn. Code Ann. § 13-7-409 states that “[a]nyone who may be

aggrieved by any final order or judgment of the historic zoning commission

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. . . may have such order or judgment reviewed by the courts by the procedure

of statutory certiorari.” A chancery court’s review under the statutory writ

is by trial de novo. McCallen v. City of Memphis, 786 S.W.2d 633, 638

(Tenn. 1990). Here, “de novo” means that the chancery court’s review is

not limited to the administrative record. Tennessee Waste Movers, Inc. v.

Loudon County, 160 S.W.3d 517, 520 (Tenn. 2005). The chancery court

holds a new hearing “based upon the administrative record and any additional

or supplemental evidence which either party wishes to adduce relevant to any

issue.” Id. (quoting Frye v. Memphis State Univ., 671 S.W.2d 467, 469

(Tenn. 1984)). If the trial court makes the required findings of fact, appellate

courts review the trial court’s factual findings de novo upon the record,

accompanied by a presumption of the correctness of the findings, unless the

preponderance of the evidence is otherwise. Kelly v. Kelly, 445 S.W.3d 685,

692 (Tenn. 2014) (citing Tenn. R. App. P. 13(d)). Appellate courts review

questions of law de novo with no presumption of correctness. Id.

MJM Real Est. Invs., LLC, 2018 WL 1560650, at *3 (emphasis added).

III. DISCUSSION

A. Due Process

Ms. Todd’s first argument on appeal is regarding due process. She contends that

she only received notice of the hearing before the Commission three business days

beforehand, and as a result, she was “unable to retain counsel to represent her interest” and

“forced to represent herself at the hearing and attempt to navigate complex legal issues

before the MHZC as a layperson.” Quoting McClellan v. Board of Regents of State

University, 921 S.W.2d 684, 688 (Tenn. 1996), Ms. Todd argues that “[t]he purpose of due

process requirements is to notify the individual in advance in order to allow adequate

preparation and reduce surprise.” (emphasis in Ms. Todd’s brief). She points to the

statements she made at the hearing regarding her bewilderment and inability to gather

enough information to “formulate a game plan.” Ms. Todd also complains that the

Commission did not send any notice of the hearing to her but instead sent notice to Mr.

Martin, who, she claims, was not her agent. In response, Metro disputes that Ms. Todd had

a property right entitled to due process protection. Even if she did, however, Metro argues

that Ms. Todd complains about problems with the Commission hearing but fails to identify

any evidence that she would seek to introduce in a remand to the Commission, nor does

she explain why such evidence could not have been presented to the chancery court at the

de novo hearing. Thus, according to Metro, a remand to the Commission “would serve no

purpose.”

We agree with Metro on this issue. Ms. Todd’s due process argument is solely

based on the lack of timely notice of the Commission hearing. However, Ms. Todd

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subsequently had a de novo hearing in chancery court, meaning “a new hearing” based on

not only the administrative record but also “any additional or supplemental evidence which

either party wishes to adduce relevant to any issue.” MJM Real Est. Invs., LLC, 2018 WL

1560650, at *3 (citing Tennessee Waste Movers, Inc., 160 S.W.3d at 520). She was

represented by counsel at the de novo hearing. She also testified at the de novo hearing

and stated that she had elected not to retain an architect. During oral argument before this

Court, Ms. Todd’s counsel agreed that Ms. Todd “had adequate time for preparation”

before the de novo hearing in chancery court and was represented by counsel. As a result,

counsel was asked how the alleged lack of timely notice of the Commission hearing was

not cured by the time of the de novo hearing in chancery court. Counsel suggested that it

was not, but the only reason he gave was that, in his experience, the Commission rarely

deviates from the staff recommendations presented at hearings unless neighbors or

members of the public are present to oppose the recommendation, so it is important to have

proper notice before the Commission hearing. In response, counsel for Metro contended

during oral argument that Ms. Todd certainly had plenty of time to prepare for the de novo

hearing in chancery court, so it was unclear how a remand to the Commission would

provide her with any remedy that she was not already afforded by the de novo hearing.

The Tennessee Supreme Court considered a similar argument in Cooper v.

Williamson County Board of Education, 746 S.W.2d 176 (Tenn. 1987), a case involving

the Teacher Tenure Act. In that case, an initial hearing was held before the county board

of education, but the Teacher Tenure Act provided a review provision that was “a species

of the statutory writ of certiorari.” Id. at 178-79. The Court explained that “statutory writs

of certiorari may provide for some form of a trial de novo.” Id. at 179. The Teacher Tenure

Act provided that “‘[t]he hearing shall be de novo and may be on deposition and

interrogatories, or on oral testimony.’” Id. (quoting Tenn. Code Ann. § 49-5-513(g)).

Thus, the teacher could seek judicial review in chancery court, the chancellor would hold

a de novo hearing, and the parties could present additional evidence.8 Id. at 180. Upon

considering the evidence, the chancellor would enter findings of fact and conclusions of

law. Id.

Before the Tennessee Supreme Court, the teacher argued that he was denied due

process because the board of education was biased against him and had predetermined the

outcome of his hearing. Id. at 183. The Supreme Court explained,

Given the availability of a hearing de novo in these cases, in which the

Chancellor redetermines the merits of the charges and decides whether a

board’s actions were justified by the evidence, we do not think that whether

a board acted arbitrarily or capriciously has any relevance to the status of the

teacher because a hearing de novo in the Chancery Court readjudicates the

8

Since Cooper, amendments to the Teacher Tenure Act have modified its judicial review provisions. See

Finney v. Franklin Special Sch. Dist. Bd. of Educ., 576 S.W.3d 663, 675 (Tenn. Ct. App. 2018).

- 19 -

matter in a neutral forum, completely eliminating any arbitrariness or

capriciousness in the board’s decision, which is not afforded a presumption

of correctness. . . . [A]ny arbitrariness or capriciousness on the part of the

board is cured by the hearing de novo. Raising this issue in the Chancery

Court seems to be a holdover from petitions for the common law writ of

certiorari but it is not generally appropriate under the Teacher Tenure Act,

which permits review of the administrative decision by a species of the

statutory writ of certiorari and contemplates a much broader scope of review

both of facts and of law to decide the case on its merits.

Id. at 183-84 (emphasis added).

In another case, Phillips v. State Board of Regents of the State University and

Community College System of the State of Tennessee, 863 S.W.2d 45, 50 (Tenn. 1993), the

Tennessee Supreme Court considered a due process argument regarding the adequacy of

notice provided to a terminated professor. The professor argued that “she was denied due

process because she was not informed of the specific details of each allegation of deficient

conduct supporting the general statutory charge against her.” Id. She claimed that “the

statutory ground for discharge was too vague to inform the appellant of the nature of the

offense.” Id. at 47. Our Supreme Court rejected this argument, explaining:

A fundamental requirement of due process is notice and an opportunity to be

heard. Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306, 70 S.Ct.

652, 94 L.Ed. 865 (1950); In Re Riggs, 612 S.W.2d 461, 465 (Tenn. App.

1980). The purpose of notice is to allow the affected party to marshal a case

against the firing body. Bignall v. North Idaho College, 538 F.2d 243, 247

(9th Cir. 1976).

“[D]ue process is flexible and calls for such procedural protections as

the particular situation demands.” Armstrong v. Manzo, 380 U.S. 545, 552,

85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). In determining what process is

due in a particular situation, three factors must be considered: (1) the private

interest affected by the official action; (2) the risk of erroneous deprivation

of the interest through the procedures used and the probable value, if any, of

additional or substitute procedural safeguards; and finally, (3) the

government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct.

893, 903, 47 L.Ed.2d 18 (1976). Moreover, the component parts of the

process are designed to reach a substantively correct result. Elaborate

procedures at one stage may compensate for deficiencies at other stages.

Bignall, 538 F.2d at 246.

In this case, Phillips received notice of the allegations supporting the

charge against her in the documentation attached to the letter instituting

- 20 -

termination proceedings. She was afforded the benefit of both an informal

and formal hearing, in which further specific details of the allegations were

developed. Finally, Phillips had a de novo hearing in the Chancery Court

pursuant to Tenn. Code Ann. § 49-8-304 (1990), which was conducted in

accordance with the procedures set forth in Frye v. Memphis State Univ., 671

S.W.2d 467 (Tenn. 1984).

We do not deem it necessary to decide whether the documentation

attached to the letter was sufficiently specific to satisfy due process at that

early stage of the procedure because we conclude that sufficient notice of the

specific details of the allegations supporting the charge was provided, at

least by the time of the de novo hearing in Chancery. See Bignall, 538 F.2d

at 248 (although the notice prior to the hearing was defective, by the time of

the trial de novo there was ample notice to satisfy due process). Given the

availability of the hearing de novo in which Phillips was allowed to present

further evidence to refute the specific details of allegations of which she may

not have been aware at the time of the formal hearing, and the fact that there

is no presumption of correctness afforded the decision of the administrative

board, we conclude that the component parts of the process afforded a

substantively correct result. Cf. Cooper v. Williamson County Bd. of Educ.,

803 S.W.2d 200, 201 (Tenn. 1990) (a hearing de novo in Chancery re-

adjudicates the matter in a neutral forum, completely eliminating any

arbitrariness or capriciousness in the board’s decision, which is not afforded

a presumption of correctness). We, therefore, hold that the claim of

inadequate notice is without merit, and there was no violation of due process.

Id. at 50-51 (emphasis added).

Finally, in Wells v. Tennessee Board of Regents, 9 S.W.3d 779, 787 (Tenn. 1999),

our Supreme Court clarified the holding in Phillips and reached the same conclusion

regarding another alleged violation of due process for insufficient notice:

Our decision in Phillips v. State Bd. of Regents, 863 S.W.2d 45, does

not hold that formal notice of each allegation of deficient conduct is required

before termination proceedings can be initiated against a tenured employee.

Rather, in that case we observed that while the fundamental requirements of

due process must be satisfied (notice and an opportunity to be heard) in

tenure termination proceedings, see Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), due

process is flexible and “[e]laborate procedures at one stage may compensate

for deficiencies at other stages,” see Phillips v. State Bd. of Regents, 863

S.W.2d at 50 quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187,

1191, 14 L.Ed.2d 62 (1965). The primary purpose of the notice requirement

is “to allow the affected party to marshal a case against the firing body.” See

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Phillips v. State Bd. of Regents, 863 S.W.2d at 50. Applying these guidelines,

we determined that although Phillips claimed she was not given sufficiently

detailed notice of the charges against her, by the time she received a de novo

review in Chancery Court she had received detailed notice and was capable

of presenting additional evidence to refute the allegations against her. See

id. at 50.

Like in Phillips v. State Bd. of Regents, 863 S.W.2d at 50-51, we

conclude that in this case “the component parts of the process afforded a

substantively correct result.” Dr. Wells initially received notice of the

charges against him in the form of a letter, issued by TSU, alerting him to the

allegations of sexual harassment. He was then afforded two full

administrative hearings at which he was permitted to testify and present

witnesses. Finally, Dr. Wells received a de novo review of his case in

Chancery Court, where he again testified and presented witnesses. Any

alleged due process deficiency was certainly cured at the time of the

Chancery Court hearing, which occurred eight years after charges were

initiated against him.

Id. See also In re C.M., No. M2014-02571-COA-R3-JV, 2015 WL 9311287, at *14 (Tenn.

Ct. App. Dec. 18, 2015) (“[D]ue process is satisfied when proceedings in one tribunal give

notice of the allegations prior to a de novo appeal in the second tribunal. Under such

circumstances, the parties have full notice of the allegations and full opportunity to present

their defense; accordingly, there is no risk of erroneous deprivation.”) (citation omitted).

As in Phillips, we “do not deem it necessary to decide” whether the notice provided

prior to the hearing before the Commission was timely or adequate because we conclude

that Ms. Todd had sufficient notice and sufficient time to prepare before the de novo

hearing in chancery court. 863 S.W.2d at 50. The only harm that Ms. Todd identifies in

her brief on appeal from the untimely notice was that she did not have time to retain counsel

before the Commission meeting. However, she was represented by counsel at the de novo

hearing in chancery court. Assuming arguendo that Ms. Todd possessed an interest that

triggered due process requirements, any alleged due process deficiency in the notice was

certainly cured by that time.9 See id.

B. The Guidelines

9

In her brief on appeal, Ms. Todd also argues that notice of the Commission hearing was not provided in

accordance with the contested hearing requirements of the Uniform Administrative Procedures Act, Tenn.

Code Ann. § 4-5-307. In her reply brief, she additionally argued that notice was not provided in accordance

with certain provisions of the Metro Code. However, neither of these arguments was raised in the

proceedings below. Therefore, they cannot be raised for the first time on appeal. See Martin v. Rolling

Hills Hosp., LLC, 600 S.W.3d 322, 336 (Tenn. 2020) (quoting State v. Rowland, 520 S.W.3d 542, 545

(Tenn. 2017)) (“[A]s a general rule, ‘issues raised for the first time on appeal are waived.’”).

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The final issue raised by Ms. Todd is “[w]hether the Trial Court erred in finding that

Ms. Todd’s covered porch was not in compliance with the Guidelines, based upon the Trial

Court’s reliance on italicized and noncontrolling portions of the Guidelines.” According

to her reply brief, “Ms. Todd does not assert that the covered porch complies with the

Guidelines. Conversely, Ms. Todd alleges that the Guidelines, as written, do not apply to

the covered porch.” Ms. Todd raises several arguments as to why she believes the

guidelines did not apply to her porch.

First, Ms. Todd relies on the general bullet points in the margin at the beginning of

the guidelines listing items that are reviewed and items that are not reviewed in a

neighborhood conservation zoning overlay. For items that are reviewed, the list includes

“Additions – increased footprint, height or building envelope of an existing structure.” For

“what is not reviewed,” it included “[w]ork that cannot be seen from the public right-of-

way (not including alleys),” but this bullet point included a cautionary instruction that in

order to avoid a possible violation, “the project should be evaluated by staff for assurance

that a Preservation Permit is not necessary.” Based on these bullet points, Ms. Todd argues

on appeal that only work visible from the road is subject to design review. She concedes

that Mr. Alexander testified that portions of the porch can be seen from the road, including

the chimney, a portion of the wall, a portion of the roof, part of the gutter, and a little bit

of siding. However, Ms. Todd claims that Mr. Alexander never stated that the “wrapped

corner” can be seen from the right-of-way, and therefore, she argues, “the allegedly

wrapped corner is not subject to the Guidelines because it cannot be seen from the public

right-of-way.”

At the de novo hearing in chancery court, Mr. Alexander was asked about these

bullet points and Ms. Todd’s interpretation of them. When Ms. Todd’s counsel asked Mr.

Alexander if this means that “you only govern what’s seen from the street,” Mr. Alexander

disagreed with this interpretation. He pointed out that the guidelines state, “These

guidelines shall apply only to the exteriors of buildings and to new construction that would

have at least a portion visible from a public right-of-way.” (emphasis added). The

guidelines defined the term “new construction” to include an “addition.” In turn, they

defined an “addition” to include “covered porches.” As such, as Mr. Alexander explained,

the guidelines apply to the addition if at least a portion is visible from the street. He

explained that if no portion of an addition was visible from the street, then it would not

necessarily need a preservation permit. We agree with Mr. Alexander’s interpretation. The

guidelines state that they apply to “new construction,” which would include an addition

(and a covered porch), if at least a portion is visible from the public right-of-way. Thus,

the guidelines apply to Ms. Todd’s addition because it is undisputed that a portion of it is

visible.10

10

In her reply brief, Ms. Todd states that “the trial record reflects that Ms. Todd offered to remove all

portions of the covered porch which are visible from the public right of way,” but “Metro refused Ms.

Todd’s offer.” However, the only citation to the record provided in support of this statement references the

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Next, Ms. Todd acknowledges that her covered porch was not approved because it

wraps the corner continuously, but she argues that “[n]othing in the controlling portions of

the Guidelines refers to ‘wrapping the corner.’” Because the only explicit reference to

wrapping the corner was found in italicized text, Ms. Todd argues that the Commission

and the chancery court “simply treated the noncontrolling italicized language regarding

wrapping the corner as part of the Guidelines.” We find no support for this assertion. The

chancery court’s order expressly stated, “All references in the Guidelines that appear in

italics ‘contain interpretive information that is meant to make the guidelines easier to

understand; they are not part of the guidelines themselves.’”11 After quoting at length the

detailed sections of the guidelines governing rear additions and side additions, the chancery

court found that the Commission “has treated these Guidelines as allowing two separate

additions – a rear addition and a side addition – but not a singular addition that attaches to

the rear of a historic house, wraps the corner, and attaches to the side.”12 The chancery

court found that Ms. Todd’s porch wraps the corner continuously, so its porch and chimney

“do not meet Sections IV.A.1, IV.A.2 and IV.B.1.b of the Guidelines for rear and side

testimony of Mr. Alexander at the de novo hearing in chancery court. During this testimony, Mr. Alexander

was asked if he was “aware” that Ms. Todd had offered to remove portions of the gutters and roof that could

be seen from the right-of-way and responded, “I was not aware of that. I read something to that effect in

your brief, but that was never communicated to me by Ms. Todd or Mr. Martin.” He added, “I did not see,

read or receive any communication from you, you say her representation, regarding a solution.” Counsel

then asked Mr. Alexander “would it surprise you to know then that an offer was made to remove all portions

of that roof and gutter that are visible from the right-of-way and that offer was refused?” He responded, “I

would be surprised if I were to hear that that were offered.” Finally, counsel asked, “And you testify again

that you’re not aware that Ms. Todd made any proposals to make revisions to the structure, to remove

portions of the roof, remove portions of the gutter that are visible from the street.” He replied, “Not that I

recall. No. I don’t believe she communicated with me at all.”

Mr. Alexander’s testimony reflects that he had no knowledge of any offer to remove portions of

the porch, aside from counsel’s suggestion that it occurred. However, counsel’s statements and questions

are not evidence. See Cooper v. State, No. E2022-01776-CCA-R3-PC, 2024 WL 4143828, at *42 (Tenn.

Crim. App. Sept. 11, 2024) (“It is fundamental that an attorney’s questions, comments, and arguments are

not evidence.”); State v. Guilfoy, No. M2012-00600-CCA-R3-CD, 2013 WL 1965996, at *18 (Tenn. Crim.

App. May 13, 2013) (explaining that a prosecutor’s “suggestive phrasing and leading questions did not cure

[the] lack of specificity in the proof” because an attorney’s questions are not evidence); State v. Ballinger,

No. 03C01-9206-CR-00223, 1993 WL 247941, at *1 n.2 (Tenn. Crim. App. July 7, 1993) (“[T]he defendant

attempted to set forth some proof through his phrasing of his cross-examination of State witnesses;

however, it is well established that attorneys’ questions and comments are not evidence and, therefore, may

not be considered as such in our review.”). Because Ms. Todd relies solely on Mr. Alexander’s testimony

in support of this argument, we decline to consider it on appeal.

11

Ms. Todd also argues on appeal that the Commission staff has attempted “to circumvent the legislative

and statutory process for the Guidelines set forth in T.C.A. §13-7-406.” However, she does not cite to any

portion of the record to demonstrate that this argument was raised in the proceedings below, so we deem it

waived. See Martin, 600 S.W.3d at 336; Tenn. Ct. App. R. 6.

12

Mr. Alexander testified in detail regarding the Commission’s reasoning for this, even though the sections

on additions admittedly did not contain the language “wrapping the corner.” However, we reiterate that

Ms. Todd “does not assert that the covered porch complies with the Guidelines,” but rather, “that the

Guidelines, as written, do not apply to the covered porch.”

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additions.” The chancery court did not improperly treat the noncontrolling italicized

language as binding, as Ms. Todd suggests.

Finally, Ms. Todd relies on a drawing that was located in the margin of the design

guidelines next to the section regarding rear additions. The guidelines stated that additions

should generally be located at the rear of the building in such a way that it would not disturb

the front or side facades and should generally fit within the shadow line of the building.

The following drawing appears in the margin:

Ms. Todd argues on appeal that the drawing on the right depicts an addition that “wraps a

corner continuously,” which shows, in non-italicized language, that “wrapping the corner

[i]s an acceptable rear addition.” However, Mr. Alexander was asked about this drawing

at the de novo hearing, and he explained that it depicts “an entirely different situation.” He

noted that the drawing depicts a rear addition that is entirely within the shadow line or

silhouette of the house, and it does not wrap the back exterior corner of the home but merely

an interior corner. Mr. Alexander suggested that the drawing may have been intended to

show an example when a previous addition had been added. However, he noted that the

shaded addition in the drawing did not wrap a corner of the original house in a manner that

would be visible from the public right-of-way. Thus, the addition in the drawing would

still be considered “an entirely rear addition.” He also noted that the drawings did not

include any “side addition component.” Mr. Alexander deemed Ms. Todd’s porch an

“entirely different scenario.” Thus, he rejected the idea that this drawing authorizes an

addition like Ms. Todd’s that extends across the back and wraps the corner of the historic

home to connect to a side addition. We are persuaded by Mr. Alexander’s explanation that

this drawing does not authorize “wrapping the corner” in the manner suggested by Ms.

Todd. It depicts additions that are entirely at the rear of the home, not additions that wrap

around a rear exterior corner to connect to a side addition. Thus, Ms. Todd’s argument

regarding the drawing does not entitle her to relief on appeal.

IV. CONCLUSION

For the aforementioned reasons, the decision of the chancery court is affirmed and

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remanded. Costs of this appeal are taxed to the appellant, Barbara J. Todd, Trustee of the

Barbara Todd 2017 Trust, for which execution may issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE

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