Adam T. Huffstutter v. Metropolitan Historical Zoning Commission of the Metropolitan Government of Nashville and Davidson County

07/03/2023

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 8, 2023 Session

ADAM T. HUFFSTUTTER v. METROPOLITAN HISTORICAL ZONING

COMMISSION OF THE METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY

Appeal from the Chancery Court for Davidson County

No. 21-731-IV Russell T. Perkins, Chancellor

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No. M2022-00850-COA-R3-CV

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The appellant is a property owner who sought review of a decision by the Metropolitan

Historic Zoning Commission by filing a petition for writ of certiorari in chancery court.

The chancery court affirmed the decision of the Historic Zoning Commission. The

appellant property owner appeals. 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 W. NEAL MCBRAYER, J., joined.

Dan E. Huffstutter, Nashville, Tennessee, for the appellant, Adam T. Huffstutter.

Paul Jefferson Campbell, II, Assistant Metropolitan Attorney, Nashville, Tennessee, for

the appellee, Metropolitan Historic Zoning Commission.

OPINION

I. FACTS & PROCEDURAL HISTORY

On March 17, 2021, the Metropolitan Historic Zoning Commission voted on several

matters pertaining to 3707 Richland Avenue, a historic home owned at that time by Dan

Huffstutter. The Historic Zoning Commission voted to disapprove Mr. Huffstutter’s

application for demolition of the historic home, finding that Mr. Huffstutter had created his

own economic hardship.1 Next, the Historic Zoning Commission voted to rescind an

existing permit for construction of an addition to the home, finding that foundation work

had been performed outside the scope of the permit for the addition. Mr. Huffstutter had

retained an engineer to devise a plan for lowering the floor of the home to provide

additional living space, but the methods employed by Mr. Huffstutter’s contractor during

the foundation work jeopardized the overall structural stability of the home. Thus, the

Historic Zoning Commission also voted to require reconstruction of the home using

original materials and historic images, with specific conditions. The following day,

Metro’s Historic Zoning Administrator sent a letter to Mr. Huffstutter providing a list of

items that had to be submitted to the Historic Zoning Commission, in connection with the

plan for reconstruction of the home, by April 2, 2021. The letter concluded by stating,

“Pursuant to the provisions of § 2.68.030 of the Metropolitan Code of Laws, you may

appeal the MHZC’s decision to the Chancery Court of Davidson County or the Circuit

Court of Davidson County via a statutory writ of certiorari.”

On May 28, 2021, Mr. Huffstutter’s son, Adam Huffstutter, submitted an

application to the Historic Zoning Commission for demolition of the same home, 3707

Richland Avenue, on the basis of economic hardship. The documents submitted in support

of the application were largely the same as those that had been submitted in support of Mr.

Huffstutter’s application, but Adam Huffstutter also included a quitclaim deed indicating

that Mr. Huffstutter had conveyed the property to him for zero dollars on May 24, 2021.

The Historic Zoning Commission held a meeting on June 16, 2021. After some

discussion amongst the members of the Historic Zoning Commission, they unanimously

voted to treat Adam Huffstutter’s application as a request for a rehearing (rather than an

1

Tennessee Code Annotated section 13-7-407 provides:

(a) 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.

(b) The governing board of any municipality may enact an ordinance to prevent the

demolition by neglect of any designated landmark or any building or structure within an

established historic zone or district. Such ordinance shall provide appropriate safeguards

to protect property owners from undue economic hardship.

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original application) and to deny the request for rehearing. Adam Huffstutter then filed a

petition for writ of certiorari in chancery court. He asserted that he had filed only one

original application before the Historic Zoning Commission, and therefore, the

Commission acted unlawfully, illegally, and arbitrarily by refusing to conduct a hearing on

his application. The petition asked the chancery court to “hear this cause pursuant to a

common law writ of certiorari.”

The chancery court issued a writ of certiorari directing the Historic Zoning

Commission to forward the administrative record to the court for review. Adam Huffstutter

filed a brief, which framed the issue before the chancery court as whether the Historic

Zoning Commission improperly denied him a hearing on his application. Metro also filed

a brief. It argued that the chancery court’s review of decisions of the Historic Zoning

Commission is by statutory certiorari 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 or regional 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.

Thus, Metro contended that the chancery court was required to review the administrative

record and any evidence offered by the parties on a de novo basis, rather than the more

narrow scope of review permissible under a common law writ of certiorari. Still, Metro

argued that the Historic Zoning Commission had proceeded appropriately by considering

the matter at its meeting, treating it as a rehearing request pursuant to its own rules of

procedure, and denying it. In sum, Metro asked the chancery court to affirm the decision

of the Historic Zoning Commission.

After a hearing, the chancery court entered a final order on May 23, 2022. At the

outset, the chancery court stated that appeals from decisions of the Historic Zoning

Commission are by statutory certiorari pursuant to Tennessee Code Annotated section 13-

7-409, and therefore, its review was de novo. After a lengthy recitation of the procedural

history of the matter, and its factual findings, the chancery court framed the issue before it

as “whether the Commission erred in considering Mr. Adam Huffstutter’s Application as

one for rehearing rather than a new application.” Initially, the chancery court noted that

courts defer to an agency’s interpretation of its own rules and regulations. The court noted

the Historic Zoning Commission’s conclusion that its review was tied to the property, not

the particular owner or applicant.2 The chancery court concluded that this interpretation

“was neither erroneous nor inconsistent with the regulation.” The court stated that the

2

The instructions accompanying the permit application state, “The Economic Hardship process is

to determine the economic hardship as it relates to the cost associated with the property, not the financial

stability of the property owner.”

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permit for the addition to the property had remained in effect despite a previous

conveyance, thus the court found it “logically follows” that the Commission’s March 17,

2021 decision would likewise remain effective and applicable to the property regardless of

the transfer to Adam Huffstutter. The court found that the Historic Zoning Commission

was asked to consider “a nearly identical application” to the one it had already considered

and decided. It pointed out that the property was not sold to Adam Huffstutter but rather

transferred by quitclaim deed. Finally, the Historic Zoning Commission noted that the

property transfer was to Mr. Huffstutter’s son, who accepted the quitclaim deed knowing

the condition of the property and that his father’s request for demolition had been denied

just two months earlier. Considering all of these circumstances, the chancery court

concluded that the Historic Zoning Commission did not err in considering Adam

Huffstutter’s application as one for rehearing and denying it. The court noted that the

Historic Zoning Commission’s rule was not to rehear a case unless there was information

that could not have been available at the time of the previous hearing, and the application

submitted by Adam Huffstutter was largely the same as that submitted by his father.

Adam Huffstutter timely filed a notice of appeal to this Court.

II. ISSUES PRESENTED

Adam Huffstutter presents the following issues for review on appeal, which we

quote from his brief:

1. Is a common law writ of certiorari available to landowner seeking

review of a Metropolitan Historic Zoning Commission’s (herein

“MHZC”) action?

2. The trial court granted landowner’s petition for a common law writ of

certiorari review of the MHZC action, but was error committed when

the judicial review was statutory certiorari?

3. Did MHZC’s procedural act of treating landowner’s application for a

preservation permit as a rehearing request, deny landowner of his due

process right to a hearing on his application for a preservation permit?

Metro presents the following issues for review:

1. Whether, by raising it for the first time on appeal, Petitioner waived

his argument that the Chancellor committed error by conducting

judicial review under the standard for a statutory writ of certiorari

rather than that of a common law writ?

2. Whether Petitioner has waived his new due process challenge to the

underlying decision because it was not raised below and his briefing

insufficiently addresses the issue?

3. Whether the Chancellor was correct in affirming the Commission’s

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decision to treat Petitioner’s application as a request for a rehearing

rather than as a new application where his father exceeded the scope

of a permit for an addition, undermined the stability of the home’s

foundation, was denied a permit to demolish the home, then

quitclaimed the home to Petitioner who then asked the Commission

to consider a nearly identical application to the one it had already

considered and rejected?

4. Whether, under the circumstances mentioned above, Petitioner has

unclean hands?

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

III. DISCUSSION

A. Common Law versus Statutory Writ of Certiorari

We will begin with the first two issues raised by Adam Huffstutter. He claims that

he intentionally sought review pursuant to the common law writ of certiorari and therefore

the trial court erred in conducting judicial review pursuant to the statutory writ of certiorari.

“When the Tennessee General Assembly empowers state or local government

entities to make decisions affecting the rights of citizens, it has the authority and discretion

to prescribe the procedure for obtaining judicial review of these decisions.” Brundage v.

Cumberland Cnty., 357 S.W.3d 361, 369 (Tenn. 2011). “The General Assembly has, in

different contexts, prescribed the use of common law writs of certiorari, statutory writs of

certiorari, the Uniform Administrative Procedures Act, and declaratory judgments.” Id.

(footnotes omitted).

Tennessee Code Annotated section 13-7-409 provides that “[a]nyone who may be

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

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.” This Court has

discussed section 13-7-409 in only a couple of cases. In MJM Real Estate Investments,

LLC v. Metropolitan Government of Nashville and Davidson County, No. M2017-01166-

COA-R3-CV, 2018 WL 1560650, at *1 (Tenn. Ct. App. Mar. 29, 2018), a chancery court

had reviewed a decision of the Metropolitan Historic Zoning Commission pursuant to a

statutory writ of certiorari, and this Court reviewed the chancery court’s decision on appeal.

With respect to section 13-7-409, we explained,

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 . . . 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

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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.

Id. at *3.

This Court also discussed Tennessee Code Annotated section 13-7-409 in

Metropolitan Government of Nashville and Davidson County v. RSF Investors, LLC, No.

M2016-02221-COA-R3-CV, 2017 WL 2996753 (Tenn. Ct. App. July 14, 2017). That case

was not an appeal arising from a petition for writ of certiorari. Id. at *1. Instead, it arose

from an enforcement action in the form of a civil warrant filed by Metro in general sessions

court, seeking an injunction requiring removal of plastic panels at the subject property that

did not comply with an existing permit. Id. at *1-2. The case was eventually appealed to

the circuit court and to this Court. Id. at *2. On appeal, the property owner argued that the

Commission had no authority to regulate the installation of such panels, and in response,

Metro argued that “the exclusive means for [the property owner] to challenge the

Commission’s final order was through a petition for a statutory writ of certiorari and,

because [the owner] failed to file a petition for certiorari, it is barred from challenging the

Commission’s authority to regulate the installation.” Id. at *7. In that context, this Court

stated the following regarding section 13-7-409:

Tenn. Code Ann. § 13-7-409 states that anyone who may be aggrieved by a

final order of the historic zoning commission must challenge the decision

through a statutory certiorari procedure. Tenn. Code Ann. § 27-9-102

provides that a party shall file his or her petition of certiorari within sixty

days from the entry of the order or judgment. [The owner] did not appeal the

Commission’s decision through the statutory certiorari procedure. Instead,

[it] is challenging the Commission’s decision by denying its force and effect

in this matter, which is an incidental enforcement proceeding.

Id. (emphasis added). Ultimately, this Court concluded that the owner could pursue a

collateral attack on jurisdictional grounds. Id. at *7-8. However, the issue of whether the

Historic Zoning Commission’s decision can also be reviewed by a petition for common

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law writ of certiorari was not before the Court.

In the case at bar, Adam Huffstutter relies on Byron Ave. 3501, LLC v. Metropolitan

Historic Zoning Commission of the Metropolitan Government of Nashville, No. M2010-

01652-COA-R3-CV, 2011 WL 2112774 (Tenn. Ct. App. May 24, 2011), in support of his

assertion that a common law writ can also be utilized. That case involved a decision of the

Metropolitan Historic Zoning Commission denying a demolition permit based on

economic hardship. Id. at *1. The opinion states that the applicant “filed suit in the form

of a common law writ of certiorari.” Id. The chancery court reviewed the decision under

the limited standard applicable to a common law writ, and so did this Court on appeal. Id.

at *2. We explained:

The scope of review with respect to a common law writ of certiorari

is limited. Watts v. Civil Serv. Bd., 606 S.W.2d 274, 276 (Tenn. 1980);

Leonard Plating Co. v. Metro. Gov’t of Nashville & Davidson County, 213

S.W.3d 898, 903 (Tenn. Ct. App. 2006). A reviewing court may grant relief

only upon a determination that the action by the administrative body was:

“(1) in violation of constitutional or statutory provisions; (2) in excess of

statutory authority; (3) an unlawful procedure; (4) arbitrary or capricious; or

(5) unsupported by material evidence.” Demonbreun v. Metro. Bd. of Zoning

Appeals, 206 S.W.3d 42, 46 (Tenn. Ct. App. 2005). The scope of review by

the appellate courts is no broader than that of the chancery court in these

cases with respect to evidence presented before the administrative body.

Watts, 606 S.W.2d at 277.

Reviewing a common law writ of certiorari “does not extend to a

redetermination of the facts found by the board or agency whose decision is

being reviewed.” Leonard Plating, 213 S.W.3d at 903. Courts are not

permitted to “(1) inquire into the intrinsic correctness of the decision, (2)

reweigh the evidence, or (3) substitute their judgment for that of the board or

agency.” Id. at 903-04 (footnotes omitted). Rather, the courts must review

the board’s decision to determine whether there is any material evidence to

support the decision; “a decision without evidentiary support is an arbitrary

one.” Id. at 904. The determination of whether the board’s decision is

supported by material evidence is a question of law. Id. To support a board’s

decision, the material evidence “must exceed a scintilla of evidence but may

be less than a preponderance of the evidence.” Id.

Id. at *2. Applying this standard, we concluded that the decision of the Historic Zoning

Commission to deny the permit was not supported by material evidence. Id. at *9.

However, there is nothing in the opinion to indicate that anyone challenged the use of the

common law writ of certiorari or even questioned its use. The opinion does not mention

Tennessee Code Annotated section 13-7-409 or the statutory writ.

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Adam Huffstutter insists on appeal that the common law writ remains an “available

option” and therefore the trial court erred in treating his petition as one for a statutory writ

of certiorari. Under the unique circumstances of this case, we do not deem it necessary to

decide whether the common law writ of certiorari was an available alternative. “The

distinction between a common law writ of certiorari and a statutory writ of certiorari largely

rests on the scope of appellate review available.” Outloud! Inc. v. Dialysis Clinic, Inc., No.

M2016-01528-COA-R3-CV, 2017 WL 4004161, at *2 (Tenn. Ct. App. Sept. 11, 2017)

(citing State v. Lane, 254 S.W.3d 349, 354 n.4 (Tenn. 2008)). As the aforementioned

opinions indicate, and Huffstutter concedes, review under the common law writ of

certiorari would have been much more narrow than the de novo review provided by the

statutory writ. In addition, Huffstutter conceded at oral argument that his challenge to the

decision of the Historical Zoning Commission was based on “a procedural problem.” He

explained, “We only wanted the review on a single question. . . . Did they fail to follow the

procedure?” Specifically, he insists that the Historic Zoning Commission should have

treated his application as an original application rather than a request for rehearing,

pursuant to its own policies and procedures. That is the very question that the chancery

court decided in its written order. The order plainly states, “The issue before the Court is

whether the Commission erred in considering Mr. Adam Huffstutter’s Application as one

for rehearing rather than a new application.” The chancery court ultimately concluded that

it did not, after reviewing the Metro Code, the circumstances of this case, and the

explanation provided by the Zoning Administrator at the meeting of the Commission. The

chancery court also noted that courts generally defer to an agency’s interpretation of its

own rules. Thus, the chancery court affirmed “the Commission’s June 17, 2021 decision

to treat the Application of Mr. Adam Huffstutter as one for rehearing and to deny the

request for rehearing.”

Adam Huffstutter has not shown that the result would have been any different under

the common law writ of certiorari review that he sought in chancery court. See, e.g., Stone

v. Tenn. Bd. of Parole, No. M2016-01730-COA-R3-CV, 2017 WL 4217164, at *7 (Tenn.

Ct. App. Sept. 20, 2017) (“In common law certiorari proceedings, we are obliged to give

substantial deference to the agency’s interpretation of its own rules.”); Steppach v. Thomas,

346 S.W.3d 488, 499 (Tenn. Ct. App. 2011) (“we will defer to the agency’s decision on

questions involving its own procedures”). To the contrary, counsel for Adam Huffstutter

stated at the outset of the hearing in chancery court, “As you know, we’re here today on a

petition for a writ of certiorari and the issue in this is to determine whether the Metro

Historical Zoning Commission’s decision was in accordance with applicable law, and since

it is a question of law, it will be a de novo review by this Court.” Thus, it is not necessary

to resolve the issue presented by Huffstutter for purposes of this appeal because the alleged

error would be harmless. See Tenn. R. App. P. 36(b) (“A final judgment from which relief

is available and otherwise appropriate shall not be set aside unless, considering the whole

record, error involving a substantial right more probably than not affected the judgment or

would result in prejudice to the judicial process.”); Johnston v. Metro. Gov’t of Nashville

& Davidson Cnty., 320 S.W.3d 299, 315 (Tenn. Ct. App. 2009) (recognizing that “even if

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the matter should have proceeded as a declaratory judgment action, instead of a writ of

certiorari, the ruling on the legal issues would have been similar,” and therefore, “any error

by the trial court on this issue had essentially no effect on the issues before the court”).

B. Due Process

The third issue Adam Huffstutter raised on appeal was framed as follows: “Did

MHZC’s procedural act of treating landowner’s application for a preservation permit as a

rehearing request, deny landowner of his due process right to a hearing on his application

for a preservation permit?” Metro argues that Huffstutter has waived this issue by failing

to properly brief it. Although the conclusion section of Huffstutter’s brief referenced “the

established standards of due process,” he did not otherwise reference “due process” or cite

any legal authority regarding “due process.” As a result, we deem this issue waived. See

Sneed v. Bd. of Pro. Resp. of Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not

the role of the courts, trial or appellate, to research or construct a litigant’s case or

arguments for him or her, and where a party fails to develop an argument in support of his

or her contention or merely constructs a skeletal argument, the issue is waived.”).3

IV. CONCLUSION

For the aforementioned reasons, the decision of the chancery court is affirmed and

remanded for further proceedings. All other issues are pretermitted. Costs of this appeal

are taxed to the appellant, Adam T. Huffstutter, for which execution may issue if necessary.

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CARMA DENNIS MCGEE, JUDGE

3

In his reply brief on appeal, Adam Huffstutter raised a new argument regarding whether he would

meet the definition of an “aggrieved party” within the meaning of the Historic Zoning Commission’s rule

regarding requests for rehearing. However, this issue is likewise waived because it was raised for the first

time in a reply brief, and it is not encompassed within the issues he presented for review on appeal. See

Hughes v. Tenn. Bd. of Prob. & Parole, 514 S.W.3d 707, 724 (Tenn. 2017) (“Issues raised for the first time

in a reply brief are waived.”); Reliant Bank v. Bush, 631 S.W.3d 1, 5 n.4 (Tenn. Ct. App. 2021) (explaining

that a reply brief is “not a vehicle for raising new issues”).

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