Wayne Goodwyn v. Board of Zoning Appeals of the Metropolitan Government of Nashville & Davidson County, TN

04/26/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 28, 2018 Session

WAYNE GOODWYN v. BOARD OF ZONING APPEALS OF THE

METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON

COUNTY, TN

Appeal from the Circuit Court for Davidson County

No. 16C-399 Joseph P. Binkley, Jr., Judge

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No. M2017-00192-COA-R3-CV

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After the Metropolitan Board of Zoning Appeals granted a special exception permit for a

nearby property, Appellant filed a petition for writ of certiorari in the Davidson County

Circuit Court. The trial court ultimately concluded that the permit was properly issued.

Having reviewed the record transmitted to us on appeal, we affirm the decision of the

trial court.

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

Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O.

GIBSON and KENNY ARMSTRONG, JJ., joined.

Jamie R. Hollin, Nashville Tennessee, for the appellant, Wayne Goodwyn.

Thomas V. White and George A. Dean, Nashville, Tennessee, for the appellee, Ed Clay.

Board of Zoning Appeals The Metropolitan Government of Nashville and Davidson

County, appellee1

1

Appellee, Board of Zoning Appeals of The Metropolitan Government of Nashville and Davidson

County did not file a brief.

OPINION

Background and Procedural History

The property at issue in this case is located in Nashville at 209 S. 5th Street (“the

Property”). Marketed under the name “East Ivy Mansion,” the Property boasts 44,000

square feet of indoor and outdoor space and sits on a parcel that is over one acre. The

perimeter of the Property is bordered by a brick wall.

In 2013, the Metropolitan Board of Zoning Appeals (“the Board”) granted Ed Clay

(“Mr. Clay”) a special exception permit to use the Property for historic home events. The

permit had a limited term of 26 months and was subject to a number of other special

conditions. Among other things, Mr. Clay was not allowed to host more than a maximum

of 250 guests at any event.

Mr. Clay applied for a new special exception permit in December 2015, and by

letter dated December 23, 2015, the Board sent a notice to neighboring owners informing

them of his application. The letter specifically informed nearby owners of Mr. Clay’s

intent “to use the existing residence and property for Historic Home Events.” Formal

opposition to Mr. Clay’s request soon followed.

By letter dated January 19, 2016, counsel for Wayne Goodwyn (“Mr. Goodwyn”)

notified the Board of his client’s opposition to the pending application. Mr. Goodwyn,

who owns a home near the Property, objected to the application due to his belief that

“any and all events [should] be limited to the inside of the principal dwelling” on the

Property. In support of this position, the January 19 letter noted that pursuant to Metro

Code § 17.16.160(B), the location for historic home events are directed to be “within a

historically significant structure, as determined by the historic zoning commission.” To

that end, the January 19 letter further observed that Robin Zeigler (“Ms. Zeigler”),

Historic Zoning Administrator with the Metropolitan Historic Zoning Commission, had

reported that the principal dwelling was the only historic structure on the Property.

Mr. Clay’s application was first entertained by the Board at a hearing on January

21, 2016. Upon the conclusion of the proceedings on that date, however, the matter was

deferred to the Board’s next meeting on February 4, 2016. In advance of the February 4

hearing date, the Board received multiple comments from concerned citizens. Whereas

many citizens wrote the Board in support of Mr. Clay’s proposal, other citizens wrote the

Board to object to it. At the end of the February 4 hearing, the Board ultimately decided

to grant Mr. Clay the special exception permit by a vote of six to one. The order resulting

from the Board’s hearing specifically noted that (a) the brick wall surrounding the

Property was “attached to the home and is . . . therefore a part of the home” and (b) “[u]se

of the property within the wall is customary, incidental and subordinate to the special

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exception.” As previously, the permit granted by the Board was subject to a number of

special conditions.

In response to the Board’s actions, Mr. Goodwyn filed a petition for writ of

certiorari in the Davidson County Circuit Court. The petition averred that the Board’s

ruling was “arbitrary, capricious, or illegal” and took specific issue with the fact that the

Board’s ruling allowed events to take place anywhere within the brick wall that

surrounded the perimeter of the Property. In an affidavit filed contemporaneously with

the petition, Mr. Goodwyn stated that the allowance of outside events on the Property

would greatly diminish his family’s ability to enjoy their neighborhood. Following the

filing of Mr. Goodwyn’s petition, the trial court issued a writ of certiorari directing the

Board to certify and forward a complete record of its proceedings.

In light of the fact that Mr. Goodwyn’s petition only named the Board as a

respondent, Mr. Clay subsequently moved to intervene in the case. An agreed order

granting his motion to intervene was entered on May 9, 2016.

On June 24, 2016, a portion of the administrative record was filed with the trial

court. In addition to including a record of the Board’s February 4, 2016 proceedings, the

record filed with the trial court included a record of proceedings that had taken place

before the Board in March 2016. Although the record reflects that the Board had

conducted a rehearing of its earlier decision during these March proceedings, it reached

the same result, granting Mr. Clay’s request for a permit “subject to the same . . .

conditions enumerated in the Board’s prior order from the February 4, 2016 BZA

meeting.” A record of the Board’s meeting from January 21, 2016, was not included as a

part of the June 24 filing of the administrative record, but this omission was rectified

shortly thereafter when a supplement to the administrative record was filed on July 1,

2016.

Review proceedings took place the following fall. A hearing was initially held on

November 3, 2016, and was later completed on November 29, 2016. At the conclusion

of the November 29 hearing date, the trial court orally ruled that the decision of the

Board should be upheld. A formal order affirming the Board’s actions was subsequently

entered on December 16, 2016. This appeal followed.

Issues Presented

Mr. Goodwyn raises the following issues for our review, restated slightly:

1. Whether the special exception permit for a historic home events venue was

issued by the Board arbitrarily, capriciously, or illegally.

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2. Whether the Board exceeded its limited jurisdiction in granting the special

exception permit.

3. Whether the trial court erred by affirming the decision of the Board based upon

testimony presented in a rehearing that occurred after the writ of certiorari

issued.

In addition to responding to the foregoing matters, Mr. Clay poses an additional

issue, restated slightly as follows:

4. Whether the issues relating to activities within the historic structure are

collaterally estopped by virtue of prior litigation between these same parties.2

Standard of Review

The common law writ of certiorari is the vehicle for reviewing decisions of local

boards of zoning appeals. Hoover, Inc. v. Metro. Bd. of Zoning Appeals of Davidson

Cnty., 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997) (citing McCallen v. City of Memphis,

786 S.W.2d 633, 639 (Tenn. 1990)). The scope of review afforded by this writ is quite

limited. 421 Corp. v. Metro. Gov’t of Nashville & Davidson Cnty., 36 S.W.3d 469, 474

(Tenn. Ct. App. 2000) (citation omitted). As this Court has stated previously:

[J]udicial review . . . is limited to whether the inferior board or tribunal has

exceeded its jurisdiction or acted illegally, arbitrarily, or fraudulently.

The scope of judicial review under the common law writ of certiorari

also includes a determination of whether the board acted without material

evidence to support its decision.

....

[W]hile judicial review under the common law writ does not involve

review of the intrinsic correctness of the lower tribunal’s decision, and a

reviewing court may not reweigh the evidence presented to the board, a

court is required to review the record of the board’s proceeding to

determine whether there is material evidence to support the board’s

conclusion.

2

Mr. Clay’s additional issue is predicated on the fact that Mr. Goodwyn previously asserted

challenges to the special exception permit that was granted in 2013. Mr. Goodwyn filed a petition for writ

of certiorari in the Circuit Court as a result of the Board’s earlier decision in 2013, but his action was

subsequently dismissed due to his failure to prosecute the case.

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Lewis v. Bedford Cnty. Bd. of Zoning Appeals, 174 S.W.3d 241, 245-46 (Tenn. Ct. App.

2004) (internal citations omitted); see also 421 Corp., 36 S.W.3d at 474 (noting that

review under the common law writ “consists of determining whether the administrative

body exceeded its jurisdiction, followed an unlawful procedure, acted illegally,

arbitrarily, or fraudulently, or acted without material evidence to support its decision”).

Discussion

Under Metro Code § 17.40.180(C), the Board is vested with the power to hear and

act upon applications for special exception use permits. Here, the dispute is whether the

Board erred in granting a historic home events special exception permit to Mr. Clay. Mr.

Goodwyn’s specific issue is with the Board’s application of Metro Code §

17.16.160(B)(2), which states that “[t]he events shall be within a historically significant

structure, as determined by the historic zoning commission.” According to Mr.

Goodwyn, the Board ignored the determination of the Historic Zoning Commission and

issued a permit for a location that conflicted with the Commission’s determination.

Before addressing these substantive concerns, we turn first to Mr. Goodwyn’s raised

issue about the March 2016 proceedings that took place before the Board.

In his brief, Mr. Goodwyn argues that the Board’s March 2016 proceedings were

improperly relied upon by the trial court because those proceedings took place after the

writ of certiorari had issued. In support of this argument, he cites to this Court’s prior

opinion in Stone Man, Inc. v. Rutherford County Regional Planning Commission, 1985

Tenn. App. LEXIS 2607 (Tenn. Ct. App. Jan. 8, 1985). In a footnote to that opinion, this

Court noted as follows:

The effect of granting a writ of certiorari is to remove the matter

from the lower tribunal and place it before the reviewing court. At

common law, granting a writ of certiorari had the effect of preventing the

original tribunal from proceeding with the matter.

....

Once the trial court granted the writ of certiorari on November 23, 1982,

and the Commission’s record was filed with the court clerk, no further

proceedings should have been conducted by the Commission until the

judicial proceedings were concluded. Proceeding simultaneously in both

the administrative and judicial forums on the same matter is fraught with

the dangers of inconsistency and duplication of effort.

Id. at *8, n.3 (internal citations omitted).

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The dangers and concerns alluded to in Stone Man did not manifest in this case.

The Board reached the same result in the March proceedings as it had previously, and we

note that the trial court did not conduct any certiorari review following the issuance of the

writ until many months after the Board’s March proceedings. Indeed, as noted

previously, the initial review hearing date in the trial court was November 3, 2016. We

further note that when the administrative record was initially forwarded to the trial court,

the record actually included the disputed March proceedings.

Moreover, we note that in Stone Man, this Court did not ultimately curb the scope

of the actions under review due to the fact that some of the administrative proceedings

had taken place after the issuance of the writ. In fact, following the aforementioned

quotation from Stone Man upon which Mr. Goodwyn relies, Judge Koch, writing for this

Court, stated as follows:

Notwithstanding this procedural irregularity, we will proceed to consider

this appeal as if the writ had been granted after the Commission finally

declined to approve Stone Man’s site plan. To do otherwise would be to

require the parties to duplicate proceedings already conducted where the

same result would inevitably be reached. There is no need to require Stone

Man to undertake this useless procedure.

Id. In line with Judge Koch’s reasoning, we find no reversible error with respect to the

inclusion and consideration of the March proceedings as part of the certiorari review.

With respect to the merits of the Board’s actions, we do not agree with Mr.

Goodwyn that the Board exceeded its jurisdiction, or that its granting of the permit was

arbitrary, capricious, or illegal. The Board had the authority to grant a permit for events

“within a historically significant structure, as determined by the historic zoning

commission,” and the administrative record supports the trial court’s conclusion that the

Board had a sufficient basis upon which to issue the permit that it did. Although there is

no dispute that the dwelling on the Property is the only historically significant structure

for which a historic home events permit would be proper, this does not mean that the

Board erred in granting a permit for activities within the area encompassed by the

Property’s brick wall. Based on the proof before it, including testimony from an official

with the Historic Zoning Commission, the Board had a basis to consider the brick wall to

be a part of the dwelling/historically significant structure. If the wall is considered a part

of the home, then it logically follows that the space inside of/enclosed by the wall is

within the historically significant structure.

Indeed, although Mr. Goodwyn correctly notes that Metro Code § 17.16.160(B)(2)

requires the location for the permitted activities to be “within a historically significant

structure, as determined by the historic zoning commission,” the record does not show

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that this requirement was transgressed. There was evidence3 before the Board that the

brick wall was attached to the home, and based on this fact, it was proper to consider the

wall as part of the historical structure identified by the Historic Zoning Commission. In

fact, as the trial court observed, testimony from an official with the Commission

indicated that things attached to or contiguous with the dwelling should be considered a

part of the historical structure. Specifically, we highlight the testimony of Ms. Zeigler,

Historic Zoning Administrator with the Commission. During the Board proceedings, a

Board member asked Ms. Zeigler whether “everything that’s contiguous to the building

with the tower is all historic?” Ms. Zeigler answered this question in the affirmative and

responded to a number of other questions wherein this same point was reinforced. For

example, although Ms. Zeigler did not have personal knowledge as to whether a “hip

roof” was connected to the house, her testimony reflected that it should be considered a

part of the historical structure if it were, in fact, connected.

In light of the foregoing, we do not find favor in Mr. Goodwyn’s arguments that

the Board’s actions were improper. Because the wall was properly considered to be a

part of the historical structure, a permit was permissibly granted for the area within the

wall. There is no basis for disturbing the Board’s actions, and we therefore affirm the

trial court’s decision to uphold the issuance of Mr. Clay’s permit. Given our conclusion

with respect to this matter, we pretermit Mr. Clay’s raised issue pertaining to the doctrine

of collateral estoppel.

Conclusion

The trial court’s judgment is affirmed. Costs of this appeal are assessed against

the Appellant, Wayne Goodwyn, and his surety, for which execution may issue if

necessary. This case is remanded to the trial court for the collection of costs,

enforcement of this Court’s judgment, and for such further proceedings as may be

necessary and consistent with this Opinion.

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ARNOLD B. GOLDIN, JUDGE

3

For example, the record contains sketches depicting the brick wall as being attached to the

home.

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