150 4th Ave. N. Tenant, LLC D/B/A WeWork v. The Metropolitan Nashville Board of Zoning Appeals

03/17/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 4, 2019 Session

150 4TH AVE N. TENANT, LLC DBA WEWORK v. THE METROPOLITAN

NASHVILLE BOARD OF ZONING APPEALS ET AL.

Appeal from the Chancery Court for Davidson County

No. 17-1287-I Claudia Bonnyman, Chancellor

___________________________________

No. M2019-00732-COA-R3-CV

___________________________________

This dispute arose from the issuance of a skyline sign permit to a high-rise office-

building tenant. The permit allowed the tenant to erect two 495-square-foot signs on the

building’s northwest and southeast facades. Another tenant with skyline signs on the

northeast and southwest facades appealed the issuance of the permit by filing an

application with the Board of Zoning Appeals (“BZA”) for interpretation against the

zoning administrator. The complaining tenant contended, inter alia, that its brand was

harmed because the juxtaposition of the new and existing signs would blur the

relationship between the two tenants and asserted that the new signs caused the building

to exceed the maximum signage permitted under the zoning code. The BZA determined

that the new signs violated the zoning code and revoked the permit. On a Petition for

Writ of Certiorari, the Davidson County Chancery Court held that the BZA erred by

relying on a zoning map rather than the code’s plain language and found the new signs

complied with the code’s requirements. This appeal followed. We have determined the

complaining tenant failed to establish standing because it failed to demonstrate that it was

aggrieved by the issuance of the permit. There is no competent evidence to show that the

signs’ juxtaposition would create public confusion about or signal a business relationship

between the two tenants. Accordingly, the record fails to demonstrate that the

complaining tenant’s alleged injury “falls within the zone of interests protected or

regulated by the [law] in question.” See City of Brentwood v. Metro. Bd. of Zoning

Appeals, 149 S.W.3d 49, 55–56 (Tenn. Ct. App. 2004). Further, based on the facts of this

case, the BZA lacked the ability to provide meaningful redress. For these and other

reasons, we affirm the trial court’s judgment in part, albeit on different grounds, and

remand with instructions for the trial court to order the BZA to dismiss the complaining

tenant’s application and to reinstate the new sign permit as issued in June of 2017. As for

a separate issue that a neighboring homeowners’ association attempted to raise during the

BZA hearing—whether the northwest sign exceeded brightness standards—that issue was

not properly before the BZA or the trial court. Thus, we reverse the trial court’s decision

to remand the brightness issue to the BZA.

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

Affirmed in part, Reversed in part, and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which RICHARD

H. DINKINS, J., joined. W. NEAL MCBRAYER, J., filed a separate opinion in which he

concurs in part and dissents in part.

Junaid Adetayo Odubeko and James L. Murphy, III, Nashville, Tennessee, for the

appellant, Regions Bank Corp.

Douglas Berry and Robert F. Parsley, Nashville, Tennessee, for the appellee, 150 4th Ave

N Tenant, LLC, d/b/a WeWork.

Lora Barkenbus Fox and Jonathan Barrett Cooper, Nashville, Tennessee, for the appellee,

Board of Zoning Appeals of Nashville & Davidson Co.

OPINION

A. Background

One Nashville Place, a.k.a., the “R2-D2 Building,”1 enriched the Nashville skyline

in 1985. The 25-story octagonal building sits in the heart of downtown Nashville on a lot

that abuts Fourth Avenue North, Commerce Street, and the south end of Printers Alley.

In 2010, the Metropolitan Planning Commission codified a set of development

standards for several sub-districts in downtown Nashville, including the area where One

Nashville Place is located. See Zoning Code for Metropolitan Nashville and Davidson

County § 17.37 (“Downtown Code”). Section V of the Downtown Code includes two

design standards related to the width and area of “skyline” signs. First, a skyline sign

1

When viewed from a distance, the architectural shape of the building resembles the iconic and

loveable Droid named R2-D2, a character from “a galaxy far, far away” in the Star Wars franchise

created by George Lucas. The creative design of R2-D2 was influenced by Akira Kurosawa’s 1958

feature film The Hidden Fortress, particularly Tahei and Matashichi, the two comic relief characters that

serve as sidekicks to General Makabe. See https://en.wikipedia.org/wiki/R2-D2. Legend has it that the

name R2-D2 derives from when Lucas was making one of his earlier films, American Graffiti. Id. Sound

editor Walter Murch states that he is responsible for the utterance that sparked the name for the droid. Id.

Murch asked for Reel 2, Dialog Track 2, in the abbreviated form “R-2-D-2.” Id. Lucas, who was in the

room and had dozed off while working on the script for Star Wars, momentarily woke when he heard the

request and, after asking for clarification, stated that it was a “great name” before going back to writing

his script. Id. (citations omitted).

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cannot exceed 60% of the building width. Id. § V, at 117. Second, the maximum area of

all skyline signs on a building is determined by the number and type of abutting streets.

Id. 109, 117.

In 2013, Regions Bank Corp. (“Regions”) moved its headquarters to One

Nashville Place. Shortly thereafter, Regions applied for and obtained a permit to install

two 495-square-foot skyline signs, one on the northeast facade and one on the southwest

facade. The Regions signs were installed, and they remain on the building to this day.

In January 2017, 150 4th Ave N Tenant, LLC, a workspace provider doing

business as WeWork (“WeWork”), became a tenant of One Nashville Place. On

February 12, 2017, WeWork applied for a permit to install two 45-foot-long skyline

signs, one on the northwest facade and one on the southeast facade.

The Zoning Administrator for the Metropolitan Department of Codes initially

denied the application based on a determination that the width of each sign exceeded 60%

of the facade to which it was to be attached, and the sign needed the approval of the

Downtown Code Design Review Committee (“the DRC”) because of the sub-district

where the building was located.2 Thus, WeWork made the requisite application to the

DRC. Following a review, the DRC construed the octagonal building as effectively

having four longer facades rather than eight shorter ones and determined that the signs

were within the 60% limit. Based upon the DRC’s determinations and approval, the

Zoning Administrator approved WeWork’s application and issued the permit in June of

2017. WeWork completed the installation of the signs in August of 2017.

B. Board of Zoning Appeals

Shortly after the WeWork signs were installed, Regions appealed the issuance of

the permit by filing an application with the BZA for interpretation against the Zoning

Administrator. Regions asserted that WeWork’s signs would damage Regions’ brand and,

when combined with Regions’ signs, exceed the maximum area permitted by the

Downtown Code:

[T]he juxtaposition of the existing Regions Signage and the approved

WeWork Signage on the Subject Property will create public confusion

2

In the event the approval of the signage design is required or a modification or variance from

the applicable standards is needed, applicants must submit a request to the Planning Department and the

Downtown Code DRC. See Downtown Code § I, at 14, and § V, at 104. When the subject property is

within a “redevelopment district” designated by the Metropolitan Development and Housing Agency

(“MDHA”)—as in this case—the MDHA’s Design Review Committee fulfills the role of the Downtown

Code DRC. Id. § I, at 14.

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about the relationship between Regions and WeWork. To the public, the

Co-branding of the Subject Property with skyline signs of the same size

will signal a business relationship between Regions and WeWork that, at

best, would be misleading and, at worst, would be damaging to Regions’

brand. In the worst case scenario, Regions’ significant investment in its

public brand would be diminished.

. . .

. . . . [T]he [Sign Standards] Map reveals that the portion of Printer’s Alley

abutting the Subject Property is not considered qualifying street frontage

for purposes of calculating maximum allowable skyline signage. . . . [T]he

maximum allowable skyline signage on the Subject Property is 1,440

square feet (720 square feet per Pedestrian Street multiplied by two

qualifying Pedestrian Streets). . . .

The Regions Signage currently utilizes 990 of the permitted square feet,

which means that only 450 square feet of additional skyline signage is

available for future use at the Subject Property. As shown in the Permit,

each of the WeWork signs is 45' by 11', or 495 square feet. Therefore, the

WeWork Signage, as approved, will exceed the maximum allowable

skyline signage at the Subject Property pursuant to Section V of the

[Downtown Code].

At the BZA hearing on September 21, 2017, Regions clarified that its objection

was “all about size,” and it would not oppose one “slightly smaller” sign instead of two

equally sized signs. Regions acknowledged that the Downtown Code’s sign standards

included a street type titled “Printers Alley” but relied on the Sign Standards Map, which

identified only the portion of Printers Alley between Church Street and Commerce Street

as the “Printers Alley” street type. The remainder of Printers Alley and every other alley

in downtown was unlabeled.

In addition, the homeowners’ association for the Viridian, a residential tower

across the street from One Nashville Place, submitted a letter in support of Regions’

appeal. Although the Viridian homeowners’ association did not file an appeal or

application for interpretation against the Zoning Administrator, several Viridian residents

attended the hearing. The president of the homeowners’ association advocated for the

revocation of WeWork’s permit, asserting the northwest sign exceeded the Downtown

Code’s brightness standards.

In response to the foregoing arguments, Calvin Lee, corporate counsel for

WeWork, argued that the DRC had already determined that the signs complied with the

Downtown Code. Mr. Lee engaged in the following colloquy with Board Chairman

David Ewing and Vice Chairman David Taylor:

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Mr. Lee: Well, [counsel for Regions] said that this is all about

size and if that is the case then . . . this is not the venue

or the forum to discuss that. The Design Review

Committee was the authority that looked at that and—

Chairman Ewing: Let me stop you there because you went to law school,

as I went to law school, and I said earlier it’s kind of

Marbury versus Madison. It’s here, you’re here, and

you shouldn’t assume that we don’t have jurisdiction.

Mr. Lee: We understand. And we stand by the MDHA Review

Committee’s interpretation that this is a 4-sided

building. I have their approval of our sign right here. It

was conditioned that there are no other signs to be put

up on that building. They’re only allowing four signs

because they are finding it as a four-sided building.

Mr. Taylor: I guess that the opposition, I don’t think they’re

contesting that at all. They said, in terms of the

percentage of facade that can be covered, they’re

saying that this is 60 percent. I mean they’re not

contesting that is what he said. So, their only argument

to us was that it exceeds the maximum allowed square

footage of signage for that building, which I think

deals with Printer’s Alley and whether that’s a street or

not. . . .

Mr. Lee: I understand. And the Design Review Committee

considered that fact also, and we made a presentation

at that meeting. And they decided that they accepted

our argument that there were three streets to calculate

the amount of signage on that building.

Mr. Taylor: I’m sorry, so what are you basing the three streets on?

What is your argument on it being three streets?

Mr. Lee: I don’t have that information in front of us. That was a

presentation that our signage consultant and our

designers sat with the Design Review Committee to

work out. We know that we are new to your

neighborhood and we don’t want to be intrusive. We,

in early December, reached out to the different

planning departments here. We were working with

Mr. Herbert’s department very closely; they advised us

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on the process; we went through the process in good

faith. . . .

Chairman Ewing: Let’s talk about the brightness. How many foot candles

is that sign?

Mr. Lee: That I’m not sure as well.

. . .

You know, and so it’s a little frustrating to not have an

argument about the street, which is apparently what

allows the building to have the amount of signage that

it does. . . .

After the public hearing was closed, Board Member David Harper moved for the

BZA to find that the Zoning Administrator erred by issuing the permit based on the

square footage calculation:

Mr. Harper: [T]here’s one specific piece in the Code that was in

this presentation and it’s a calculation, how much

signage is allowed on a building? I don’t care from

where it’s calculated or how you calculate what a

facade is, what is in a facade, there’s a total number

and they’re over it. And when that number was

surpassed, that’s when the error occurred. When that

number added up to be more than the maximum

number, an error occurred.

. . .

I will move that we find . . . that the Zoning

Administrator did err in issuing the permit for the

reasons I mentioned, the square footage calculations.3

The Board voted unanimously to revoke WeWork’s sign permit.

In October 2017, the Board entered a formal order, finding “that the Zoning

Administrator erred in [the] application of law with this issuance of the subject permit.”

3

Chairman Ewing also stated in his motion: “And I would like to add that it is also an error of the

Downtown Sign Code with the brightness as it reflects to a close-by residential building.”

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C. Chancery Court Decision

On December 1, 2017, WeWork timely filed a Petition for Writ of Certiorari in the

Davidson County Chancery Court, arguing that the BZA erred, inter alia, by exceeding

its jurisdiction and basing its interpretation solely on the “illustrative maps” in the

Downtown Code.

After hearing argument from counsel for both WeWork and Regions, the trial

court concluded that the Downtown Code unambiguously treated the entirety of Printers

Alley as a street:

The Court must find that the Board erred when it relied upon the color-

coded map of the street types to determine the size of the skyline signs

allowed on the property under the petitioner’s permit. The map is in

conflict with the text in the Downtown Code. Specifically, the text in

Chapter 17.37 Section V, Sign Standards, Allocation by Street Type,

allocates 720 square feet for the Printer’s Alley type street. The text of the

Downtown Code also states that Printer’s Alley will not be treated as an

ordinary alley, but will be treated differently, that is unconventionally.

Neither the parties nor the Court found text in the Downtown Code which

would remove part of Printer’s Alley from serving as street frontage.

Relying on unambiguous text in the Downtown Code at just this quoted

section, Printer’s Alley is treated as any other street frontage and it is

treated as a whole in its entirety and not in parts.

The Zoning Ordinance in Title 17 has its own rule of construction, which

states that text shall prevail over illustrations. Metro Government

anticipated that its numerous illustrations could on occasion cause conflict

between the text of the Downtown Code and the numerous illustrations.

Such a rule of construction is completely consistent with the common law

rules of statutory interpretation, which recognize and help resolve

ambiguity in the text, that is, the language of the statute or ordinance. Such

an ambiguity is not present here, because the text is clear. The problem is

caused by the illustration. Consequently, the property is allocated 2,160

square feet for skyline signage, because there’s no dispute at all that the

other two frontages, that is, Commerce Street and Fourth Avenue North are

pedestrian street frontages and they each also get, are assigned or allocated,

720 square feet for the skyline signage.

Although it ruled in favor of WeWork on the square footage issue, the trial court

found it necessary to remand to the Board the issue regarding the brightness of the

northwest sign because the Board did not articulate which standard it relied on in

determining that WeWork’s northwest sign violated the brightness standards of the

Downtown Code. This appeal followed.

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STANDARD OF REVIEW

Judicial review of a decision by a board of zoning appeals “is limited to

determining whether the board exceeded its jurisdiction, followed an unlawful procedure,

acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support

its decision.” Harding Acad. v. Metro. Gov’t of Nashville & Davidson Cty., 222 S.W.3d

359, 363 (Tenn. 2007). “In proceedings involving a common law writ of certiorari,

illegal, arbitrary, or fraudulent actions include: 1) the failure to follow the minimum

standards of due process; 2) the misrepresentation or misapplication of legal standards; 3)

basing a decision on ulterior motives; and 4) violating applicable constitutional

standards.” Id. Additionally, “[c]ourts must not ‘reweigh the evidence’ or ‘scrutinize the

intrinsic correctness of the decision,’ but independently review the record to ‘determine

whether it contains “such relevant evidence that a reasonable mind might accept as

adequate to support a rational conclusion.”’” Venture Holdings, LLC v. Metro. Gov’t of

Nashville & Davidson Cty., 585 S.W.3d 409, 417 (Tenn. Ct. App. 2019) (quoting Gulley

v. Robertson Cty. Planning & Zoning Comm’n, No. M2015-00734-COA-R3-CV,

2016 WL 2898478, at *2 (Tenn. Ct. App. May 12, 2016)), appeal denied (Sept. 18,

2019). “If ‘any possible reason’ exists justifying the action, it will be upheld.” McCallen

v. City of Memphis, 786 S.W.2d 633, 641 (Tenn. 1990).

Under a codified version of this standard, we have recognized a three-step

analysis:

The court must first determine whether the agency has identified the

appropriate legal principles applicable to the case. Then, the court must

examine the agency’s factual findings to determine whether they are

supported by substantial and material evidence. Finally, the reviewing court

must examine how the agency applied the law to the facts. This step is, of

course, a highly judgmental process involving mixed questions of law and

fact, and great deference must be accorded to the agency. At this stage, the

court must determine whether a reasoning mind could reasonably have

reached the conclusion reached by the agency, consistent with a proper

application of the controlling legal principles.

McEwen v. Tennessee Dep’t of Safety, 173 S.W.3d 815, 820 (Tenn. Ct. App. 2005)

(footnotes omitted) (citations omitted).

ANALYSIS

The parties have raised several issues for our consideration, but we have

determined the dispositive issue is whether Regions had standing to challenge the Zoning

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Administrator’s issuance of the sign permit to WeWork. We have also determined that

the illumination issue purportedly presented by the Viridian homeowners’ association

was not properly before the BZA or the trial court.4

I. STANDING

Both parties addressed this issue in their briefs. WeWork raised the issue in its

Appellee’s Brief, and Regions addressed the issue in its Reply Brief.5 WeWork’s

position on this issue is stated as follows:

The Court should reinstate WeWork’s permit for another reason. Regions

lacks standing to assert its challenge. Tenn. Code Ann. § 13-7-206(b)

provides that “[a]ppeals to the board of [zoning] appeals may be taken by

any person aggrieved . . . by any grant or refusal of a building permit or

other act or decision of the building commissioner of the municipality or

other administrative official. . . .” “The sort of distinct and palpable injury

that will create standing must be an injury to a recognized legal right or

interest. In many cases, this right or interest may be created or defined by

statute.” City of Brentwood, 149 S.W.3d at 56. That is so here. Because

Regions “is seeking to vindicate a statutory right of interest, the doctrine of

standing requires [Regions] to demonstrate that its claim falls within the

zone of interests protected or regulated by the statute in question.” Tenn.

Code Ann. § 13-7-206(b).

For its part, Regions contends that WeWork’s standing argument fails “because

Tennessee law favors interpreting standing broadly in zoning cases, such as the instant

matter.” Also relying on this court’s decision in City of Brentwood, 149 S.W.3d at 57,

Regions notes that “the extension of authority to appeal and to seek judicial review to all

persons who are ‘aggrieved’ reflects an intention to ease the strict application of the

customary standing principles.”

When a statute creates a cause of action and designates who may bring suit,

standing is interwoven with subject matter jurisdiction and “becomes a jurisdictional

4

Our determination pretermits all other issues raised by the parties.

5

The Metropolitan Government filed a brief that states in its entirety: “The Metropolitan

Government joins the Brief of Regions Bank, particularly the portion crediting the BZA’s treatment

of Printer’s Alley (a distinctive and unique street downtown). On this basis, Metro submits that the

BZA’s decision is supported by material evidence, was not arbitrary or capricious, and should be

affirmed.” (Emphasis added). Thus, it did not address nor take a position concerning the issue of standing.

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prerequisite.” In re Estate of Smallman, 398 S.W.3d 134, 149 (Tenn. 2013). “Subject

matter jurisdiction concerns a court’s ‘lawful authority to adjudicate a controversy

brought before it’ and is conferred on a court by statute or the constitution.” Griffin v.

Campbell Clinic, P.A., 439 S.W.3d 899, 902 (Tenn. 2014). The issue of subject matter

jurisdiction “is non-waivable and must be considered by an appellate court.” In re Estate

of Smallman, 398 S.W.3d at 148. “The lack of subject matter jurisdiction is so

fundamental that it requires dismissal whenever it is raised and demonstrated.” First Am.

Trust Co. v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135, 141 (Tenn. Ct. App. 2001).

Tennessee Code Annotated §§ 13-7-206(b) and 27-8-101, respectively, empower

“aggrieved” persons to challenge the acts of zoning officials. Significantly, each statute

uses the same standard for standing. Section 13-7-206(b) authorizes appeals by persons

“aggrieved” by an act of a zoning official:

Appeals to the board of appeals may be taken by any person

aggrieved . . . by any grant or refusal of a building permit or other act or

decision of the building commissioner of the municipality or other

administrative official based in whole or part upon this ordinance enacted

under this part and part 3 of this chapter.

(Emphasis added). Similarly, § 27-9-101 authorizes appeals by persons “aggrieved” by

the final judgment of a board of zoning appeals:

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

board or commission functioning under the laws of this state may have the

order or judgment reviewed by the courts, where not otherwise specifically

provided, in the manner provided by this chapter.

(emphasis added); see Fallin v. Knox Cty. Bd. of Comm’rs, 656 S.W.2d 338, 342 (Tenn.

1983) (recognizing that a writ of certiorari under Tenn. Code Ann. § 27-9-101 is “the

proper remedy for one who seeks to overturn the determination of a Board of Zoning

Appeals”).

“For the purposes of Tenn. Code Ann. § 27-9-101, to be ‘aggrieved,’ a party must

be able to show a special interest in the agency’s final decision or that it is subject to a

special injury not common to the public generally.” Wood v. Metro. Nashville &

Davidson Cty. Gov’t, 196 S.W.3d 152, 158 (Tenn. Ct. App. 2005).

In its application to the BZA, Regions asserted that the size and location of

WeWork’s signs would blur the relationship between Regions and WeWork and tarnish

Regions’ brand:

As an active, longtime partner in Nashville’s development, Regions is

aggrieved by the approved issuance of the Permit authorizing the placement

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of the WeWork Signage on the Subject Property. There is no relationship

between Regions and WeWork besides being co-tenants at the Subject

Property. However, the juxtaposition of the existing Regions Signage and

the approved WeWork Signage on the Subject Property will create public

confusion about the relationship between Regions and WeWork. To the

public, the co-branding of the Subject Property with skyline signs of the

same size will signal a business relationship between Regions and

WeWork that, at best, would be misleading and, at worst, would be

damaging to Regions’ brand. In the worst case scenario, Regions’

significant investment in its public brand would be diminished.

Regions maintains that it met the requirements of § 13-7-206(b) by alleging “injury to its

brand resulting from the approval of the WeWork signs.”

When interwoven with subject matter jurisdiction, standing is a constitutional

issue. See City of Memphis v. Hargett, 414 S.W.3d 88, 98 n.8 (Tenn. 2013).

Constitutional standing “is one of the ‘irreducible . . . minimum’ requirements that a

party must meet in order to present a justiciable controversy.” Id. at 98 (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

Establishing constitutional standing requires a plaintiff to satisfy three elements:

First, a party must show an injury that is “distinct and palpable”; injuries

that are conjectural, hypothetical, or predicated upon an interest that a

litigant shares in common with the general citizenry are insufficient in this

regard. [Am. Civil Liberties Union of Tennessee v. Darnell, 195

S.W.3d 612, 620 (Tenn. 2006)]. Second, a party must demonstrate a causal

connection between the alleged injury and the challenged conduct. Id.

(citing Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App.

2001)). . . . The third and final element is that the injury must be capable of

being redressed by a favorable decision of the court. Id.

Id. The plaintiff must establish these elements “by the same degree of evidence at each

stage of litigation as other matters on which the plaintiff bears the burden of proof.” Petty

v. Daimler/Chrysler Corp., 91 S.W.3d 765, 767 (Tenn. Ct. App. 2002) (citing Lujan, 504

U.S. at 560). We have determined that Regions failed to satisfy its burden of proof on the

first and third of these elements.

We shall first address whether Regions has shown an injury that is “distinct and

palpable” and not predicated upon an interest it shares in common with the general

citizenry. Indeed, brand dilution and tarnishment are recognized as legal injuries. See

15 U.S.C.A. § 1125(c). However, Regions presented no competent evidence that the

public was likely to infer a relationship between it and WeWork or that such an inference

was likely to harm the reputation of Regions’ brand.

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The presence of multiple brands on a single building is not unusual. See, e.g.,

Downtown Code § V at 103 (requiring new developments submit a “common signage

plan,” which “regulates signage for multiple businesses or tenants within one building or

complex”). The mere fact that Regions now shares the skyline of One Nashville Place

with WeWork is insufficient to infer a likelihood of injury. Moreover, their signage is not

on the same facade of the building.

As for the element of redress, the BZA’s ability to provide meaningful redress is

significantly limited based on the facts of this case. For example, the BZA does not have

the discretion to deny the permit if WeWork’s signage is within all permissible

parameters of size and design under the Zoning Code. See Harding Academy,

222 S.W.3d at 363. This is because the “denial of a zoning permit which meets all the

requirements of the ordinance when there is no valid ground for denial is arbitrary and

unreasonable.” Id. (quoting Merritt v. Wilson County Bd. of Zoning Appeals, 656 S.W.2d

846, 854 (Tenn. Ct. App. 1983)). This limitation becomes even more relevant considering

that Regions stated it would not be opposed to one “slightly smaller” WeWork sign,

instead of two signs, on the skyline of the building. Under Regions’ interpretation of the

Zoning Ordinance, WeWork would be entitled to at least 450 square feet of skyline

signage—meaning WeWork could erect a skyline sign that is only 10% smaller than

Regions’ signs. Thus, we find it implausible that one 450 square-foot sign would be any

less suggestive of a business relationship, and there is no competent proof in the record to

the contrary.

Based on the foregoing, we find Regions lacked standing under Tenn. Code Ann.

§ 13-7-206(b) to challenge the Zoning Administrator’s issuance of the sign permit to

WeWork. Accordingly, Regions’ appeal and application for interpretation against the

Zoning Administrator to the BZA must be dismissed for lack of standing.

II. THE BRIGHTNESS ISSUE

As noted earlier, the Viridian homeowners’ association attended the hearing and

requested the BZA to revoke WeWork’s permit based on allegations that the brightness

of the northwest sign adversely affected the homeowners’ use of their residential

property. For the reasons explained below, we have determined this issue was not

properly before the BZA or the trial court.

The BZA’s Rules of Procedure allow an appellant that files an appeal and

application for interpretation against the Zoning Administrator’s ruling to present its case,

which includes presenting testimony from “witnesses in support of the application.”

R. 8(G). However, the appellant must have previously filed an appeal—that is, an

application “on a form provided for that purpose by the Department of Codes

Administration.” R. 3(A). The Viridian homeowners’ association did not file an appeal or

application for interpretation against the Zoning Administrator regarding the brightness

of WeWork’s sign or any issue regarding WeWork’s signs.

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Moreover, Regions’ only comment on the brightness issue came after the president

of the Veridian homeowners’ association addressed the BZA at the hearing. The relevant

and very brief colloquy between Regions’ counsel and the BZA Chairman on the

brightness issue reads:

Mr. Murphy: Obviously, we’re concerned about [brightness] as well,

although it affects—my client is in the building so they

don’t have the brightness problem that the Viridian

folks do. The Viridian folks really have the brightness

impact more so than my client.

Chairman Ewing: So, your client, the bank, yeah, that’s not as big a deal.

Gotcha. But you still think that’s an issue?

Mr. Murphy: Obviously, it is, because it’s having an impact—it’s too much

signage and, in addition to being too much, it’s also having an

adverse impact on the surrounding neighborhood. So, I think

those are both issues.

Whether the northwest sign exceeded the brightness standards was not properly

before the BZA. Therefore, the BZA erred in considering the issue and erred in basing its

ruling, at least in part, on the brightness of the sign. Because the issue was not properly

before the BZA, it was not properly before trial court. Therefore, we reverse the trial

court’s decision to remand this issue back to the Board.

III. THE CONCURRING AND DISSENTING OPINION

In a separate opinion, our colleague concludes that Regions had standing to

challenge the issuance of the sign permit to WeWork and would hold that the

Metropolitan Board of Zoning Appeals acted arbitrarily and capriciously in revoking the

WeWork sign permit. While we respectfully disagree with our colleague’s determination

that Regions had standing to challenge the permit issued to WeWork, we agree with his

conclusion that

the Downtown Code is clear and that the Printers’ Alley street type includes

Printers’ Alley, even that portion abutting One Nashville Place. See id. at

15. Although the “Map of Street Types for Signage Standards” could be

seen as contradicting the text of the Downtown Code, the Zoning Code

specifies that text controls over figures in the case “of any difference of

meaning or implication.” Zoning Code, Chapter 17.04.050(L) (Mar. 2015).

The portion of Printers’ Alley abutting One Nashville Place may not

include businesses on the ground floor and upper floors, but the same is

also true of other portions of Printers’ Alley highlighted in green on the

“Map of Street Types for Signage Standards.” The character of that portion

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of the alley does not justify ignoring the fact that it is named “Printers’

Alley.”

Thus, if Regions had standing, we would affirm the trial court’s determination that

the Metropolitan Board of Zoning Appeals acted arbitrarily and capriciously in revoking

the WeWork sign permit and remand with instructions to reverse the decision by the

BZA.

.

IN CONCLUSION

The judgment of the trial court is affirmed in part,6 reversed in part, and this

matter is remanded with instructions for the trial court to order the BZA to dismiss

Regions’ appeal of and application for interpretation against the Zoning Administrator’s

issuance of the sign permit and reinstate the permit as issued to WeWork in June of 2017.

Costs of appeal are assessed against Regions.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

6

The Court of Appeals may affirm a judgment on different grounds than those relied on by the

trial court when the trial court reached the correct result. Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 50

(Tenn. 1986); Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn. Ct. App. 1999); Allen v. Nat’l

Bank of Newport, 839 S.W.2d 763, 765 (Tenn. Ct. App. 1992); Clark v. Metro. Gov’t of Nashville &

Davidson Cty., 827 S.W.2d 312, 317 (Tenn. Ct. App. 1991).

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