Robert Madden v. Metropolitan Board of Fire and Building Code Appeals of the Metropolitan Government of Nashville and Davidson County, Tennessee

04/11/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 5, 2023 Session

ROBERT MADDEN ET AL. v. METROPOLITAN BOARD OF FIRE AND

BUILDING CODE APPEALS OF THE METROPOLITAN GOVERNMENT

OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

Appeal from the Circuit Court for Davidson County

No. 22C273 Clifton David Briley, Judge

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No. M2023-00113-COA-R3-CV

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This case concerns the denial of a variance by the Board of Fire and Building Code Appeals

of the Metropolitan Government of Nashville and Davidson County, Tennessee (“the

Board”). Landowners applied for a building permit to construct an auto repair shop on

undeveloped property. The local fire code required new buildings of this type and size to

have, inter alia, a water source that could supply 180,000 gallons at 1,500 gallons per

minute for two hours. The property at issue did not have the requisite water supply. Thus,

as a variance to the fire code, the landowners proposed to construct a 20,000-gallon water

tank on the property and to install a “dry” fire suppression system inside the building. When

their plan was rejected by the fire marshal, the landowners appealed to the Board and asked

for approval of a variance. The Board denied the variance request, citing concerns over the

safety of people, including firefighters and first responders. The owners then petitioned for

a writ of certiorari, arguing that the Board misapplied the law by failing to consider whether

strict enforcement of the fire code would result in “manifest injustice.” Finding that the

Board failed to distinguish the landowners’ request for a variance from an appeal, the trial

court vacated the Board’s ruling and remanded the matter to the Board for review of the

variance request. This appeal followed. For the reasons set forth below, we respectfully

disagree with the trial court’s conclusion, reverse its judgment, and remand with

instructions to affirm the decision of the Board.

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

Reversed and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Wallace W. Dietz, Christopher M. Lackey, and Breanne N. Hataway, Nashville,

Tennessee, for the appellant, Metropolitan Board of Fire and Building Code Appeals of the

Metropolitan Government of Nashville and Davidson County, Tennessee.

Dominic J. Leonardo, Nashville, Tennessee, for the appellees, Robert and Dannette

Madden.

OPINION

Robert and Dannette Madden (“Petitioners”) own and operate RDR AutoWorks,

LLC, an automotive repair shop. The business is currently located at 108 Old Trinity Lane

in Nashville, Tennessee. In 2019, Petitioners bought property located at 4788 Jennie Brown

Lane in Nashville with the plan to construct a new 5,000-square-foot steel building to

relocate their business. The property is undeveloped, zoned for industrial use, and lies in

the Urban Services District of Nashville.

In 2020, Petitioners applied for a building permit from the Metropolitan

Government of Nashville and Davidson County, Tennessee (“Metro”). At the time, the

Metropolitan Fire Prevention Code (“the Fire Code”) required all building premises to have

“an approved water supply capable of supplying the required fire flow for fire protection.”

See Int’l Fire Code § 507.1–2 (Int’l Code Council 2012) (emphasis omitted).1 Based on

their building’s size and type, Petitioners needed a water source that could supply 1,500

gallons per minute for two hours—a total of 180,000 gallons. See id. § B105.

Per the Fire Code, water supplies could be in the form of “reservoirs, pressure tanks,

elevated tanks, water mains or other fixed systems capable of providing the required fire

flow.” Id. § 507.1. Petitioners wanted to connect the property to a water main, but the

closest was 2,500 feet away, and extending it would cost $280,000. For this reason,

Petitioners developed and submitted a fire suppression plan that varied from the Fire

Code’s requirements: Petitioners proposed a 20,000-gallon water tank outside the building

and a “dry suppression” system inside for chemical fires. Petitioners believed this plan was

adequate given the property’s location and the planned construction type. Moreover, the

arrangement would cost less than $90,000.

Petitioners’ fire suppression plan, was considered and rejected—first by Fire Plan

Examiner Jim Rummage and then by Assistant Fire Marshal Joseph Almon, the latter of

whom explained his decision via email:

Based on the minimum fire-flow requirements listed in Appendix B of the

2012 IFC and building construction information provided on the submitted

1

At the time, Metro used the 2012 edition of the International Fire Code. See Metro. Gov’t

Nashville & Davidson Cnty., Tennessee Code § 10.64.010 (Dec. 2019).

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plans, the total capacity required to meet manual fire suppression needs is

180,000 gallons. The proposed 20,000-gallon tank is far short of this

capacity.

A reduction in the required fire-flow rate is allowed when the building is

protected throughout by an NFPA 13 compliant automatic fire sprinkler

system. It would be necessary to consult with a Fire Protection Engineer on

the design of the sprinkler system to determine the minimum tank capacity

required and [if] any additional equipment, such as pump systems, might be

required.

Based on the information above, I concur with Mr. Rummage’s evaluation

of the requirements and do not support the proposed alternative water supply

tank as an equivalent to the requirements listed in the fire code.

Assistant Fire Marshal Almon then gave Petitioners three possible solutions to gain

approval:

1. Extend water mains to and provide fire hydrant coverage to the property

meeting the minimum fire-flow requirement and duration. (1,500 GPM x

2 hours)

2. Install an engineer designed NFPA 13 compliant automatic fire sprinkler

system with all components necessary to meet system demand and

duration.

3. [Install an o]n-site tank and accessory components of sufficient size and

capacity to meet fire-flow demand as noted in IFC Appendix B Section

105.2.

Petitioners appealed the Fire Marshal’s decision to the Board and asked for a

variance on the ground that a 180,000-gallon tank would cost at least $130,000—

approximately four times the cost of the proposed 20,000-gallon tank. Petitioners

acknowledged that the Fire Code was intended to protect the safety of first responders and

the public. Still, they claimed their plan was “adequate” because the building was to be

made mostly of steel, all vehicles would be parked outside while not undergoing repair,

and a fire “wouldn’t really spread to anywhere else” because their property was between a

highway and a vacant lot. Petitioners added that they had “plenty of insurance.”

After hearing from Petitioners, board members expressed concern about hazardous

materials on the property, and they questioned whether Petitioners’ plan aligned with the

spirit and purpose of the Fire Code. Chairman Rich McCoy noted that the Board was not

“worried about the buildings as much as the people that are in them.” Board members also

stated that the fire department knew what it needed to fight a fire. In the end, the Board

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unanimously voted to deny Petitioners’ variance request. The Board sent Petitioners

written notice of the denial, stating, “Based on the minimum fire-flow requirements listed

in Appendix B of the 2012 IFC and building construction information provided on

submitted plans, the total capacity required to meet manual fire suppression needs is

180,000 gallons.”

Petitioners then filed a petition for a writ of certiorari in the Davidson County Circuit

Court. Petitioners asserted that the Board did not apply the correct standard of review

because it did not consider whether enforcement of the Fire Code would result in “manifest

injustice.” The Board filed the administrative record, including a transcript of the

proceedings before the Board. Thereafter, Petitioners filed their brief, and then the Board

filed its brief. The trial court held a hearing on the merits on October 5, 2022, during which

no other evidence was introduced.

The trial court held that the Board failed to fulfill its duties because it “simply

decided whether it would override [the Fire Marshal]’s determination of whether

Petitioners met the [Fire Code] requirements” rather than “whether strict enforcement of

the [Fire] Code would result in ‘manifest injustice.’” In its final order, the court

distinguished between “a variance pursuant to Metro Code § 2.80.080” and “an appeal of

the [fire marshal’s] decision, pursuant to Metro Code § 2.80.090”:

Petitioners’ use of language directly from Metro Code § 2.80.080, indicates

Petitioners intended the Board to decide the appeal under the review standard

it would apply to an applicant seeking a variance.

In this Court’s view, it is reasonably deduced from the record that Petitioners

desired and sought a variance pursuant to Metro Code § 2.80.080. It is not

equally clear, however, the Board also understood this to be the case. The

record lacks any indication the Board made a distinction between an appeal

of the decision of Asst. Fire Marshal Almon, pursuant to Metro Code §

2.80.090, and a request for a variance, pursuant to Metro Code § 2.80.080,

in its deliberations. The Board makes no mention of the language in Metro

Code § 2.80.080. Specifically, the Board does not mention “manifest justice”

or “spirit and purpose” of the Code in any manner, and the word “variance”

is never used by the Board.

. . . .

From the record, it appears the Board simply decided whether it would

override Asst. Fire Marshal Almon’s determination of whether Petitioners

met the 2012 IFC requirements. The Board’s task was broader than that,

however. Because Petitioners were seeking a variance, the Board was

obligated to consider whether strict enforcement of the Code would result in

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“manifest injustice.” Thus, this Court holds the Board’s decision relies upon

a misrepresentation and/or misapplication of legal standards for a variance,

amounting to illegal, arbitrary, and/or fraudulent action.

On this basis, the trial court granted the writ and remanded the matter to the Board

“for review of the Petitioner’s request for a variance, pursuant to Metro Code § 2.80.080.”

This appeal followed.

ISSUES

The Board presents two issues for our review:

1. Did the trial court err by substituting its judgment for that of the Board in finding

that the Board misapplied Metro Code § 2.80.080 when it denied Petitioners’

variance request after Board members opined that two of the three required

elements were not met?

2. Did the trial court err when it failed to determine whether the Board’s decision

to deny Petitioners’ variance request was supported by substantial and material

evidence?

STANDARD OF REVIEW

At issue is the propriety of the Board’s decision to deny a variance from the Fire

Code’s requirement.

Local boards are administrative bodies whose decisions are subject to judicial

review by petition for common law writ of certiorari. See Harding Acad. v. Metro. Gov’t

of Nashville & Davidson Cnty., 222 S.W.3d 359, 363 (Tenn. 2007). A petition for writ of

certiorari is “not a vehicle which allows the courts to consider the intrinsic correctness of

the conclusions of the administrative decision maker.” State ex rel. Moore & Assocs., Inc.

v. West, 246 S.W.3d 569, 574 (Tenn. Ct. App. 2005). Thus, when reviewing such petitions,

“courts may not (1) inquire into the intrinsic correctness of the lower tribunal’s decision,

(2) reweigh the evidence, or (3) substitute their judgment for that of the lower tribunal.”

Id. (citations omitted). We are 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 Academy, 222 S.W.3d at

363.

When reviewing the sufficiency of the evidence, courts are limited to determining

whether there is “substantial and material evidence” in the administrative record. Harding

Academy, 222 S.W.3d at 363. But, as we have explained before, courts should not apply

this standard mechanically:

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[A] reviewing court should not apply [the] “substantial and material

evidence” test mechanically. Instead, the court should review the record

carefully to determine whether the administrative agency’s decision is

supported by “such relevant evidence as a rational mind might accept to

support a rational conclusion.” The court need not reweigh the evidence, and

the agency’s decision need not be supported by a preponderance of the

evidence. The evidence will be sufficient if it furnishes a reasonably sound

factual basis for the decision being reviewed.

Jackson Mobilphone Co., v. Tennessee Pub. Serv. Comm’n, 876 S.W.2d 106, 110 (Tenn.

Ct. App. 1993) (citations omitted) (quoting Clay Cnty. Manor, Inc. v. State, Dep’t of Health

& Env't, 849 S.W.2d 755, 759 (Tenn. 1993); S. Ry. Co. v. State Bd. of Equalization, 682

S.W.2d 196, 199 (Tenn. 1984)).

Illegal, arbitrary, or fraudulent actions include (1) failing to follow minimum

standards of due process; (2) misrepresenting or misapplying legal standards; (3) basing a

decision on ulterior motives; and (4) violating applicable constitutional standards. Hoover,

Inc. v. Metro Bd. of Zoning Appeals, 924 S.W.2d 900, 905 (Tenn. Ct. App. 1996). We

review the Board’s application of law de novo with no presumption of correctness. See

Harding Academy, 222 S.W.3d at 363.

While findings of fact promote an understanding of the basis of a board’s decision,

administrative bodies such as the Board do not have to make specific findings of fact unless

a statute or ordinance requires them. See Moore v. Metro. Bd. of Zoning Appeals, 205

S.W.3d 429, 436 (Tenn. Ct. App. 2006) (citing Weaver v. Knox Cnty. Bd. of Zoning

Appeals, 122 S.W.3d 781, 785 (Tenn. Ct. App. 2003)). And there was no requirement for

the Board to make findings of fact in this case.

ANALYSIS

I.

Petitioners maintain that the Board erred because it did not consider whether strict

application of the Fire Code would be manifestly unjust. For its part, the Board contends

that it did not have to consider that issue because it determined that the requested variance

was contrary to “the spirit and purposes” of the Fire Code.2

2

The Board’s brief raises a second issue: “Did the Trial Court err when it failed to make a

determination on whether the Appellant Board’s decision to deny Appellee’s variance request was

supported by substantial and material evidence?” But the Board preempts its own question in a footnote,

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Under Chapter 2.08 of the Metro Code, landowners may appeal to the Board when

the Fire Marshal rejects “the mode or manner of construction proposed to be followed or

materials to be used in the erection or alteration of a building or structure.” Metro Code §

2.080.80 (Dec. 2019).3 As is relevant here, § 2.080.80 allows landowners to appeal a

decision of the Fire Marshal when “an equally good or more desirable form of construction

can be employed in any specific case.” Id. Furthermore, Chapter 2.08 grants the Board

authority to “vary the application of any provision of [the Fire Code] to any particular

case,” but only if it finds that “strict enforcement” would (1) “do manifest injustice”

and (2) “be contrary to the spirit and purposes of [the Fire Code] or public interest.”

See id. § 2.08.090 (emphasis added).

Thus, as Chapter 2.08.090 expressly provides, the Board may grant a variance from

the Fire Code provided it finds that strict enforcement would do manifest injustice and that

strict enforcement would be contrary to the spirit and purposes of the Fire Code or public

interest. Stated another way, if either factor is not proven, then the Board is without

authority to grant the variance.

Here, it is clear from the Board members’ questions and stated concerns about the

safety of the firefighters, first responders, and others who may be exposed to a fire at

Petitioners’ property, that the Board found that Petitioners had not proven that strict

enforcement would be contrary to the spirit and purposes of the Fire Code or public interest.

The Fire Code’s purpose is two-fold: (1) “to establish the minimum requirements

consistent with nationally recognized good practice for providing a reasonable level of life

safety and property protection from the hazards of fire, explosion or dangerous conditions

in new and existing buildings, structures and premises”; and (2) “to provide safety to fire

fighters and emergency responders during emergency operations.” See Int. Fire Code

§ 101 (ICC 2012) (emphasis added). As is relevant here, new buildings must have a “water

supply capable of supplying the required fire flow for fire protection.” Id. § 507.1.4

As the parties asking for a variance, Petitioners had the burden to persuade the Board

(1) that the 20,000-gallon tank was “equally good or more desirable”; (2) that strict

noting that Petitioners did not “contest that there was sufficient and material evidence to support the Board’s

decision.” Thus, we pretermit the issue.

3

The Board may also “vary the application” of the Fire Code if it finds “the interpretation of the

director of codes and/or the metro fire marshal should be modified.” Metro Code § 2.080.90. There is no

dispute over the Fire Marshal’s interpretation in this case.

4

The only exception in the 2012 IFC is for buildings with “an approved automatic sprinkler

system,” in which case the Fire Marshal may reduce the required fire-flow rate by up to 75%. See 2012 Intl.

Fire Code § B105.2. But regardless, “[t]he resulting fire-flow shall not be less than 1,500 gallons per minute

. . . for the prescribed duration.” Id.

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enforcement would “do manifest injustice”; and (3) that strict enforcement would “be

contrary to the spirit and purposes of [the Fire Code] or public interest.” See id. § 2.8.080–

090. But Petitioners did not develop an argument or present any evidence to show that

enforcement of the Fire Code here would be contrary to its spirit and purposes or public

interest. See id. Instead, they argued that allowing the variance would not be contrary to

the purpose of the Fire Code or public interest.

The Board was not persuaded by this argument for obvious reasons. At the

prescribed rate of 1,500 gallons per minute, Petitioners’ 20,000-gallon tank would last just

over 13 minutes. Yet Petitioners reasoned that this system was “adequate” because their

property was located between a vacant lot and a highway in an industrial part of town.

Petitioners even pointed out that they had “plenty of insurance.” In other words, if it burned,

let it burn.

However, multiple board members noted that the Fire Code’s purpose is to protect

not only buildings but also people including firefighters and first responders. These

comments indicate that the Board found Petitioners’ plan inconsistent with the spirit and

purpose of the Fire Code, and we agree.

II.

In closing, we wish to address the primary concern of the trial court. That is whether

the Board recognized that Petitioners were requesting a “variance” from strict enforcement

of the Fire Code rather than “appealing” from the Fire Marshal’s interpretation of the Fire

Code.

As an initial matter, we note that Chapter 2.80 of the Metro Code provides only one

procedural mechanism for relief from an adverse decision of the Fire Marshal—whether

based on an alleged misinterpretation of the Fire Code, an alleged misapplication of the

Fire Code, or the principal that another form of construction would be equally as good or

more desirable:

Whenever the director of codes administration and/or the metro fire

marshal shall reject or refuse to approve the mode or manner of

construction proposed to be followed or materials to be used in the erection

or alteration of a building or structure, or when it is claimed that the

provisions of [the Fire Code] do not apply, or that an equally good or more

desirable form of construction can be employed in any specific case, or

when it is claimed that the true intent and meaning of [the Fire Code] have

been misconstrued or wrongly interpreted, the owner of such building or

structure . . . may appeal from the decision of the director of codes

administration and/or the metro fire marshal to the board of fire and

building code appeals. Notice of appeal shall be in writing and filed within

thirty days after the decision is rendered by the director and/or metro fire

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marshal. A fee of two hundred and fifty dollars ($250.00) shall accompany

such notice of appeal.

Metro Code § 2.8.090.

Accordingly, § 2.80.80 empowers the Board to grant such appeals by varying from

the Fire Marshal’s enforcement or interpretation of the Fire Code:

The board of fire and building code appeals, when so appealed to and

after a hearing may vary the application of any provision of [the Fire Code] to

any particular case when, in its opinion, [1] the strict enforcement thereof would

do manifest injustice and would be contrary to the spirit and purposes of [the

Fire Code], or public interest, and when [2] in its opinion the interpretation of

the director of codes administration and/or the metro fire marshal should be

modified.

Id. § 2.80.080.5

At the commencement of the case, Chairman Rich McCoy asked counsel for the

parties to “explain to us your hardship and what alternat[ive] means of protection is

proposed in lieu of literal code compliance.” Then Chairman McCoy recited the applicable

fire code requirements for Petitioner’s proposed building based on its size and type. He

also identified Petitioner’s variance request, noting that, rather than having a fire hydrant

within 500 feet of the proposed building, Petitioners proposed to install a dry chemical-fire

suppression system inside the building and a 20,000-gallon above-ground water storage

tank outside. We also find it significant that Petitioners’ counsel stated the standard that

5

The trial court erroneously construed Chapter 2.80 of the Metro Code as distinguishing between

an “appeal” and a “variance request.”

In this Court’s view, it is reasonably deduced from the record that Petitioners desired and

sought a variance pursuant to Metro Code § 2.80.080. It is not equally clear, however, the

Board also understood this to be the case. The record lacks any indication the Board made

a distinction between an appeal of the decision of Asst. Fire Marshal Almon, pursuant to

Metro Code § 2.80.090, and a request for a variance, pursuant to Metro Code § 2.80.080,

in its deliberations. The Board makes no mention of the language in Metro Code §

2.80.080. Specifically, the Board does not mention “manifest justice” or “spirit and

purpose” of the Code in any manner, and the word “variance” is never used by the Board.

Although Chapter 2.80 distinguishes between the Fire Marshal’s interpretation and enforcement of the Fire

Code, it creates only one method of appeal. See Metro Code § 2.80.090.

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governs a variance request, that being the standard in Metro Code § 2.80.080 and Board

Rule IX.6

Later, Board members asked questions related to the variance request. Chairman

McCoy asked, “Are there any alternatives with that well? Is there the ability to pump from

the well for water service?” Assistant Fire Marshal Almon answered the question, stating

that the well on Petitioners’ property was “not considered a reliable fire suppressant

source.”

Then an unidentified Board Member asked if the water for the 20,000-gallon above-

ground tank would come from the well. After being advised that it would not, that same

Board Member queried: “[I]f you did have a fire, and you expended all of the 20,000

gallons, how are you going to get more water to fill it back up fast? You won’t be able to

do that. And obviously, if you’ve got repair work there, you’re going to have vehicles that

are having volatile material in them, a fuel for fire.”

As for the dry chemical system to be installed inside the new building, another

Board Member asked: “Is this system better than a water system for putting out these

kind[s] of fires?” Assistant Fire Marshal Almon answered that “the dry chemical system,

with the amount of agent it has and the duration, would not meet the normal requirements

for this size of a structure.” Then Board Member Marina Ntoupi asked if there was “an

option to upgrade the dry chemical [system] to meet [the] size of this infrastructure.”

Assistant Fire Marshal Almon answered, “[T]he material that I was presented for the dry

chemical system, it does not carry a listing for this type of (inaudible) for an entire building.

It’s more of a specific purpose extinguishing system, such as for spray [booths or] for

basically a smaller defined area.”

Admittedly, the Board could have done a better job of clarifying that the hearing

concerned a request to vary from the Fire Marshal’s enforcement of the Fire Code rather

than the Fire Marshal’s interpretation of the Fire Code. Still, Petitioners have the burden

to prove that the Board followed an unlawful procedure by treating the appeal for a variance

from the Fire Marshal’s enforcement as an appeal for a variance from the Fire Marshal’s

interpretation. See Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 729–30

(Tenn. 2012) (stating that parties using a common law writ of certiorari to challenge an

administrative decision have the burden of presenting evidence showing that the officials,

inter alia, “followed an unlawful procedure”). And we find that Petitioners failed to

establish that the Board followed an unlawful procedure by treating the hearing appeal as

one for a variance from the interpretation of the Fire Marshal. In our view, the transcript

6

Board Rule IX mirrors the language in Metro Code § 2.80.080.

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from the hearing before the Board reveals that the Board knew that it was considering an

appeal for a variance from the Fire Marshal’s strict enforcement of the Fire Code rather

than an appeal from the Fire Marshal’s interpretation of the Fire Code because the Board

asked questions to determine whether the variance proposed satisfied the elements of Metro

Code § 2.80.080 and, particularly, whether strict enforcement would be contrary to the Fire

Code’s spirit and purposes. See Int’l Fire Code § 101 (Int’l Code Council 2012).7

Accordingly, we respectfully disagree with the trial court’s conclusion that the

Board applied the law incorrectly.

IN CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed, and this matter

is remanded with instruction for the trial court to affirm the decision of the Board. Costs of

appeal are assessed against the appellees, Robert and Dannette Madden.

________________________________

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

7

As noted earlier, the purpose of the 2012 IFC is two-fold: (1) “to establish the minimum

requirements consistent with nationally recognized good practice for providing a reasonable level of life

safety and property protection from the hazards of fire, explosion or dangerous conditions in new and

existing buildings, structures and premises”; and (2) “to provide safety to fire fighters and emergency

responders during emergency operations.” 2012 Intl. Fire Code § 101.

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