                                                                                         03/29/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               February 5, 2018 Session

     MJM REAL ESTATE INVESTMENTS, LLC v. METROPOLITAN
      GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
                      TENNESSEE, ET AL.

               Appeal from the Chancery Court for Davidson County
                No. 16-645-I    Claudia C. Bonnyman, Chancellor


                            No. M2017-01166-COA-R3-CV


This appeal arises from a statutory writ of certiorari. The petitioner filed an application
with the Metropolitan Historic Zoning Commission (“the Commission”) to obtain a
permit to renovate a 1935 industrial building in the Broadway Historic Preservation
District in downtown Nashville. The Commission partially approved the application but
required modifications before a permit would be issued. In pertinent part, the
Commission denied the request to install vertically operable windows (similar to “roll
up” garage doors) because they were not consistent with the style of the original 1935
windows. The Commission also required the construction of a parapet wall around the
fifth story rooftop deck, rather than a railing proposed by the petitioner, to hide the
building’s rooftop additions because the additions were not compliant with the design
guidelines for the district. Following an evidentiary hearing, the chancery court affirmed
the Commission’s decision. We affirm the chancery court.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and RICHARD H. DINKINS, JJ., joined.

Kirk L. Clements, Nashville, Tennessee, for the appellant, MJM Real Estate Investments,
LLC.

Jon Cooper, Director of Law; Lora Barkenbus Fox, and Catherine J. Pham, Nashville,
Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson
County, Tennessee and the Metropolitan Historic Zoning Commission.
                                               OPINION

       MJM Real Estate Investments, LLC (“Petitioner”) seeks to renovate the building
at 105 Broadway in downtown Nashville.1 The subject property is located within the
Broadway Historic Preservation District (“the District”) where the Metropolitan Historic
Zoning Commission (“the Commission”) has jurisdiction “to insure the ongoing
preservation of structures of historic value.” M.C.L. § 17.36.100. Accordingly, the
Commission must approve any changes made to the building through a permitting
process. Tenn. Code Ann. § 13-7-407.

       The building at 105 Broadway was constructed in 1935 as a four-story brick
warehouse with steel Hopper windows, a common feature of industrial buildings during
that time. Significant to this case, a Hopper window operates on a hinge which tilts the
window out or in; thus the window remains completely visible when open. Also
significant to this case, the 1935 building had a flat roof hidden behind a parapet wall.

       Gaylord2 purchased the property in 2000 and made substantial renovations to the
exterior, leaving only the original brick, window openings, and parapet wall intact.
Notably, Gaylord replaced the steel Hopper windows with modern industrial windows
that did not open, and it added a partial fifth story rooftop deck and a partial sixth story,




        1
            The building is adjacent to Acme Feed & Seed, a three-story building at 101 Broadway that

        has seen many changes since its first tenants in 1890. Among them included the
        Cummins brothers’ grocery store…Southern Soda Works, Continental Baking Powder
        Co., Ford Flour Co., D. Byrd and Co., Bearden Buggy, Sherman Transfer Co., Chadwell
        Transfer and Storage Co., and Tennessee Wholesale Drug Co. Nashville businessman
        Currey L. Turner moved his feed store, Acme Feed and Hatchery, into the building in
        1943 and changed the name to Acme Farm Supply in 1965. Acme was known for its
        promotions, including holding annual “Purina jamborees” featuring Purina pigs Ike and
        Mike, who were given away as door prizes. That promotion gave way to free “dog
        dipping” (treating a dog for fleas) on Saturdays….Acme also owned a famous pet calf
        named Beautena that…appear[ed] on stage at the Grand Ole Opry during commercials.

Acme Feed & Seed History, theacmenashville.com.

        Acme Farm Supply closed its doors in 1999 and the building at 101 Broadway sat mostly vacant
until 2014. Id. Since that time, it has housed a multi-story restaurant, bar, and entertainment venue under
the name Acme Feed & Seed.
        2
          The record does not provide the complete business name of the Gaylord entity that owned the
building; nevertheless, the identity of that entity is not relevant to the issues on appeal.


                                                   -2-
which was an enclosed space called an “imaginarium.”3 All of the changes made by
Gaylord occurred before the historic overlay went into effect.

       The Broadway Historic Preservation District was created in 2007, at which time
the Commission adopted the Broadway Historic Preservation District Design Guidelines
(“the Design Guidelines”). The Design Guidelines provided that any further alterations to
the buildings within the District should be in keeping with the original style of the
building. Specifically, the Design Guidelines stated that rooftop additions could not
exceed one story.

        In February 2016, Petitioner applied for a preservation permit with the
Commission, requesting permission to make significant changes to the building’s
windows and rooftop additions. In pertinent part, Petitioner sought permission to replace
the windows on the first and second floors with vertically operable windows that are
similar to “roll up” garage doors. Petitioner also sought permission to partially expand the
fifth and sixth floors and to add railings that were similar to those installed by Gaylord in
2000. Petitioner also wanted to convert the “imaginarium” into a guitar-shaped bar area,
which would connect to a seventh story deck that was to be added as well.

       Petitioner’s application for the permit was heard on March 16, 2016, and after
considering the design plans, the Commission informed Petitioner that it would not
permit the new windows to open vertically; however, it would approve NanaWall
windows, which are folding windows that open horizontally. The Commission approved
the expansion of the fifth and sixth floors as well as the addition of a seventh floor;
however, it required Petitioner to replace a portion of the existing railing on the fifth floor
with a parapet wall in order to hide the additional rooftop decks, which were not
compliant with the Design Guidelines. The permit with the foregoing modifications was
issued on June 10, 2016.

       Soon thereafter, Petitioner filed a statutory writ of certiorari in the Chancery Court
for Davidson County, arguing that the Commission’s decision was arbitrary and
capricious. First, Petitioner argued that its proposed railings on the fifth floor were
consistent with Gaylord’s original design, and it made no sense for the Commission to
require Petitioner to replace part of the railing with a parapet wall. Second, Petitioner
argued that because the Commission is only charged with regulating appearance and not
function, the Commission did not have the authority to regulate how the windows
opened. Alternatively, Petitioner contended that if the Commission had the authority to
        3
          The record does not define or describe the “imaginarium.” From our review of the record, it
appears to be a glass enclosed space on the roof where patrons may enjoy a beverage and view the stars.
Wikipedia provides the following definition: “An imaginarium refers to a place devoted to the
imagination. There are various types of imaginaria, centers largely devoted to stimulating and cultivating
the imagination, towards scientific, artistic, commercial, recreational, or spiritual ends.”


                                                  -3-
regulate how the windows opened, the building had minimal historical value due to
Gaylord’s substantial renovations in 2000. Thus, replacing the windows with non-
historical windows would not affect the current historical value of the building.

       At the hearing, the court heard testimony from Robert Steven Maxwell, the
architect in charge of the renovation, and Sean Alexander, a historic preservationist with
the Commission. After hearing the testimony and reviewing the evidence, the trial court
affirmed the Commission’s decision. Specifically, the court credited Mr. Alexander’s
testimony that the windows, when opened vertically, looked like a vacant hole in the
wall, which significantly affected the appearance of the building. The court further ruled
that

      there is an implicit grandfather provision in the [Historic Preservation]
      Guidelines and in the statutes which indicate that the property or
      preexisting condition of property in 2007 [when the historic district was
      created] may be preserved by the owner, but when alterations and additions
      and other changes, replacements, take place, then those alterations,
      replacements, and buildings must be in keeping with the 1935, that is the
      historic building….And the Court finds here that since [Petitioner] wants to
      alter its year 2000 windows that it used to replace the historic windows…it
      must now alter them in compliance with the historic guidelines. And
      [Petitioner] has not carried its burden to show that it is entitled to a
      Preservation Permit allowing those roll-up windows, because they are not
      historic.

      As to the parapet wall, the court credited Mr. Alexander’s testimony that the wall
would hide the rooftop decks to make the building appear, from the street, as if it only
had one rooftop addition, which would comply with the Design Guidelines.

        Petitioner filed a motion to alter or amend, arguing that the trial court erred by
affirming the Commission’s decision. Additionally, Petitioner argued that Tenn. Code
Ann. § 13-7-408 and M.C.L. § 17.40.420 mandated that the Commission issue a
preservation permit within thirty days of its March 16 decision to approve the renovations
with conditions. Since the Commission did not issue the permit until June 10, Petitioner
asserted that it was entitled to unconditional approval of its February 29 application. The
trial court denied Petitioner’s motion, and Petitioner appealed.

                                         ISSUES

       Petitioner presents nine issues for our review, which we have consolidated and
rephrased as follows: (1) Did the Commission fail to timely issue a preservation permit in
accordance with M.C.L. § 17.40.420 and Tenn. Code Ann. § 13-7-408; (2) Did the trial
court err by affirming the Commission’s decision to deny vertically operable windows;

                                           -4-
and (3) Did the trial court err by affirming the Commission’s decision to require
Petitioner to replace a railing with a parapet wall?4

                                         STANDARD OF REVIEW

       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 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


       4
           Petitioner stated the issues as follows:

       1. Whether the Petitioner’s application for a Preservation Permit should be approved in toto as
          the Commission failed to timely provide a response pursuant to Metro Ordinance 17.40.420
          and Tenn. Code Ann. § 13-7-408.
       2. Whether the trial court erred in construing Tenn. Code Ann. § 13-7-403 and the applicable
          guidelines to require Petitioner to conform 105 Broadway to the 1935 variation of the
          building as opposed to the 2000 variation.
       3. Whether the trial court erred in finding that Tenn. Code Ann. § 13-7-401 et seq and the
          federal and local historic guidelines required that non-historical windows which had legally
          replaced historic windows in a previous renovation to maintain the historic features of the
          1935 windows.
       4. Whether the trial court erred in finding that the applicable historic guidelines contemplated
          maintaining historical features of windows when the historic windows no longer existed not
          because of deterioration, but because they had been legally replaced in a previous renovation
          with non-historical windows.
       5. Whether the trial court erred in finding that the applicable historic guidelines regulated the
          function and appearance of windows.
       6. Whether the trial court erred in finding that vertically operable windows were not historic
          because when the windows were open the historic frames were not visible and it appeared as
          if the window did not exist.
       7. Whether the trial court erred in construing Broadway Historic Guidelines to prevent
          Petitioner from adding a 7th floor.
       8. Whether the trial court erred in construing the Broadway Historic Guidelines to require a
          parapet wall to hide the sixth floor.
       9. Whether the trial court erred in awarding the Commission discretionary costs.


                                                      -5-
(Tenn. 2014) (citing Tenn. R. App. P. 13(d)). Appellate courts review questions of law de
novo with no presumption of correctness. Id.

                                        ANALYSIS

                       I. TIMELINESS OF THE PRESERVATION PERMIT

       Petitioner argues that its February 29 application to the Commission should be
unconditionally approved because the Commission did not issue a preservation permit
within thirty days of its March 16 decision as required by law. The Metropolitan
Government of Nashville and Davidson County (“Metro”) argues that Petitioner and the
Commission both agreed to delay the issuance of the permit until Petitioner submitted
revised plans. Because the applicable ordinance permits a delay by mutual agreement,
Metro argues that the Commission complied with the law.

       Tenn. Code Ann. § 13-7-408 provides that the “historic zoning commission or the
regional historic zoning commission shall, within (30) days following the availability of
sufficient data, grant a certificate of appropriateness with or without attached conditions
or deny the certificate, and shall state the grounds for denial in writing.” (emphasis
added). The applicable Metro ordinance provides:

       A. Consideration of Applications. The historic zoning commission shall
          meet within fifteen working days after receipt of an application for a
          preservation permit that includes sufficient data for review. Failure of
          the commission to act within thirty days after receipt of a sufficient
          application shall be deemed an approval except when a mutual
          agreement has been made to extend the time limit. The commission
          may conduct a public hearing prior to final action on any application.

M.C.L. § 17.40.420 (emphasis added).

       At the March 16, 2016 hearing, the Commission approved Petitioner’s February
application for a preservation permit with several conditions, one of which required that
“[u]nknown materials…be approved administratively prior to permitting.” Thus, after the
March 16 meeting, the Commission decided that it did not have sufficient data to issue a
permit. Thereafter, Petitioner’s architect, Patrick Bales, and Commission staff conferred
over the next few weeks via email, and on June 7, Mr. Bales submitted the revised plans
to the Commission staff. Three days later, on June 10, the Commission issued the
preservation permit.

       The minutes from the March 16 meeting and the subsequent communications and
emails reveal that the permitting process was delayed because the Commission required
additional data and revised plans before a decision could be made. Furthermore, the

                                           -6-
record reveals that the Commission and Petitioner mutually agreed to the delay.
Therefore, the Commission’s failure to issue a permit within thirty days of the March 16
meeting will not constitute an implied approval of Petitioner’s application as initially
presented.

                                  II. PRESERVATION PERMIT

      Petitioner argues that the trial court erred by affirming the Commission’s decision
to deny vertically operable windows and to require Petitioner to replace a railing with a
parapet wall.

       Tenn. Code Ann. § 13-7-402 empowers municipal governments “to establish
special historic districts or zones, and to regulate the construction, repair, alteration,
rehabilitation, relocation and demolition of any building” located within the designated
historic zones or districts. Metro enacted separate historic zoning provisions in the
Metropolitan Code of Laws “to insure the ongoing preservation of structures of historic
value” to Nashville and Davidson County. M.C.L. § 17.36.100. Each historic district has
a unique set of guidelines concerned primarily with regulating the exterior design
elements of the buildings within the district to ensure architectural compatibility. M.C.L.
§ 17.36.100(B); M.C.L. § 17.36.110.

       To promote compliance, Metro established a historic zoning commission
(previously designated “the Commission”) which is authorized to adopt a set of design
guidelines appropriate for each district and has the power to apply those design
guidelines when considering permit applications for new construction, alterations, or
additions. M.C.L. § 17.40.400; M.C.L. § 17.40.410. The Commission adopted The
Broadway Historic Preservation District Design Guidelines (previously designated “the
Design Guidelines”), which apply to the buildings within the District.

       When reviewing permit applications, the Commission must also consider:

       (1) [The] [h]istoric or architectural value of the present structure;
       (2) The relationship of the exterior architectural features of such structure to
           the rest of the structures, to the surrounding area, and to the character of
           the district;
       (3) The general compatibility of exterior design, arrangement, texture, and
           materials proposed to be used; and
       (4) Any other factor, including aesthetic, which is reasonably related to the
           purposes of this part.

Tenn. Code Ann. § 13-7-408.



                                            -7-
                           A. Vertically Operable Windows

       Petitioner argues that by dictating how the windows functioned, rather than how
they appeared, the Commission acted outside of its authority. Petitioner further argues
that even if the court determines that the Commission acted within its authority, Tenn.
Code Ann. § 13-7-408 requires the Commission to consider the historic value of the
present structure when issuing permits. Petitioner contends that because Gaylord made
substantial renovations in 2000, the present building has very little historic value.
Therefore, Petitioner should not be required to replace the modern windows with
historical windows.

       We note that neither party disputes that the Commission lacks the authority to
regulate how the windows function. However, the trial court credited Mr. Alexander’s
testimony that the vertically operable windows, when open, appear vacant. Thus, the trial
court found, and we agree, that by prohibiting the vertically operable windows, the
Commission acted within its authority to regulate the exterior appearance of the building.

        The trial court further determined that once Petitioner decided to make alterations
to the building, the Commission could require Petitioner to return to the 1935 style, rather
than the style of the building as it was in 2007 when the overlay district was created. We
agree with the trial court. Tenn. Code Ann. § 13-7-408 requires the Commission to
consider four factors when reviewing permit applications, one of which is the “historic or
architectural value of the present structure.” The Commission must also consider the
character of the surrounding structures and district, the general compatibility of the
exterior design, and any other factor related to the purposes of historic zoning. Id.

        Tenn. Code Ann. § 13-7-401 states that the purpose of historic zoning is to
“preserve and protect historic structures, areas and districts which serve as visible
reminders of the history and cultural heritage of this state….” Likewise, Metro’s Code
states that the purpose of the historic districts is to, inter alia, “preserve and protect the
historical…value of buildings…[t]o regulate exterior design, arrangement, texture and
materials proposed to be used within the historic districts to insure compatibility; [and]
[t]o create an aesthetic appearance which complements historic buildings or other
structures….” M.C.L. § 17.36.100.

       The Design Guidelines provide that “[i]f replacement windows or window
surrounds are necessary, replacements should replicate originals. If original windows do
not exist, replacements should be appropriate for the building’s style and period.”
(Emphasis added). Thus, the trial court correctly determined that the replacement
windows must be compatible with the historical character of the building and the
historical nature of the District.



                                            -8-
        The trial court found that the building, though modernized in 2000, was historic
and contributed to the historic character of the District. The Design Guidelines define
“historic” as “a structure or site, usually constructed by 1957 or earlier, which possesses
historical or architectural significance based on the criteria for listing in the National
Register of Historic Places.” Mr. Alexander testified the building would meet the
eligibility requirements for listing on the National Register for Historic Places. Thus, the
trial court’s finding was supported by the evidence.

       Second, after the trial court determined that Petitioner’s replacement windows
should be consistent with the 1935 style, it found that the vertically operable windows
proposed by Petitioner were not historical. Mr. Alexander testified that the original 1935
windows were “Hopper or awning functional windows.” When the Hopper windows
were opened, the smaller sections within the larger window tilted out or in. Mr.
Alexander also noted that the vertically operable windows Petitioner proposed, when
opened, “look like voids with no glass, no metal, no housing, no frames.” According to
Mr. Alexander, the vacant look is inappropriate for and inconsistent with a 1935
industrial-style building.

        In place of vertically operable windows, the Commission approved NanaWalls,
which, according to Mr. Alexander’s testimony, open horizontally by folding. While
NanaWalls do not replicate the original Hopper windows when opened, the trial court
found that they would not appear vacant based on Mr. Alexander’s testimony. Thus, the
trial court determined that the NanaWall windows, approved by the Commission, were
more in keeping with the 1935 design than the vertically operable windows.

       Petitioner argues, however, that the Commission failed to consider that the
building had retained very little of its original character after Gaylord renovated it in
2000. See Tenn. Code Ann. § 13-7-408 (When issuing permits, the Commission must
consider the “[h]istoric or architectural value of the present structure.”) We disagree. At
the meeting on March 16, the Commission discussed the present non-historical features
of the building, noting in the meeting minutes that “there are quite a number of alterations
to the building already and there is a high degree of non-conformity.” As a result, the
Commission determined that “there should be some give-and-take as long as the outcome
is more compliance.” Accordingly, the Commission allowed Petitioner to replace several
of the windows with a twenty-first century design, but denied the vertically operable
windows to minimize the divergence from the historical style.

       Thus, the evidence at the hearing and the administrative record support the trial
court’s determination that the Commission complied with the applicable statutes,
ordinances, and design guidelines when it denied a permit for vertically operable
windows.



                                           -9-
                                        B. Parapet Wall

       Petitioner concedes that the Design Guidelines only allow one rooftop addition
and that its building had more than one rooftop addition. However, Petitioner argues that
because the fifth and sixth story rooftop additions already existed, the seventh floor
addition qualifies as the additional story. Petitioner further contends that even if the
addition of the seventh floor is not in compliance with the Design Guidelines, a parapet
wall would not hide the additional rooftop decks from the street view. Moreover,
Petitioner contends that the Design Guidelines permit railings on rooftop additions and do
not require parapet walls to hide them.

       Section III.H.2 of the Design Guidelines provides:

       Rooftop additions should not exceed one story (or 15’) in height and should
       be set back a minimum of 30 feet from the main façade of the building and
       20 feet from the secondary street if it is a corner building. Rooftop railings
       should set back from each street facing wall by 8’.… In locations where
       railings are visible from the street, the materials should minimize the
       impact of the railing.

        When Petitioner submitted its February application for proposed renovations, the
building at 105 Broadway was not compliant with the Design Guidelines because it had
more than one rooftop addition—the partial fifth and sixth stories added by Gaylord in
2000. Petitioner’s February proposal would have exacerbated the situation by adding yet
another story—a seventh floor rooftop deck. Nevertheless, the Commission granted
Petitioner’s request to add a seventh story, while requiring the installation of a parapet
wall in lieu of a railing around the fifth story addition to buffer the view of the additional
floors.

        The trial court found that though Petitioner’s proposed rooftop renovations were
not in compliance with the Design Guidelines, the parapet wall on the fifth story would
make the building appear compliant from the street. Petitioner argues that the parapet
wall would not hide the additional rooftop decks. However, the trial court credited Mr.
Alexander’s testimony that “in lieu of a…railing that advertises you have more than one
story, the parapet looks like one story.” Thus, the trial court’s finding is supported by the
evidence.

        Petitioner argues that the Design Guidelines allow railings around rooftop decks
and do not require parapet walls. While Petitioner’s assertion is correct, the evidence
shows that parapet walls are a common architectural feature in the District. Section
III.D.2 of the Design Guidelines states that “[t]he roof forms of buildings within the
district are typically flat or have a gentle slope behind a parapet wall.” Mr. Alexander
testified that “historically, [the building at 105 Broadway] would have a parapet that

                                            - 10 -
extended a few feet essentially beyond the flat roof below…. Likewise, that is how
historically many buildings were built….” Thus, the trial court affirmed the
Commission’s decision, based on its finding that the parapet wall would be more in
keeping with the style of the original 1935 building and would harmonize the building
with the rest of the District.

      Considering the foregoing, we affirm the trial court.

                                    IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against MJM Real Estate Investments, LLC.


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




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