                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 April 22, 2014 Session

THE METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON
  COUNTY, TN, ET AL. V. THE BOARD OF ZONING APPEALS OF
        NASHVILLE & DAVIDSON COUNTY, TN, ET AL.

                Appeal from the Chancery Court for Davidson County
                   No. 120103I    Claudia Bonnyman, Chancellor




               No. M2013-00970-COA-R3-CV - Filed October 13, 2014


Advertising company applied to the Metropolitan Government Department of Codes and
Building Safety for a permit to convert its standard billboard to a digital billboard. The
zoning administrator denied the request; the company appealed to the Metropolitan Board
of Zoning Appeals, which reversed the administrator’s decision and granted the permit. Days
later, the permit was revoked on the ground that the proposed digital billboard violated a
provision in the zoning code. The company again appealed to the Board of Zoning Appeals,
which held that the permit had been revoked in error and reinstated the permit. The
Metropolitan Government then filed a petition for a writ of certiorari seeking review of the
Board’s decision; the trial court reversed the decision granting the permit. The advertising
company appeals; finding no error, we affirm the judgment of the trial court.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., P. J., M. S., and L AURENCE M. M CM ILLAN, Jr., S P. J., joined.

Nancy King Crawford and George A. Dean, Nashville, Tennessee, for the appellant, Lamar
Tennessee, LLC d/b/a Lamar Advertising.

Saul Solomon, Lora Barkenbus Fox, and Emily Herring Lamb, Nashville, Tennessee, for the
appellee, Metropolitan Government of Nashville and Davidson County, Tennessee.

James R. Tomkins, Nashville, Tennessee; and Roger A. Horner, Brentwood, Tennessee, for
the appellee, City of Brentwood, Tennessee.
                                              OPINION

I. HISTORY

       In 2000 Lamar Tennessee, LLC (“Lamar”), a company which advertises products
through the use of billboards, built a standard billboard on property located in a “CS”–
Commercial Service– district in Metropolitan Nashville (“Metro”). In 2006 the zoning was
changed from “CS” to “MUL”–Mixed Use Limited, a district in which billboards are not
permitted; in accordance with Tenn. Code Ann. § 13-7-208, Lamar continued to use the
billboard. In 2008 the Metropolitan Code was amended to add lighting restrictions, one of
which prohibited LED message boards and digital display signs on property in MUL districts.

        On May 6, 2011, Lamar applied to Metro’s Department of Codes and Building Safety
for a permit to replace its existing billboard with a digital one. The application was denied
by the zoning administrator on the ground that the change from standard to digital was a
“change from one non-conforming use to another”; Lamar appealed the decision to the Metro
Board of Zoning Appeals (“BZA”). The hearing took place on August 18; in the course of
the meeting the BZA was advised that the case “has been withdrawn by staff, that billboard
is legally nonconforming and is permitted, as a matter of right, to change their billboard from
static to digital.” An order memorializing the action was entered on August 19.

       On August 23 Lamar was advised by letter from Joel Hargis, the Zoning Examination
Chief of the Department, that the permit had been revoked because “it was issued in violation
of § 17.32.050 H(2) of the Metro Zoning Ordinance.”1 Lamar appealed the revocation to the
BZA; following a hearing on October 20, the BZA entered an order on November 23, 2011
holding that the permit had been revoked in error.

        On January 23, 2012, Metro filed a petition for writ of certiorari in Chancery Court,
alleging that the BZA’s decision was contrary to law and would violate the Metro zoning
code; the City of Brentwood was permitted to intervene as a petitioner and filed a petition
seeking to invalidate the BZA’s action. Following a hearing, the court held that Lamar could
continue to use the billboard as it had prior to the 2006 zoning change from CS to MUL but
that it could not light the billboard digitally; accordingly, the court reversed the BZA’s




       1
           The letter advised in part:

       The non-conforming status of the existing billboard would permit the replacement of the
       billboard with either a static billboard or a billboard of tri-panel design, such that exists
       today. The above section [Code § 17.32.050 H 2], however, would not allow that non-
       conforming billboard to be converted to a digital billboard.

                                                    2
action. Lamar filed a motion to alter or amend the judgment, which was denied by order
entered March 19, 2013. Lamar filed a timely notice of appeal.

II. STANDARD OF REVIEW

       The vehicle for seeking review of local boards of zoning appeals decisions is by
common law writ of certiorari. Hoover, Inc. v. Metro. Bd. of Zoning Appeals of Davidson
Cnty., 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997). Under this standard of review, the trial
court reviews the lower tribunal’s decision only to determine whether that decision maker
exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or
fraudulently, or acted without material evidence to support its decision. Id; Hoover v. Metro
Bd. of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn. Ct. App. 1996); Hemontolor v. Wilson
County Bd. of Zoning Appeals, 833 S.W.2d 613, 616 (Tenn. Ct. App. 1994). Our review on
appeal can be no broader or more comprehensive than the trial court’s review. Watts v. Civil
Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980); Jacks v. City of Millington Bd.
of Zoning Appeals, 298 S.W.3d 163, 167 (Tenn. Ct. App. 2009).

       Application of a statute or ordinance to the facts is a question of law that is properly
addressed to the courts. Sanifill of Tenn., Inc. v. Tenn. Solid Waste Disposal Control Bd.,
907 S.W.2d 807, 810 (Tenn. 1995). As to issues of law, our review is de novo, with no
presumption of correctness. Tenn. R. App. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 670
(Tenn. 2006); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

III. ANALYSIS

       A. S TANDING

      Lamar argues that Metro lacks standing to bring this certiorari proceeding because the
BZA is an arm of Metro with no independent legal existence and, therefore, Metro cannot
be aggrieved by the BZA’s actions.

       The issue of Metro’s standing to bring a certiorari proceeding to review a decision of
the BZA was recently before this court in Metropolitan Government of Nashville and
Davidson Cty, et al. v. Metropolitan Board of Zoning Appeals, et al, No. M2013-01283-
COA-R3-CV, 2014 WL4364852 (Tenn. Ct. App. September 3, 2014). In that case, we were
called upon to review the doctrine of standing, pertinent case law and statutes, the
Metropolitan Charter, the Metropolitan Code, and to examine the roles of Metro and the BZA
in zoning matters; we concluded that Metro has broad powers to pass zoning ordinances as
well as the responsibility to regulate and enforce zoning, while the BZA’s role is more
limited. Id. at *4. By virtue of Metro’s responsibilities under state law and the Metropolitan
Code to enforce specific provisions of the zoning code, as well as the special interest in the

                                              3
BZA decision created by the duty to protect the public health and safety, we held that Metro
could be “aggrieved” within the meaning of Tenn. Code Ann. § 27-9-101 and thereby acquire
standing. Id. at *5. We also rejected the argument that, because the BZA “was created by
Metro and is ‘an arm of the local government with no independent legal existence’ and . . .
has no independent source of funding,” Metro could not pursue the action. Id. at *7. In this
regard, we noted that “in seeking such review, Metro seeks to perform its statutory
obligations, which are larger than the limited role assigned to the BZA; as well, Metro acts
in its corporate capacity in lieu of other citizens.” Id. We reiterate those holdings here.

        Lamar also contends that to establish standing Metro was required to introduce proof
that “the zoning board decision would have a ‘substantial, direct and adverse effect on the
Metropolitan Government’” and that “the lack of any proof thoroughly explaining and
substantiating the ‘substantial adverse effect’ or otherwise demonstrating the accuracy of the
government’s position requires dismissal.”

       In making this argument, however, Lamar fails to appreciate the practical application
and effect of the unique role Metro has in zoning matters:

       Pursuant to § 2.01 of the Metropolitan Charter, Metro is vested with the power,
       inter alia, to regulate zoning, to create various boards and commissions, and
       to pass ordinances “necessary for the health, convenience, safety and general
       welfare” of the citizens. The zoning code for Metro is codified at Title 17 of
       the Metropolitan Code and establishes “those rules and procedures deemed
       necessary and appropriate to administer and enforce the provisions of this title,
       so as to protect the public health, safety, morals, convenience, order, prosperity
       and general welfare of the . . . inhabitants of Metropolitan Nashville.”
       Metropolitan Code § 17.04.010 B.

Metro. Gov’t of Nashville-Davidson Cnty., 2014 WL 4364852 at *4. In light of these
responsibilities, proof to the degree of specificity and in the manner urged by Lamar is not
necessary. We agree with the trial court that Metro’s burden to show “aggrievement” was
satisfied by the fact that the effect of issuing the permit allowing the digital billboard was to
prevent Metro from enforcing the illumination restrictions applicable to the MUL zoning




                                               4
district as specified in Code § 17.32.050 H 2.2              As recognized by the trial court, just as
Metro’s role is unique, so is its injury.3

       Inasmuch as we have determined that Metro has standing to bring this proceeding,
Lamar’s contention that the court has no subject matter jurisdiction over Brentwood’s
petition for certiorari because the petition was filed more than sixty days after the BZA’s
decision, is pretermitted.




        2
            The trial court held:

        Metro meets [the requirements of Tenn. Code Ann. § 27-9-101] because the BZA’s decision
        interfered with Metro’s ability to fulfill its obligations under the local zoning code, in that
        the illumination restrictions of the Metro Code could not be enforced. Metro has a strong
        interest in assuring that its boards and commissions do not, through legal error, make
        decisions that essentially void provisions of its Code, or otherwise render such ordinances
        unenforceable. Metro has the authority to seek judicial review of such board decisions, in
        order to maintain the operation of the local zoning code.
        3
           We held in City of Brentwood v. Metro. Bd. of Zoning Appeals that, when applied to local
governments in land use cases, the “aggrievement” that serves to supply the “distinct and palpable injury”
required for standing “encompasses interference with the government’s ability to fulfill its statutory
obligations or substantial, direct and adverse effects on the local government in its corporate capacity.” City
of Brentwood, 149 S.W.3d 49, 58 (Tenn. Ct. App. 2004) (citations omitted).

                                                      5
       B. A PPLICATION OF T ENN. C ODE A NN. § 13-7-208(B)(1)

        Lamar contends that Metropolitan Code § 17.32.050 H 24 is a zoning regulation to
which the Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208(b)(1)5 , applies and
permits the replacement of the mechanical sign with a digital one. Metro argues that the
ordinance is a non-zoning safety restriction and that Lamar’s proposed use is not protected
by the statute. Consequently, we must first determine whether Metro Code § 17.32.050 H
2 is a zoning regulation, thereby invoking the protections of the Tenn. Code Ann. § 13-7-
208(b)(1).

       In Cherokee Country Club v. City of Knoxville, 152 S.W.3d 466 (Tenn. 2004), our
Supreme Court considered whether an ordinance which prohibited the issuance of all
demolition permits for property which was under consideration for designation as a historical
overlay district was a zoning ordinance or a building regulation enacted pursuant to the City’s


       4
           Metro Code § 17.32.050 H 2 provides:

       It is unlawful to erect, cause to be erected, maintain or cause to be maintained, any sign not
       expressly authorized by, or exempted from, this title. Any prohibited sign(s) may be
       removed by the zoning administrator or his designee after notice to the property owner or
       occupant to remove such sign(s) within three days. The following signs are expressly
       prohibited:
       ***
       H.
       ***
       2.        LED message boards and digital display signs in the AG, AR2a, R, RS,
                 RM, RM-A, MUN, MUN-A, MUL, MUL-A, MUG, MUG-A, MUI,
                 MUI-A, MHP, ON, OL, OG, OR20, OR20-A, OR40, OR40-A, ORI,
                 ORI-A, CN, CL, SCC and SCN districts, except for time/temperature/date
                 signs, provided that this prohibition shall not apply to signs existing as of
                 January 1, 2014, that are located on property zoned MUI-A along an
                 arterial street within the urban zoning overlay district and have a surface
                 area in excess of 1,200 square feet.
       5
           Tenn. Code Ann. § 13-7-208(b)(1) provides that:

       In the event that a zoning change occurs in any land area where such land area was not
       previously covered by any zoning restrictions of any governmental agency of this state or
       its political subdivisions, or where such land area is covered by zoning restrictions of a
       governmental agency of this state or its political subdivisions, and such zoning restrictions
       differ from zoning restrictions imposed after the zoning change, then any industrial,
       commercial or business establishment in operation, permitted to operate under zoning
       regulations or exceptions thereto prior to the zoning change shall be allowed to continue in
       operation and be permitted; provided, that no change in the use of the land is undertaken by
       such industry or business.

                                                     6
general police powers. The Court noted that “[t]he precise contours of determining when an
ordinance is a zoning ordinance, and thus subject to statutory zoning requirements . . . are
difficult to draw or define,” and that “determining whether a zoning ordinance exists requires
‘a consideration of the substance of its provisions and terms, and its relation to the general
plan of zoning in the city.’” Id. at 472 (citations omitted).6 After reviewing treatises on
zoning and cases from other jurisdictions, the court adopted the “substantial effects” test,
stating:

       In resolving this issue of first impression, we believe that the determination of
       whether a regulation or an ordinance “substantially affects” the property
       owners’ use of land is a well-reasoned and persuasive approach. This analysis
       avoids the difficulty of definitions found in some decisions by focusing on
       both the terms and the effect of an ordinance, as well as its “relation to the
       general plan of zoning.” McQuillin § 25.53. The analysis is also more
       comprehensive and more precise than simply attempting to distinguish whether
       the terms of an ordinance regulate the use of land or how the land is used.
       Finally, the analysis eliminates the risk that a municipality may avoid statutory
       zoning requirements by attempting to label what is in reality a zoning
       ordinance as a building regulation.

Id. at 473. Utilizing the “substantial effects” test, the Court determined that the demolition
ordinance was a zoning ordinance because its broad and permanent restrictions on demolition
substantially affected the club’s use of its property. Id. at 474.

       In SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467 (Tenn. 2012), the Supreme
Court employed the “substantial effects” test to resolve an issue of whether an ordinance
which banned the sale of fireworks in the city limits was a zoning ordinance, thereby
invoking the protections of Tenn. Code Ann. § 13-7-208(b)(1) to permit a retailer whose
property had been annexed into the city to continue to sell fireworks, or a regulation enacted
by the City pursuant to its general police powers granted to it at Tenn. Code Ann. § 6-2-
201(22).7 The court articulated the test as follows:



       6
           The statutory zoning requirements referenced by the court are at Tenn. Code Ann. §§ 13-7-
201–211.
       7
           Tenn. Code Ann. § 6-2-201(22) provides that municipalities may:

       Define, prohibit, abate, suppress, prevent and regulate all acts, practices, conduct,
       businesses, occupations, callings, trades, uses of property and all other things whatsoever
       detrimental, or liable to be detrimental, to the health, morals, comfort, safety, convenience
       or welfare of the inhabitants of the municipality, and exercise general police powers.

                                                    7
        [The “substantial effects” test] is actually a two part test that examines both the
        terms and the effects of the challenged ordinance. The first step requires
        courts to review the terms of the challenged ordinance and the municipality’s
        comprehensive zoning plan to determine whether the ordinance is so closely
        related to the zoning plan that it can be fairly characterized as tantamount to
        zoning. The second step requires the courts to determine whether the
        challenged ordinance substantially affects the use of property that is the subject
        of the litigation. Both parts of the test must be satisfied before a challenged
        ordinance may be held tantamount to zoning.

Id. at 478. Applying the first part of the test the Court determined that the ordinance did not
refer to the City’s zoning plan and that its operation was not dependent upon the plan; the
court also noted the ordinance “[did] not refer to land, zones, buildings, lot lines, or any other
terms and concepts customarily associated with comprehensive zoning plans” and held that
the ordinance “reflects the exercise of the city’s traditional, general police power granted in
Tenn. Code Ann. 6-2-201(22).” Id. at 479. Because the Court did not determine that the
ordinance was tantamount to a zoning ordinance, it did not apply the second part of the test;
the court concluded that because the ordinance was not a “zoning change” or a “zoning
restriction” under the substantial effects test, the retailer did not qualify for relief under Tenn.
Code Ann. § 13-7-208(b)(1).” Id.8

       Applying the “substantial effects” test to the case at bar, we conclude that, while Code
§ 17.32.050 H 2 is closely related to the zoning plan, it is not “tantamount to zoning”; further,
application of the ordinance under the circumstances presented does not substantially affect
Lamar’s use of the property.

       Title 17 of the Metropolitan Code of Ordinances contains Metro’s zoning code. Code
§ 17.04.010 B states the purpose of the code:

        Purpose and Authority. This zoning code is enacted pursuant to Articles 2 and
        20 of the Charter of the Metropolitan Government of Nashville and Davidson
        County and Title 13 of the Tennessee Code Annotated. This title is designed
        to implement the goals and objectives of Concept 2010: A General Plan for
        Nashville and Davidson County and its associated subarea and functional
        plans. Created by this title are a diverse range of zoning districts which


        8
           We do not agree with Lamar’s argument that the SNPCO test “applies only in circumstances where
the ordinance may be ‘tantamount to zoning’ but is not actually zoning.” As shown by the SNPCO court’s
analysis, the test is used to determine whether a particular ordinance is a zoning measure governed by Tenn.
Code Ann. § 13-7-201, et seq., or a product of the city’s exercise of its authority to enact health, safety and
public welfare regulations pursuant to its police powers.

                                                      8
        establish appropriate land uses and associated standards of development
        needed to implement the land use policies of the General Plan. In conjunction
        with this title an official zoning map assigns an appropriate zoning
        classification to all properties to which this title is applicable. . . . This title
        further establishes development standards which are designed to protect the
        value and integrity of neighboring properties, enhance the general character
        and appearance of the community, reinforce the central business district, and
        provide for a reasonable balance between efficient utilization of land,
        protection of this community’s environmental resources and assuring the
        operational integrity of streets. . . .
        (Ord. 96-555 § 1.1, 1997)

Zoning districts are established at Code § 17.08.010 and include agricultural, residential,
specific plan, mixed use, office, commercial, downtown code, shopping center, and industrial
districts; the nature and character of each district is described at § 17.08.020.

       Chapter 17.32 of the Code is entitled “Sign Regulations”; the purpose and intent of
this chapter is set forth at § 17.32.010 and, with specific reference to safety, states:

        Safety. Construct and display signs in a manner that allows pedestrians and
        motorists to identify, interpret and respond in an efficient and discerning
        manner to the following:
        1. Information related to public traffic control, directions and conditions;
        2. Movement of all other pedestrians and vehicles that impact traffic on a
        given travelway; and
        3. Information other than public traffic related when displayed in a manner
        which is clear, concise and noncompeting with public traffic information.

Metropolitan Code § 17.32.010 A.9 Metropolitan Code § 17.32.020 A provides that the sign
regulations “are intended to complement the various codes and ordinances of the
metropolitan government” and that “[w]henever there is inconsistency between these sign
regulations and other regulations of the metropolitan government, the more stringent shall
apply.”

      Metropolitan Code § 17.32.030, entitled “Rationale, definition, system for regulation
and overall use,” provides in pertinent part:



       9
            The other provisions of this section pertain to protection of minors (§ 17.32.010 B), graphic
continuity and aesthetics (§ 17.32.010 C), protection of future public right-of-way (§ 17.32.010 D), and
activities and services identification (§ 17.32.010 E).

                                                   9
        C. System for Regulation. Regulation of signs is based on size, location,
        method of attachment, duration and design/lighting.      The following
        distinctions apply to the regulation of signs:

        1. Regulations based on size;
        2. Regulation based on location;
        3. Regulation based on method of attachment:
           a. On-premises ground sign,
           b. On-premises building sign;
        4. Regulation based on duration:
           a. On-premises temporary sign,
           b. On-premises permanent sign;
        5. Regulation based on design/method of lighting:
           a. Illuminated sign,
           b. Nonilluminated sign.

        Regulations apply to signs with respect to specific permissiveness and
        provisions in each use district or group of related districts. Regulations are
        generally more restrictive in residential districts than in commercial districts.

Code § 17.32.150 provides that billboards are permitted in the CL, CS, IWD, CF, IR and IG
districts “subject to the provisions of this chapter and this title”; the section contains
regulations specifically applicable to billboards, none of which are at issue in this case.10

      It is within this construct that we consider whether the prohibition on LED message
boards and digital display signs at Metro Code § 17.32.050 H 2 is in reality a zoning
ordinance or a non-zoning safety provision.

        The fact that the regulation is included in the zoning code and that enforcement of the
regulation is vested with the zoning administrator is not dispositive of the question. Viewed
in the context of the entire zoning ordinance, it is apparent that the signage regulation and
related lighting provisions contained in Chapter 17.32 are of a character and purpose
different than that reflected in the statement of purpose of the zoning code; they do not reflect
the land use policy considerations and objectives inherent in the development of the
comprehensive zoning code. See Code § 17.04.010 B. While allowing, prohibiting, or
otherwise regulating particular signs in specified districts is a component of the overall
zoning ordinance, Chapter 17.32 does not “depend[] entirely upon the zoning districts
established by the Metropolitan Zoning Ordinance”, as argued by Lamar. Rather, Chapter

        10
          Metro asserts that the regulation applicable in this case is “design/method of lighting” at Code §
17.32.030 C 5.

                                                    10
17.32 functions primarily to complement the uses of property as reflected in the zoning
districts established at Code § 17.08.010. More importantly, the signage regulations are
reflective of the city’s powers and responsibilities to provide for the public safety. By their
nature specific signage regulations may be appropriate in residential zones, different
regulations in commercial zones, and different regulations in industrial zones; the
regulations, however, do not impair the use of the property upon which the sign is located.
The regulations operate as a means to accomplish specific objectives in the zoning code, and
are not “tantamount to zoning.”

       We are also of the opinion that § 17.32.050 H 2 does not substantially affect Lamar’s
use of the billboard. In its brief Lamar argues that “the off-premises sign industry is
tremendously competitive and dependent upon technological innovation” and that
incorporation of technological improvements “is critically important [to] maintaining and
reasonably increasing viewership of the signs.” The question before us, however, is whether
the ordinance “substantially affects the use of the property,” not whether the ordinance
prevents Lamar from maximizing viewership of the signs. Lamar has maintained a standard
billboard on the property since 2000, with the use grandfathered in when the zoning was
changed from CS to MUL in 2006. Code § 17.32.050 H 2 was passed in 2008 and Lamar
did not apply to replace the existing billboard to a digital one until 2011.11 Lamar is still able
to use the billboard in the MUL zone as it was originally constructed and to utilize digital
billboards in other zones where allowed.




       11
             The Metropolitan council acknowledged the advances in technology in the preamble to the
ordinance:

       WHEREAS, the sign provisions of the Zoning Code, Chapter 17.32 of the Metropolitan
       Code, have remained basically unchanged since adoption in 1992; and

       WHEREAS, technology in the sign industry has evolved in the last 15 years as to
       electronics; and

       WHEREAS, the Tennessee General Assembly adopted legislation permitting changeable
       message signs with digital displays on April 19, 2007; and

       WHEREAS, the Tennessee Department of Transportation, with guidance from the Federal
       Highway Administration, has adopted regulations for the use of digital displays on
       billboards in Tennessee; and

       WHEREAS, it is appropriate that the Metropolitan Code provision pertaining to digital
       billboards be updated to reflect the technological advancements in the sign industry.


                                                  11
       Because Code § 17.32.050 H 2 is not a zoning ordinance, the statutes governing
zoning at Tenn. Code Ann. § 13-7-201, et seq., do not apply and the protections of the Non-
Conforming Property Act are not triggered. Consequently, Lamar’s arguments that the
proposed change to a digital billboard is a “conversion, alteration or renovation [that] was
expressly contemplated by the terms of the act” and that there was no change in use of the
property but, rather, there was a “change in structure or change in operation” are unavailing.

IV. CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                  _________________________________
                                                  RICHARD H. DINKINS, JUDGE




                                             12
