                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     June 24, 2008 Session

      MOORE & ASSOCIATES, INC. v. METROPOLITAN BOARD OF
                      ZONING APPEALS

                     Appeal from the Circuit Court for Davidson County
                          No. 02C-613     Barbara Haynes, Judge



                    No. M2007-02078-COA-R3-CV - Filed August 22, 2008


Zoning administrator denied a waiver of the Metropolitan Zoning Code’s landscape buffer
requirement and the Board of Zoning Appeals upheld the administrator’s interpretation of the
ordinance. Plaintiff contractor appealed to the circuit court, which determined that the zoning
administrator’s interpretation of the ordinance was incorrect and granted the waiver. The Board of
Zoning Appeals appealed. The trial court’s interpretation of the ordinance is affirmed, but the
decision to grant the waiver is vacated, and the case is remanded to the trial court with instructions
to return the matter to the board for further action.

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

ANDY D. BENNETT , J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR ., J.,
joined. PATRICIA J. COTTRELL, P.J., M.S., not participating.

J. Brooks Fox and Elizabeth A. Sanders, Nashville, Tennessee, for the appellant, Metropolitan Board
of Zoning Appeals.

Eugene N. Bulso, Jr., Nashville, Tennessee, for the appellee, Moore & Associates, Inc.

                                             OPINION

        Moore and Associates, Inc. contracted in March 2000 to build a hotel, the Hilton Garden Inn,
on Royal Parkway in Nashville, Tennessee. In accordance with the Metropolitan Zoning Code, the
original hotel plans called for a landscape buffer yard. The Hilton property sloped downward from
the adjacent property to the south. The original plans called for the removal of approximately 40 feet
of soil and rock in order to level out the Hilton’s property. This created a nearly vertical
embankment, which was to be held in place by a vertical wall. There appears to be some
disagreement between the parties as to whether any portion of the buffer yard was to be placed atop
the wall.
        During construction, a mud seam was discovered which, Moore and Associates claim, made
the planned vertical wall “unsafe and impractical.” With the apparent approval of the building
inspector and without seeking any approval from the zoning authorities to amend the original plans,
Moore and Associates constructed a wall that begins by sloping slightly toward the adjacent property.
About halfway to its height of approximately 39 feet, the wall turns and makes a gentler slope to the
top, ending near the property line.

       In September 2001, Moore and Associates requested a waiver of the landscape buffer
requirement. The zoning administrator, Mr. West, denied the request. The denial was appealed to
the Board of Zoning Appeals. A hearing was held on January 3, 2002, and an order was issued
January 9, 2002, holding: “The appellant DID NOT carry the burden of proof that the Board should
overturn the zoning administrator in his decision concerning [the] interpretation of Section
17.24.240G.”

        Moore and Associates filed a writ of certiorari in circuit court on March 4, 2002, challenging
the decision of the Board of Zoning Appeals. The case was stayed pending a ruling in a related case
in chancery court regarding a variance. In July 2007, the circuit court reversed the decision of the
Board, finding that “there has been a misapplication of a legal standard based upon the zoning
administrator’s interpretation of Chapter 17.24.240(G). The zoning administrator’s interpretation
of Chapter 17.24.240(G) . . . is not supported by the language of that ordinance.” The trial court
granted the waiver. The Metropolitan Government Board of Zoning Appeals appealed.

                                        Standard of Review

        Under the common law writ of certiorari, the reviewing court must examine whether the
municipal agency’s action is illegal, in excess of its jurisdiction, arbitrary or capricious. McCallen
v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990). In doing so, the court determines whether
there is any material evidence that supports the action of the administrative agency. Laidlaw Envtl.
Servs. of Nashville, Inc. v. Metro. Bd. of Health for Nashville and Davidson County, 934 S.W.2d 40,
49 (Tenn. Ct. App. 1996). Sufficiency of evidence is a question of law; thus, we review the trial
court’s decision de novo with no presumption of correctness. Lafferty v. City of Winchester, 46
S.W.3d 752, 759 (Tenn. Ct. App. 2000). Courts must not “reweigh the evidence or scrutinize the
intrinsic correctness of the decision,” Demonbreun v. Metro. Bd. of Zoning Appeals, 206 S.W.3d
42, 46 (Tenn. Ct. App. 2005), but independently review the record to ensure “it contains ‘such
relevant evidence that a reasonable mind might accept as adequate to support a rational conclusion.’”
Lafferty, 46 S.W.3d at 759 (quoting Hedgepath v. Norton, 839 S.W.2d 416, 421 (Tenn. Ct. App.
1992)).




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                                           The Ordinance

       Metro Code § 17.24.240G states:

       Landscape buffer yard requirements may be waived by a demonstration of unusual
       site grade conditions which would clearly negate the effects of the required yard. The
       applicant shall furnish sections or profiles (drawn to scale) through the property line
       along the yard which is proposed for waiver. These drawings shall demonstrate the
       existing and proposed grades on both sides of the property line, as well as the
       principal structures on both properties. The sections or profiles shall show the line
       of sight for a pedestrian (taken at four and one-half feet above grade) from principal
       entrances and from the highest point on the site to be buffered. Such profiles or
       sections shall clearly demonstrate that the effect of the change in grade would negate
       the effect of a mature landscape buffer yard thirty feet in height.


      Mr. West, the zoning administrator, explained his interpretation of § 17.24.240G to the
Zoning Board:

       The applicant in this case requested that the waiver be granted and at the time of his
       request, I read that Section to mean it [sic] that you would be basically going, falling
       off in the other direction because it talks about the highest point on the site to be
       buffered, [sic] That if — when you measure it on the highest point on the site to be
       buffered, and put the buffer yard on the applicant site that it would do not [sic] good;
       in other words, it would be falling the other way rather than going up from his site
       to the neighbor and from that the applicant took exception to my interpretation and
       filed his case.

Mr. West apparently viewed the regulation as allowing a waiver of the buffer yard requirement only
when the property to be buffered is higher than the adjacent property — the exact opposite of the
situation presented in this case.

        Rules of statutory construction apply to local ordinances. Jordan v. Knox County, 213
S.W.3d 751, 763 (Tenn. 2007). When statutory language is clear and unambiguous, courts must
apply its plain meaning without any forced interpretation that would limit or expand the statute’s
application. Id. There is nothing in § 17.24.240G that states or implies the regulation should be
applied as Mr. West suggested. We concur with the trial court that Mr. West’s interpretation is
inconsistent with the language of the ordinance.

         The trial court granted the waiver because of the Board of Zoning Appeal’s error in
approving Mr. West’s interpretation. Doing so was a natural reaction in which the court sought to
end litigation that had gone on far too long. We, however, must disagree with the trial court’s action.
Under § 17.24.240G, a waiver is not automatic even if there is a demonstration of unusual site-grade


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conditions which would clearly negate the effects of the required yard. The word “may” ordinarily
dicates discretion or permission. Williams v. McMinn County., 352 S.W.2d 430, 433 (Tenn. 1961);
Harlan v. Soloman, No. M2006-01419-COA-R3-CV, 2007 WL 4553009, *2 (Tenn. Ct. App. Dec
26, 2007) (no Tenn. R. App. P. 11 application filed). The word “may” will not be given a mandatory
meaning unless there is something in the statute that indicates it was used in that sense. Williams,
352 S.W.2d at 433. Nothing in the ordinance at issue requires “may” to be read in a mandatory
sense. The trial court’s grant of the waiver under these circumstances usurps the board’s
discretionary authority. For example, the ordinance contains conditions that must be met. The board
did not reach a decision on these matters since it was not necessary to do so when it approved Mr.
West’s erroneous interpretation of the ordinance. Therefore, we vacate the trial court’s issuance of
the waiver and remand the case to the trial court with instructions to return the case to the Board of
Zoning Appeals for further action consistent with this opinion.

       Costs of appeal are assessed equally against the appellant, Metropolitan Government Board
of Zoning Appeals, and the appellee, Moore and Associates, Inc.


                                                       ___________________________________
                                                       ANDY D. BENNETT, JUDGE




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