                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 November 6, 2003 Session

  METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
             COUNTY v. MARGARET HUDSON

               Direct Appeal from the Chancery Court for Davidson County
                      No. 98-406I Irvin H. Kilcrease, Jr., Chancellor



                  No. M2002-02847-COA-R3-CV - Filed December 30, 2003


This case involves an appeal from the trial court’s grant of Appellee’s motion for summary
judgment. Appellee filed suit seeking to enjoin Appellant to remove vinyl siding that she had
installed on her house in violation of a historic zoning ordinance. Appellant counter-complained
alleging that the ordinance was void and unenforceable on grounds that the ordinance was
unconstitutional and never properly adopted. Appellee subsequently moved for summary judgment
which the trial court granted. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and WILLIAM CAIN , J., joined.

Joseph H. Johnston and Marbut Glenn Gaston, Jr., Nashville, Tennessee, for the Appellant, Margaret
Hudson.

Lora A. Barkenbus, Metropolitan Attorney, Nashville, Tennessee, for the Appellee, Metropolitan
Government of Nashville and Davidson County.

                                           OPINION

        In 1982, Defendant/Appellant, Margaret Hudson (Mrs. Hudson) bought a house located
on White Avenue (White Ave. property) in Nashville, Tennessee, as an investment property.
During all times pertinent to this case, Mrs. Hudson lived in another Nashville home (Lawrence
Ave. property) located some fifteen blocks away from the White Ave. property. On November
19, 1985, the Metropolitan Council passed a bill creating the Woodland-in-Waverly Historic
District that would include the White Ave. property. That bill was signed by the Mayor of
Nashville on November 25, 1985, and by the language of the ordinance became effective five
days after its passage, November 30, 1985. On November 25, 1985, the Metropolitan Historic
Zoning Commission (MHZC) adopted the Woodland-in-Waverly Historic Zoning Design
Guidelines. These guidelines prohibited the installation of vinyl siding on houses located within
the district.

       In late May or early June of 1996, Mrs. Hudson hired a contractor, Southern Aluminum
Company, to install vinyl siding on the White Ave. property. 1 On February 10, 1998, the
Metropolitan Government of Nashville and Davidson County (Metro) filed suit against Mrs.
Hudson seeking to enjoin her to remove the vinyl siding. On December 13, 2000, Mrs. Hudson
answered and counter-complained arguing that the guidelines were void because they had never
been adopted by Metro, were unconstitutionally vague, that enforcement amounted to a taking
without compensation, and violated her right to due process under the Fourteenth Amendment
because she never received notice of their adoption.

        Metro filed a motion for summary judgment. Accompanying the motion was the affidavit
of the director for the MHZC. In the affidavit, the director recounted the forms of notice given to
residents of the Woodland-in-Waverly district: In 1983, the Metropolitan Historical Commission
had its first public meeting in the Woodland-in-Waverly neighborhood to discuss possible
historic zoning status. On May 28, 1985, the MHZC mailed an information packet on the
historic zoning including draft guidelines to all of the proposed district’s residents and
announced a public hearing set for June 13, 1985, to discuss the designation and review
guidelines. In addition to the June MHZC public hearing, the Davidson County Metropolitan
Council held a public hearing on November 5, 1985. On November 25, 1985, the guidelines for
the historic district were adopted at a public meeting of the MHZC. Upon adoption, notices were
distributed around the neighborhood informing the residents of the historic designation and
procedures for applying for a certificate of appropriateness before changing the exterior of any
structure. Notice of the newly formed zoning district ran in the Tennessean newspaper. In
another affidavit filed with the court, Mrs. Hudson stated that she had never been informed of the
historical designation. Mrs. Hudson further stated that the White Ave. property mailing address
on file with Metro’s Property Assessor and Trustee was her Lawrence Ave. property address,
where she was currently residing, as opposed to the property’s actual address, which was attached
to the mailing list of the original notices.

        The trial court granted Metro’s motion for summary judgment. The trial court
specifically found that the historic zoning guidelines were properly adopted and enforceable, that
Mrs. Hudson’s house was located within the historic district, that the guidelines prohibited the
installation of vinyl siding, and that Mrs. Hudson’s installation of vinyl siding, after the
guidelines were adopted, violated the zoning ordinance. In an amended order, the trial court
dismissed Mrs. Hudson’s claims contained in the counter-complaint, finding them not
meritorious.


         1
         The Metropolitan Governmen t of Nashville and D avidson C ounty originally brought actions against M rs.
Hudson and Sou thern A luminum Com pany seeking to enjoin both from violating the zoning ordinance. Southern
Alum inum C omp any was dismissed fro m the current action b y a summary judgm ent ord er entered b y the trial court.

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                                        Issues Presented

       Mrs. Hudson raises the following issues, as we perceive them, for review by this Court:

       1.      Whether failure to mail notices of public hearing on the establishment of a
               historic district, and on the subsequent adoption of review guidelines to
               Mrs. Hudson’s correct address, as required by Article XV of the
               Metropolitan Zoning Code, constitutes a denial of due process, guaranteed
               under the Fourteenth Amendment of the United States Constitution and
               Article I, Section 8 of the Tennessee Constitution.

       2.      Whether the Historic Zoning Enabling Statutes, which authorize the
               MHZC to adopt review guidelines of the appropriateness of improvements
               to property within a historic district prior to the establishment of the
               historic district require that the review guidelines be adopted prior to the
               legislative establishment of the historic district.

                                      Standard of Review

        This Court must decide whether it was error for the trial court to award summary
judgment to Metro. Summary judgment should be awarded when the moving party can
demonstrate that there are no genuine issues regarding material facts and that it is entitled to
judgment as a matter of law. Tenn. R. Civ. P. 56.04; McCarley v. W. Quality Food Serv., 960
S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). Mere
assertions that the non-moving party has no evidence does not suffice to entitle the moving party
to summary judgment. McCarley, 960 S.W.2d at 588. The moving party must either
conclusively demonstrate an affirmative defense or affirmatively negate an element which is
essential to the non-moving party’s claim. Id. If the moving party can demonstrate that the non-
moving party will not be able to carry its burden of proof at trial on an essential element,
summary judgment is appropriate. Id.

         This Court reviews an award of summary judgment de novo, with no presumption of
correctness afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534
(Tenn. 2002). In determining whether to award summary judgment, we must view the evidence
in the light most favorable to the non-moving party, drawing all reasonable inferences in favor of
the non-moving party. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). Summary
judgment should be awarded only when a reasonable person could reach only one conclusion
based on the facts and inferences drawn from those facts. Id. If there is any doubt about whether
a genuine issue of material fact exists, summary judgment should not be awarded. McCarley,
960 S.W.2d at 588.




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                                              Notice

        Mrs. Hudson argues that the MHZC’s forms of notice did not comply with the
Metropolitan Code of Nashville and Davidson County (Metropolitan Code) and, as a result,
constitute a denial of due process under the Tennessee and United States Constitutions.
Tennessee Code Annotated § 13-7-406 (1999) addresses the notice and public hearing required
for adoption of historic zoning review guidelines. It provides, in pertinent part:

       [p]rior to the establishment of any historic district or zone, the historic zoning
       commission . . . shall adopt for each such proposed district or zone a set of review
       guidelines . . . . Reasonable public notice and opportunity for public comment, by
       public hearing or otherwise, shall be required before the historic zoning
       commission or the regional historic zoning commission adopts any such review
       guidelines.

The Metropolitan Code has further defined “reasonable public notice” in Article XV. See Code
of the Metropolitan Government of Nashville and Davidson County, Tennessee, Article XV
(1991). For the notice requirements of Article XV to apply, some other provision of the
Metropolitan Code must require a public hearing. Id. § 17.40.700. Section 17.40.410(B) of
Article IX, Historic Zoning Commission, requires that “[t]he historic zoning commission shall
adopt design guidelines for each historic overlay district . . . . A public hearing following the
applicable public notice requirements of Article XV of this chapter shall precede the adoption of
all design review guidelines by the historic zoning commission.” Id. § 17.40.410(B) (emphasis
added). Consequently, Article XV requires that:

       [17.40.710 Notice by newspaper:] [n]o public hearing shall be conducted unless
       notice has been given in one or more daily newspapers of general circulation in
       Davidson County no less than twenty-one days nor more than thirty days prior to
       the public hearing.
       [17.40.720 Notice by mail:] [n]o public hearing shall be conducted unless, at least
       twenty-one days prior to the public hearing, the owner(s) of the subject property
       and all other property owners within the distances prescribed by this article have
       been given notice by mail of the time, date and place of the public hearing.

        In this case, the only evidence in the record of notice by newspaper was the publication of
the adoption of the historical zoning designation rather than the required newspaper notice of a
public hearing for comment on review guidelines. As a result, MHZC failed to meet the notice
by newspaper requirement of § 17.40.710. Further, the affidavit of the director for the MHZC
stated that notices of public hearing, scheduled for June 13, 1985, accompanied by draft review
guidelines were mailed on May 28, 1985. Accordingly, MHZC’s notice by mail does not meet
the twenty-one day notice requirement of § 17.40.720.




                                                -4-
        However, “‘after long public acquiescence in the substance of an ordinance, public policy
does not permit . . . an attack on the validity of the ordinance because of procedural
irregularities.’” Hutcherson v. Criner, 11 S.W.3d 126, 134 (Tenn. Ct. App. 1999) (quoting
Trainor v. City of Wheat Ridge, 697 p.2d 37, 39 (Colo. Ct. App. 1984)) (citing Edel v. Filer
Township, 211 N.W.2d 547 (Mich. Ct. App. 1973); Taylor v. Schlemmer, 183 S.W.2d 913 (Mo.
1944); Struyk v. Samuel Braen’s Sons, 85 A.2d 279 (N.J. Super. Ct. App. Div. 1951)); see also
83 Am. Jur. 2d Zoning and Planning § 511 (2003) (stating that a protracted delay may prevent a
party from challenging a legislative body’s failure to comply with the notice requirements of an
enabling statute); Schlemmer, 183 S.W.2d at 915-16 (holding that the city’s failure to comply
with the notice requirements of its zoning ordinance’s enabling act was a procedural defect
which could not be challenged twelve years after its adoption). In Criner, this Court used ten
years as the benchmark duration to immunize a zoning ordinance from procedural attack. Criner,
11 S.W.3d at 135. The rationale behind such immunity is the extensive public reliance on the
zoning ordinance resulting from a long duration of acquiescence. Id. In this case, the historic
designation and review guidelines were adopted in 1985 and were first challenged by Mrs.
Hudson in December of 2000 in her counter complaint. This delay, well over ten years, prevents
Mrs. Hudson from challenging the MHZC’s failure to comply with the procedural notice
requirements enumerated in the Metropolitan Code. Accordingly, the trial court’s grant of
Metro’s motion for summary judgment dismissing Mrs. Hudson’s constitutional claims is
affirmed.

                                       Timing of Adoption

         Mrs. Hudson next argues that the historic designation of the Woodland-in-Waverly
district and its applicable review guidelines are not enforceable because their adoption did not
comply with Tenn. Code Ann. § 13-7-406 (1999). This section provides that “[p]rior to the
establishment of any historic district or zone, the historic zoning commission . . . also shall adopt
for each such proposed district or zone a set of review guidelines . . . .” Assuming arguendo that
Metro did not comply with the statute in its adoption of the guidelines and designation, Mrs.
Hudson’s delay in challenging the procedural defects of the zoning ordinance’s adoption
immunizes it from attack. Criner, 11 S.W.3d at 134-35. Accordingly, the trial court’s grant of
Metro’s motion for summary judgment on the validity of the historic zoning ordinance’s
adoption is affirmed.

                                            Conclusion

        In light of the foregoing, we affirm the trial court’s grant of Metro’s motion for summary
judgment and dismissal of Mrs. Hudson’s constitutional counterclaims. Costs of this appeal are
taxed to the Appellant, Margaret Hudson, and her surety, for which execution may issue if
necessary.

                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE


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