                                                                                         04/26/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                March 28, 2018 Session

     WAYNE GOODWYN v. BOARD OF ZONING APPEALS OF THE
    METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON
                       COUNTY, TN

                 Appeal from the Circuit Court for Davidson County
                     No. 16C-399 Joseph P. Binkley, Jr., Judge
                     ___________________________________

                           No. M2017-00192-COA-R3-CV
                       ___________________________________

After the Metropolitan Board of Zoning Appeals granted a special exception permit for a
nearby property, Appellant filed a petition for writ of certiorari in the Davidson County
Circuit Court. The trial court ultimately concluded that the permit was properly issued.
Having reviewed the record transmitted to us on appeal, we affirm the decision of the
trial court.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O.
GIBSON and KENNY ARMSTRONG, JJ., joined.

Jamie R. Hollin, Nashville Tennessee, for the appellant, Wayne Goodwyn.

Thomas V. White and George A. Dean, Nashville, Tennessee, for the appellee, Ed Clay.

Board of Zoning Appeals The Metropolitan Government of Nashville and Davidson
County, appellee1




1
 Appellee, Board of Zoning Appeals of The Metropolitan Government of Nashville and Davidson
County did not file a brief.
                                        OPINION

                         Background and Procedural History

      The property at issue in this case is located in Nashville at 209 S. 5th Street (“the
Property”). Marketed under the name “East Ivy Mansion,” the Property boasts 44,000
square feet of indoor and outdoor space and sits on a parcel that is over one acre. The
perimeter of the Property is bordered by a brick wall.

       In 2013, the Metropolitan Board of Zoning Appeals (“the Board”) granted Ed Clay
(“Mr. Clay”) a special exception permit to use the Property for historic home events. The
permit had a limited term of 26 months and was subject to a number of other special
conditions. Among other things, Mr. Clay was not allowed to host more than a maximum
of 250 guests at any event.

        Mr. Clay applied for a new special exception permit in December 2015, and by
letter dated December 23, 2015, the Board sent a notice to neighboring owners informing
them of his application. The letter specifically informed nearby owners of Mr. Clay’s
intent “to use the existing residence and property for Historic Home Events.” Formal
opposition to Mr. Clay’s request soon followed.

       By letter dated January 19, 2016, counsel for Wayne Goodwyn (“Mr. Goodwyn”)
notified the Board of his client’s opposition to the pending application. Mr. Goodwyn,
who owns a home near the Property, objected to the application due to his belief that
“any and all events [should] be limited to the inside of the principal dwelling” on the
Property. In support of this position, the January 19 letter noted that pursuant to Metro
Code § 17.16.160(B), the location for historic home events are directed to be “within a
historically significant structure, as determined by the historic zoning commission.” To
that end, the January 19 letter further observed that Robin Zeigler (“Ms. Zeigler”),
Historic Zoning Administrator with the Metropolitan Historic Zoning Commission, had
reported that the principal dwelling was the only historic structure on the Property.

       Mr. Clay’s application was first entertained by the Board at a hearing on January
21, 2016. Upon the conclusion of the proceedings on that date, however, the matter was
deferred to the Board’s next meeting on February 4, 2016. In advance of the February 4
hearing date, the Board received multiple comments from concerned citizens. Whereas
many citizens wrote the Board in support of Mr. Clay’s proposal, other citizens wrote the
Board to object to it. At the end of the February 4 hearing, the Board ultimately decided
to grant Mr. Clay the special exception permit by a vote of six to one. The order resulting
from the Board’s hearing specifically noted that (a) the brick wall surrounding the
Property was “attached to the home and is . . . therefore a part of the home” and (b) “[u]se
of the property within the wall is customary, incidental and subordinate to the special

                                           -2-
exception.” As previously, the permit granted by the Board was subject to a number of
special conditions.

        In response to the Board’s actions, Mr. Goodwyn filed a petition for writ of
certiorari in the Davidson County Circuit Court. The petition averred that the Board’s
ruling was “arbitrary, capricious, or illegal” and took specific issue with the fact that the
Board’s ruling allowed events to take place anywhere within the brick wall that
surrounded the perimeter of the Property. In an affidavit filed contemporaneously with
the petition, Mr. Goodwyn stated that the allowance of outside events on the Property
would greatly diminish his family’s ability to enjoy their neighborhood. Following the
filing of Mr. Goodwyn’s petition, the trial court issued a writ of certiorari directing the
Board to certify and forward a complete record of its proceedings.

       In light of the fact that Mr. Goodwyn’s petition only named the Board as a
respondent, Mr. Clay subsequently moved to intervene in the case. An agreed order
granting his motion to intervene was entered on May 9, 2016.

       On June 24, 2016, a portion of the administrative record was filed with the trial
court. In addition to including a record of the Board’s February 4, 2016 proceedings, the
record filed with the trial court included a record of proceedings that had taken place
before the Board in March 2016. Although the record reflects that the Board had
conducted a rehearing of its earlier decision during these March proceedings, it reached
the same result, granting Mr. Clay’s request for a permit “subject to the same . . .
conditions enumerated in the Board’s prior order from the February 4, 2016 BZA
meeting.” A record of the Board’s meeting from January 21, 2016, was not included as a
part of the June 24 filing of the administrative record, but this omission was rectified
shortly thereafter when a supplement to the administrative record was filed on July 1,
2016.

       Review proceedings took place the following fall. A hearing was initially held on
November 3, 2016, and was later completed on November 29, 2016. At the conclusion
of the November 29 hearing date, the trial court orally ruled that the decision of the
Board should be upheld. A formal order affirming the Board’s actions was subsequently
entered on December 16, 2016. This appeal followed.

                                     Issues Presented

       Mr. Goodwyn raises the following issues for our review, restated slightly:

       1. Whether the special exception permit for a historic home events venue was
          issued by the Board arbitrarily, capriciously, or illegally.


                                            -3-
        2. Whether the Board exceeded its limited jurisdiction in granting the special
           exception permit.

        3. Whether the trial court erred by affirming the decision of the Board based upon
           testimony presented in a rehearing that occurred after the writ of certiorari
           issued.

        In addition to responding to the foregoing matters, Mr. Clay poses an additional
issue, restated slightly as follows:

        4. Whether the issues relating to activities within the historic structure are
           collaterally estopped by virtue of prior litigation between these same parties.2

                                        Standard of Review

       The common law writ of certiorari is the vehicle for reviewing decisions of local
boards of zoning appeals. Hoover, Inc. v. Metro. Bd. of Zoning Appeals of Davidson
Cnty., 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997) (citing McCallen v. City of Memphis,
786 S.W.2d 633, 639 (Tenn. 1990)). The scope of review afforded by this writ is quite
limited. 421 Corp. v. Metro. Gov’t of Nashville & Davidson Cnty., 36 S.W.3d 469, 474
(Tenn. Ct. App. 2000) (citation omitted). As this Court has stated previously:

        [J]udicial review . . . is limited to whether the inferior board or tribunal has
        exceeded its jurisdiction or acted illegally, arbitrarily, or fraudulently.

               The scope of judicial review under the common law writ of certiorari
        also includes a determination of whether the board acted without material
        evidence to support its decision.

                ....

        [W]hile judicial review under the common law writ does not involve
        review of the intrinsic correctness of the lower tribunal’s decision, and a
        reviewing court may not reweigh the evidence presented to the board, a
        court is required to review the record of the board’s proceeding to
        determine whether there is material evidence to support the board’s
        conclusion.


        2
          Mr. Clay’s additional issue is predicated on the fact that Mr. Goodwyn previously asserted
challenges to the special exception permit that was granted in 2013. Mr. Goodwyn filed a petition for writ
of certiorari in the Circuit Court as a result of the Board’s earlier decision in 2013, but his action was
subsequently dismissed due to his failure to prosecute the case.
                                                  -4-
Lewis v. Bedford Cnty. Bd. of Zoning Appeals, 174 S.W.3d 241, 245-46 (Tenn. Ct. App.
2004) (internal citations omitted); see also 421 Corp., 36 S.W.3d at 474 (noting that
review under the common law writ “consists of determining whether the administrative
body exceeded its jurisdiction, followed an unlawful procedure, acted illegally,
arbitrarily, or fraudulently, or acted without material evidence to support its decision”).

                                          Discussion

       Under Metro Code § 17.40.180(C), the Board is vested with the power to hear and
act upon applications for special exception use permits. Here, the dispute is whether the
Board erred in granting a historic home events special exception permit to Mr. Clay. Mr.
Goodwyn’s specific issue is with the Board’s application of Metro Code §
17.16.160(B)(2), which states that “[t]he events shall be within a historically significant
structure, as determined by the historic zoning commission.” According to Mr.
Goodwyn, the Board ignored the determination of the Historic Zoning Commission and
issued a permit for a location that conflicted with the Commission’s determination.
Before addressing these substantive concerns, we turn first to Mr. Goodwyn’s raised
issue about the March 2016 proceedings that took place before the Board.

       In his brief, Mr. Goodwyn argues that the Board’s March 2016 proceedings were
improperly relied upon by the trial court because those proceedings took place after the
writ of certiorari had issued. In support of this argument, he cites to this Court’s prior
opinion in Stone Man, Inc. v. Rutherford County Regional Planning Commission, 1985
Tenn. App. LEXIS 2607 (Tenn. Ct. App. Jan. 8, 1985). In a footnote to that opinion, this
Court noted as follows:

              The effect of granting a writ of certiorari is to remove the matter
       from the lower tribunal and place it before the reviewing court. At
       common law, granting a writ of certiorari had the effect of preventing the
       original tribunal from proceeding with the matter.

               ....

       Once the trial court granted the writ of certiorari on November 23, 1982,
       and the Commission’s record was filed with the court clerk, no further
       proceedings should have been conducted by the Commission until the
       judicial proceedings were concluded. Proceeding simultaneously in both
       the administrative and judicial forums on the same matter is fraught with
       the dangers of inconsistency and duplication of effort.

Id. at *8, n.3 (internal citations omitted).


                                               -5-
       The dangers and concerns alluded to in Stone Man did not manifest in this case.
The Board reached the same result in the March proceedings as it had previously, and we
note that the trial court did not conduct any certiorari review following the issuance of the
writ until many months after the Board’s March proceedings. Indeed, as noted
previously, the initial review hearing date in the trial court was November 3, 2016. We
further note that when the administrative record was initially forwarded to the trial court,
the record actually included the disputed March proceedings.

       Moreover, we note that in Stone Man, this Court did not ultimately curb the scope
of the actions under review due to the fact that some of the administrative proceedings
had taken place after the issuance of the writ. In fact, following the aforementioned
quotation from Stone Man upon which Mr. Goodwyn relies, Judge Koch, writing for this
Court, stated as follows:

       Notwithstanding this procedural irregularity, we will proceed to consider
       this appeal as if the writ had been granted after the Commission finally
       declined to approve Stone Man’s site plan. To do otherwise would be to
       require the parties to duplicate proceedings already conducted where the
       same result would inevitably be reached. There is no need to require Stone
       Man to undertake this useless procedure.

Id. In line with Judge Koch’s reasoning, we find no reversible error with respect to the
inclusion and consideration of the March proceedings as part of the certiorari review.

       With respect to the merits of the Board’s actions, we do not agree with Mr.
Goodwyn that the Board exceeded its jurisdiction, or that its granting of the permit was
arbitrary, capricious, or illegal. The Board had the authority to grant a permit for events
“within a historically significant structure, as determined by the historic zoning
commission,” and the administrative record supports the trial court’s conclusion that the
Board had a sufficient basis upon which to issue the permit that it did. Although there is
no dispute that the dwelling on the Property is the only historically significant structure
for which a historic home events permit would be proper, this does not mean that the
Board erred in granting a permit for activities within the area encompassed by the
Property’s brick wall. Based on the proof before it, including testimony from an official
with the Historic Zoning Commission, the Board had a basis to consider the brick wall to
be a part of the dwelling/historically significant structure. If the wall is considered a part
of the home, then it logically follows that the space inside of/enclosed by the wall is
within the historically significant structure.

       Indeed, although Mr. Goodwyn correctly notes that Metro Code § 17.16.160(B)(2)
requires the location for the permitted activities to be “within a historically significant
structure, as determined by the historic zoning commission,” the record does not show

                                            -6-
that this requirement was transgressed. There was evidence3 before the Board that the
brick wall was attached to the home, and based on this fact, it was proper to consider the
wall as part of the historical structure identified by the Historic Zoning Commission. In
fact, as the trial court observed, testimony from an official with the Commission
indicated that things attached to or contiguous with the dwelling should be considered a
part of the historical structure. Specifically, we highlight the testimony of Ms. Zeigler,
Historic Zoning Administrator with the Commission. During the Board proceedings, a
Board member asked Ms. Zeigler whether “everything that’s contiguous to the building
with the tower is all historic?” Ms. Zeigler answered this question in the affirmative and
responded to a number of other questions wherein this same point was reinforced. For
example, although Ms. Zeigler did not have personal knowledge as to whether a “hip
roof” was connected to the house, her testimony reflected that it should be considered a
part of the historical structure if it were, in fact, connected.

        In light of the foregoing, we do not find favor in Mr. Goodwyn’s arguments that
the Board’s actions were improper. Because the wall was properly considered to be a
part of the historical structure, a permit was permissibly granted for the area within the
wall. There is no basis for disturbing the Board’s actions, and we therefore affirm the
trial court’s decision to uphold the issuance of Mr. Clay’s permit. Given our conclusion
with respect to this matter, we pretermit Mr. Clay’s raised issue pertaining to the doctrine
of collateral estoppel.

                                              Conclusion

       The trial court’s judgment is affirmed. Costs of this appeal are assessed against
the Appellant, Wayne Goodwyn, and his surety, for which execution may issue if
necessary. This case is remanded to the trial court for the collection of costs,
enforcement of this Court’s judgment, and for such further proceedings as may be
necessary and consistent with this Opinion.



                                                        _________________________________
                                                        ARNOLD B. GOLDIN, JUDGE




        3
            For example, the record contains sketches depicting the brick wall as being attached to the
home.
                                                  -7-
