Posted by: Patricia Salkin | December 21, 2011

TN Appeals Court Holds Board May Consider Prior Non-Compliance with Special Exception Permit Conditions

The Metropolitan Nashville Board of Zoning Appeals (hereinafter “BZA”) denied a special exception permit request made by Demonbreun, who sought to operate a Historic Home Events business in a residential neighborhood.  The decision, according to the BZA, was based on Demonbreun’s history of non-compliance with conditions of earlier permits.  The Circuit Court of Davidson County (hereinafter “the trial court”) reversed, finding that four of the BZA members acted merely based on their frustration with Demonbreun.  At issue on appeal is whether the BZA’s denial was arbitrary in light of their rationalization of the decision. 

Between 1999 and 2006, Demonbreun received numerous special exception permits from the BZA, all subject to similar conditions related to traffic, noise, and events occurring on the property.  In 2001, nearby residents complained, asserting that Demonbreun’s failure to abide by the conditions disturbed the peace and quiet of the neighborhood.  In 2006, Demonbreun contracted with a buyer, who in turn applied for a permit.  That permit was granted, but the buyer ultimately failed to secure sufficient financing to complete the transaction.  As a result, in 2007, Demonbreun applied for a new permit to be issued in his name.  At a public hearing regarding this application, Demonbreun asserted that the small number of incidents where he violated the permits were isolated and inadvertent.  The Tennessee Court of Appeals found the Board members’ questions at the conclusion of the meeting to be hostile, and noted that they were primarily directed toward Demonbreun.  

Upon petitioning for judicial review by common law writ of certiorari (since action by a zoning board is administrative, rather than legislative), the trial court held that the decision was based on the BZA’s clear dislike of Demonbreun.  It ordered the BZA to grant the special exception permit in light of the “extraordinary circumstances” of the BZA’s ulterior motives.  The order also set limitations on the permit and required that it remain effective for eighteen months.  The BZA filed a motion to stay the trial court’s order, which was denied. 

The Tennessee Court of Appeals, examined the scope of the trial court’s review, specifically, its inquiry as to the “illegal, arbitrary, or fraudulent” nature of the BZA’s actions, allowing reversal of a decision “bas[ed] . . . on ulterior motives.” 

The Metropolitan Code of Laws (hereinafter “M.C.L.”) 17.16.160(B) sets out a Residential Special Exception for “Historic Home Events.”  This provision burdens the applicant with showing s/he has met all required standards for a special exception, and provides that a permit shall be granted upon such a showing. The ordinance reserves a discretionary power for the zoning board, however, to restrict special exception permits “as necessary to protect the public health, safety and welfare.”  The Court emphasized the importance of the context of the appeal, namely, that it involved a “special exception” (a.k.a. “conditional use”) permit.  A special exception is expressly permitted where certain statutory conditions are met, notably distinguishable from a variance, which allows a property owner to use his property in a way forbidden by an ordinance. Under “basic principles” of Tennessee law, a special exception permit—by its very nature—must be granted where the application meets legislatively prescribed conditions.  

The BZA argued on appeal that its decision was justified by Demonbreun’s failure to comply with the limitations on his prior special exception permits.  Demonbreun countered this, arguing that the BZA lacked authority to deny a permit on these grounds because past non-compliance is not one of the required conditions set out in M.C.L. 17.16.160(B).  The Court, in defining the extent of the BZA’s discretion, articulated that it may not deny a permit application that otherwise complies with the applicable standards merely because there is community opposition to the special exception.  The Tennessee Court of Appeals’ precedent mandating that zoning boards grant special exception permits to applicants who have satisfied all the conditions laid out in the ordinance provided little guidance on the specific question at hand—whether denial of a special exception permit because of the applicant’s past violations of permit conditions—as that decision rested on markedly different underlying facts.  So, the Court looked to other states, citing a Pennsylvania holding that an applicant’s prior conduct at the same location for which the special exception is sought may provide evidence that granting the permit would be hazardous to the public welfare.  

Precedential rulings failed to address a complexity present here, as some of the conditions were BZA-imposed (versus statutorily-imposed, by the ordinance).  This complexity “beg[ed] the question of whether [the BZA] could lawfully establish previous compliance with all prior conditions that may have been imposed as a condition for the grant of a permit.”  The Court declined to forbid a zoning board from considering past conduct at the same location in reviewing an application, but noted the relevance of the BZA’s statutorily-granted authority to consider public welfare in denying permits.  It then articulated limitations on a board’s discretion to deny a permit for prior noncompliance, specifically, that prior violations may not per se result in denial.  Instead, consideration of past conduct at the location, including past violations, is appropriate in the context of the “impact of those activities on the public health, safety, and welfare.”  A board must be specific as to the activities and harmful impact justifying its denial.  Furthermore, because denial of a special exception permit (where there have been previous grants) may result in the termination of a property owner’s livelihood, violations that were “minor, infrequent, technical, or unintentional” do not adequately justify such a denial.  

Finally, the Court applied this rule to the case at hand, finding the BZA’s denial focus on Demonbreun himself, instead of the property’s use.  Moreover, the BZA’s justification of this decision failed to discuss any harm to area’s residents caused by specific activities taking place on this property.  The “vague” reason provided by the BZA referred only to Demonbreun’s noncompliance with previous permits’ conditions.  The finding that the BZA’s decision resulted from its “dislike” of Demonbreun, in conjunction with the fact that none of the prior violations were “frequent or flagrant,” supported the trial court’s order to grant the permit.  As a result of the foregoing, the Court found that the BZA acted arbitrarily in denying Demonbreun’s application for a special exception permit, and affirmed the trial court’s decision in Demonbreun’s favor.  

Demonbreun v. Metropolitan Board of Zoning Appeals, 2011 WL 2416722 (Tenn. Ct. App., 6/10/11)


  1. A question.
    In TN, what if applicant makes false/misleading statement to Zoning Board about the written notification spelled out by the adopted Zoning Resolution.?

    Two months later, when us neighbors find out that a Special Exception was granted and we were not notified, we find out applicant was allowed to reuse a denied 2005 application again in 2007. When we informed thru Appeal and personal visit to Zoning Office that two of the 4 signed property owners no longer lived there and we were never notified by applicant we were informed of it being in the paper. Upon research of paper found out they listed wrong property with the “applicants” name.

    After Zoning meeting for our appeal some stuff was recorded that makes changes to application process to bypass the Zoning Resolution notification process, and the a Board memeber is recorded saying, “I don’t know why we voted like we did.”

    Several more issues have come out of this and even 4 years later, the applicant doesnt comply with the Special Exceptio nad nI have emailed, called and visited the Zoning Office, County Mayor, Board member, nearby and noone will do anything. The new Officer responded with a 6 page chewing out about how I might be “harrassing the apllicant”, my pictures are not good enough, I “might have changed date/time”… He wont enforce.

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