Posted by: Patricia Salkin | January 27, 2018

TN Appeals Court Upholds Zoning Administrator’s Determination that Flex Loans were Comparable to Cash Advances Pursuant to County Code

This post was authored by Matthew Loeser, Esq.

Petitioners owned Tennessee Quick Cash, Inc., and purchased commercial property at which they would operate a business offering “flex loans” to consumers. The petitioners were denied a building permit because the Zoning Administrator concluded that “flex loans” constituted cash advances, and the property owners’ intended use therefore violated the requirement in the Metropolitan Nashville and Davidson County Code of Ordinances that cash advance, check cashing, or title loan businesses be at least 1,320 feet apart. Petitioners appealed to the Board of Zoning Appeals, which affirmed the decision of the administrator. The property owners then petitioned for certiorari review in Davidson County Chancery Court, which granted the writ and affirmed the Board’s decision.
On appeal, Petitioners first argued that the trial court applied the wrong standard when it reviewed the Board’s decision, and should not have afforded deference to the Board. The record reflected that the Zoning Administrator and the Board construed and applied the Code to the proposed “flex loan” business, in an attempt to determine which of the existing use classifications flex loans most resembled. As such, there was required to be a presumption of validity favoring the actions of a zoning agency when applying and interpreting its own ordinances. Thus, the trial court applied the court standard.
The Petitioners next contended that the Zoning Administrator erred in categorizing “flex loans” as most comparable to “cash advances”. Alternatively, Petitioners argued that the most appropriate classification under the Code was “financial institutions.” Here, however, Zoning Administrator, Bill Herbert, advised the Board that he came to the conclusion that “flex loans” were best categorized as “cash advances” for the purposes of applying the Code and were therefore excluded from the definition of “financial institution”. In making his decision, the Zoning Administrator noted that cash advance meant any building, room, space, or portion thereof where unsecured, short-term cash advances are provided, including those made against future pay checks, as regulated under Title 45, Chapter 17 of Tennessee Code Annotated. Pursuant to the Metropolitan Code, the Zoning Administrator was vested with the authority to classify land which had not been defined in the Code. The decision to classify “flex loans” as “cash advances” for the purposes contemplated by the Code was therefore supported by the evidence and was not arbitrary or unreasonable. Consequently, the judgment of the trial court was affirmed.
Brown v Metropolitan Government of Nashville and Davidson County, 2018 WL 522419 (TN App. 1/23/2018)

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