1 A person’s lawful use of prope

rty exi sting before t he enactme

nt of a zoning ordinance i

s commonly referr

ed to as a “nonconfor

ming use.” 1 Kenneth H . Young, Anderson’s Ameri can Law of Zoning§ 6.01 (4th e d. 1995) (“AmericanLaw of Zoning”). A nonconforming use is conside red “grand fathered” w hen the use is sp ecifically exempted from the ordinance’ s applicati on on grounds that

the prope rty was being use d that way whe n the ordina nce took e ffect. Town of Oron o v. LaP ointe , 698 A.2d 1059, 106 2 (Me. 1997) and B ryan A. Garn er, A Dictionary of Modern Legal Usage 390 (2nd ed. 1995).



### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE May 7, 1998 Sess

ion ROBERT LAFFERTY, ET AL 

### . v. CITY OF WINCHESTER, ET AL 

### .

Appeal from the Circuit Court for Franklin County No. 10,025-CV J. Curtis Smith, Judge

No. M1997-00224-COA-R3-CV - Filed December 7, 2000

This appeal involves a dispute between the owners of a bed and breakfast a

nd the City

of Winchester regarding a proposed expansion of

the business’s bar and banquet facilities. When the city’s Board of Zoning Appeals declined to approve the expansion, the owners of the bed and b re akfast filed a petition for a common-law writ of certiorari in

the Circuit

Court for Franklin County challenging the Board’s decision. After reviewing the record of the proce eding s before the Board, the trial court determinedthat the Board acted wi thin its discretion when it declined to approve the proposed expansion of the be

d and breakfast

. We affirm the judg

ment of the trial c

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

W ILLI AM C. K OCH , Jr., J., delivered the opinion of the court, in which H ENRY F. T ODD , P.J., M.S., and B EN H. C ANTRELL , J., joined.

Rob ert S. P ete rs, Win ches ter , Te nne sse e, fo r th e app ell ant s, R obe rt La ffer ty an d Ph ylli s Laf fert y. Thomas C. Faris, Winchester, Tennessee, for the appellee, City of Winchester.

OPINION Wade and Stephanie

Anderton owned

an architectur

ally signif icant house locat

ed on State Highway 50 i n Fra nkl in C oun ty. The house was buil t before the Civil

War and was situated on a one andon e -half acre tract. In early 1994, the Andertons decided to convert the house into a bed and breakfast and obtaineda business license for their new endeavor. In March 1994, the City of Winchester

annexed the A ndert ons’ property. Although the city e ventually zoned the property as “municipal R-1, Low Density Residential,” it “grandfathe red” in the Andertons’ incipient bed and breakfast as a nonconforming commercial use. 12 The commission would have been r equired to engage in sp ot zoning ha d it decided to zone the in n prope rty residential. Spot zon ing refers to the practice of singli ng out a piece of property for a use classif ication totally different from that

of the s urroundin

g area. 1 Ame

rican Law

of Zoning

§ 5.12.
-2- Later in 1994, Robert and Phyllis Lafferty purchased the property and enteredinto an informal partnership with the Andertons to develop the bed and breakfast, which had been named the Antebellum Inn. The Lafferty s and the Andertons presented plans to the cit y planning commission showing that the inn would have three rented b edrooms and a dining faci lity large enough to a ccom mod ate as m any a s one hundred and twenty-five persons. They told the commission that the inn would be a lodging and dining establishment that could accommodate social events such
as wedding receptions and private parties. They also stated that the inn could be usedas a meeting place for other organizations such as charities and civic clubs. In August 1994 , t he commission approved the proposed site plan for the Antebellum Inn. Even though the commission considered zonin g t he property

as commercial, 2 it elected to leave the inn as a grandfathered, nonconforming commercial use in a residential zone.

The Antebellum Inn could n ot serve alcoholic beverages when it first opened. However, after it opened, the residents of Winchester approved the sale of liquor-by-the-drink, and the city began to license es tabli shments to sell alco holic beverag

es for on-premis

e consumption. The

Lafferty s, who by this time w ere th e sole opera tors o f the A ntebe llum In n, sensed tha t serving alcoho lic beverages would increase their business. Accordingly, they appli ed for a liquor lic

ense and also sought the city’s permission to construct a 20’ × 20’ one-story addition to provide spacefor an ice machine, coolers, and stor age space for

the beverage

s. The city

approved the site plan for the 20’ × 20’ addition. However, without the city’s knowledge, the L affertys, going

way beyond the

plan they h ad sub mitted to the city, constructed a two-story, 20’ × 38’ a ddition to the inn. Once the addition was completed, the Laffertys turned it into a bar called the Green

Door Pub. The pub had an outside entrance which enabled its patrons to enter and leave the pub without entering theinn.

The Laffertys, by

their own admission, were having a difficult time operating the Antebellum Inn solely as a bed and breakfast with occasional social functions. They saw the Green Door Pub
as the key to profitability. I n time, the Laffertys began to play up the bar

side of their business. Like
man y bars, they sometimes featured live music on the weekends, so that, as Ms. L affer ty put it , people “[could] dance if they want[ed] to.” They also c onstructed a ga

zebo with a concrete floor for outdoor events. These ev

ents sometimes featured live music and attracted patronswho would pay a cover charge to attend.

The outdoor events at t

he Laffert

ys’ bar occ

asionally became l oud enough to provoke complaints

fro m th e nei ghbo rs. Eve ntu all y, the Laffertys decided to deal with these complaints by building a 38’ × 40’ banquet room “with maximum allowance sound absorption” and to move their outdoor activities insid

e. The Laffertys beg

an constructing the foundation for the new addition beforethey obtained a building permit. When the building inspector discovered that they had already startedconstruction, he dir ect ed t he La ffer tys to stop work until the y obtained th

e city’s ap proval to expand their business. The Laffertys did not completely abide by the stop-work order after it was issued.3 The Bo ard’s minutes summarized these comments as follows:

Mr. Steve Waldron,

developer/own er of [neighboring] North Point Subdivision, stated that t he noise was not

the only i ssue. Another [issue] was the devaluati o n of neighbo ring prop erty values. M r. Wald ron ha[d] six or seven lo ts facing the Antebellum Inn. James Weaver, [another] nei ghbor, state

d that the police records [would] show that there [were] complaints about activities at

the Inn. Mr. Wade Anderton, one of t he nearest nei

ghbors, stat

ed that [the

I nn wa s] no longer

a “Bed and Breakfast.” He also stated that he was assured as a former partner of the Laffertys that the zoning would rem ain R-1 [Low -Density Residential ] and felt t

hat the neighboring property would devalu[e] due to [the proposed] expansion. He also wanted it not

ed that h e had att ended event

s where a coverage cha

rge was col

lected, drinks were served

to the public a nd live music w as present. Judy Baker, [another] neighbor, commented that she objected to the dri nking and dan cing hap pening nightly.

4 The Bo ard’s minutes summarized the Board’s delibera tion and vote as follows:

Mayor Bean, attem pting a compromise, stated that maybe everything moving i nside would help r esolve some of th

e issues. [Board member] Richar d Bagb y made the motion to recognize the quality of the est ablishment, etc. but

t o reject the expansion based upon [the city’s] initia l understandi

ngs of the act

ivities regarding the Antebe llu m In n. [Board member] Thom as Elliott seconded the motion. In discussi

on [Board member] Bill Cowan stat ed that in good faith, the original concept of a ‘bed an d breakfast’ and a restaurant facility was allowed as a

no nco nforming use. Howe ver, recent ac tivities may have g one beyo nd that conc ept. [Chairperson] Jackie Ro se abstained from th e vote. A ll other mem bers voted in favor of said motion [rejecting the proposed expansion].
-3- Stymied by the stop-work

order, the Laffertys eve

ntually submitted plans for the proposed addition to the Board of Zoning Appeals. The plans called for a large , basically unpartitioned, rectangular room interrupted only by a set of bathrooms and a small area for an ice machine. The Board conducted a nine

ty minute hearing conce

rning the La

ffertys’ proposed addition. According to t he Bo ard’ s mi nut es, Ms. Laff ert y

informedthe Board that th ere was live m usic on special oc casions. The live music occurred only when specified by a lessee as a part

of
a catering contract for a special event, i.e., wedding rece ption, etc. Mrs. Lafferty

also explained that the proposed addition would allow their outdoor activities to move inside, thereby closing in the musi

c and eliminating the noise.

Others present at the meeting complained about the noise

and traffic congestion caused by the Gree n Door Pub. 3 The Board

began its deliberations after both sides had their say. The Board members found themselves in a quandary because, while

they continued to favor the original concept of the bedand breakfast w

ith occasional soc

ial functions, the

y belie ved that t he current activities at the GreenDoor Pub wer e beyo nd what they originally envisioned. Eventua lly, the Board denied the Laffertys’ application for a building permit without a dissenting vote. 45 In the trial court’s words, the Laffertys “

crossed over the line of the [permitted nonconforming] use when t he bar facility was co nstructed an d they got into th e nightclub b usiness.”
-4- After the Board decli

ned to issue the buil

ding permit

for their expansion, the Laffertys filed
a pro se action in the Circuit Court for Franklin County seeking to enjoin the city from enforcing the building inspector’s stop-work order. The trial court initially issued a restrainingorder but promptly dissolved it when the city protested. The Lafferty s then hired a lawyer and, on December 2, 1996, fileda petition for a c

ommon-law writ

of certiorari r

equesting the tr

ial court to

review the Board’s refusal to permit the construction of the 38’ × 40’ addition. They also requested that the certiorari proceedingbe consolidated with their p endin g pro se action. The trial court granted the writ of certiorari but dismissed t he pro se action with prejudice after concluding that the common-law certiorari proceeding supplanted the Lafferty s’ pro sesuit.
Following a hearing

in May 1997, the trial court entered an order containing the f ollowing findings and conclusions. First, the trial court found that the original designation of the Antebellum Inn as a bed and brea

kfast was, for zoning pu

rposes, a permiss

ible nonconformin

g commercial us

e in a residential area. Second, it f oun d th at t he La ffer tys were operating a bar in addition to the bed andbr eakfas t contrary to the representations they had made to the beer board and the planning commission. 5 Third, the trial court found that the current stru cture contai ned more tha n enough
roomfor the operation of the bed and breakfast. Accordingly , the trial court concluded that “the new proposedbuilding [was] not a reasonable extension o f a pre-e xi sting nonconforming use” and, therefore, that the Board had acte d within its discreti on when it refuse

d to approve the L

affertys ’ latest proposed addition. The trial court capped off its ruling by directing the Laffe rtys to remove the foundation for

the 38’ × 40’ addition that had been constructed before the stop-work order had been issued.

I.

Our inquiry in this

case is straigh

tforward. The A

ntebellum Inn s

its ina residential area

of the City of Winchester. Because the inn existed, at least nas c ently, when the city annexed the pro pert y, it has been permitted to continue to o perate a s a commercial be d and breakfast establishment

even though it is located in an area zoned residential. As a nonconforming use, the inn may expand but only as a bigge r and better bed and breakfast. Without the appro v al of the Board, it cannot transfo

rm itself into

something other than a bed and breakfast. The central issue in this lawsuit is whether

the Laffer

tys seek to expand the Antebellum Inn beyond what the zoning laws permit or, as succinctly stated by the Boar d’s law yer at tri al, whe the r th e Laf fert ys “have pushed the envelope beyond where it should ever have been.”

This cou rt r ecog niz es t hat zon ing i s a f act of m ode rn l ife . Th e days of Uncle Dave Macon, whenmost Tennesseans lived on more or less remote fa rms or in small communities, are gone. Towns, urban centers, and subdivisions, have largely replace d the ru ral e nvironment of the p ast. Incr easi ngly, local governments of all stripes have undertaken to harness loca l growth and to encourage orderly development through the use of planning and zoning measures. Lee S. Greene, et al., Government in Tennessee 351 (4th ed. 1982) (“ Government in Tennessee ”). As the pressure to convert farmland

into subdivisions, apartmentcomplexes, condominiums, and shopping centers-5-

has increased, zoning ordinances have become m ajor tools to implement land-use planning at the local level. Government in Tennessee at 357-63.

Local governments lack

the inherent power to control the use of private pr

operty withi

n their boundaries. This power belong s to the State of Tennessee. However, the General Assembly may delegate the power to local governments, Henry v. Whi te , 194 Tenn. 192, 196, 250 S.W.2d 70, 71 (1952); Anderson County v. Remote Landfill Servs., Inc. , 833 S.W.2d 903, 909 (Tenn. Ct. App. 1991), and, in

fact, began doing so in 1935. KLN Assocs. v. Metropolitan Dev. & Hous. Agency , 797 S.W.2d 898, 902 n.3 (Tenn. Ct. App. 1990). Local governments’ power to employ zoning measures to control the use of land i n their bou ndaries is now firmly established. Draper v. Haynes , 567 S.W.2d 462, 465 (Tenn. 1978).
Zoning ordinances are now the most pre valent t ype of local land use control. 1 American Lawof Zoning § 1.14 . In the most g eneral terms, zon

ing involves the te

rritorial division o

f land into districtsaccording to the character of the land and buildings, their suitability for particular purp

oses, andthe uniformity of these uses. Family Golf of Nashville, Inc. v. Metropolitan Go v’t of Nashville , 964 S.W.2d 254, 258 (Tenn. Ct. App. 1997). Zoning regulations focus primarily on the use of the property andt he architectural and structural designs of the buildings. In re Sundance Mo untain Ranch es, I

nc. , 754 P.2d 1211, 1213 ( N.M. 1988); Kaufmann v. Planning & Zoning Comm’n , 298 S.E.2d 148, 153 (W. Va. 1982); 1 E.C. Yokley, Zoning Law & Practice §§ 1-2 (4th ed. 1978).
Rarely , if ever, have loc

al governments e

nacted zoning or

dinances on a com

pletely cle

a n slate. Property is

usually alr

eady in use

when it isfirst zoned, and so it is inevitable that ideal zoning theory will clash with the existing use of particular pieces of property. I n order to avoid the legal problemsthat would attend a local government’s ef forts to forc e a private prope rty owner to discontinue an otherwise permissible use of property, Tenn. Code Ann. § 13 -7-2 08(b) (1999) requires local governments to permit certain types of pre-existing n

onconforming us

es to continue
even if t hey ar e in con sis ten t wi th t he z oni ng cl ass ifi cat ion of t he s urr oun din g pro pert y. Property owners whose pro

perty qualifies as a nonconforming use under Tenn. Code Ann. § 13-7-208(b) may expand their business operations or may eve n reconst

ruct their busine

ss premises,
as long as they continue to be engaged in the sa me business that they were engaged in when the zoning ordinance was passed. 421 Corp. v. Metrop olitan Gov’t of Nashv

ille , No. M1997-00212- COA-R3-CV, 2000 WL 488137, at *4 (Tenn. Ct. App. Apr. 26, 2000); Tenn. Code Ann. §§ 13-7- 208(c), (d). However, these provi sions do no t permit an established nonconforming use to be
c hanged to some other nonco

nforming use. 1 A

merican Law

of Zoning § 6.36 . Thus, lik e man y other local zoning ordinances, Winchester’s zoning ordinance requires that a property

owner who desires to change the use of property from one noncon fo rming use to anoth

er nonconforming

use must first obtain the written approval of the Board o f Zoning Appeals. Winchester, Tenn. Zoning Ordinance § 6.020 (1988).

Whether characterized

as administrative or quasi-judicial, Wilson County Youth Emergency Shelter, Inc. v. Wilson County, 13 S.W.3d 338, 342 (Tenn. Ct. App. 1999), decisions by local zoning boards and officials inv

olve the exercise

of the local government’s police power to protect the health, saf ety, and welfare of their c itizens. Draper v. Haynes , 567 S.W.2d at 465; Hoover, Inc. v.-6-

Metropolitan Bd. of Zoning , 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997). In recognition of the policy that favors permitting

the community

decision-maker

s closest to the eve

nts to make the decision, the courts refrain from substituting their judgments for the broad discretionary pow er of the local governmentalbody. McCallen v. City of M emphis , 786 S.W.2d 633, 641-42 (Tenn. 1990); Whittemore v. Brentwood Planning Comm’n , 835 S.W.2d 11, 15 (Tenn. Ct. App. 1992).

The common-law writ of certiorari provides the procedura l vehicle for reviewing the decisions by local zoning boards. This writ affords quite l imited judi cial review. 421 Corp. v. Me tropolitan Gov’t of Nashville , 2000 WL 488137, at *2. It empowers the courts to determine whether the local zoning board exceeded its jurisdi ct ion; followed an unlawful procedure; acted ill egal ly, arbitrarily

, or fraudulently

; or acted with

out material evidence to support its decision. Fallinv. Knox County Bd. o f Comm’rs , 656 S. W.2d 338, 342-43 (Te nn. 1983); Hoover, Inc. v. Metropolitan G ov’t o

f Nashville , 955 S.W.2d at 54; Hemontolor v. Wilson County Bd. of Zoning Appeals , 883 S.W.2d 613, 616 (Tenn. Ct. App. 1994).

When the evidentiary foundation for a local zoning board decision is challeng ed using the common-law writ, the sufficiency of the evidence is a question of law. Hence, the courts must review the record d e novo with out presum ing t hat the board’s finding is correct. Wilson County Youth Emergency Shel

ter, Inc. v. W

ilson County , 13 S.W.3d at 342. This review does not pe

rmit the courts to reweigh the evidence, Hoover, Inc. v. Board of Zoning Appea ls , 924 S.W.2d at 904, or

to scrutiniz e the intrinsic correctness of the decision. 421 Corp. v. Metrop olitan Gov’t of Nashv

ille , 2000 WL 4881 37, at *2. It envisions tha t the court will rev

iew the record in

dependently

to determine w hether it contain s “such relevan

t evidence that a

reasonable mind m

ight accept a s adequate to support a

rational conclusion.” Hedgepath v. Norton , 839 S.W.2d 416, 421 (T enn. Ct. App. 1992). A decision b y a local zoni

ng board will

be considered arbitrary only whenthere is no evidencein the record to support it. Sexton v. Anderso n County , 587 S.W.2d 663, 667 (T enn. Ct. App. 1979).

II.

Winchester’s Board of Zoning Appeals kn ew that the Laff

ertys’ property was in an area zoned residential and that the commercial use of their property as a bed a nd breakfast had been grandfather

ed in as a nonconforming use. The Board also knew about the first addition to the inn andthat the Laffertys had misrep resentedthat the ad dition was nothing mo re than added storage spacewhen, in fact, it was intended to be used for a bar called the Green Door Pub. At the hearing, the Board learned

that the Laff

ertys reg ularly held

dances at the Gr

een Door Pu

b fo r which they imposed a cover charge. The Board also learne d th at the Laffe

rtys had ac

tually start

ed to build another large addition t

o expand their bar without first obtaining the city’s approval and that they had continued to erect the addition even after the stop-work order was issued.

In addition to the Laffertys’ less than candid dealings with the city officials, the Board heard complaints

from their neig

hbors that the live

music at the Green Door Pub created a noise problem in the neighborhood. The Laffertys’ neig hbors told the Board that they objected to what one woman described as “the drinking and

dancing happening nightly.” They also expressed their concern that the ope rat ion of t he G reen Doo r Pu b wa s ha rmi ng th e val ue o f th eir pro pert y.-7-

We are mindful that the mere complaints and fears of neighboring property owners do not provide the material evidence necessary to support a

board’s denial of

an otherwise pro

per request. WilsonCounty Youth Emergency Shelter, Inc. v. WilsonCounty , 13 S.W.3d at 342-43; Hedgepath
v. Norton , 839 S.W.2d at 421. As we have said before, “it is not a function of the Board to conduct
a referendum on public attitudes relative to the petition.” Sexton v. Anderson County, 587 S.W.2d at 664 n.1. In this case, however, the Board was not simply reacting

to the neighbors ’ complaints. If anything, the surrounding property owners’ complaint s regarding the nightly activities at the Gree n Door Pub corroborated the Board’s impression that the Lafferty s’ pub had, in one Board member’s words, “gone beyond [the original] concept” of a lodg ing place that c

atered small, pri

vate gettogethers.

The most telling material evidence supporting the Board’s action are the undisputed circumstances surrounding the construction and subsequent use of the first addition to the inn. The Laff ert ys portrayed this addition one way in order to obtain approval for it, and then, after obtaining approv al, they used the addition for something completely diff erent. Accordingly, the La ffertys we r e able to transform a one

-story 20’ ×

20’ storage ad

dition into a two-sto

ry public ba

r with a separate outside entrance. The Lafferty s high-handedness no doubt weighed on t he Board’s mind in considering their request fo r another additi

o n and undermined the credibility of their explanation about their plans for the 38’ × 40’ addition to the Green Door Pub. It seems logical to us that at
somepoint the Board lo

oked at w

hat was before it, considered the track record of

the property
own ers, remembered what had happened with the first addition, and began to think, “We’ve been down this road before.”

In a common-law certiorari proceeding such as this one, it i

s not necessary

that we agree

with the Board’s refus

al to approve the L

affertys ’ proposed 38’ × 4 0’ addit i on to the Green Door Pub. It is only necessary that we find that the Board did not act illega lly, arbitrarily, or

capriciously. The record contains material evidence from which the Board could h ave ra tionally concluded that the proposedaddition would have further expanded the Antebellum In

n into a commercial ac

tivity quite different from its original nonco nforming use – a bed and breakfa

st that would be able

to
accomm odateo ccasional small so cial events. Acc

ordingly, the Board could r

ightly withh

old approval of th e expansio n on grounds that it would have changed the way the prope rty was being usedto a different nonconforming use. Therefore, we agree with the trial court’s conclusion that the Board did not err

by rejecti ng the Laff

ertys’ late st plan to add another room to the west side of the Antebellum Inn.

III.

We affirm the judgment and remand the case to t he trial court for whatever further proceedings consistent with this opinion ma

y be requir

ed. We also tax the costs of this appeal to Robert Lafferty and Phy

llis Lafferty, jointly a

nd severally, and to their surety for which execution, if necessary, may issue.

__________________________________ WILLIA M C. KOCH, JR., JUDGE