We will use the terms “restriction” and “condition” interchangeably in this opinion.

1

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 10, 2005 Session

RICHARD A. DEMONBREUN v. METROPOLITAN BOARD OF ZONING

APPEALS OF THE METROPOLITAN GOVERNMENT OF NASHVILLE

AND DAVIDSON COUNTY, TENNESSEE

 Appeal from the Circuit Court for Davidson County

No. 02C-1999 Carol Soloman, Judge

No. M2004-02402-COA-R3-CV - Filed December 7, 2005 

The Metropolitan Davidson County Board of Zoning Appeals (“the BZA”) granted Richard A.

Demonbreun (“the Landowner”) a special exception permit to use his residentially-zoned property

as a special event site. The Landowner filed a petition for writ of certiorari and supersedeas,

challenging the validity of several restrictions imposed upon the permit. The trial court held that 1

several of the restrictions were unsupported by material evidence, and thus, according to the trial

court, were arbitrarily imposed by the BZA. The BZA appeals the trial court’s determination with

respect to the conditions found to be arbitrary. We affirm in part and reverse in part. 

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

Affirmed in Part; Reversed in Part; Case Remanded

CHARLES D.SUSANO,JR.,J., delivered the opinion of the court, in which HERSCHEL P.FRANKS,P.J.,

and D. MICHAEL SWINEY, J., joined.

Karl F. Dean, Director of Law, J. Brooks Fox and John L. Kennedy, Metropolitan Attorneys,

Nashville, Tennessee, for the appellant, The Metropolitan Board of Zoning Appeals of The

Metropolitan Government of Nashville and Davidson County.

Robert W. Rutherford, Nashville, Tennessee, for the appellee, Richard A. Demonbreun.

OPINION
-2-

I.

The Landowner owns a half-acre piece of property located at 746 Benton Avenue in southeast

Nashville. The property lies within an R6, residentially-zoned district and specifically in the

Woodland-in-Waverly residential neighborhood. Woodland-in-Waverly is a historic urban

neighborhood showcasing houses built as early as the 19th century. The Landowner’s property,

which he bought in 1995, includes a house built in 1906 and one of the few functioning original

carriage houses in Davidson County. 

In 1999, the Landowner petitioned the BZA for a special exception permit to use his newly

renovated property as a “Historic Home Events” site, which permit would enable him to

accommodate weddings, parties, and other special event functions on the property. The BZA granted

the Landowner the permit but included the following conditions: (1) the permit would expire in one

year, in order to give the BZA a chance to review the permit and see how the conditions were

working; (2) the permit was for the Landowner’s use only; (3) valet parking was required if more

than 25 people attended an event; (4) large buses were not allowed on the street, but shuttle buses

were permitted; (5) the number of people attending an event was subject to a maximum of the

number of parking spaces times two with a 150-person cap; (6) a maximum of two events were

permitted each week; (7) each event had to end and cleanup had to commence by 9:00 p.m. on

weeknights and by 11:00 p.m. on Friday and Saturday nights; and (8) no tents were allowed in the

front yard. In 2000, the BZA again granted the Landowner’s permit with the same conditions;

however, in 2001, the BZA unanimously denied the Landowner’s third permit application because

of testimony from Woodland-in-Waverly residents regarding his noncompliance with certain permit

conditions. Pursuant to the rules of the BZA, the Landowner reapplied for the permit six months

after the 2001 denial. The latter application is the one presently before us. 

On July 3, 2002, the BZA held a public hearing on the Landowner’s new application. The

BZA heard from numerous witnesses, both in support of and in opposition to the application. The

record before the BZA also includes numerous letters and emails, which were sent to the BZA by

supporting and opposing residents living in the Woodland-in-Waverly neighborhood. At the

conclusion of the hearing, the BZA, by a vote of four-to-one, granted the Landowner’s application,

noting that he had satisfied the necessary criteria for a special exception permit to operate “Historic

Home Events” on his property. This time the BZA imposed the following set of slightly-different

conditions on the permit: (1) the permit was issued for a period of time not to exceed one year; (2)

the permit was for the Landowner’s use only; (3) valet parking was required for all events with more

than 25 people in attendance; (4) large buses were not allowed on the street, but shuttle buses were

permitted; (5) the maximum number of people allowed at each event was not to exceed the number

of parking spaces under contract times two with a 150-person maximum; (6) a maximum of two

events were permitted each week; (7) events and event cleanup had to be completed by 9:00 p.m.

on weeknights and by 11:00 p.m. on Friday and Saturday nights; (8) no social business/activity of
-3-

any kind could be conducted in the front yard; and (9) no other residential property could be used

in conjunction with the permit. 

The Landowner subsequently filed a petition for writ of certiorari and supersedeas, asserting

that the evidence failed to justify certain aspects of conditions (1), (4), (5), (6), (7), and (8). The trial

court granted the Landowner’s petition. In its memorandum opinion filed August 31, 2004, the trial

court held that most of the conditions challenged by the Landowner “were not based on material

evidence but on opinions, beliefs and other matters not a part of the record.” Specifically, the trial

court found that the one-year time limit on the permit, the 150-person maximum per event, the limit

on two events per week, the time-of-day limitation by which completion of event cleanup was

required, and the prohibition on activities in the front yard were unsupported by material evidence.

The BZA appeals the trial court’s determination with respect to these five conditions. It claims that

there was ample material evidence to support all of the restrictions imposed by it on the Landowner’s

permit.

II.

The dispositive issue on this appeal is whether the trial court erred in finding that five of the

BZA’s conditions were unsupported by material evidence. The question of whether there is

sufficient evidence to sustain a zoning action is a question of law. MC Props., Inc. v. City of

Chattanooga, 994 S.W.2d 132, 134 (Tenn. Ct. App. 1999). Hence, appellate review is de novo with

no presumption of correctness. Id. 

III.

Judicial review of an action by an administrative body is by way of the common law writ of

certiorari. See Tenn. Code Ann. § 27-8-101 (2000); see also McCallen v. City of Memphis, 786

S.W.2d 633, 639 (Tenn. 1990). In such a review, the action of the administrative body may be

reversed or modified only upon a determination that the action was: (1) in violation of constitutional

or statutory provisions; (2) in excess of statutory authority; (3) an unlawful procedure; (4) arbitrary

or caprious; or (5) unsupported by material evidence. Massey v. Shelby County Retirement Bd., 813

S.W.2d 462, 464 (Tenn. Ct. App. 1991). 

Our scope of review of this matter is no broader than that of the trial court. “Whether [an]

action by [a] local governmental body is legislative or administrative in nature, the court should

refrain from substituting its judgment for the broad discretionary authority of the local governmental

body.” McCallen, 786 S.W.2d at 641-42. Courts are not permitted to reweigh the evidence or

scrutinize the intrinsic correctness of the decision. Lafferty v. City of Winchester, 46 S.W.3d 752,
 Tenn. Code Ann. § 13-7-206(a)(1999) states that 2

 [t]he zoning ordinance may provide that the board of appeals may, in appropriate

cases and subject to the principles, standards, rules, conditions and safeguards set

forth in the ordinance, make special exceptions to the terms of the zoning

regulations in harmony with their general purpose and intent. . . .

Tenn. Code Ann. § 13-7-207(2) (1999) further provides that the local zoning board of appeals has the power to “[h]ear

and decide, in accordance with the provisions of any such ordinance, requests for special exceptions. . . .

-4-

759 (Tenn. Ct. App. 2000). However, a court should invalidate a decision that is clearly illegal,

arbitrary, or capricious. McCallen, 786 S.W.2d at 642. 

If there is no evidence to support an action of an administrative board, it is arbitrary. Sexton

v. Anderson County, 587 S.W.2d 663, 667 (Tenn. Ct. App. 1979). The board’s determination must

be supported by “more than a scintilla or glimmer of evidence. . . . It must be of a substantial,

material nature.” Pace v. Garbage Disposal Dist., 390 S.W.2d 461, 463 (Tenn. 1965). The

“material evidence” standard requires “such relevant evidence as a reasonable mind might accept

as adequate to support a rational conclusion and such as to furnish a reasonably sound basis for the

action under consideration.” Id. We are further mindful that “mere beliefs, opinions and fears of

neighborhood residents do not constitute material evidence.” Mullins v. City of Knoxville, 665

S.W.2d 393, 396 (Tenn. Ct. App. 1983). 

IV.

Our analysis of whether the trial court erred in its findings begins with a review of the

authority under which the BZA was operating in the instant case. Local governmental entities are

specifically authorized to prescribe guidelines and standards for zoning boards to follow in issuing

special exception permits. See Tenn. Code Ann. §§ 13-7-206(a), -207(2). The zoning law for 2

Nashville and Davidson County provides the following with respect to the BZA’s issuance of such

permits:

A. Burden of Proof. A special exception permit shall not be

considered an entitlement, and shall be granted by the board of zoning

appeals only after the applicant has demonstrated to the satisfaction

of the board that all of the required standards are met.

B. Ordinance Compliance. The proposed use shall comply with all

applicable regulations, including any specific standards for the

proposed use set forth in this title, unless circumstances qualify the

special exception for a variance in accordance with Chapter 17.40,
-5-

Article VIII. Any accessory use to a special exception must receive

express authorization from the board of zoning appeals.

C. Integrity of Adjacent Areas. A special exception use permit shall

be granted provided that the board finds that the use is so designed,

located and proposed to be operated that the public health, safety and

welfare will be protected. The board shall determine from its review

that adequate public facilities are available to accommodate the

proposed use, and that approval ofthe permit will not adversely affect

other property in the area to the extent that it will impair the

reasonable long-term use of those properties. The board may request

a report from the metropolitan planning commission regarding longrange plans for land use development. 

D. Design and Architectural Compatibility. The operational and

physical characteristics of the special exception shall not adversely

impact abutting properties, including those located across street

frontages. Site design and architectural features which contribute to

compatibility include, but are not limited to, landscaping, drainage,

access and circulation, building style and height, bulk, scale, setbacks,

open areas, roof slopes, building orientation, overhangs, porches,

ornamental features, exterior materials and colors.

E. Natural Features. Special exception uses in residential zone

districts must comply with the nonresidential tree protection

regulations and other natural site features shall be preserved to the

greatest extent possible so as to minimize the intrusion of

nonresidential structures and parking areas.

F. Historic Preservation. Features of historical significance shall not

be adversely affected by the granting of any special exception. The

metropolitan historic zoning commission shall be consulted regarding

those features essential to preserve the historical integrity of a

building or site of historical significance. 

G. Traffic Impact. The applicant shall demonstrate how the

proposed use will not adversely affect the safety and convenience of

vehicular and pedestrian circulation in the area. The board of zoning

appeals may require a traffic impact study for any special exception

land use.

* * *
-6-

I. Hazard Protection. The proposed use shall reasonably protect

persons and property from erosion, flooding, fire, noise, glare or

similar hazards.

J. Special Conditions. Notwithstanding a finding by the board of

zoning appeals that a special exception application satisfies the

minimum development standards of this article, the board may

restrict the hours of operation, establish permit expiration dates,

require extraordinary setbacks and impose other reasonable

conditions necessary to protect the public health, safety and welfare.

Metro Code of Laws (“M.C.L.”) § 17.16.150 (emphasis added). The grant of a special exception

permit to operate “Historic Home Events” is further subject to the following set of standards and

limitations:

C. Historic Home Events.

1. Lot Size. The minimum bulk standard for the zone district shall

apply.

2. Location. The events shall be within a historically significant

structure, as determined by the historic zoning commission.

3. Parking. Where the minimum parking space standard requires

additional parking area to be constructed, such area shall comply with

the perimeter parking lot landscaping according to Chapter 17.24 of

this code. In urban settings, the board of zoning appeals may

consider on-street parking to satisfy the minimum parking standard,

provided there is a finding of sufficient available public space.

4. Signs. Signs for advertising shall not be permitted.

5. Meals. Meal service shall be restricted to patrons of the special

event only, and not to the general public.

6. Owner-Occupied. The owner of the property must reside

permanently in the historic home. Where there is more than one

owner of the home, or where an estate, corporation, limited

partnership or similar entity is the owner, a person with controlling

interest, or possessing the largest number of outstanding shares

owned by any single individual or corporation, shall reside

permanently in the historic home. If two or more persons own equal

shares that represent the largest ownership, at least one of the persons

shall reside permanently in the historic home. 

7. Frequency of Events. The board of zoning appeals may limit the

number and frequency of events to minimize disturbance to

surrounding properties.
-7-

M.C.L. § 17.16.160.C. (emphasis added). As noted earlier, the BZA found that the Landowner

satisfied the criteria for the special exception permit, but, as authorized by the above-emphasized

provisions, the BZA also chose to impose certain conditions on the permit. Our focus is, therefore,

upon whetherthe evidence supports the BZA’s imposition of the conditions, which were challenged

by the Landowner and found to be arbitrary by the trial court. 

The first condition we address is the BZA’s limitation of the permit to “a period of time not

to exceed one year.” The Landowner agrees with the trial court’s conclusion that the record contains

no justification for this condition. He argues that this condition is in the nature of enforcement and

beyond the jurisdiction of the BZA. We agree with the BZA’s argument that there is material

evidence to support this restriction on the Landowner’s permit. The governing ordinance authorizes

the BZA to establish permit expiration dates. M.C.L. § 17.16.150.J. The BZA has an interest in

ascertaining whether a permit holder is abiding by its standards and conditions. Furthermore,

nothing in the applicable zoning law precludes the BZA’s establishment of a permit expiration date

solely for the purpose of review and enforcement purposes.

 

While acknowledging the BZA’s authority to impose an expiration date on the permit, the

trial court held that the record was devoid of evidence justifying the BZA’s imposition of a one-year

expiration. We do not agree. In addition to presenting evidence regarding noise, traffic, and parking

problems caused by the Landowner’s events, the opposition testified to, and presented charts, letters,

and emails reflecting, the Landowner’s previous noncompliance with permit conditions and his

continued operation after the BZA’s denial in 2001. Evidence also established that the Landowner

continued to operate after he was served with a cease-and-desist notice in April, 2002. The

Landowner admitted certain violations of the permit and also acknowledged that, for a period of

time, he had operated his facility without a permit. In light of the Landowner’s documented history

of noncompliance and the continued complaints by neighboring residents, the BZA could reasonably

conclude that a review of the permit within twelve months was necessary and appropriate. Thus, we

hold that the condition providing that the permit is “for a period of time not to exceed one year” is

supported by material evidence. 

We next consider the BZA’s capping of the maximum number of guests allowed to attend

an event at 150 people. The trial court “was unable to find any evidence whatsoever upon which this

condition was based.” We disagree. The evidence before the BZA included the testimony, emails

and letters of numerous Woodland-in-Waverly residents stating their opposition to the Landowner’s

continued use of his property for “Historic Home Events” because of noise and other disturbances

caused by the events. One neighbor testified that the noise had kept his child up at night, and that

he and his two-year-old had encountered intoxicated guests while walking in the neighborhood one

day. Another neighbor emailed a complaint to the BZA noting a particular event with many cars and

people in attendance, the presence of a “VERY loud” band, and the use of a microphone in the front

yard. (Capitalization in email). Yet another neighbor testified to witnessing a line of event traffic
-8-

make U-turn after U-turn on a narrow neighborhood street. The opposition’s complaints and

statements regarding specific disturbances and the fact that the residents of the Woodland-inWaverly neighborhood live in such close proximity to one another supports the BZA’s imposition

of this condition. The BZA had evidence from which it could reasonably conclude that events

tended to disturb the surrounding residents; and logic would reflect that there is a natural relationship

between the number of people at an event and the magnitude of the disturbance. 

The BZA argues that there is material evidence to support the restriction limiting the

Landowner to two events per week. The rationale behind the Landowner’s challenge to this

condition was that, because the evidence suggested that smaller events (i.e., retreats and luncheons)

had no adverse impact on the neighborhood, the BZA’s failure to differentiate between small events

and large events was arbitrary. The trial court determined that the evidence did not support the

condition limiting the Landowner to two events per week, and that “the evidence would more

reasonably sustain a contrary position.” Given our limited scope of review in this case, we cannot

agree with the trial court’s determination that this condition was unsupported by material evidence.

The BZA’s condition limiting the Landowner to two events per week is not rendered arbitrary or

unsupported by material evidence simply because the record also would have supported two different

approaches, one for small events and one for large events. All that must exist for this condition to

be upheld is “such relevant evidence as a reasonable mind might accept as adequate to support” the

two events per week limitation. Pace, 390 S.W.2d at 463. The opposition’s testimony and evidence

regarding general, and specific, disturbances caused by the Landowner’s events could lead the BZA

to reasonably conclude that a limit on the number of events held each week was appropriate. See

M.C.L. § 17.16.160.C.7. (noting that the BZA can limit the number and frequency of events to

minimize disturbance to surrounding properties).

We next consider theBZA’s condition requiring the completion of events and event cleanup

by 9:00 p.m. on weeknights and 11:00 p.m. on weekends. The Landowner argues that there is no

material evidence to support this condition. The trial court found “that some evidence exists in the

record which would justify limiting the time for events, but that no evidence exists regarding the

clean up afterward.” Thus, the trial court held that “the totality of that portion of the [BZA’s permit]

regarding time limits on clean up” was unsupported by material evidence. We agree with the trial

court’s conclusion regarding this condition. Testimony and emails note instances of late night noise

caused by loud music and the like on the Landowner’s property; however, the record is devoid of

testimony or documented complaints suggesting that event cleanup activities were the cause of any

such disturbances. We hold there is material evidence to support the BZA’s time restriction on the

actual events, but not on event cleanup activities. 

The final challenged condition is the BZA’s prohibition on “social business/activity of any

kind to be conducted in the front yard.” The trial court was not “persuaded that material evidence

was presented to the [BZA] which would support such a condition.” The only evidence in the record

which relates to this condition is as follows: most weddings held at the Landowner’s property occur
We decline to state what we think those restrictions might be. It is not for us to impose new conditions not

3

imposed by the BZA. The only question for us is whether there is material evidence to support a given condition. We

do not find material evidence to support a condition absolutely forbidding the Landowner to use his front yard in

connection with all events, regardless of type or size.

-9-

in the front yard; the Landowner’s 1999 and 2000 special exception permit included a prohibition

on “tents in the front yard”; the Landowner admitted that he violated this condition on at least one

occasion; testimony and pictures establish that the Landowner placed a large white curtain around

the perimeter of the front yard for one event; and there were complaints regarding crowds, chairs,

and microphone use in the front yard. While there is evidence from which the BZA could have

reasonably concluded that activities in the front yard should be restricted, we find a lack of evidence

3

supporting a blanket prohibition of activities, regardless of type or size, on this valuable part of the

Landowner’s property. Accordingly, we affirm the trial court’s judgment with respect to this blanket

prohibition.

 

The BZA further argues that, because the Landowner promised, during the BZA’s hearing,

to “walk the chalk” and “comply with any conditions” imposed by the BZA, he is required to comply

with the challenged conditions. It is true that the Landowner personally pledged to abide by any

conditions if the BZA would again grant him a special exception permit; but the Landowner’s pledge

cannot be construed as carte blanche to impose any and all restrictions as may seem appropriate to

the BZA regardless of whether there is material evidence to support them. His pledge certainly

cannot be seen as an agreement to abide by arbitrarily-imposed restrictions. 

V.

The BZA also raises the issue of whether the trial court erred in issuing its writ of

supersedeas at the outset of this case. The trial court’s writ ordered the BZA to desist from enforcing

the conditions challenged by the Landowner until the trial court determined the merits of the

challenged conditions. The BZA moved to dissolve the writ of supersedeas in August, 2002, and

in February, 2004, but the trial court denied both motions. The BZA argues that the trial court’s writ

exceeded the court’s authority to maintain the status quo when it gave the Landowner the right to

conduct his events without several of the conditions imposed by the BZA. See McKee v. Bd. of

Elections, 116 S.W.2d 1033, 1037 (Tenn. 1938) (stating that the writ of supersedeas does not have

authority “beyond that of a stay order, maintaining the status quo as of the time of its issuance, . . .”).

The issue of whether the writ of supersedeas was too expansive is now moot. Accordingly, we

decline to address it. 
-10-

VI.

The judgment of the trial court finding no material evidence to support the requirement of

the completion of event cleanup activities by a certain time and the prohibition on the Landowner’s

“social business/activity” use of his front yard is affirmed. The judgment of the trial court finding

no material evidence to support the one-year limitation on the Landowner’s special exception permit,

the 150-person limitation on the number of guests allowed to attend an event at the Landowner’s

property, and the two-event limitation per week is reversed. This case is remanded to the trial court

for such further proceedings, if any, as may be required, consistent with this opinion. Exercising our

discretion, we tax the costs on appeal one-half to the appellant, the BZA, and one-half to the

appellee, Richard A. Demonbreun. 

_______________________________ 

CHARLES D. SUSANO, JR., JUDGE