### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Novem ber 6, 2003 Session

METROPOLITAN G OVERNMENT OF NASHVILLE AND

DAVIDSON COUNTY v. MARGARET HUDSON

Direct Appeal from the Chancery Court for Davidson County No. 98-406I Irvin H. Kilcrease, Jr., Chancellor

No. M2002-02847-COA-R3-CV - Filed December 30, 2003

This case involves an appeal from the trial court’s g rant of Appellee’s motion for summary judgmen t. Appellee

file d suit s eeking to enjoin Appellant to remove viny l siding that she had installed on her house in violation o f a his toric zoning ordinance. Appellant counter-complained alleging that the ordinance wa s void an d unenforceable on grounds that the ordina nce was unconstitutional and never properly a

dopted. Appellee subsequently moved for summary judg ment which the trial court granted. We affirm.

Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed; and Remanded

D AV ID R. F ARMER , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and W IL LI AM C AIN , J., joined.

Joseph H. Johnston and Marbut G lenn Gaston, Jr., Nashville, Tennessee, for the Appellant, Marg aret Hudson.

Lora A. Bark enbus, Metropolitan Attorney, N ashville, Tennessee, for the Appellee, Metropolitan Go ve rn me nt of

Na sh vi ll e a nd Da vi ds on Co un ty.

OPINION

In 1982, Defendant/Appe llant, Margaret Hudson (Mrs. Hudson) boug ht a house located

on Wh it e A ve nu e ( Wh it e A ve . p ro pe rt y) i n N as hv il le , T en ne ss ee , a s a n i nv es tm en t p ro pe rt y. During all times pertinent to this case, Mrs. Hudson lived in another Nashville home (L awrence Ave. property ) located some fifteen blocks away from the White Ave. property . On November 19, 1985, t

he Metro politan Cou

ncil pass ed a bill c

reating the Woodla

nd-in-Wa verly Historic District that would include the White Ave. property . That bill was signed by the Mayor of Nashville on November 25, 1985, and by the language of the ordina nce became effective f

ive day s after i

ts passag e, Novem

ber 30, 1 985. On No vember 2 5, 1985, th e Metrop olitan His toric1 The Metrop olitan Go vernmen t of Nashville and D avidson C ounty originally brough t actions against M rs.

Hudson and Sou thern A lu minum Com pany seeking to enjoin both f rom violating t

he zoning ordinance. Southern Alum inum C omp any wa s dism issed fro m the c urren t action b y a sum mary j udgm ent ord er ente red b y the trial co urt.

-2- Zoning C ommi ssio n (MHZC ) adop ted th e Woo dland -in-W averly His toric Zoning D esign Guideline s. These

guidelines prohi

bited the installat ion of viny

l siding o n houses lo cated w ithin the district.

In late May

or early June of 1996, Mrs. Hudson hired a contractor, Southern Aluminum Co mp an y, t o i ns ta ll vi nyl si di ng on th e W hi te Av e. pr op er ty. 1 On February 10, 1998, the Metropolitan Gove

rnment of Nashville

and Davi dson County

(Metro) filed suit

agains t Mrs. Hudson seeking to enjoin her to remove the viny l siding. On December 13, 2000, Mrs. Hudson answered and counter-complained a rguing that the guidelines wer e void because they

had never been adopted by

Metro, were unconstitutionally va gue, that enforcement amounted to a taking without compensation, and violated her right to due process under the Fourteenth Amendment because she never rece

ived notice of their adoption.

Metro fil ed a motio n for summa ry judgmen t. Accomp any

ing the m otion was t

he affi davit of the dir ector f or the MHZ

C. In t he affi davit, the

directo r recou nted the f orms of no tice gi ven to residents of the Woodland-in-Waverly district: In 1983, the Metropolitan Historical Commission had its fir st public meeting in the Woodla

nd-in-Wa verly neighb orhood to d

iscuss pos sible historic zoning status. On May 28, 1985, the MHZ C mailed an information packet on the historic zoning including draft guidelines to all of the proposed district’s re sidents and announced a public hearing set for June 13, 1985, to discuss the designation and review guidelines. In addition to the June MHZC public hea ring, the Davidson County Me tropolitan Council held a public hearing on November 5, 1985. On Novembe r 25, 1985, the guidelines for the historic district were adopted at a public meeting of the MHZC. Upon adoption, notices were distributed around the neighborhood informing the reside nts of the historic designation and procedures for apply

ing for a certificate of a

ppropriateness before changing the exterior of any
st ruc tu re. Not ice of t he n ewl y for med zo ni ng d is tri ct r an i n t he T enn ess ean new spa per . In another affidavit filed with the court, Mrs. Hudson stated that she had neve r been informed of the historica l design ation. Mr s. Hudson f urther s tated tha

t the White A

ve. prop erty

mailing a

ddress on file with Metro’ s Propert y A ssessor a

nd Truste e was he

r La wrence Ave. pro perty address
, where she was currently

residing, as opposed to the property ’s actual address, which was attached to the mailing list of the original notices.

The trial court granted Metro’s motion for summary judgment. The trial court specifically f

ound that the historic zoning guidelines were properly adopted and enforceable, that Mrs. Hudson’s house was located within the historic district, that the guidelines prohibited the installation of vinyl siding, and that Mrs. Hudson’s installation of viny l siding, after the guidelines were adopted, violated the zoning ordinanc e. In an amended or der, the trial court dismissed Mrs. Hudson’s claims contained in the counter-complaint, finding them not meritorious.-3- Issues Presented

Mrs. Huds on raise s the follo wing issu es, as we percei ve them, f

or revie w by this Court:

1. Whether failure to mail notices of public hearing on the establishment of a historic d istrict, a nd on the su

bsequen t adoption

of revie w guidelines to Mrs. Hudson’s correct address, as required by Article XV of the Metropolitan Zoning Code, constitutes a denial of due proc ess, guaranteed under the Fourteenth Amendment of the United States Constitution and Article I, Section 8 of the Tenne ssee Constitution.

2. Whether the Historic Zoning Enabling Statutes, which a uthorize the MHZC to a

dopt revi ew guid

elines of the appr opriate ness of imp

rovemen ts to property within a historic district prior to the e stablishment of the historic district require that the review guidelines be a dopted prior to the legislative establishment of the historic district.

Standard of Review

This Court must decide whether it was error for the trial cour t to award summary judgment to Metro. Summary judg ment should be awarded when the moving party can demonstr ate that t here ar e no ge nuine issu es reg arding

materia l facts a nd that it isentitled t

o judgmen t as a matt

er of la w. Tenn. R. Civ. P. 56. 04; McCarley v. W. Quality Food Serv

. , 960 S.W.2d 585, 5 88 (Tenn . 1998); Byrd v. H all , 847 S.W.2d 208, 214 (Tenn. 1993). Mere assertio ns that the

non-moving party

has no evidence d

oes not suf

fice to e ntitle the moving pa

rty to summary judgment. McCarley , 960 S.W.2d at 588. The moving party must either conclusi vely

demonstr

ate an a ffirmat ive defe nse or af firmativ ely

negate an eleme nt which is essential to the non-moving party ’s claim. Id . If the moving partycan demonstrate that the nonmoving pa

rty will not be

able to c arry

its burde n of proof at trial o n an esse

ntial ele ment, summary judgme

nt is appropriate. Id

.

This Court r

eviews a n award of summar

y ju dgment de novo , with no presumption of correctness afforded to the trial cour t. Guy v. Mut. of Omaha Ins. Co. , 79 S.W.3d 528, 534 (Tenn. 2002). In deter

mining whether to award summary judgment, we must view the evidence in the light most favorable to the non-moving party , drawing all reasonable infere nces in favor of the non-moving party

. Staples v . CBL &Assocs. , 15 S.W.3d 83, 89 (Tenn. 2000). Summary judgment should be awarded only when a reasonable person could rea ch only one conc lusion based on the facts and inferences dr awn from those facts. Id. If there is any doubt about whether a genuine issue of material fact e xists, summary judgment should not be awarded. McCarley
, 960 S.W.2d at 588.-4- Notice

Mrs. Hudson argues that the MHZC’s forms of notice did not comply with the Metropolitan Code o f Nashville and Da vidson Coun

ty ( Metropol itan Code) and, as a

result, constitute a denial of due process under the Tennessee and United States Constitutions. Tennessee Code Annotated § 13-7-406 (1999) addre sses the notice and public hearing require d for adoption of hist

oric zonin g revie

w guidelines. I

t provide s, in pert

inent par t:

[p]rior to the establishment of any historic district or zone, the historic zoning commission . . . shall adopt for each such proposed district or zone a set of review guidelines . . . . Reasonable public notice and opportunity for public comment, by public hearing or otherwise, shall be required before the historic zoning commission or the regional historic zoning commission adopts any such review guidelines.

The Metropolitan Code has further defined “re asonable public notice” in Article XV. See Code of the Metropolitan Government of Nashville and Davidson County , Tennessee, Article XV (1991). For the notice requirements of Article XV to apply, some other pr ovision of the Metropolitan Code must require a public hearing. Id . § 17.40.700. Section 17.40.410(B) of Article IX, H istoric Z oning Com

mission, requires th at “[t]he hi storic zoning commi ssion shall adopt design guidelines for eac h historic overlay district . . . . A public hearing following the applicable public notice requirements of Article XV of this chapter shall precede the adoption of all design review guidelines by the historic zoning commission.” Id . § 17.40.4 10(B) ( emphasis added). Conseque

ntly , Article

XV requi res that:

[17.40.710

Notice by

newspap er:] [n]o public hear ing shall be condu cted unle ss notice ha s been given in one or more d aily

newspap ers of g eneral

circula tion in Davidson County no less tha

n twenty-one day s nor more than thirt y da ys p rior to the public hearing. [17.40.720

Notice by

mail:] [n]o publ

ic hear ing shall be condu cted unle ss, at lea st twenty -one day s prior to t he public hearing , the owne

r(s) of t he subject proper

ty and all other property

owners within the distances prescribed by this article have been given notice by

mail of the time, date and place of the public hearing

. In this case, the only

evidence in the record of notice by newspaper was the publication of the adoption of the historical zoning designation rather than the re quired newspaper notice of a public hearing for comment on review g uidelines. As a result, MHZC failed to meet the notice by newspap er requ ireme nt of § 17.40 .710. Furth er, th e affid avit o f the d irect or for t he MHZC stated that notices of public hearing, scheduled for June 13, 1985, accompanied by dr aft review guidelines were mailed on May 28, 1985. Accordingly , MHZC’s notice by mail does not meet the twenty-one da

y notice requir

ement of § 17.40.720.-5-

However, “‘after long

public acquiescence in the substance of an or dinance, public policy does not permit . . . an attack on the validity of the ordinance because of proc edural irregularities.’” Hutcherson v. Criner , 11 S.W.3d 126, 134 (Tenn. Ct. App. 1999) (quoting Trainor v. City of Wheat Ridge , 697 p .2d 37 , 39 (C olo. Ct. A pp. 19 84)) (c itin g Edel v. Filer Township , 211 N.W.2d

547 (Mich . Ct. App. 1 973); Taylor v. Schlemmer , 183 S.W.2d 913 (Mo. 1944); Struyk v. Samuel Braen’s Sons , 85 A.2d 2 79 (N.J. Supe r. Ct. App. Div. 1951) ); see also 83 Am. Jur. 2d Zoning and Planning § 511 (200 3) (stating that a protracted dela

y ma y pr event a party from c

hallenging a legislative body ’s failure to comply with the notice requirements of an enabling statute) ; Schlemmer , 183 S.W.2d a t 915-16 ( holding t hat the c ity’ s failure

to comply with the notice requirements of its zoning ordinance’s enabling act was a procedural defect which could not be challenged twelve y ears after its adoption). I n Criner , this Court used ten years a s the benchmark duration to immunize a zoning ordinance from procedur al attack. Criner
, 11 S.W.3d at 135. The rationale behind such immunity is the extensive public reliance on the zoning ordinance resulting from a long dur ation of acquiescence. Id . In th is case, the histor

ic designa tion and r eview g uideline s were a

dopted in 1 985 and we

re first challen ged by

Mrs. Hudson in D ecembe

r of 2000 in her cou

nter com plaint. Th

is delay , well ove

r ten y ears, pr events Mrs. Hudson from challenging the MHZ C’s failure to comply with the proc edural notice requirements enumerated in the Metropolitan Code. Accor dingly, the trial c ourt’s grant of Metro’s m

otion for summary judgmen t dismissing

Mrs. Huds on’s cons titutional claims is affirmed.

Timing of Adoption

Mrs. Huds on next arg

ues that th

e historic designa tion of the

Woodland- in-Waver

ly district and its applicable review guidelines are not e nforceable because their a doption did not comply with Tenn. Code Ann. § 13-7- 406 (1999). This section provides that “[p]rior to the establishment of any historic district or zone, the historic zoning c ommission . . . also shall adopt for eac h such propo sed di stri ct or z one a s et of r eview guidel ines . . . .” A ssum ing arguendo that Metro did not comply with the statute in its adoptio n of the g

uideline s and desi gnation , Mrs. Hudson’s delay in cha

llenging the procedural def ects of the zoning ordinance’s adoption immunizes it from attack. Criner , 11 S.W.3d at 134-35. Accordingly , the trial court’s grant of Metro’s motion for summary judg ment on the validity of the historic zoning ordinanc e’s adoption is affirmed.

Conclusion

In light of the fore going, we affirm the trial cour t’s grant of Metro’s motion for summary judgment and dismissal of Mrs. Hudson’s constitutional counterclaims. Costs of this appeal are taxed to the

Appellan t, Marg aret Hud son, and h er sure ty, for which executio n may issue if

ne ce ss ar y.

___________________________________ DAVID R. FARMER, JUDGE