IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 6, 2003 Session

METROPOLITAN GOVERNMENT 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 grant of Appellee’s motion for summary

judgment. Appellee filed suit seeking to enjoin Appellant to remove vinyl siding that she had

installed on her house in violation of a historic zoning ordinance. Appellant counter-complained

alleging that the ordinance was void and unenforceable on grounds that the ordinance was

unconstitutional and never properly adopted. Appellee subsequently moved for summary judgment

which the trial court granted. We affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and

Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and WILLIAM CAIN, J., joined.

Joseph H. Johnston and MarbutGlenn Gaston, Jr., Nashville, Tennessee, for the Appellant, Margaret

Hudson.

Lora A. Barkenbus, Metropolitan Attorney, Nashville, Tennessee, for the Appellee, Metropolitan

Government of Nashville and Davidson County.

OPINION

In 1982, Defendant/Appellant, Margaret Hudson (Mrs. Hudson) bought a house located

on White Avenue (White Ave. property) in Nashville, Tennessee, as an investment property.

During all times pertinent to this case, Mrs. Hudson lived in another Nashville home (Lawrence

Ave. property) located some fifteen blocks away from the White Ave. property. On November

19, 1985, the Metropolitan Council passed a bill creating the Woodland-in-Waverly 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 ordinance became effective five

days after its passage, November 30, 1985. On November 25, 1985, the Metropolitan Historic
1

The Metropolitan Government of Nashville and Davidson County originally brought actions against Mrs.

Hudson and Southern Aluminum Company seeking to enjoin both from violating the zoning ordinance. Southern

Aluminum Company was dismissed from the current action by a summary judgment order entered by the trial court.

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Zoning Commission (MHZC) adopted the Woodland-in-Waverly Historic Zoning Design

Guidelines. These guidelines prohibited the installation of vinyl siding on houses located within

the district. 

In late May or early June of 1996, Mrs. Hudson hired a contractor, Southern Aluminum

Company, to install vinyl siding on the White Ave. property.1

 On February 10, 1998, the

Metropolitan Government of Nashville and Davidson County (Metro) filed suit against Mrs.

Hudson seeking to enjoin her to remove the vinyl siding. On December 13, 2000, Mrs. Hudson

answered and counter-complained arguing that the guidelines were void because they had never

been adopted by Metro, were unconstitutionally vague, that enforcement amounted to a taking

without compensation, and violated her right to due process under the Fourteenth Amendment

because she never received notice of their adoption. 

Metro filed a motion for summary judgment. Accompanying the motion was the affidavit

of the director for the MHZC. In the affidavit, the director recounted the forms of notice given to

residents of the Woodland-in-Waverly district: In 1983, the Metropolitan Historical Commission

had its first public meeting in the Woodland-in-Waverly neighborhood to discuss possible

historic zoning status. On May 28, 1985, the MHZC mailed an information packet on the

historic zoning including draft guidelines to all of the proposed district’s residents and

announced a public hearing set for June 13, 1985, to discuss the designation and review

guidelines. In addition to the June MHZC public hearing, the Davidson County Metropolitan

Council held a public hearing on November 5, 1985. On November 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 residents of the historic designation and

procedures for applying for a certificate of appropriateness before changing the exterior of any

structure. Notice of the newly formed zoning district ran in the Tennessean newspaper. In

another affidavit filed with the court, Mrs. Hudson stated that she had never been informed of the

historical designation. Mrs. Hudson further stated that the White Ave. property mailing address

on file with Metro’s Property Assessor and Trustee was her Lawrence Ave. property 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 found 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 vinyl siding, after the

guidelines were adopted, violated the zoning ordinance. In an amended order, the trial court

dismissed Mrs. Hudson’s claims contained in the counter-complaint, finding them not

meritorious. 
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Issues Presented

Mrs. Hudson raises the following issues, as we perceive them, for review by this Court:

1. Whether failure to mail notices of public hearing on the establishment of a

historic district, and on the subsequent adoption of review guidelines to

Mrs. Hudson’s correct address, as required by Article XV of the

Metropolitan Zoning Code, constitutes a denial of due process, guaranteed

under the Fourteenth Amendment of the United States Constitution and

Article I, Section 8 of the Tennessee Constitution. 

2. Whether the Historic Zoning Enabling Statutes, which authorize the

MHZC to adopt review guidelines of the appropriateness of improvements

to property within a historic district prior to the establishment of the

historic district require that the review guidelines be adopted prior to the

legislative establishment of the historic district. 

Standard of Review

This Court must decide whether it was error for the trial court to award summary

judgment to Metro. Summary judgment should be awarded when the moving party can

demonstrate that there are no genuine issues regarding material facts and that it is entitled to

judgment as a matter of law. Tenn. R. Civ. P. 56.04; McCarley v. W. Quality Food Serv., 960

S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). Mere

assertions that the non-moving party has no evidence does not suffice to entitle the moving party

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

conclusively demonstrate an affirmative defense or affirmatively negate an element which is

essential to the non-moving party’s claim. Id. If the moving party can demonstrate that the nonmoving party will not be able to carry its burden of proof at trial on an essential element,

summary judgment is appropriate. Id. 

This Court reviews an award of summary judgment de novo, with no presumption of

correctness afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534

(Tenn. 2002). In determining whether to award summary judgment, we must view the evidence

in the light most favorable to the non-moving party, drawing all reasonable inferences 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 reach only one conclusion

based on the facts and inferences drawn from those facts. Id. If there is any doubt about whether

a genuine issue of material fact exists, summary judgment should not be awarded. McCarley,

960 S.W.2d at 588. 
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Notice

Mrs. Hudson argues that the MHZC’s forms of notice did not comply with the

Metropolitan Code of Nashville and Davidson County (Metropolitan 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) addresses the notice and public hearing required

for adoption of historic zoning review guidelines. It provides, in pertinent part:

[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 “reasonable 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 provision of the

Metropolitan Code must require a public hearing. Id. § 17.40.700. Section 17.40.410(B) of

Article IX, Historic Zoning Commission, requires that “[t]he historic zoning commission shall

adopt design guidelines for each 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. § 17.40.410(B) (emphasis

added). Consequently, Article XV requires that:

[17.40.710 Notice by newspaper:] [n]o public hearing shall be conducted unless

notice has been given in one or more daily newspapers of general circulation in

Davidson County no less than twenty-one days nor more than thirty days prior to

the public hearing. 

[17.40.720 Notice by mail:] [n]o public hearing shall be conducted unless, at least

twenty-one days prior to the public hearing, the owner(s) of the subject property

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 required newspaper notice of a

public hearing for comment on review guidelines. As a result, MHZC failed to meet the notice

by newspaper requirement of § 17.40.710. Further, the affidavit of the director for the MHZC

stated that notices of public hearing, scheduled for June 13, 1985, accompanied by draft review

guidelines were mailed on May 28, 1985. Accordingly, MHZC’s notice by mail does not meet

the twenty-one day notice requirement of § 17.40.720. 
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However, “‘after long public acquiescence in the substance of an ordinance, public policy

does not permit . . . an attack on the validity of the ordinance because of procedural

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 (Colo. Ct. App. 1984)) (citing Edel v. Filer

Township, 211 N.W.2d 547 (Mich. Ct. App. 1973); Taylor v. Schlemmer, 183 S.W.2d 913 (Mo.

1944); Struyk v. Samuel Braen’s Sons, 85 A.2d 279 (N.J. Super. Ct. App. Div. 1951)); see also

83 Am. Jur. 2d Zoning and Planning § 511 (2003) (stating that a protracted delay may prevent a

party from challenging a legislative body’s failure to comply with the notice requirements of an

enabling statute); Schlemmer, 183 S.W.2d at 915-16 (holding that the city’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 years after its adoption). In Criner, this Court used ten

years as the benchmark duration to immunize a zoning ordinance from procedural 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 duration of acquiescence. Id. In this case, the historic

designation and review guidelines were adopted in 1985 and were first challenged by Mrs.

Hudson in December of 2000 in her counter complaint. This delay, well over ten years, prevents

Mrs. Hudson from challenging the MHZC’s failure to comply with the procedural notice

requirements enumerated in the Metropolitan Code. Accordingly, the trial court’s grant of

Metro’s motion for summary judgment dismissing Mrs. Hudson’s constitutional claims is

affirmed. 

Timing of Adoption

Mrs. Hudson next argues that the historic designation of the Woodland-in-Waverly

district and its applicable review guidelines are not enforceable because their adoption 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 commission . . . also shall adopt

for each such proposed district or zone a set of review guidelines . . . .” Assuming arguendo that

Metro did not comply with the statute in its adoption of the guidelines and designation, Mrs.

Hudson’s delay in challenging the procedural defects 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 judgment on the validity of the historic zoning ordinance’s

adoption is affirmed. 

Conclusion

In light of the foregoing, we affirm the trial court’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 Appellant, Margaret Hudson, and her surety, for which execution may issue if

necessary.

___________________________________ 

DAVID R. FARMER, JUDGE