150 4th Ave. N. Tenant, LLC D/B/A WeWork v. The Metropolitan Nashville Board of Zoning Appeals - Concurring in Part and Dissenting in Part ( 2020 )

03/17/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 4, 2019 Session
150 4TH AVE N TENANT LLC DBA WEWORK v. THE METROPOLITAN
NASHVILLE BOARD OF ZONING APPEALS ET AL.
Appeal from the Chancery Court for Davidson County
No. 17-1287-I Claudia Bonnyman, Chancellor
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No. M2019-00732-COA-R3-CV
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W. NEAL MCBRAYER, J., concurring in part and dissenting in part.
Because I conclude that Regions Bank had standing to challenge the issuance of
the sign permit to 150 4th Ave N Tenant LLC (“WeWork”), I respectfully dissent from
that portion of the opinion. As did the trial court, I would hold that the Metropolitan
Board of Zoning Appeals acted arbitrarily and capriciously in revoking the WeWork sign
permit. But like the majority, I agree that the issue of the brightness of the skyline signs
was not properly before the BZA, so I concur in that portion of the opinion.
Appeals to boards of zoning appeals “may be taken by any person aggrieved . . .
by any . . . act or decision of . . . the municipality or other administrative official.” Tenn.
Code Ann. § 13-7-206(b) (2019). The use of the term “aggrieved” in the statute “reflects
an intention to ease the strict application of the customary standing principles.” City of
Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 57 (Tenn. Ct. App. 2004).
So the Court of Appeals has interpreted the term broadly. See id. In my view, as a tenant
of the building on which the proposed skyline signs are to be erected, Regions was
sufficiently aggrieved to have standing.
As the majority explains, the BZA granted Regions’s appeal of the sign permit on
two grounds, only one of which was properly before the BZA. Regions complained that
the WeWork signs would exceed the maximum allowable square footage for skyline
signage under the Downtown Code of the Zoning Code for Metropolitan Nashville and
Davidson County. See Chapter 17.37 of the Metropolitan Nashville and Davidson
County Zoning Code, Ordinance No. BL2009-586 (2010) (hereinafter “Downtown
Code”).
Section V of the Downtown Code specifies sign standards. The standards provide
that “(t)he maximum sign area for each type of sign is determined by the Street Type.”
Downtown Code, § V at 110. The Downtown Code recognizes five street types:
“Pedestrian Streets,” “Gateway Streets,” “Transitional Streets,” “Interstate,” and
“Printers’ Alley.” Id. at 106. For all street types, the sign area for skyline signs, signs
that are “attached flat to or mounted away from the building façade,” is determined by
reference to the average height of the building on which the sign is to be mounted. Id. at
109-10. And in each instance, the maximum allowed sign area for a building 201 feet or
taller is 720 square feet. Id. When a lot fronts on two or more streets, the lot is allowed
the maximum allowed sign area for each street. Metro. Nashville and Davidson Cty.
Zoning Code, Chapter 17.32.160(I) (Mar. 2017) (hereinafter “Zoning Code”).
The critical issue in this case is whether the building in question, One Nashville
Place, has frontage on two streets or three. One Nashville Place is located at the
intersection of 4th Avenue North and Commerce Street. But it also abuts Printers’ Alley.
According to Regions, Printers’ Alley should not be included as street frontage;
according to WeWork, it should. If Regions is correct, the maximum allowable skyline
signage is 1,440 square feet (720 square feet multiplied by two streets). If WeWork is
correct, the maximum allowable skyline signage is 2,160 square feet (720 square feet
multiplied by three streets). Regions already has two skyline signs on the building that
occupy a total of 990 square feet of the maximum allowable skyline footage, so the
difference in the parties’ positions means that WeWork either has 450 or 1,170 square
feet available for its signs. WeWork concedes that its proposed signs “arguably” total
990 square feet.1
Although Printers’ Alley is a recognized “street type” for purposes of the sign
standards of the Downtown Code, Regions argues that the segment of Printers’ Alley
abutting One Nashville Place is not included as part of the “Printers’ Alley” street type.
Its argument is founded on the Downtown Code’s “Map of Street Types for Signage
Standards.” See Downtown Code, § V at 107. On the map, Printers’ Alley is colored in
green, but not the segment of Printers’ Alley between Church Street and Commerce
Street. Id. Regions also notes that the Downtown Code describes Printers’ Alley “[a]s a
public, pedestrian-only street with businesses on the ground floor and upper floors, ” id.
at 106, and the portion of Printers’ Alley abutting One Nashville Place “does not fit this
description.” In other words, the portion of Printers’ Alley abutting One Nashville Place
is more “alley” and less Printers’ Alley; “frontage” does not include alleys. See Zoning
Code, Chapter 17.04.060 (defining the term “Frontage”).
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WeWork contends that its signage was improperly measured. I find it unnecessary to address
the proper measurement of the WeWork signage. Under my reading of the Downtown Code, the
WeWork signage would be permissible under its “arguable” size of 990 square feet.
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The BZA accepted Regions’s interpretation of the Downtown Code and concluded
that only a portion of Printers’ Alley constituted the Printers’ Alley street type. This
Court has acknowledged that “[t]he meaning of a zoning ordinance and its application to
a particular circumstance are, in the first instance, questions for the local officials to
decide.” Whittemore v. City of Brentwood Planning Comm’n, 835 S.W.2d 11, 16 (Tenn.
Ct. App. 1992) (citing Sokol v. City of Lake Oswego, 786 P.2d 1324, 1325 (Or. Ct. App.
1990)). But ultimately “[t]he courts . . . must . . . take responsibility for construing . . .
ordinances.” Id.
I conclude that the Downtown Code is clear and that the Printers’ Alley street type
includes Printers’ Alley, even that portion abutting One Nashville Place. See id. at 15.
Although the “Map of Street Types for Signage Standards” could be seen as contradicting
the text of the Downtown Code, the Zoning Code specifies that text controls over figures
in the case “of any difference of meaning or implication.” Zoning Code, Chapter
17.04.050(L) (Mar. 2015). The portion of Printers’ Alley abutting One Nashville Place
may not include businesses on the ground floor and upper floors, but the same is also true
of other portions of Printers’ Alley highlighted in green on the “Map of Street Types for
Signage Standards.” The character of that portion of the alley does not justify ignoring
the fact that it is named “Printers’ Alley.”
Because I concur with the majority that the issue of the brightness of the WeWork
signage was not properly before the BZA, no remand is necessary for reconsideration of
that issue. In light of my conclusion that Regions had standing and of my reading of the
Downtown Code, I would remand the case to the trial court with instructions to reverse
the BZA.
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W. NEAL MCBRAYER, JUDGE
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