City of Brentwood v.Metro Zoning Appeals

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 7, 2003 Session
CITY OF BRENTWOOD, TENNESSEE, ET AL. v. METROPOLITAN
BOARD OF ZONING APPEALS, ET AL.
Appeal from the Chancery Court for Davidson County
No. 00-4012-I Irvin H. Kilcrease, Jr., Chancellor
No. M2002-00514-COA-R3-CV - Filed February 3, 2004
This appeal involves the efforts of the City of Brentwood to stop the construction of a billboard
located in Davidson County. After Nashville’s zoning administrator granted a building permit for
the billboard, the City of Brentwood appealed to the Metropolitan Board of Zoning Appeals. When
the Board affirmed the building permit, the City of Brentwood and four neighboring property owners
filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County
seeking judicial review of the Board’s decision. The trial court granted the motions to dismiss filed
by the Board and the owner of the billboard on the ground that the City of Brentwood and the
individual property owners lacked standing. We have determined that the trial court erred by
determining that the City of Brentwood and its public officials lacked standing to seek judicial
review of the Board’s decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed In Part
and Remanded
WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and PATRICIA J. COTTRELL, J., joined.
James R. Tomkins, Nashville, Tennessee, and Roger A. Horner, Brentwood, Tennessee, for the
appellants, City of Brentwood, Tennessee, Phil Hardeman, William J. Vaughn, Wesley Lamoureaux,
and Clarence Reynolds.
Karl F. Dean, Director of Law, J. Brooks Fox and John L. Kennedy, Nashville, Tennessee, for the
appellees, The Metropolitan Board of Zoning Appeals and The Metropolitan Government.
Lawrence P. Leibowitz and Pamela P. Gibson, Knoxville, Tennessee, for the appellee, Lamar
Advertising Company.
OPINION
I.
On May 10, 2000, Nashville’s zoning administrator issued a building permit to Lamar
Advertising Company to construct a 14' by 48' billboard on property owned by Corky’s Restaurant
near the intersection of Old Hickory Boulevard and Franklin Road. The property is located entirely
in Davidson County but is close to the boundary line between Davidson County and the City of
Brentwood which is in Williamson County. The City of Brentwood is one of the upscale, affluent
cities ringing Nashville, and the particular intersection where the billboard is to be located is a
gateway to Brentwood from the north.
Brentwood has expended large sums to establish its “Franklin Road corridor program” for
the purpose of enhancing the area surrounding this intersection.1 It objected to Lamar Advertising’s
billboard because it was inconsistent with its capital improvements to the Franklin Road corridor.
On September 1, 2000, Brentwood filed an appeal from the zoning administrator’s decision with the
Metropolitan Board of Zoning Appeals. It asserted that the proposed billboard violated Metropolitan
Government of Nashville & Davidson County, Tennessee Code § 17.32.150(B)(13) (2001) (“Metro
Code”) which prohibited billboards along public streets or highways designated as a scenic route.
The Board held a hearing on November 2, 2000. After presentations by both Brentwood and
Lamar Advertising, the Board decided that the billboard was actually “along” Franklin Road rather
than Old Hickory Boulevard and, therefore, that it did not violate Metro Code § 17.32.150(B)(13)
because Franklin Road had not been designated as a scenic route. Accordingly, the Board affirmed
issuing Lamar Advertising a building permit.
On December 29, 2000, Brentwood2 and four private property owners3 filed a petition for
common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review
of the Board’s decision. The trial court permitted Lamar Advertising to intervene as a party.
Thereafter, the Board and Lamar Advertising filed Tenn. R. Civ. P. 12.02(6) motions asserting that
all the petitioners lacked standing to seek review of the Board’s November 2, 2000 decision. The
trial court granted the motion and dismissed the petition. All the petitioners have appealed.
II.
THE STANDARD OF REVIEW
The sole purpose of a Tenn. R. Civ. P. 12.02(6) motion is to test the sufficiency of the
complaint, not the strength of the plaintiff's evidence. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.
1999); Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550,
554 (Tenn. 1999). It requires the courts to review the complaint alone, Daniel v. Hardin County
Gen. Hosp., 971 S.W.2d 21, 23 (Tenn. Ct. App. 1997), and to look to the complaint's substance
rather than its form. Kaylor v. Bradley, 912 S.W.2d 728, 731 (Tenn. Ct. App. 1995). Dismissal
under Tenn. R. Civ. P. 12.02(6) is warranted only when the alleged facts will not entitle the plaintiff
to relief or when the complaint is totally lacking in clarity and specificity. Dobbs v. Guenther, 846
S.W.2d 270, 273 (Tenn. Ct. App. 1992).
1
The program included installing decorative street lights and sidewalks, planting trees, and adopting a restrictive
sign ordinance.
2
In addition to the City of Brentwood, the petition named Brentwood’s city manager and the members of its
Board of Commissioners as petitioners. For simplicity’s sake, we will refer to all these parties as “Brentwood.”
3
W esley Lamoureux resides and owns property in the City of Brentwood in W illiamson County. Phil
Hardeman, W illiam Vaughn, and Clarence Reynolds own property in Davidson County near Old Hickory Boulevard.
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A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual
allegations in the complaint but asserts that no cause of action arises from these facts. Winchester
v. Little, 996 S.W.2d 818, 821-22 (Tenn. Ct. App. 1998); Smith v. First Union Nat'l Bank, 958
S.W.2d 113, 115 (Tenn. Ct. App. 1997). Accordingly, courts reviewing a complaint being tested by
a Tenn. R. Civ. P. 12.02(6) motion must construe the complaint liberally in favor of the plaintiff by
taking all factual allegations in the complaint as true, Stein v. Davidson Hotel, 945 S.W.2d 714, 716
(Tenn. 1997), and by giving the plaintiff the benefit of all the inferences that can be reasonably
drawn from the pleaded facts. ROBERT BANKS, JR. & JUNE F. ENTMAN , TENNESSEE CIVIL
PROCEDURE § 5-6(g), at 254 (1999). On appeal from an order granting a Tenn. R. Civ. P. 12.02(6)
motion, we must likewise presume that the factual allegations in the complaint are true, and we must
review the trial court's legal conclusions regarding the adequacy of the complaint without a
presumption of correctness. Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg,
P.A., 986 S.W.2d at 554; Stein v. Davidson Hotel, 945 S.W.2d at 716.
III.
THE BOARD ’S AND LAMAR ADVERTISING ’S WAIVER OF THE CHALLENGE TO STANDING
Brentwood and the individual property owners make a technical argument that the Board and
Lamar Advertising waived their respective rights to question their standing to challenge the
construction of the billboard. They assert that the record does not show that either the Board or
Lamar Advertising questioned Brentwood’s standing during the November 2, 2000 hearing. The
Board counters that it was not required to raise the issue because it was the adjudicator, not a party
to the proceeding. Lamar Advertising responds that it did, in fact, raise the issue of standing.
This question is complicated by the Board’s inability to provide a “complete transcript of the
proceedings in the cause, containing also all the proof submitted before the board or commission”
as required by Tenn. Code Ann. § 27-9-109(a) (2000). This obligation falls squarely on the Board’s
shoulders, not the parties’. Lewis v. Bedford County Bd. of Zoning App., No. M2003-00537-COA-
R3-CV, 2004 WL 63439, at *5 (Tenn. Ct. App. Jan. 13, 2004). While the Board customarily
prepares a transcript of its proceedings, it did not do so in this case because the recorder
malfunctioned. Accordingly, the Board’s secretary prepared a “narrative” of the proceeding. The
narrative contains a summary of the evidence presented by the parties and states that “[t]he
appellants made their arguments with considerable dialogue with the Board.” However, it does not
specifically state that standing was discussed.
We have determined that the Board is not in a position to question Brentwood’s standing to
seek judicial review of its decision. The Board, as a governmental entity, has the prerogative to
determine whether applicants appearing before it are entitled to invoke its authority. It may and
should decline to consider applications filed by persons or entities who do not meet the applicable
legal requirements. By addressing the merits of Brentwood’s application, the Board must necessarily
have concluded that Brentwood qualified as an “applicant” under Metro Code § 17.40.275 (2001).
Having made this determination, the Board cannot later insulate its decisions from judicial review
by asserting that Brentwood has no standing to seek judicial review of an administrative proceeding
in which it actively participated with the Board’s permission.
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Lamar Advertising’s challenge to Brentwood’s standing is on a different footing. Parties to
administrative proceedings must raise all objections to procedural errors during the hearing in order
to preserve these questions for later appellate review. McClellan v. Board of Regents, 921 S.W.2d
684, 690 (Tenn. 1996). Thus, to raise the issue of Brentwood’s standing to file the petition for
common-law writ of certiorari, Lamar Advertising must have argued to the Board that Brentwood
did not have standing to request the Board to review the zoning administrator’s decision.
Brentwood does not assert that Lamar Advertising failed to raise this issue during the
proceedings before the Board. Rather, it states only that the record does not show that Lamar
Advertising raised the issue. The difference is not so subtle that it escapes us. Brentwood had the
burden of proving that Lamar Advertising waived its opportunity to raise the standing question.
Tallent v. Tennessee Farmers Mut. Ins. Co., 785 S.W.2d 339, 344 (Tenn. 1990); Smith v. Smith, 989
S.W.2d 346, 348 (Tenn. Ct. App. 1998). In light of the admittedly incomplete record and
Brentwood’s failure to contradict Lamar Advertising’s vigorous assertion that it raised the question
of standing before the Board, we have concluded that Brentwood has failed to demonstrate that
Lamar Advertising waived its right to question its standing to seek judicial review of the Board’s
decision.
IV.
BRENTWOOD ’S STANDING TO SEEK JUDICIAL REVIEW OF THE BOARD ’S DECISION
Brentwood takes issue with the trial court’s conclusion that it lacked standing to seek judicial
review of the Board’s decision regarding Lamar Advertising’s billboard because it had not suffered
a particularized injury. It asserts that the trial court erred because it meets the statutory requirements
for filing a petition for common-law writ of certiorari and because the interests it is seeking to
protect are within the zone of interests protected by Nashville’s zoning ordinance.
A.
The doctrine of standing is used to determine whether a particular plaintiff is entitled to
judicial relief. Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976); Garrison v. Stamps,
109 S.W.3d 374, 377 (Tenn. Ct. App. 2003). It requires the court to determine whether the plaintiff
has alleged a sufficiently personal stake in the outcome of the litigation to warrant a judicial
resolution of the dispute. SunTrust Bank v. Johnson, 46 S.W.3d 216, 222 (Tenn. Ct. App. 2000);
Browning-Ferris Indus. of Tennessee, Inc. v. City of Oak Ridge, 644 S.W.2d 400, 402 (Tenn. Ct.
App. 1982). To establish standing, a plaintiff must show: (1) that it has sustained a distinct and
palpable injury, (2) that the injury was caused by the challenged conduct, and (3) that the injury is
one that can be addressed by a remedy that the court is empowered to give. City of Chattanooga v.
Davis, 54 S.W.3d 248, 280 (Tenn. 2001); In re Youngblood, 895 S.W.2d 322, 326 (Tenn. 1995);
Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov’t, 842 S.W.2d 611, 615 (Tenn.
Ct. App. 1992).
The primary focus of a standing inquiry is on the party, not on the merits of the claim. Valley
Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464,
484, 102 S. Ct. 752, 765 (1982); Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765, 767 (Tenn. Ct.
App. 2002). Thus, a party's standing does not depend on the likelihood of success of its claim on
the merits. Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001); Metropolitan Air
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Research Testing Auth., Inc. v. Metropolitan Gov't, 842 S.W.2d at 615. However, because a party’s
standing may hinge on the nature of its claims, a standing inquiry requires a “careful judicial
examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an
adjudication of the particular claims asserted.” Allen v. Wright, 468 U.S. 737, 752, 104 S. Ct. 3315,
3325 (1984).
The sort of distinct and palpable injury that will create standing must be an injury to a
recognized legal right or interest. In many cases, this right or interest may be created or defined by
statute. Thus, in cases where a party is seeking to vindicate a statutory right of interest, the doctrine
of standing requires the party to demonstrate that its claim falls within the zone of interests protected
or regulated by the statute in question. Federal Election Comm’n v. Akins, 524 U.S. 11, 20, 118 S.
Ct. 1777, 1783-84 (1998); Chattanooga Ry. & Light Co. v. Bettis, 139 Tenn. 332, 337, 202 S.W. 70,
71 (1918); Jefferson County v. City of Morristown, No. 03A01-9810-CH-00331, 1999 WL 817519,
at *6 (Tenn. Ct. App. Oct. 13, 1999) (No Tenn. R. App. P. 11 application filed).
B.
Brentwood’s standing to seek judicial review of the Board’s decision hinges on the answers
to two questions. The first question is whether the applicable statutes and ordinances permit
Brentwood to seek judicial review of the Board’s decision. The second is whether the interests
Brentwood seeks to vindicate are within the zone of interests protected by Nashville’s zoning
ordinance. The answer to both questions is yes.
The Statutes and Ordinances
The statute authorizing appeals to the Board is quite broad. Tenn. Code Ann. § 13-7-206(b)
(1999) permits appeals “by any person aggrieved or by any officer, department, board or bureau of
the municipality affected by any grant or refusal of a building permit.” Similarly, Metro Code §
17.40.275 provides that an “applicant” (a person applying for relief) “may be an owner, optionee,
agent, trustee, lessee, government official or department.” Neither the statute nor the ordinance
expressly limits standing to appeal to the Board to residents of Davidson County, owners of property
in Davidson County, or the Metropolitan Government of Nashville and Davidson County and its
instrumentalities. Therefore, we will interpret these provisions as we find them – they permit any
municipal government officer aggrieved by a decision to grant a building permit to appeal to the
Board.
It stands to reason that the scope of the statute defining who may appeal to the board should
be the same as the scope of the statute defining who may seek judicial review of a board’s decision.
After all, persons authorized to appeal to the Board from an adverse decision by the zoning
administrator should likewise be authorized to seek judicial review if the Board’s decision is not to
their liking. Any other conclusion would create an anomalous situation where some persons
appealing to the Board would be entitled to judicial review while others would not.
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The procedural vehicle for obtaining judicial review of a board of zoning appeals decision
is a petition for common-law writ of certiorari.4 The scope of Tenn. Code Ann. § 27-9-101 (2000),
the statute defining who may file these petitions,5 is, in fact, the same as the scope of Tenn. Code
Ann. § 13-7-206(b). It empowers “[a]nyone who may be aggrieved by any final order or judgment
of any board or commission functioning under the laws of this state” to seek judicial review of the
order or judgment using a common-law writ of certiorari. In addition to this statutory requirement,
persons seeking judicial review of a board of zoning appeals decision must have been parties to the
proceeding before the board. Levy v. Board of Zoning App., No. M1999-00126-COA-R3-CV, 2001
WL 1141351, at *5 (Tenn. Ct. App. Sept. 27, 2001) (No Tenn. R. App. P. 11 application filed).
Both Tenn. Code Ann. § 13-7-206(b) and Tenn. Code Ann. § 27-9-101 authorize persons
who are “aggrieved” to appeal, first to the Board and then to the courts. Extending the authority to
appeal and to seek judicial review to all persons who are “aggrieved” reflects an intention to ease
the strict application of the customary standing principles. Federal Election Comm’n v. Akins, 524
U.S. at 19, 118 S. Ct. at 1783 (holding that “[h]istory associates the word ‘aggrieved’ with a
congressional intent to cast the standing net broadly – beyond the common-law interests and
substantive statutory rights upon which ‘prudential’ standing traditionally rested”).
It is desirable that land use matters be resolved on their merits rather than on preclusive,
restrictive standing rules. Northeast Parking, Inc. v. Plumridge, No. CV 95 04666065, 1995 WL
462407, at *2 (Conn. Super. Ct. July 7, 1995); Sun-Brite Car Wash, Inc. v. Board of Zoning & App.,
508 N.E.2d 130, 133 (N.Y. 1987). Thus, both Tenn. Code Ann. § 13-7-206(b) and Tenn. Code Ann.
§ 27-9-101 should be interpreted broadly rather than narrowly. 8A JULIE ROZADOWSKI & JAMES
SOLHEIM , THE LAW OF MUNICIPAL CORPORATIONS § 25.318, at 666 (3d ed., rev. vol. 1994) (“LAW
OF MUNICIPAL CORPORATIONS”).
Neither Tenn. Code Ann. § 13-7-206(b) nor Tenn. Code Ann. § 27-9-101 expressly limits
standing to residents or property owners of the area over which the local zoning board has
jurisdiction. The absence of that sort of geographic limitation reflects an understanding that one
local government’s land use decisions may affect a neighboring local government. In light of the
growth of many American cities into their suburbs, “municipal boundary lines are not Chinese walls
separating one municipality from the other.” Borough of Roselle Park v. Township of Union, 272
A.2d 762, 767 (N.J. Super. Ct. Law Div. 1970). Accordingly, many courts have recognized that
local governments may have standing to challenge the land use decisions of neighboring local
governments as long as the necessary aggrievement exists. Township of River Vale v. Town of
Orangetown, 403 F.2d 684, 685 (2d Cir. 1968); City of New Rochelle v. Town of Mamaroneck, 111
F. Supp. 2d 353, 358-59 (S.D.N.Y. 2000); Village of Barrington Hills v. Village of Hoffman Estates,
410 N.E.2d 37, 40 (Ill. 1980); Symmes Township Bd. of Trustees v. Hamilton County Bd. of Zoning
4
McCallen v. City of Memphis, 786 S.W .2d 633, 639 (Tenn. 1990); 421 Corp. v. Metropolitan Gov’t, 36
S.W .3d 469, 474 (Tenn. Ct. App. 2000); Hoover, Inc. v. Metropolitan Bd. of Zoning App., 955 S.W .2d 52, 54 (Tenn.
Ct. App. 1997).
5
Tenn. Code Ann. § 27-9-101 applies to both statutory and common-law writs of certiorari. Fairhaven Corp.
v. Tennessee Health Facilities Comm’n, 566 S.W .2d 885, 886 (Tenn. Ct. App. 1976); Ben H. Cantrell, Review of
Administrative Decisions by Writ of Certiorari in Tennessee, 4 U. Mem. L. Rev. 19, 19 (1973).
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App., 674 N.E.2d 1196, 1198 (Ohio Ct. App. 1996); LAW OF MUNICIPAL CORPORATIONS §
25.318.10, at 674.
In land use cases such as this one, the concept of “aggrievement” supplies the distinct and
palpable injury needed to have standing. When applied to local governments, aggrievement
encompasses interference with a local government’s ability to fulfill its statutory obligations, Symmes
Township Bd. of Trustees v. Hamilton County Bd. of Zoning App., 674 N.E.2d at 1198, or
substantial, direct, and adverse effects on the local government in its corporate capacity. Village of
Barrington Hills v. Village of Hoffman Estates, 410 N.E.2d at 40. The courts have found
aggrievement when the actions of one local government cause (1) reduction in another local
government’s revenue due to decreased property values,6 (2) depreciation in the value of another
local government’s property,7 (3) interference with another local government’s ability to provide
police and fire protection,8 (4) increased safety hazards on roads,9 (5) interference with another local
government’s construction of court-ordered improvements to a sewer and water system,10 (6)
interference with another local government’s urban development plan,11 (7) use of property
inconsistent with the character of the adjoining area,12 and (8) general impairment to the health,
safety, or welfare of the residents of another local government.13
Brentwood asserts in its petition that it has “a substantial legal right, interest and duty to
protect the City’s Franklin Road corridor program from the encroachment” and that the construction
of Lamar Advertising’s billboard “will do great damage to the otherwise aesthetically appealing
entrance to Brentwood, thereby hurting the image of the City and its attractiveness to future
residents, businesses, tourists and other visitors.” While Brentwood’s allegations regarding
aggrievement could have and should have been more explicit,14 we have determined that they
adequately articulate substantial, direct, and adverse effects on Brentwood in its corporate capacity.
6
Township of River Vale v. Town of Orangetown, 403 F.2d at 686-87; Village of Barrington Hills v. Village
of Hoffman Estates, 410 N.E.2d at 39; Village of Northbrook v. County of Cook, 466 N.E.2d 1215, 1216-17 (Ill. App.
Ct. 1984).
7
Township of River Vale v. Town of Orangetown, 403 F.2d at 685.
8
Village of Barrington Hills v. Village of Hoffman Estates, 410 N.E.2d at 39; Village of Northbrook v. County
of Cook, 466 N.E.2d at 1217.
9
Village of Barrington Hills v. Village of Hoffman Estates, 410 N.E.2d at 39; Village of Northbrook v. County
of Cook, 466 N.E.2d at 1216; Borough of Roselle Park v. Township of Union, 272 A.2d at 763;Symmes Township Bd.
of Trustees v. Hamilton County Bd. of Zoning App., 674 N.E.2d at 1198.
10
City of Hickory Hills v. Village of Bridgeview, 367 N.E.2d 1305, 1307 (Ill. 1977).
11
City of New Rochelle v. Town of Mamaroneck, 111 F. Supp. 2d at 358-59.
12
Village of Northbrook v. County of Cook, 466 N.E.2d at 1216.
13
Village of Barrington Hills v. Village of Hoffman Estates, 410 N.E.2d at 39.
14
The arguments regarding aggrievement in Brentwood’s appellate brief are more explicit than the allegations
in its petition.
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Lamar Advertising’s billboard could be viewed as inconsistent with the use of property in
the surrounding area, an interference with Brentwood’s Franklin Road corridor program, and an
impairment to the welfare of Brentwood residents. Brentwood and its public officials met the
requirements of Tenn. Code Ann. §§ 13-7-206(b) & 27-9-101 and Metro Code 17.402.275.
Accordingly, they are aggrieved persons both for the purpose of appearing before the Board and
seeking judicial review of the Board’s decision.
The Zone of Interests Protected by Nashville’s Zoning Ordinance
The only question remaining is whether the interests Brentwood is seeking to protect are
within the zone of interests sought to be protected by Nashville’s zoning ordinance. Brentwood’s
petition alleges that the billboard “will do great damage to the otherwise aesthetically appealing
entrance to Brentwood, thereby hurting the image of the City and its attractiveness to future
residents, businesses, tourists and other visitors.” Based on the generous construction of
Brentwood’s petition required by a Tenn. R. Civ. P. 12.02(6) motion, we have determined that the
interests articulated in Brentwood’s complaint are within the zone of interests protected by
Nashville’s zoning ordinance.
Nashville’s zoning ordinance defines the purposes of its sign regulations. Metro Code §
17.32.010(C) states that one of these purposes it to
[o]rganize signs in a manner that reduces visual clutter and
integrates signs with all other elements of the site and environs by
limiting the size, location and design of signs so that pedestrians and
motorists have an equal right to view buildings, structures and natural
features in the foreground and background.
“Visual clutter,” an oft-used but ill-defined expression, refers to a proliferation of structures, such
as signs, that presents a mind-numbing visual assault upon citizens.15 Members of City Council of
City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 827, 104 S. Ct. 2118, 2140-41 (1984).
Minimizing visual clutter is a valid interest for cities, City of Ladue v. Gilleo, 512 U.S. 43, 43, 114
S. Ct. 2038, 2039 (1994), because it (1) improves traffic safety, (2) enhances aesthetic appeal,16 (3)
promotes economic well-being, and (4) improves the area’s attractiveness to business. See HHC
Med. Group, P.C. v. City of Creve Coeur Bd. of Adjustment, 99 S.W.3d 68, 71 (Mo. Ct. App. 2003).
It is, however, important to distinguish visual clutter, which is limited to the above described
proliferation of structures, from aesthetics, which involves purely subjective taste in the design of
such structures.
15
According to the National Institute of Mental Health, “[m]ultiple representations of objects in our visual field
are constantly competing with each other for our brain’s limited visual processing capacity. W hat’s more, they mutually
cancel each other out; visual clutter actually suppresses the brain’s ability to respond; it reduces its activity.” National
Institute of Mental Health, Chairs, Houses and Visual Clutter, NIH Publication No. 01-4609, available at
http://www.mental-health-matters.com/articles/article.php?artID=331.
16
W ith this objective in mind, at least three states, Maine, Hawaii, and Vermont have taken the more drastic
step of eliminating billboards altogether. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510 n.16, 101 S. Ct. 2882,
2894 n.16 (1981).
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Billboards are intended to distract motorists’ attention from the road to the content of the
advertisement. The visual clutter created by a collection of billboards could present a higher level
of distraction and could arguably create a higher risk of traffic accidents. Metromedia, Inc. v. City
of San Diego, 453 U.S. at 508-09, 101 S.Ct. at 2893 (declining to disagree that billboards are real
and substantial hazards to traffic safety or that they cause “aesthetic harm”). Although pure
aesthetics may very well not be within the zone of interests protected by Metro Code § 17.32.010(C),
Brentwood’s concern that Lamar Advertising’s billboard will create visual clutter at the intersection
of Old Hickory Boulevard and Franklin Road is. Accordingly, the interests Brentwood is seeking
to protect in this case are within the zone of interests protected by Metro Code § 17.32.010(C).
V.
THE STANDING OF THE INDIVIDUAL LANDOWNERS
The four landowners who joined Brentwood’s petition for a common-law writ of certiorari
also assert that the trial court erred by concluding that they lacked standing. They take issue with
the trial court’s conclusion that they did not allege unique, individual aggrievement that was different
from aggrievement to the public in general. When visual clutter is the interest sought to be
protected, it is unnecessary that the injury be uncommon to the general public. However, these four
landowners do not have standing to join Brentwood’s petition because they were not parties to the
original hearing before the Board of Zoning Appeals. Levy v. Bd. of Zoning Appeals, 2001 WL
1141351, at *5.17 Therefore, we affirm the trial court’s dismissal of the four individual property
owners, although on different grounds.18
VI.
We reverse the portion of the February 20, 2002 order dismissing the petition for common-
law writ of certiorari filed by the City of Brentwood, its city manager, and the members of its Board
of Commissioners and remand the case to the trial court for further proceedings consistent with this
opinion. We tax the costs of this appeal in equal portions to The Metropolitan Board of Zoning
Appeals and Lamar Advertising Company.
_____________________________
WILLIAM C. KOCH, JR., J.
17
Even though these individual landowners may not have standing to join Brentwood’s petition, they may
petition to intervene in the proceedings as “affected parties” under Tenn. Code Ann. § 27-9-110(b) (2000).
18
The Court of Appeals may affirm a judgment on different grounds than those relied on by the trial court when
the trial court reached the correct result. Continental Cas. Co. v. Smith, 720 S.W .2d 48, 50 (Tenn. 1986); Arnold v. City
of Chattanooga, 19 S.W .3d 779, 789 (Tenn. Ct. App. 1999); Allen v. National Bank of Newport, 839 S.W .2d 763, 765
(Tenn. Ct. App. 1992); Clark v. Metropolitan Gov’t, 827 S.W .2d 312, 317 (Tenn. Ct. App. 1991).
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