150 4th Ave. N. Tenant, LLC D/B/A WeWork v. The Metropolitan Nashville Board of Zoning Appeals ( 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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This dispute arose from the issuance of a skyline sign permit to a high-rise office-
building tenant. The permit allowed the tenant to erect two 495-square-foot signs on the
building’s northwest and southeast facades. Another tenant with skyline signs on the
northeast and southwest facades appealed the issuance of the permit by filing an
application with the Board of Zoning Appeals (“BZA”) for interpretation against the
zoning administrator. The complaining tenant contended, inter alia, that its brand was
harmed because the juxtaposition of the new and existing signs would blur the
relationship between the two tenants and asserted that the new signs caused the building
to exceed the maximum signage permitted under the zoning code. The BZA determined
that the new signs violated the zoning code and revoked the permit. On a Petition for
Writ of Certiorari, the Davidson County Chancery Court held that the BZA erred by
relying on a zoning map rather than the code’s plain language and found the new signs
complied with the code’s requirements. This appeal followed. We have determined the
complaining tenant failed to establish standing because it failed to demonstrate that it was
aggrieved by the issuance of the permit. There is no competent evidence to show that the
signs’ juxtaposition would create public confusion about or signal a business relationship
between the two tenants. Accordingly, the record fails to demonstrate that the
complaining tenant’s alleged injury “falls within the zone of interests protected or
regulated by the [law] in question.” See City of Brentwood v. Metro. Bd. of Zoning
Appeals, 149 S.W.3d 49, 55–56 (Tenn. Ct. App. 2004). Further, based on the facts of this
case, the BZA lacked the ability to provide meaningful redress. For these and other
reasons, we affirm the trial court’s judgment in part, albeit on different grounds, and
remand with instructions for the trial court to order the BZA to dismiss the complaining
tenant’s application and to reinstate the new sign permit as issued in June of 2017. As for
a separate issue that a neighboring homeowners’ association attempted to raise during the
BZA hearing—whether the northwest sign exceeded brightness standards—that issue was
not properly before the BZA or the trial court. Thus, we reverse the trial court’s decision
to remand the brightness issue to the BZA.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed in part, Reversed in part, and Remanded
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which RICHARD
H. DINKINS, J., joined. W. NEAL MCBRAYER, J., filed a separate opinion in which he
concurs in part and dissents in part.
Junaid Adetayo Odubeko and James L. Murphy, III, Nashville, Tennessee, for the
appellant, Regions Bank Corp.
Douglas Berry and Robert F. Parsley, Nashville, Tennessee, for the appellee, 150 4th Ave
N Tenant, LLC, d/b/a WeWork.
Lora Barkenbus Fox and Jonathan Barrett Cooper, Nashville, Tennessee, for the appellee,
Board of Zoning Appeals of Nashville & Davidson Co.
OPINION
A. Background
One Nashville Place, a.k.a., the “R2-D2 Building,”1 enriched the Nashville skyline
in 1985. The 25-story octagonal building sits in the heart of downtown Nashville on a lot
that abuts Fourth Avenue North, Commerce Street, and the south end of Printers Alley.
In 2010, the Metropolitan Planning Commission codified a set of development
standards for several sub-districts in downtown Nashville, including the area where One
Nashville Place is located. See Zoning Code for Metropolitan Nashville and Davidson
County § 17.37 (“Downtown Code”). Section V of the Downtown Code includes two
design standards related to the width and area of “skyline” signs. First, a skyline sign
1
When viewed from a distance, the architectural shape of the building resembles the iconic and
loveable Droid named R2-D2, a character from “a galaxy far, far away” in the Star Wars franchise
created by George Lucas. The creative design of R2-D2 was influenced by Akira Kurosawa’s 1958
feature film The Hidden Fortress, particularly Tahei and Matashichi, the two comic relief characters that
serve as sidekicks to General Makabe. See https://en.wikipedia.org/wiki/R2-D2. Legend has it that the
name R2-D2 derives from when Lucas was making one of his earlier films, American Graffiti. Id. Sound
editor Walter Murch states that he is responsible for the utterance that sparked the name for the droid. Id.
Murch asked for Reel 2, Dialog Track 2, in the abbreviated form “R-2-D-2.” Id. Lucas, who was in the
room and had dozed off while working on the script for Star Wars, momentarily woke when he heard the
request and, after asking for clarification, stated that it was a “great name” before going back to writing
his script. Id. (citations omitted).
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cannot exceed 60% of the building width. Id. § V, at 117. Second, the maximum area of
all skyline signs on a building is determined by the number and type of abutting streets.
Id. 109, 117.
In 2013, Regions Bank Corp. (“Regions”) moved its headquarters to One
Nashville Place. Shortly thereafter, Regions applied for and obtained a permit to install
two 495-square-foot skyline signs, one on the northeast facade and one on the southwest
facade. The Regions signs were installed, and they remain on the building to this day.
In January 2017, 150 4th Ave N Tenant, LLC, a workspace provider doing
business as WeWork (“WeWork”), became a tenant of One Nashville Place. On
February 12, 2017, WeWork applied for a permit to install two 45-foot-long skyline
signs, one on the northwest facade and one on the southeast facade.
The Zoning Administrator for the Metropolitan Department of Codes initially
denied the application based on a determination that the width of each sign exceeded 60%
of the facade to which it was to be attached, and the sign needed the approval of the
Downtown Code Design Review Committee (“the DRC”) because of the sub-district
where the building was located.2 Thus, WeWork made the requisite application to the
DRC. Following a review, the DRC construed the octagonal building as effectively
having four longer facades rather than eight shorter ones and determined that the signs
were within the 60% limit. Based upon the DRC’s determinations and approval, the
Zoning Administrator approved WeWork’s application and issued the permit in June of
2017. WeWork completed the installation of the signs in August of 2017.
B. Board of Zoning Appeals
Shortly after the WeWork signs were installed, Regions appealed the issuance of
the permit by filing an application with the BZA for interpretation against the Zoning
Administrator. Regions asserted that WeWork’s signs would damage Regions’ brand and,
when combined with Regions’ signs, exceed the maximum area permitted by the
Downtown Code:
[T]he juxtaposition of the existing Regions Signage and the approved
WeWork Signage on the Subject Property will create public confusion
2
In the event the approval of the signage design is required or a modification or variance from
the applicable standards is needed, applicants must submit a request to the Planning Department and the
Downtown Code DRC. See Downtown Code § I, at 14, and § V, at 104. When the subject property is
within a “redevelopment district” designated by the Metropolitan Development and Housing Agency
(“MDHA”)—as in this case—the MDHA’s Design Review Committee fulfills the role of the Downtown
Code DRC. Id. § I, at 14.
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about the relationship between Regions and WeWork. To the public, the
Co-branding of the Subject Property with skyline signs of the same size
will signal a business relationship between Regions and WeWork that, at
best, would be misleading and, at worst, would be damaging to Regions’
brand. In the worst case scenario, Regions’ significant investment in its
public brand would be diminished.
. . .
. . . . [T]he [Sign Standards] Map reveals that the portion of Printer’s Alley
abutting the Subject Property is not considered qualifying street frontage
for purposes of calculating maximum allowable skyline signage. . . . [T]he
maximum allowable skyline signage on the Subject Property is 1,440
square feet (720 square feet per Pedestrian Street multiplied by two
qualifying Pedestrian Streets). . . .
The Regions Signage currently utilizes 990 of the permitted square feet,
which means that only 450 square feet of additional skyline signage is
available for future use at the Subject Property. As shown in the Permit,
each of the WeWork signs is 45' by 11', or 495 square feet. Therefore, the
WeWork Signage, as approved, will exceed the maximum allowable
skyline signage at the Subject Property pursuant to Section V of the
[Downtown Code].
At the BZA hearing on September 21, 2017, Regions clarified that its objection
was “all about size,” and it would not oppose one “slightly smaller” sign instead of two
equally sized signs. Regions acknowledged that the Downtown Code’s sign standards
included a street type titled “Printers Alley” but relied on the Sign Standards Map, which
identified only the portion of Printers Alley between Church Street and Commerce Street
as the “Printers Alley” street type. The remainder of Printers Alley and every other alley
in downtown was unlabeled.
In addition, the homeowners’ association for the Viridian, a residential tower
across the street from One Nashville Place, submitted a letter in support of Regions’
appeal. Although the Viridian homeowners’ association did not file an appeal or
application for interpretation against the Zoning Administrator, several Viridian residents
attended the hearing. The president of the homeowners’ association advocated for the
revocation of WeWork’s permit, asserting the northwest sign exceeded the Downtown
Code’s brightness standards.
In response to the foregoing arguments, Calvin Lee, corporate counsel for
WeWork, argued that the DRC had already determined that the signs complied with the
Downtown Code. Mr. Lee engaged in the following colloquy with Board Chairman
David Ewing and Vice Chairman David Taylor:
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Mr. Lee: Well, [counsel for Regions] said that this is all about
size and if that is the case then . . . this is not the venue
or the forum to discuss that. The Design Review
Committee was the authority that looked at that and—
Chairman Ewing: Let me stop you there because you went to law school,
as I went to law school, and I said earlier it’s kind of
Marbury versus Madison. It’s here, you’re here, and
you shouldn’t assume that we don’t have jurisdiction.
Mr. Lee: We understand. And we stand by the MDHA Review
Committee’s interpretation that this is a 4-sided
building. I have their approval of our sign right here. It
was conditioned that there are no other signs to be put
up on that building. They’re only allowing four signs
because they are finding it as a four-sided building.
Mr. Taylor: I guess that the opposition, I don’t think they’re
contesting that at all. They said, in terms of the
percentage of facade that can be covered, they’re
saying that this is 60 percent. I mean they’re not
contesting that is what he said. So, their only argument
to us was that it exceeds the maximum allowed square
footage of signage for that building, which I think
deals with Printer’s Alley and whether that’s a street or
not. . . .
Mr. Lee: I understand. And the Design Review Committee
considered that fact also, and we made a presentation
at that meeting. And they decided that they accepted
our argument that there were three streets to calculate
the amount of signage on that building.
Mr. Taylor: I’m sorry, so what are you basing the three streets on?
What is your argument on it being three streets?
Mr. Lee: I don’t have that information in front of us. That was a
presentation that our signage consultant and our
designers sat with the Design Review Committee to
work out. We know that we are new to your
neighborhood and we don’t want to be intrusive. We,
in early December, reached out to the different
planning departments here. We were working with
Mr. Herbert’s department very closely; they advised us
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on the process; we went through the process in good
faith. . . .
Chairman Ewing: Let’s talk about the brightness. How many foot candles
is that sign?
Mr. Lee: That I’m not sure as well.
. . .
You know, and so it’s a little frustrating to not have an
argument about the street, which is apparently what
allows the building to have the amount of signage that
it does. . . .
After the public hearing was closed, Board Member David Harper moved for the
BZA to find that the Zoning Administrator erred by issuing the permit based on the
square footage calculation:
Mr. Harper: [T]here’s one specific piece in the Code that was in
this presentation and it’s a calculation, how much
signage is allowed on a building? I don’t care from
where it’s calculated or how you calculate what a
facade is, what is in a facade, there’s a total number
and they’re over it. And when that number was
surpassed, that’s when the error occurred. When that
number added up to be more than the maximum
number, an error occurred.
. . .
I will move that we find . . . that the Zoning
Administrator did err in issuing the permit for the
reasons I mentioned, the square footage calculations.3
The Board voted unanimously to revoke WeWork’s sign permit.
In October 2017, the Board entered a formal order, finding “that the Zoning
Administrator erred in [the] application of law with this issuance of the subject permit.”
3
Chairman Ewing also stated in his motion: “And I would like to add that it is also an error of the
Downtown Sign Code with the brightness as it reflects to a close-by residential building.”
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C. Chancery Court Decision
On December 1, 2017, WeWork timely filed a Petition for Writ of Certiorari in the
Davidson County Chancery Court, arguing that the BZA erred, inter alia, by exceeding
its jurisdiction and basing its interpretation solely on the “illustrative maps” in the
Downtown Code.
After hearing argument from counsel for both WeWork and Regions, the trial
court concluded that the Downtown Code unambiguously treated the entirety of Printers
Alley as a street:
The Court must find that the Board erred when it relied upon the color-
coded map of the street types to determine the size of the skyline signs
allowed on the property under the petitioner’s permit. The map is in
conflict with the text in the Downtown Code. Specifically, the text in
Chapter 17.37 Section V, Sign Standards, Allocation by Street Type,
allocates 720 square feet for the Printer’s Alley type street. The text of the
Downtown Code also states that Printer’s Alley will not be treated as an
ordinary alley, but will be treated differently, that is unconventionally.
Neither the parties nor the Court found text in the Downtown Code which
would remove part of Printer’s Alley from serving as street frontage.
Relying on unambiguous text in the Downtown Code at just this quoted
section, Printer’s Alley is treated as any other street frontage and it is
treated as a whole in its entirety and not in parts.
The Zoning Ordinance in Title 17 has its own rule of construction, which
states that text shall prevail over illustrations. Metro Government
anticipated that its numerous illustrations could on occasion cause conflict
between the text of the Downtown Code and the numerous illustrations.
Such a rule of construction is completely consistent with the common law
rules of statutory interpretation, which recognize and help resolve
ambiguity in the text, that is, the language of the statute or ordinance. Such
an ambiguity is not present here, because the text is clear. The problem is
caused by the illustration. Consequently, the property is allocated 2,160
square feet for skyline signage, because there’s no dispute at all that the
other two frontages, that is, Commerce Street and Fourth Avenue North are
pedestrian street frontages and they each also get, are assigned or allocated,
720 square feet for the skyline signage.
Although it ruled in favor of WeWork on the square footage issue, the trial court
found it necessary to remand to the Board the issue regarding the brightness of the
northwest sign because the Board did not articulate which standard it relied on in
determining that WeWork’s northwest sign violated the brightness standards of the
Downtown Code. This appeal followed.
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STANDARD OF REVIEW
Judicial review of a decision by a board of zoning appeals “is limited to
determining whether the board exceeded its jurisdiction, followed an unlawful procedure,
acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support
its decision.” Harding Acad. v. Metro. Gov’t of Nashville & Davidson Cty., 222 S.W.3d
359, 363 (Tenn. 2007). “In proceedings involving a common law writ of certiorari,
illegal, arbitrary, or fraudulent actions include: 1) the failure to follow the minimum
standards of due process; 2) the misrepresentation or misapplication of legal standards; 3)
basing a decision on ulterior motives; and 4) violating applicable constitutional
standards.” Id. Additionally, “[c]ourts must not ‘reweigh the evidence’ or ‘scrutinize the
intrinsic correctness of the decision,’ but independently review the record to ‘determine
whether it contains “such relevant evidence that a reasonable mind might accept as
adequate to support a rational conclusion.”’” Venture Holdings, LLC v. Metro. Gov’t of
Nashville & Davidson Cty., 585 S.W.3d 409, 417 (Tenn. Ct. App. 2019) (quoting Gulley
v. Robertson Cty. Planning & Zoning Comm’n, No. M2015-00734-COA-R3-CV,
2016 WL 2898478, at *2 (Tenn. Ct. App. May 12, 2016)), appeal denied (Sept. 18,
2019). “If ‘any possible reason’ exists justifying the action, it will be upheld.” McCallen
v. City of Memphis, 786 S.W.2d 633, 641 (Tenn. 1990).
Under a codified version of this standard, we have recognized a three-step
analysis:
The court must first determine whether the agency has identified the
appropriate legal principles applicable to the case. Then, the court must
examine the agency’s factual findings to determine whether they are
supported by substantial and material evidence. Finally, the reviewing court
must examine how the agency applied the law to the facts. This step is, of
course, a highly judgmental process involving mixed questions of law and
fact, and great deference must be accorded to the agency. At this stage, the
court must determine whether a reasoning mind could reasonably have
reached the conclusion reached by the agency, consistent with a proper
application of the controlling legal principles.
McEwen v. Tennessee Dep’t of Safety, 173 S.W.3d 815, 820 (Tenn. Ct. App. 2005)
(footnotes omitted) (citations omitted).
ANALYSIS
The parties have raised several issues for our consideration, but we have
determined the dispositive issue is whether Regions had standing to challenge the Zoning
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Administrator’s issuance of the sign permit to WeWork. We have also determined that
the illumination issue purportedly presented by the Viridian homeowners’ association
was not properly before the BZA or the trial court.4
I. STANDING
Both parties addressed this issue in their briefs. WeWork raised the issue in its
Appellee’s Brief, and Regions addressed the issue in its Reply Brief.5 WeWork’s
position on this issue is stated as follows:
The Court should reinstate WeWork’s permit for another reason. Regions
lacks standing to assert its challenge. Tenn. Code Ann. § 13-7-206(b)
provides that “[a]ppeals to the board of [zoning] appeals may be taken by
any person aggrieved . . . by any grant or refusal of a building permit or
other act or decision of the building commissioner of the municipality or
other administrative official. . . .” “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.” City of Brentwood, 149 S.W.3d at 56. That is so here. Because
Regions “is seeking to vindicate a statutory right of interest, the doctrine of
standing requires [Regions] to demonstrate that its claim falls within the
zone of interests protected or regulated by the statute in question.” Tenn.
Code Ann. § 13-7-206(b).
For its part, Regions contends that WeWork’s standing argument fails “because
Tennessee law favors interpreting standing broadly in zoning cases, such as the instant
matter.” Also relying on this court’s decision in City of Brentwood, 149 S.W.3d at 57,
Regions notes that “the extension of 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.”
When a statute creates a cause of action and designates who may bring suit,
standing is interwoven with subject matter jurisdiction and “becomes a jurisdictional
4
Our determination pretermits all other issues raised by the parties.
5
The Metropolitan Government filed a brief that states in its entirety: “The Metropolitan
Government joins the Brief of Regions Bank, particularly the portion crediting the BZA’s treatment
of Printer’s Alley (a distinctive and unique street downtown). On this basis, Metro submits that the
BZA’s decision is supported by material evidence, was not arbitrary or capricious, and should be
affirmed.” (Emphasis added). Thus, it did not address nor take a position concerning the issue of standing.
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prerequisite.” In re Estate of Smallman, 398 S.W.3d 134, 149 (Tenn. 2013). “Subject
matter jurisdiction concerns a court’s ‘lawful authority to adjudicate a controversy
brought before it’ and is conferred on a court by statute or the constitution.” Griffin v.
Campbell Clinic, P.A., 439 S.W.3d 899, 902 (Tenn. 2014). The issue of subject matter
jurisdiction “is non-waivable and must be considered by an appellate court.” In re Estate
of Smallman, 398 S.W.3d at 148. “The lack of subject matter jurisdiction is so
fundamental that it requires dismissal whenever it is raised and demonstrated.” First Am.
Trust Co. v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135, 141 (Tenn. Ct. App. 2001).
Tennessee Code Annotated §§ 13-7-206(b) and 27-8-101, respectively, empower
“aggrieved” persons to challenge the acts of zoning officials. Significantly, each statute
uses the same standard for standing. Section 13-7-206(b) authorizes appeals by persons
“aggrieved” by an act of a zoning official:
Appeals to the board of appeals may be taken by any person
aggrieved . . . by any grant or refusal of a building permit or other act or
decision of the building commissioner of the municipality or other
administrative official based in whole or part upon this ordinance enacted
under this part and part 3 of this chapter.
(Emphasis added). Similarly, § 27-9-101 authorizes appeals by persons “aggrieved” by
the final judgment of a board of zoning appeals:
Anyone who may be aggrieved by any final order or judgment of any
board or commission functioning under the laws of this state may have the
order or judgment reviewed by the courts, where not otherwise specifically
provided, in the manner provided by this chapter.
(emphasis added); see Fallin v. Knox Cty. Bd. of Comm’rs, 656 S.W.2d 338, 342 (Tenn.
1983) (recognizing that a writ of certiorari under Tenn. Code Ann. § 27-9-101 is “the
proper remedy for one who seeks to overturn the determination of a Board of Zoning
Appeals”).
“For the purposes of Tenn. Code Ann. § 27-9-101, to be ‘aggrieved,’ a party must
be able to show a special interest in the agency’s final decision or that it is subject to a
special injury not common to the public generally.” Wood v. Metro. Nashville &
Davidson Cty. Gov’t, 196 S.W.3d 152, 158 (Tenn. Ct. App. 2005).
In its application to the BZA, Regions asserted that the size and location of
WeWork’s signs would blur the relationship between Regions and WeWork and tarnish
Regions’ brand:
As an active, longtime partner in Nashville’s development, Regions is
aggrieved by the approved issuance of the Permit authorizing the placement
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of the WeWork Signage on the Subject Property. There is no relationship
between Regions and WeWork besides being co-tenants at the Subject
Property. However, the juxtaposition of the existing Regions Signage and
the approved WeWork Signage on the Subject Property will create public
confusion about the relationship between Regions and WeWork. To the
public, the co-branding of the Subject Property with skyline signs of the
same size will signal a business relationship between Regions and
WeWork that, at best, would be misleading and, at worst, would be
damaging to Regions’ brand. In the worst case scenario, Regions’
significant investment in its public brand would be diminished.
Regions maintains that it met the requirements of § 13-7-206(b) by alleging “injury to its
brand resulting from the approval of the WeWork signs.”
When interwoven with subject matter jurisdiction, standing is a constitutional
issue. See City of Memphis v. Hargett, 414 S.W.3d 88, 98 n.8 (Tenn. 2013).
Constitutional standing “is one of the ‘irreducible . . . minimum’ requirements that a
party must meet in order to present a justiciable controversy.” Id. at 98 (quoting Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
Establishing constitutional standing requires a plaintiff to satisfy three elements:
First, a party must show an injury that is “distinct and palpable”; injuries
that are conjectural, hypothetical, or predicated upon an interest that a
litigant shares in common with the general citizenry are insufficient in this
regard. [Am. Civil Liberties Union of Tennessee v. Darnell, 195
S.W.3d 612, 620 (Tenn. 2006)]. Second, a party must demonstrate a causal
connection between the alleged injury and the challenged conduct. Id.
(citing Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App.
2001)). . . . The third and final element is that the injury must be capable of
being redressed by a favorable decision of the court. Id.
Id. The plaintiff must establish these elements “by the same degree of evidence at each
stage of litigation as other matters on which the plaintiff bears the burden of proof.” Petty
v. Daimler/Chrysler Corp., 91 S.W.3d 765, 767 (Tenn. Ct. App. 2002) (citing Lujan, 504
U.S. at 560). We have determined that Regions failed to satisfy its burden of proof on the
first and third of these elements.
We shall first address whether Regions has shown an injury that is “distinct and
palpable” and not predicated upon an interest it shares in common with the general
citizenry. Indeed, brand dilution and tarnishment are recognized as legal injuries. See
15 U.S.C.A. § 1125(c). However, Regions presented no competent evidence that the
public was likely to infer a relationship between it and WeWork or that such an inference
was likely to harm the reputation of Regions’ brand.
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The presence of multiple brands on a single building is not unusual. See, e.g.,
Downtown Code § V at 103 (requiring new developments submit a “common signage
plan,” which “regulates signage for multiple businesses or tenants within one building or
complex”). The mere fact that Regions now shares the skyline of One Nashville Place
with WeWork is insufficient to infer a likelihood of injury. Moreover, their signage is not
on the same facade of the building.
As for the element of redress, the BZA’s ability to provide meaningful redress is
significantly limited based on the facts of this case. For example, the BZA does not have
the discretion to deny the permit if WeWork’s signage is within all permissible
parameters of size and design under the Zoning Code. See Harding Academy,
222 S.W.3d at 363. This is because the “denial of a zoning permit which meets all the
requirements of the ordinance when there is no valid ground for denial is arbitrary and
unreasonable.” Id. (quoting Merritt v. Wilson County Bd. of Zoning Appeals, 656 S.W.2d
846, 854 (Tenn. Ct. App. 1983)). This limitation becomes even more relevant considering
that Regions stated it would not be opposed to one “slightly smaller” WeWork sign,
instead of two signs, on the skyline of the building. Under Regions’ interpretation of the
Zoning Ordinance, WeWork would be entitled to at least 450 square feet of skyline
signage—meaning WeWork could erect a skyline sign that is only 10% smaller than
Regions’ signs. Thus, we find it implausible that one 450 square-foot sign would be any
less suggestive of a business relationship, and there is no competent proof in the record to
the contrary.
Based on the foregoing, we find Regions lacked standing under Tenn. Code Ann.
§ 13-7-206(b) to challenge the Zoning Administrator’s issuance of the sign permit to
WeWork. Accordingly, Regions’ appeal and application for interpretation against the
Zoning Administrator to the BZA must be dismissed for lack of standing.
II. THE BRIGHTNESS ISSUE
As noted earlier, the Viridian homeowners’ association attended the hearing and
requested the BZA to revoke WeWork’s permit based on allegations that the brightness
of the northwest sign adversely affected the homeowners’ use of their residential
property. For the reasons explained below, we have determined this issue was not
properly before the BZA or the trial court.
The BZA’s Rules of Procedure allow an appellant that files an appeal and
application for interpretation against the Zoning Administrator’s ruling to present its case,
which includes presenting testimony from “witnesses in support of the application.”
R. 8(G). However, the appellant must have previously filed an appeal—that is, an
application “on a form provided for that purpose by the Department of Codes
Administration.” R. 3(A). The Viridian homeowners’ association did not file an appeal or
application for interpretation against the Zoning Administrator regarding the brightness
of WeWork’s sign or any issue regarding WeWork’s signs.
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Moreover, Regions’ only comment on the brightness issue came after the president
of the Veridian homeowners’ association addressed the BZA at the hearing. The relevant
and very brief colloquy between Regions’ counsel and the BZA Chairman on the
brightness issue reads:
Mr. Murphy: Obviously, we’re concerned about [brightness] as well,
although it affects—my client is in the building so they
don’t have the brightness problem that the Viridian
folks do. The Viridian folks really have the brightness
impact more so than my client.
Chairman Ewing: So, your client, the bank, yeah, that’s not as big a deal.
Gotcha. But you still think that’s an issue?
Mr. Murphy: Obviously, it is, because it’s having an impact—it’s too much
signage and, in addition to being too much, it’s also having an
adverse impact on the surrounding neighborhood. So, I think
those are both issues.
Whether the northwest sign exceeded the brightness standards was not properly
before the BZA. Therefore, the BZA erred in considering the issue and erred in basing its
ruling, at least in part, on the brightness of the sign. Because the issue was not properly
before the BZA, it was not properly before trial court. Therefore, we reverse the trial
court’s decision to remand this issue back to the Board.
III. THE CONCURRING AND DISSENTING OPINION
In a separate opinion, our colleague concludes that Regions had standing to
challenge the issuance of the sign permit to WeWork and would hold that the
Metropolitan Board of Zoning Appeals acted arbitrarily and capriciously in revoking the
WeWork sign permit. While we respectfully disagree with our colleague’s determination
that Regions had standing to challenge the permit issued to WeWork, we agree with his
conclusion 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
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of the alley does not justify ignoring the fact that it is named “Printers’
Alley.”
Thus, if Regions had standing, we would affirm the trial court’s determination that
the Metropolitan Board of Zoning Appeals acted arbitrarily and capriciously in revoking
the WeWork sign permit and remand with instructions to reverse the decision by the
BZA.
.
IN CONCLUSION
The judgment of the trial court is affirmed in part,6 reversed in part, and this
matter is remanded with instructions for the trial court to order the BZA to dismiss
Regions’ appeal of and application for interpretation against the Zoning Administrator’s
issuance of the sign permit and reinstate the permit as issued to WeWork in June of 2017.
Costs of appeal are assessed against Regions.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
6
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. Cont’l 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. Nat’l
Bank of Newport, 839 S.W.2d 763, 765 (Tenn. Ct. App. 1992); Clark v. Metro. Gov’t of Nashville &
Davidson Cty., 827 S.W.2d 312, 317 (Tenn. Ct. App. 1991).
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