HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.
This appeal concerns a billboard permit. The petitioner billboard owner applied to the respondent city for a permit to tear down and replace a grandfathered billboard. The city granted a permit for an indirectly illuminated billboard. The owner then built a billboard with a digital display face. The city revoked the owner's permit because, inter alia, the sign actually constructed varied from the permit. The owner appealed to the city's board of zoning appeals, which upheld the city's revocation of the billboard permit. The billboard owner filed a petition for a writ of certiorari, seeking judicial review of the
Petitioner/Appellant Lamar Tennessee, LLC ("Lamar") is engaged in the business of outdoor advertising, i.e., billboards, throughout Tennessee, doing business as Lamar Advertising of Tennessee.
The billboard at 1804 Old Fort Parkway was first erected in September 1984. At the time, it was apparently outside of Murfreesboro's city limits. The structure consisted of a monopole support beam with two billboard faces at the top of the pole. The billboard faces were indirectly illuminated with exterior lights positioned to shine on the billboard faces at night. At some point, the City apparently annexed or took in the land on which the sign was located. Later, the City enacted zoning and sign ordinances. The Old Fort Parkway billboard did not conform to the new ordinances, but it was "grandfathered"
On May 17, 2004, Lamar submitted an application to the City's Building and Codes Department for a permit to demolish and rebuild the Old Fort Parkway billboard.
After some delay, on October 19, 2004, the Director of Murfreesboro's Building and Codes Department, Betts Nixon ("Director Nixon"), sent a letter to Lamar informing it that a permit would issue for the project. The letter, however, contained a caveat; the new sign could not overhang a nearby right of way and could not contain moving devices. In the letter, Director Nixon pointed out to Lamar that trivision billboard displays were prohibited by City ordinances and confirmed a prior conversation with Lamar's agent in which Lamar's agent stated affirmatively that the new billboard would not have trivision faces.
On November 12, 2004, the City issued permit number S5153 ("first permit") to Lamar. The permit specified that it was for construction of an "Indirect Illuminated Billboard" and described the work as follows: "Remove Existing Monopole Sign. Replace With New 10'6" X 36' (378 Sq. Ft.) Monopole/Billboard Sign Per Plans Submitted." Under a section titled "Special Conditions," the permit referenced Director Nixon's prior letter to Lamar and reiterated the conditions in the letter, namely, that the new sign must not overhang the nearby right of way and must not contain moving devices.
For reasons not apparent in the record, Lamar allowed the first permit to expire. In a letter dated March 24, 2006, Lamar requested renewal of the first permit, attaching a photocopy of the first permit and stating: "Lamar desires to perform the exact work as outlined in our permit." In response, the City issued permit number SN-06-1059 ("second permit") to Lamar on April 12, 2006. As with the first permit, the second permit was for demolition of the existing structure and construction of a "New 10'6" x 36' Billboard Per Plans Submitted And Notes Attached." The referenced notes included the same conditions specified in Director Nixon's October 2004 letter, that the new sign must not overhang
For reasons again not in the record, the second permit was allowed to expire on October 12, 2006. The next month, the City issued to Lamar permit number SB-06-6397 ("third permit"). The third permit had the same specifications and conditions. The third permit also attached photocopies of Director Nixon's October 2004 letter, the March 2006 letter in which Lamar requested renewal of the first permit, and the first permit itself.
After obtaining the third permit in November 2006, Lamar began demolition of the Old Fort Parkway billboard. By February 20, 2007, demolition of the existing structure was complete. The next day, the City's Building and Codes Department sign inspector approved the footing for the new billboard structure. The new structure was built, and at some point, Lamar erected an indirectly illuminated billboard panel on one face of the new billboard, as specified in the permit.
In the meantime, the Building and Codes Department conducted a study on electronic signs focusing on the feasibility of regulating their high intensity brightness and rapidly changing imagery. The study ultimately concluded that such regulation was not feasible and recommended a prohibition on all electronic message signs. After receiving the results of the study, on January 25, 2007, the City enacted a moratorium on electronic message center signs.
On March 3, 2007, Lamar mounted a display on the other face of the newly constructed billboard on Old Fort Parkway, utilizing newer technology, a digital display. The digital display on the billboard was an internally illuminated electronic device, much like a television screen, that permitted multiple static image advertisements to be displayed in three, six, or ten-second intervals.
On March 13, 2007, Lamar activated the Old Fort Parkway billboard with the digital display. The City's sign inspector immediately noticed the digital display on the billboard and reported it to the Building and Codes Department. Discussions ensued between the City and Lamar, with no resolution of the dispute.
The City then revoked Lamar's third billboard permit pursuant to section 25¼-20(I) of the Murfreesboro City Code,
On June 27, 2007, the BZA conducted a hearing on Lamar's appeal. The documents submitted at the hearing included photocopies of the permits, the correspondence between Lamar and the City, and photographs of the billboard with digital display. The BZA then voted unanimously to dismiss Lamar's appeal.
On August 22, 2007, Lamar filed a petition for a writ of certiorari in the Rutherford County Chancery Court ("trial court"), seeking judicial review of the billboard permit revocation. The petition named the City and the BZA as respondents (collectively, "Respondents"). In the petition, Lamar alleged that the Respondents exceeded their jurisdiction and acted arbitrarily, capriciously, and illegally in revoking the permit.
The writ was issued and the administrative record was filed. Thereafter, the Respondents answered Lamar's petition and denied the allegations.
Subsequently, the BZA filed a motion to supplement the record to include engineer certified drawings purportedly showing that Lamar's billboard as actually constructed varied significantly from the plans submitted with Lamar's application for the first permit. The trial court denied the motion on the basis that the limited scope of review in writ of certiorari proceedings precluded such supplementation of the record.
After a hearing on Lamar's petition, the trial court issued a written order on June 15, 2009. In the order, the trial court concluded that the BZA acted within its authority in upholding the permit revocation because Lamar's billboard permit did not cover the digital display that Lamar included on the billboard that it built. The trial court stated:
Thus, the trial court determined that the billboard permit issued to Lamar covered only an indirectly illuminated billboard
On appeal, Lamar argues that the BZA erred in upholding the permit revocation, and that the trial court erred in upholding the BZA ruling. Lamar also contends that it is entitled to protection under Tennessee Code Annotated § 13-7-208 because its billboard is a preexisting nonconforming legal use. Pursuant to section 13-7-208, Lamar asserts that it was entitled to demolish, rebuild and expand its billboard operation on Old Fort Parkway regardless of any provision to the contrary in the City's ordinances.
The Respondents argue on appeal that the trial court erred in denying their motion to supplement the record.
In certiorari proceedings, reviewing courts apply a very limited standard of review. State ex rel. Moore & Assocs., Inc. v. West, 246 S.W.3d 569, 574 (Tenn.Ct. App.2005). The decision of the lower tribunal will be set aside only if the reviewing court concludes "that [the] decision maker exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support its decision." Id. (citing Petition of Gant, 937 S.W.2d 842, 844-45 (Tenn.1996)). Thus, the reviewing court is not permitted to "(1) inquire into the intrinsic correctness of the lower tribunal's decision, (2) reweigh the evidence, or (3) substitute [its] judgment for that of the lower tribunal." Robinson v. Clement, 65 S.W.3d 632, 635 (Tenn.Ct.App.2001) (citations omitted). This limited standard of review applies to both the trial court and to this Court. Wright v. Tenn. Peace Officer Standards & Training Comm'n, 277 S.W.3d 1, 8 (Tenn.Ct.App.2008) (citing Ware v. Greene, 984 S.W.2d 610, 614 (Tenn.Ct.App.1998)).
We review the trial court's decision to deny the introduction of new evidence to supplement the record under an abuse of discretion standard. Weaver v. Knox County Bd. of Zoning Appeals, 122 S.W.3d 781, 784 (Tenn.Ct.App.2003) (citing Martin v. Martin, 755 S.W.2d 793, 797 (Tenn.Ct. App.1988)).
Lamar argues that Respondents exceeded their authority and acted arbitrarily, capriciously, and illegally by revoking Lamar's permit pursuant to the City's ordinances when Lamar had an absolute right to demolish and rebuild the Old Fort Parkway billboard under the Tennessee Code Annotated. In support of its argument, Lamar points out that billboards, including digital billboards, were not prohibited by the City's ordinances at the time and place that the Old Fort Parkway billboard was first erected. As such, Lamar contends that under the grandfather statute, Tennessee Code Annotated § 13-7-208(b)(1), Lamar was entitled to continue its billboard operations at the Old Fort Parkway location. Moreover, Lamar contends that under Tennessee Code Annotated § 13-7-208(d) Lamar was entitled to tear down and rebuild the billboard so long as the use of the land did not change.
Citing Tennessee Code Annotated § 13-7-208(c), Lamar maintains that it was entitled to expand its operations at the Old Fort Parkway location and suggests that the statute impliedly authorizes advances in modern technology within the rubric of expansion. Analogizing the change in billboard faces to the change from wooden support beams to steel support beams, Lamar argues that the digital sign face is
In response, the Respondents argue that the revocation of Lamar's permit was lawful because the permit covered only an indirectly illuminated billboard face, and the digital display billboard Lamar actually erected was not within the scope of the permit. Consequently, the Respondents assert, reference to Tennessee Code Annotated § 13-7-208 is unnecessary. In the alternative, citing section 13-7-208(b)(2),
It is undisputed on appeal that, for Lamar to demolish and rebuild a preexisting and nonconforming billboard protected under Tennessee Code Annotated § 13-7-208, it needed to obtain a valid permit from the municipality in which the billboard is located, here, the City of Murfreesboro. See Universal Outdoor, Inc. v. Tenn. Dep't of Transp., No. M2006-02212-COA-R3-CV, 2008 WL 4367555, at *8 (Tenn.Ct.App. Sept. 24, 2008) (referencing Outdoor W. of Tenn., Inc. v. Johnson City, 39 S.W.3d 131 (Tenn.Ct.App.2000)); see also Tenn. Dep't of Transp. v. Thomas, No. W2008-00853-COA-R3-CV, 2010 WL 1687731 (Tenn.Ct.App. Apr. 27, 2010). To that end, Lamar submitted a billboard application to the City, attaching an engineer certified plan for an illuminated trivision billboard. The permit ultimately granted by the City provided for construction only of an "Indirect Illuminated Billboard." It is also undisputed that the billboard Lamar constructed included a digital display on one face rather than the permitted indirectly illuminated billboard face. Thus, the billboard constructed by Lamar was not within the description on the City permit issued to Lamar.
Lamar argues that, under Tennessee Code Annotated § 13-7-208, it is allowed to tear down and reconstruct its grandfathered billboard.
Lamar argues that the digital display on the Old Fort Parkway billboard is not a significant deviation from the permit that was issued; it simply allows Lamar to continue its business, as specifically allowed
It is undisputed on appeal that, for Lamar to tear down and reconstruct its nonconforming but legal billboard under section 13-7-208, it must first obtain a valid permit from the municipality. Lamar argues in essence that it may withhold from its City permit application its intent to put a digital display on the newly constructed billboard, and then upon revocation of the permit for having a digital display, it should be allowed to argue that the City must accede to having a digital display on the new billboard.
This argument is without merit. Had Lamar disclosed to the City its intent to place a digital display on the reconstructed billboard, and had the City then denied a permit on that basis, Lamar could argue to a reviewing court that the City is required to issue it a permit for a billboard with a digital display. However, Lamar chose not to disclose this crucial information in its permit application. The City was entitled to this information in making its decision on Lamar's permit application, and can validly revoke Lamar's permit on the grounds that the billboard that was constructed was not as described in the permit that was issued. Thus, we do not reach the issue of whether Lamar would have been entitled under section 13-7-208 to a permit for a billboard with a digital display had it disclosed this information to the City in its permit application.
This holding pretermits all other issues on appeal.
The decision of the trial court is affirmed. The costs on appeal are taxed to the Respondent/Appellants Lamar Tennessee, LLC and TLC Properties, Inc., and their surety, for which execution may issue if necessary.
The Plaintiff/Appellant Lamar Tennessee, d/b/a Lamar Advertising of Tennessee and TLC Properties, Inc. filed a Petition for Rehearing. Upon due consideration, the petition is denied. Costs are taxed to Plaintiff/Appellant.
T.C.A. § 13-7-208(b)(1) (2009 Supp.).
T.C.A. § 13-7-208 (2009 Supp.).
MURFREESBORO, TENN., CODE § 25¼-20(B) (2007). We note that Lamar applied for the permit in 2004, and it is unclear from the record whether the provisions of section 25¼-20(b) were in effect at the time.
T.C.A. § 54-21-102(6) (2008).
T.C.A. § 13-7-208(b)(2) (2009 Supp.).