Metro Nashville's Board of Zoning Appeals: Esteemed Citizenry as Sport

I love watching sports on TV. Football, baseball, basketball usually. But there are sports of another kind on Nashville’s local Metro 3 cable channel, which broadcasts the various official board meetings of municipal government.

Sometimes these meetings are as contentious as any sporting event—and hence sometimes just as dramatic, entertaining and fraught with intrigue. But unlike a sporting event, there really isn’t an objective determination of winners and losers. Board members may vote yea or nay, but their decisions are too often subjectively formed, apparently even when there are objective rules to be followed.

Take the Metro Board of Zoning Appeals (BZA). These folks—usually a contingent of five or six “esteemed citizens” (as it was explained to me at a Christmas party by a local lawyer; whatever esteemed means)—convene generally every two weeks and preside over a docket filled with Nashvillians who are seeking variances to Metro building codes in order to upgrade, or create new construction on, their property, whether it be residential or commercial or nonprofit. Appellants might also be seeking special exceptions to in-place zoning requirements.

It’s supposed to be a process that applies fairness to each and every case, but clearly if you know someone on the board, or they know you, or they’re predisposed to whoever you might be, you could get a break in the decisionmaking that otherwise wouldn’t come your way. At the same time, if board members take a dislike to you personally, or you present your case in what they might determine to be an untoward manner, you’re more than likely to have your appeal turned down. What is supposed to be a rules-guided process is very often amazingly arbitrary.

In these hearings, there’s a great deal of jabber about property setbacks and height allowances and signage and proximity to adjoining buildings and exits and egresses and collector streets and neighborhood impact, etc., etc. Aesthetics seems to also play a role here, though, again, what is more subjective than aesthetics?

In theory, it is the board’s job to factor in the city building codes to each case on appeal, and then determine whether the appellant has made a legitimate case for positive action, DESPITE THE CODE. Probably the most important factor in the board’s determinations is the fact of hardship—whether the case can be made that due to hardships in the physical particulars, the appellant, even possibly in the face of opposition from neighbors, should be granted the right to proceed with the new construction.

Let’s take a case from the meeting of April 3, 2008. Believe it or not, former U. S. senator and Senate Majority Leader Bill Frist sent a couple of his minions to the board to request permission to build fancy partial sections of wall outside his fenced-in Bowling Ave. home. Apparently Mr. Frist, since he hosted President Bush once upon a time, wants to go against code in order to construct some walls near the driveway entrance to his home. His appellants at the BZA hearing cited a need for security, and hence asked for heights in excess of code. Three local neighbors were present in opposition to this plan, citing the impact the new construction would have on safety for pedestrians on Bowling—well traveled on foot by locals—and the lack of aesthetic consistency in the neighborhood. Furthermore, Frist’s representatives, upon direct questioning, stated clearly that there was no hardship at issue here. The former senator just wanted to do this thing on the street-side of his house to provide additional security and parking for his numerous guests.

By rule—such as BZA follows rules—the request should have been denied. THERE WAS NO HARDSHIP. Mr. Frist, if he had been just another citizen, would have had to find another way around the code.

Suddenly, board member David Ewing took up the Frist cause. He cited a case from the March 20, 2008, BZA meeting where the board granted an exception to a West Nashville couple (1113 Nichol Lane) who wanted to build a new attached garage at their residence, even though, yet again, the appellants could not cite an actual technical hardship, and in fact would have simply have had to build their garage another way to be in compliance.

It is notable that Ewing fought hard for Frist. But why exactly did he? Especially since BZA “queen bee” Elizabeth Surface, who usually plays the role of the heavy and chief defender of the board’s rules—and, most of all, its mission—re-stated in no uncertain terms that the Frist case had no hardships attached to it. Another board member, Rebecca Lyford, who often gums up these meetings with dizzy questions and extraneous considerations, seemed clearly to side with Surface. With five board members present, the necessary majority needed to approve the request was in danger.

Presiding board member Dale Randels, Jr.—subbing for absent chair Jane Cleveland, who, with her brown ponytail bobbing, is usually very reliably aware of procedure and strict about the rules—hemmed and hawed and seemed to be trying to help Ewing find the necessary rationale to convince the others to approve Frist’s request.

Then Lyford, in a moment of rare prescience, asked brand-new board member, Fabian Bedne, present at his first-ever hearing, what he thought about matters. Bedne, with refreshing candor, explained that, as he understood his job—as instructed by zoning examination chief Joey Hargis—the lack of a hardship made the case moot. Not approvable.

More hemming and hawing ensued, with Ewing adamantly insisting that the board did make exceptions and that this one was reasonable. It was not clear why he took such special interest in the Frist case, but one can make unfortunate projections about that. It was especially odd for Ewing to fight for the case in the face of Surface’s obvious dim view of the merits.

Lyford hemmed and hawed. Board members stared at each other uncomfortably for a while. Ewing made a motion to approve. No one spoke up. More discussion took place. Randels, almostly tacitly, then gave his approval. Lyford finally buckled. Clearly there were now three votes for approval, but four were needed.

In a moment great with disappointment, the normally hard-ass Surface buckled as well. When Randels re-called the motion, Frist had his four votes. Bedne—trying to hold on to his integrity in what was obviously new territory for him—abstained.

This is “objective” city government at work. Don’t be fooled.

* * *

One of the BZA’s early 2008 cases involved a gentleman named Chris Mule, who had purchased an old one-story duplex at 1403 Tremont St., near Music Row, for the purposes of rehabbing and re-selling. Mule wanted to build a second floor on the duplex and re-sell the two units as modern townhomes. The structure was pretty run-down, and his somewhat alternative construction plans, though a tad edgy and differing from the typical neighbor homes, were nonetheless fairly consistent with other newer construction in Edgehill, which clearly seems to be battling between older black residents versus predominantly white Yuppie types who want to invest in existing property.

Mule averred that what he was doing would improve the look of the neigborhood, and also would infuse the property with new cash and new buyers with a vested interest in living there. These were indisuptable points. The issue at stake: His house on the east was too close to his neighbor, who showed up at the BZA meeting protesting. Point in fact, Mule’s architect had accounted for water run-off on the new proposed roof, and, in fact, the new second floor wouldn’t change the existing distance between homes though it would cast a longer shadow on the neighbor’s west windows. Mule’s soon-to-be new neighbor claimed that the proposed construction would prohibit him from putting a ladder to his house to effect repairs, but, as Mule correctly pointed out, the neighbor has had a scaffolding attached to that side of his house for apparently years, and that it was “an eyesore.” (I visited this site. Indeed, the scaffolding IS an eyesore, and there has apparently been no use for it for a good long time.)

Ewing, who happens to be African American, instead of balancing the technical merits of the case, seemed to take special exception to the fact that Mr. Mule did not consult his neighbors on either side when launching his design plan. Ewing took it upon himself to lecture Mule about common sense and good neighborliness. Even after Mr. Mule contritely apologized for the supposed lack of grace—while still asserting his rights and what seemed like a reasonable and fairly costly design and rehabilitation plan—his appeal was ultimately rejected by the board. Their reasons were a combination of technical gray area and something in the way of a slap on the wrist for Mr. Mule’s poor conduct as a human being. Very weird stuff. And not objective.

By and by, Mule also received a lecture on aesthetics from then-board member Lelia Gilchrist, telling him to re-think the design of his front porch. (I guess to conform to her notion of “good ol’ fashioned Southern hospitality.”)

Mr. Ewing fights for an exception for the Frists’ upscale home, but he gets self-righteous when a new owner wants to upgrade and improve the property in a sketchy area. Clearly, “hardships” are a matter of interpretation with the BZA.

* * *

Another recent BZA case involved one Richard Demonbreun, a lawyer and owner of a historic home in the Woodland-in-Waverly section of town. Demonbreun’s case apparently goes back several years, and the circumstances surrounding it are somewhat of a soap opera, including his temporary inability to practice law, his bankruptcy proceedings, his divorce, and neighbor complaints about how he runs his property/bed-and-breakfast as an events venue for parties, business meetings, weddings, etc.

A couple of neighbors showed up to this hearing to put the kibosh on Demonbreun’s plan to continue his business with BZA approval. The fly in that ointment is that Demonbreun has appealed the board’s rulings in the past to a higher authority, thus holding his business status in legal abeyance and allowing him to conduct business as usual until final determination of his case.

Demonbreun was very articulate—and possibly sincere—about his intentions to run a respectful business without annoyance to neighbors, but he also is burdened by the fact that his previous experience with the board has not been fruitful or pleasant, and he’s gone over their heads and into court to fight their determinations.

This case was noteworthy for the appearance of Henry Walker, local lawyer and journalist, who testified to the current state of the Demonbreun situation, though Walker was not present officially either to support or decry the appellant’s case, but only to state that there had not been recent neighbor complaints against Demonbreun and that Walker also wanted to know if he could go ahead with his plans to hold a scheduled event at Demonbreun’s establishment. Walker, being a lawyer, and an articulate and witty guy, naturally impressed the likes of Lyford and Surface, who seem to enjoy “lawyer talk” and like to make joshing jokes with and about lawyers. (For whatever their cozy little reasons.)

Demonbreun’s track record with BZA is not good, and that made it virtually impossible for him to make convincing arguments about the good-faith running of his business. Plus the soap-opera aspects of the case were extraneous verbiage that he apparently was using to evoke sympathy.

The upshot? The case was deferred for 30 days, because there was no clear majority yea or nay.

Clearly, objectivity, or even the appearance of it, never had a chance here.

* * *

The BZA exists, apparently, to respond logically and responsibly and consistently to people and their needs as citizens, residents and business owners. The irony of it all is that they are themselves in the business of making determinations that support exceptions to the city codes. There is, however, no consistency in their rationale. Hence, all you can see are the exceptions to the exceptions and the arbitrariness of their work.

The Frist case was an obvious example of their response to power: To turn down the Frist request would have been socially risky, and so they weenied out. Meanwhile, poor Mr. Mule is stuck with his Tremont building, forced to find a less progressive way to salvage his investment. In 30 days, Mr. Demonbreun learns his fate.

It’s almost as involving as March Madness.