TN: Court of Appeals upholds rule prohibiting SOBs near churches
Capps v. Metropolitan Government of Nashville and Davidson County, No. M2007-01013-COA-R3-CV, (Tenn. Ct. App., Dec. 31, 2008)
Tennessee Court of Appeals upholds zoning board ruling prohibiting sexually oriented businesses from locating near churches.
The court summarized its ruling as follows:
This appeal involves a building permit that authorized interior rehabilitation of a building for eventual use as an adult entertainment establishment. A local zoning ordinance prohibits adult entertainment establishments from locating within five hundred feet of a church. The Nashville Union Rescue Mission is located directly across the street from the proposed adult entertainment establishment, and the Mission appealed the issuance of the building permit, claiming that it is a “church” within the meaning of the zoning ordinance. The board of zoning appeals concluded that the building permit was issued in error because the Nashville Union Rescue Mission ["the Mission"] is a church. The permit was revoked, and the landowner and lessee filed a petition for writ of certiorari in chancery court. The chancery court reversed the zoning board’s decision and instructed the zoning board to re-issue the permit for adult entertainment use. We vacate the chancery court’s order and reinstate the decision of the zoning board.
Capps argued that the zoning board had erred in concluding that the Mission was a church. Disagreeing, the court determined that according to the “applicable definition of church” (“a building set apart for public esp. Christian worship”–Webster’s Dictionary), the Mission should be so defined:
Chapel services are held at the Mission 365 days a year. In addition, crosses are displayed and engraved on the outside of the building. Although the Mission offers food, shelter, and other rehabilitative services to the public as well, an individual cannot take advantage of some of these services without attending chapel services. There are 13 ordained ministers on staff at the Mission, and 142,496 different individuals attended the Mission’s evening chapel services in the year prior to the BZA hearing. Approximately 120 individuals signed a petition which stated, “I attend regularly and consider the Nashville Rescue Mission my church.” Also, the Mission’s charter of incorporation, bylaws, and other documents were submitted which confirmed the religious nature of the organization. This evidence provides a reasonably sound basis for the BZA’s decision.
Capps was, therefore, improperly issued a permit to build a sexually oriented business across the street from the Mission in violation of the spacing requirements of the ordinance. In addition–responding to Capps assertion that she had a “vested interest” in the property based on the issuance of the permit–the court pointed out that the majority of the preparatory expenditures were incurred “prior to the issuance of the building permit” and that Capps, by continuing to build after being notified of the permit challenge, invested money at her own risk without acquiring a genuine “property interest.”
COMMENTS
