HOOVER, INC., ) ) Petitioner/Appellant ) Appeal No. ) 01A01-9506-CH-00277 v. ) ) METRO BOARD OF ZONING APPEALS, ) Davidson Chancery et al., ) County No. 92-1993-III ) Respondent/Appellee )
FILED COURT OF APPEALS OF TENNESSEE Jan. 5, 1995
MIDDLE SECTION AT NASHVILLE Cecil Crowson, Jr. Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT, PART THREE
AT NASHVILLE, TENNESSEE
THE HONORABLE ROBERT S. BRANDT, CHANCELLOR
THOMAS V. WHITE ROGER A. HORNER Tune, Entrekin & White P.O. Box 788 Twenty-First Floor Brentwood, Tennessee 37024-0788 First American Center ATTORNEY FOR RESPONDENT/APPELLEE 315 Deaderick Street CITY OF BRENTWOOD Nashville, Tennessee 37219 ATTORNEY FOR PETITIONER/APPELLANT JAMES D. PATERSON GEORGE A. DEAN 306 Court Square Parker, Lawrence, Cantrell & Dean Franklin, Tennessee 37064 200 Fourth Avenue, North ATTORNEY FOR RESPONDENT/APPELLEE 5th Floor, Noel Place WILLIAMSON COUNTY Nashville, Tennessee 37219 ATTORNEY FOR PETITIONER/APPELLANT Herbert R. Rich JAMES L. MURPHY III 213 Third Avenue, North STEPHEN NUNN Nashville, Tennessee 37201-1680 204 Metropolitan Courthouse ATTORNEY FOR RESPONDENT/APPELLEE Nashville, Tennessee 37201 PAUL JOHNSON ATTORNEYS FOR RESPONDENT/APPELLEE METROPOLITAN BOARD OF ZONING APPEALS METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
ROBERT H. JENNINGS, JR. JAMES R. TOMKINS Jennings and Tomkins Suite 2240-L&C Tower Nashville, Tennessee 37219 ATTORNEYS FOR RESPONDENT/APPELLEE EDWARD KNIGHT, BEVERLY KNIGHT, JAMES PHILLIP CARTER, MARIDEE CARTER, MARIE CARTER, WILLIAM CARTER, MARY JANE CARTER AND STOP THE QUARRY
REVERSED AND REMANDED
SAMUEL L. LEWIS,JUDGE OPINION
This is an appeal by petitioner/appellant, Hoover
Inc. ("Hoover"), from an order of the chancery court
affirming the Metropolitan Board of Zoning Appeal's
decision to deny Hoover's application for a conditional
use permit.
The pertinent facts are as follows. On 23 April
1992, Hoover filed an application for a conditional use
permit with the Metropolitan Board of Zoning Appeals
("the Board"). Hoover wanted the permit in order to
build a stone processing plant and related plants at
6682 Nolensville Road.1 To aid it in its decision, the
Board asked for comments from various public offices
and held a public hearing on 28 May 1992. At the
hearing, Hoover presented evidence to prove that its
project complied with the Zoning Regulations of the
Metropolitan Government of Nashville and Davidson
County. Opponents to Hoover's application also
presented evidence showing that Hoover had not
fulfilled the necessary requirements. Needless to say,
Hoover's application generated a great deal of public
concern and action.
At the conclusion of the hearing, the board members
voted as follows: 2 against, 0 in favor, 3 abstentions,
1 The area at issue is a AR2a zone district, an agriculture and residential area with a two acre minimum.
2 and 1 absent. Hoover needed four concurring votes in
order to prevail. Typically, there are seven persons
on the Board. Prior to the public hearing, however,
one member resigned leaving a vacancy. Of the six
remaining members, board member Hoover, president of
appellant, did not attend the hearing because of the
obvious conflict of interest and board members Spann
and Karr abstained because they felt it was
inappropriate for them to vote on the matter unless
board member Hoover resigned from the Board.
Four months before the hearing board members Spann
and Karr sent a letter to board member Hoover
explaining their position. Subsequently, they met with
board member Hoover and again explained their decision
to abstain. Despite their predisposition, both board
members attended the meeting "to allow a quorum to be
present so that the matter could be heard [on that
night] rather than lingering on for several months."
After the hearing, the Board entered an order
denying the application pursuant to section 17.16.060
of the Zoning Regulations of the Metropolitan
Government of Nashville and Davidson County Tennessee.
The applicable portion of that regulation provides as
follows:
The presence of four members shall constitute a quorum and the concurring vote of at least four members of the board shall be
3 necessary to deny or grant any application before the board. In the event that five or more members are present, failure to receive four concurring votes within thirty days of the public hearing shall be deemed a denial.
Zoning Regulations of the Metropolitan Government of
Nashville and Davidson County Tennessee §
17.16.060(A)(hereinafter Zoning Regulations). Board
members Karr and Spann knew of this rule. Thus, they
knew that Hoover could not get the permit if they
abstained because, after taking into account the
vacancy and board member Hoover's conflict, there were
only three votes left.
Hoover appealed the Board's decision to the
Davidson County Chancery Court under a common law writ
of certiorari. Later, the chancery court entered an
order allowing several private parties2, Stop the
Quarry, Paul Johnson, the City of Brentwood, and
Williamson County to join as respondents. In his
Memorandum Opinion, dated 26 February 1993, the
chancellor concluded that the Board failed to follow
procedure when it allowed board members Karr and Spann
to vote despite certain disqualifications. Further,
the chancellor concluded that the Board's failure to
make findings of fact precluded judicial review. Based
on these conclusions, the chancellor remanded the case
to the Board for a new hearing.
2 The private individuals included Edward Knight, Beverly Knight, James Phillip Carter, Maridee Carter, Marie Carter, William Carter, and Mary Jane Carter. Hereinafter, this opinion will refer to these individuals as "the Citizens."
4 All of the respondents appealed the chancellor's
decision to the Court of Appeals for the Middle
Section. At the time of oral argument, the Western
Section was sitting in Nashville. The Western Section
stated that the issue was "whether the Board failed to
make a legally effective decision regarding Hoover's
application." Hoover, Inc. v. Metropolitan Bd. of
Zoning Appeals, et. al, No. 01A01-9307-CH-00312, 1994
WL 260693, at *2 (Tenn. App. 15 July 1994). In
resolving this issue, the court only addressed those
conclusions made by the chancellor. The Western
Section reversed the chancery court and held that the
Board properly allowed both Karr and Spann to
participate in the decision. Id. In addition, the
Western Section found that it was not necessary for the
Board to make any findings of fact because "the Board
failed to obtain a concurring vote (either
affirmatively or negatively)." Id. at *3. In support
of this conclusion, the court cited, with approval,
Mayor and City Council of Baltimore v. Bierman, 50 A.2d
804 (Md. 1947) and Sokolis v. Zoning Board of Appeals
of Springfield, 157 N.E.2d 427 (Ill. App. Ct. 1959).
The Western Section found that the Board's decision was
legally effective and remanded the case to the chancery
court "to review the Board's decision on its merits."
Hoover, 1994 WL at *3.
5 On 22 February 1995, the chancellor filed a
Memorandum Opinion holding that Hoover did not
establish that the plan satisfied the general
requirements.3 In addition, the chancery court found
that Hoover's reclamation plan was inappropriate and
that Hoover did not establish that the area was
"sparsely developed."4 As a result, the chancery court
entered final judgment affirming the Board's decision.
Hoover filed its notice of appeal on 22 March 1995.
The Citizens and Stop the Quarry filed a brief
together, and the Board and the Metropolitan Government
of Nashville and Davidson County also filed a brief.
3 The "general requirements" referred to throughout this opinion are found at section 17.124.040 of the Zoning Regulations. This section states as follows:
A conditional use permit shall be granted provided the board finds that it: A. Is so designed, located, and proposed to be operated that the public health, safety and welfare will be protected; B. Will not adversely affect other property in the area in which it is located; C. Is within the provision of "conditional uses" as set out in this title; and D. Conforms to all applicable provisions of this title for the district in which it is to be located and necessary for public convenience in that location. (Prior code Appx. A § 103.21)
Zoning Regulation § 17.124.040.
4 The "specific requirements" at issue in this case are found in section 17.124.330 and include the following:
A. The location of such an activity shall be in an area sparsely developed and likely to remain sparsely developed during the length of time the sawmill, mining or quarrying activity is anticipated and no new location shall be considered within a one- mile radius of an existing quarry. B. Any permit issued under this chapter shall be based on a site plan or other documents submitted with an application which shall provide for the following: . . . . 8. Finished contours of the site after the quarrying operation has been terminated. The site shall be graded and/or filled so as to be in substantial conformity with the topography of the surrounding lands. All fill material shall be nontoxic, nonflammable, and noncombustible solids. All areas that are backfilled shall be left so that adequate drainage is provided.
Zoning Regulation § 17.124.330 (A),(B)(8).
6 All of the other parties filed notices of intent to
join in the brief of the Citizens and Stop the Quarry.
The parties presented a variety of issues.
Nevertheless, the only issue raised by a writ of common
law certiorari is whether the Board exceeded its
jurisdiction or acted illegally, arbitrarily, or
fraudulently. Hoover Motor Exp. Co. v. Railroad & Pub.
Utils. Comm'n, et. al, 261 S.W.2d 233, 238, 195 Tenn.
593, 604-5 (1953); Tenn. Code Ann. §27-8-101 (1980).
Moreover, upon a common law writ of certiorari, a court
is not to weigh the evidence. Watts v. Civil Serv. Bd.
for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980), cert.
denied, 450 U.S. 983 (1981).
During oral argument, there seemed to be some
confusion as to whether the chancery court or the
Western Section had addressed this issue. It is the
opinion of this court that neither court considered the
issue. The chancery court simply decided that it could
not review the Board's decision because it was not
legally effective without findings of fact. The
Western Section then reversed the chancery court and
held that the Board's decision was legally effective
and subject to judicial review. Up to this point,
neither court had addressed the issue of whether the
Board's decision was illegal, arbitrary, or fraudulent.
7 The decision of the chancery court, entered on 22
February 1995, addressed the issue presented by a
common law writ of certiorari, but was without affect.
To explain, the chancellor applied the correct law to
the wrong facts. In his opinion, the chancellor
correctly stated that the standard of review was
whether there was any material evidence to support the
Board's decision. In other words, if a reviewing court
finds that there was no material evidence to support an
administrative body's decision, the reviewing court
must conclude that the administrative body acted
illegally. Watts, 606 S.W.2d at 276-77; Hoover Motor
Exp. Co., 261 S.W.2d at 238-39.
In this case, the chancery court affirmed the
decision of the Board because it found that there was
material evidence to support the Board's conclusions
that Hoover's plan did not meet the general
requirements, that it did not establish that the area
was sparsely developed, and that it did not include an
appropriate reclamation plan. The problem with the
chancery court's decision is that these conclusions
were not the reasons given by the Board for denying the
permit. The denial was by operation of law. It had
nothing to do with whether Hoover had met the specific
or the general requirements.
It is the position of this court that a reviewing
8 court can not determine whether the decision of an
administrative body is supported by material evidence
unless the administrative body makes findings of facts
setting forth the reasons for its decision. We do not
express an opinion as to whether the Western Section
was correct in concluding that it was not necessary for
the Board to set out findings of facts absent four
concurring votes. Instead, it is our opinion that a
reviewing court can not determine if there was material
evidence to support a decision if the reviewing court
is unaware of the basis for the decision. Thus,
although the chancellor stated the law correctly, the
law was not applicable to the facts of this case.
The issue of whether an administrative body has
acted illegally, arbitrarily, or fraudulently is not
limited to a determination of whether material evidence
supported the administrative body's decision. An
illegal, arbitrary, or fraudulent action could be any
number of things. Examples include the following: 1)
the failure "to follow minimum standards of due
process"; 2) "the misrepresentation or misapplication
of a legal standard"; 3) the making of a decision for
"ulterior motives"; or 4) the violation of a
constitutional standard. Ben H. Cantrell, Review of
Administrative Decisions by Writ of Certiorari in
Tennessee, 4 Mem. St. U. L. Rev. 19, 28-29 (1973).
Moreover, "[w]here a petitioner for a zoning permit has
9 met all of the requirements of the applicable zoning
resolution, and where the zoning authority denies the
permit based on reasons other than the petitioner's
compliance with the resolution, the [zoning
authority's] action in denying the permit is arbitrary
and unreasonable." Roger's Group, Inc. v. County of
Franklin, No. 01A01-9110-CH-00378, 1992 WL 8505, at *5
(Tenn. App. 1992); see Father Ryan High School, Inc. v.
City of Oak Hill, 774 S.W.2d 184, 191 (Tenn. App.
1988); Merritt v. Wilson County Bd. of Zoning Appeals,
656 S.W.2d 846, 854-55 (Tenn. App. 1983). In other
words, a board member can not vote to deny an
application when the board member believes the
applicant has met the necessary zoning requirements.
Further, when an applicant has complied with the
requirements of the ordinance, an administrative body
may not deny the permit because of the concerns of
neighboring landowners. Brooks v. Fisher, 705 S.W.2d
135, 138 (Tenn. App. 1985). In this case, four of the
five board members present at the public hearing
expressed their beliefs that Hoover had met the legal
conditions required to obtain the conditional use
permit.
The most striking conduct was that of board member
Emamalie. After board member Meeks moved to deny the
motion, board member Emamalie seconded the motion and
10 voted to deny the permit. Immediately preceding the
taking of the vote, board member Emamalie stated as
Due to all the facts that have been placed in front of me here, I think Hoover, Inc., and based on the legal matters put before me and all the rest of the testimony, I think that they meet all the obligations for us to grant them this permit. But as a human body here and as a person, I feel a moral obligation to the people that live out there. And a lot of them are neighbors to me, and I think I owe them much to, as I said, disapprove this quarry.
This testimony establishes that board member Emamalie
based his decision to deny the permit on something
other than whether Hoover had met the required
conditions. Such a decision is arbitrary under the
laws of Tennessee.
Unlike board member Emamalie, board members Spann,
Karr, and Price, who also believed that Hoover had met
the Zoning Requirements, abstained from the vote.5 It
5 Prior to the polling of the board members, board member Price made the following statement:
My -- I guess my sympathies lie with the residents in this area. I think the way the law is structured, however, at the present time that the application by Hoover, Incorporated will probably be well taken. I think it's obvious by people's position that at this stage of the game, that it's not going to pass. But I think under the law in terms of requirements, that they have met the requirements. Unfortunately, the way the law, as I read it and understand it at this point, that would say to them that once they have met those general -- those specific requirements, that they would be entitled to a conditional use permit. I believe that something needs to be in the law that specifically sets out what we can consider beyond that in relation to the general requirements, because I think they are only entitled to a presumption from meeting the specific requirements. . . . . You know, my sympathies lie with you, but I believe that the state of the law as it is right now, and looking at the cases, they're probably entitled to it.
At the conclusion of the hearing, board member Spann stated as follows:
Ladies and gentlemen, I feel like with the conditions that could be placed on this, that Hoover would meet the legal requirements necessary to be granted a permit. I want to also state that that's based on my analysis of the legal interpretation. . . .
11 is the opinion of this court that we should treat these
abstentions as if they were votes to deny the
application.
Section 17.16.060 of the Zoning Regulations
provides that the Board shall adopt rules for its
meetings. There is nothing in these rules regarding
abstention. There is, however, a provision which
states: "When an issue arises which is not
specifically covered by these rules, the Board will be
governed by Robert's Revised Rules of Order." Metro.
Bd. of Zoning App. R. of P. Rule 14 (filed in the
Metro. Council Clerks Office 2 March 1992). This book
does address the issue of abstention, albeit briefly.
It states: "While it is the duty of every member who
has an opinion on the question to express it by his
vote, yet he cannot be compelled to do so. He may
prefer to abstain from voting, though he knows the
effect is the same as if he voted on the prevailing
side." General Henry M. Robert, Robert's Rules of
Order Revised, §46 p.193 (1971).
When a board member chooses to abstain from a vote,
. . . I want you to know, though, that while I feel they might legally qualify, I would be very uncomfortable having to vote for this because from a moral standpoint, I think it would be a mistake to put a rock quarry at this location. A rock quarry is unquestionably an industrial operation. It is the Metro zoning regulation, not Hoover, that's at fault for this. But the regulations are wrong.
After board member Spann finished giving his statement, board member Karr stated that he concurred in the thoughts expressed by board member Spann.
12 he creates a peculiar situation. One who abstains
knows that he might as well have voted for the
prevailing side, but for some reason chooses to keep
his decision out of the public record. Because board
members realize that an abstention is essentially a
vote for the prevailing side, it is the opinion of this
court that it be treated as such for the purposes of
determining whether an administrative body acted
illegally, arbitrarily, or fraudulently.
In the instant case, there was no prevailing side.
There was, however, a regulation allowing the Board to
deny the application by operation of law. Board
members Karr, Spann, and Price all knew of this
regulation and knew that if they abstained the
regulation would operate to deny Hoover the permit.
Treating the abstentions as if they were denials, we
must conclude that the board members acted illegally,
arbitrarily, or fraudulently because they
constructively denied the permit despite their beliefs
that Hoover had fulfilled the zoning requirements.
There is no doubt that the public opposition to the
quarry influenced the board members who abstained, but
it also seems that they chose to abstain because the
Zoning Regulations dissatisfied them. While it is not
the position of this court to state when a board member
may abstain from a vote, it is important to point out
13 the problems with allowing board members to abstain for
any reason whatsoever. To begin with, board members
who abstain because they do not believe the law is
correct are, in essence, legislating. Allowing such
action by board members is an unlawful delegation of
legislative authority. Lobelville Special School Dist.
v. McCanless, 381 S.W.2d 273, 274, 214 Tenn. 460, 464-
65 (1964). To explain, board members Karr, Spann, and
Price were able to deny Hoover a permit even though
they believed Hoover had satisfied the requirements of
the law. That is, they were able to circumvent the
dictates of the regulations and essentially amend the
law to suit their desires. While such a situation may
not be common, the facts of this case reveal that it is
certainly a possibility. A second reason for
establishing when an abstention is valid is that board
members can abstain simply to save face leaving the
final determination to the courts. This destroys any
purpose that could be set forth in favor of having such
an administrative body.
Our final point concerns the coercive manner in
which board members Spann and Karr treated board member
Hoover. Both the Zoning Regulations and the
Metropolitan Board of Zoning Appeals Rules of Procedure
address the issue of conflict of interest. The Zoning
Regulations states as follows: "Any member of the
board who shall have a direct or indirect interest in
14 any property which is the subject matter of, or
affected by, a decision of the board shall be
disqualified from participating in the discussion,
decision, or proceedings of the board in connection
therewith." Zoning Regulations § 17.16.050(C). The
board's rules further state: "Any Board member who may
have an interest in the issues in a given case shall
publicly state that fact on the record so that either
party or a member of the Board might object to his-her
further participation in the case." Metro. Bd. of
Zoning App. R. of P. Rule 6(B). Nowhere does it state
that a board member must resign when facing a conflict
of interest or that another board member may ask an
interested board member to resign. Further, there is
no evidence that board member Hoover did anything in
contravention of the regulations or rules. Therefore,
it is the opinion of this court that board members
Spann and Karr acted illegally when they told board
member Hoover that they would abstain if Hoover did not
resign from the Board.
For the above stated reason, we reverse the
decision of the chancery court and remand the case to
the chancery court for any further necessary
proceedings. Cost on appeal are taxed to
respondents/appellees.
15 ____________________________ SAMUEL L. LEWIS, JUDGE
CONCUR:
____________________________ HENRY F. TODD, P.J., M.S.
____________________________ WILLIAM C. KOCH, JR., JUDGE