### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decemb er 11, 2001 Session BOARD OF COMMISSIONERS OF ROANE COUNTY v. J OE PARKER, ET AL 

### . Appeal from the Chancery Court for Roane County Nos. 13,252 & 13,223 Frank V. Williams, III, Chancellor

FILED FEBRUARY 13, 2002 No. E2001-00146-COA-R3-CV

The Plaintiffs acquired a nine-acre tract of land

zoned A-1, the General Agricultural District, whic h was the leas t restric ti ve zoning district in Roane Cou

nty, and so on announced thei r intentio n to house a tiger thereon, a permissible use, whi ch motivated the County to amend its Regional Zoning Ordinance by crea

ting a new zoning dis trict, A- 2, with the permissib le use de clared

to be the keeping thereon of exotic

animals. W

ithin thre e yearsthe Plainti ffs had f ifty or mor

e exotic [Class I] anima

ls on their nine -acre

tract. They acquired three additional tracts which they r equested be rezoned A-2 in order to expand their exotic animal sanctuary. Rez oning was refused and the Plaintiff s filed sui t alle ging the refusal was arbitrary and ca pricious; the County filed suit, seeking to enjoin th e Plaintiffs from keeping more than one exotic animal - the tiger - on their nine -acretract. T he County prevailed in both actions. The judgment is reversed and the case is remanded for entry of judgment in accordance with this opinion. Tenn. R. App.P. 3; Judgment of the Chancery

Court Re

versed a nd Remande d W ILLI AM H. I NMAN , S R . J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J. and H ERSCHEL P. F RANKS , J., joined. Steven Douglas Drinnon, Dandridge, Tennessee, for the A ppellants, Joe Parker, Mary Lynn Parker and Tiger Haven. Jack H. McPherson, Jr., Kingston, Tennessee, for the Appellee, Board of Commissioners of Roane County, Tennessee. OPINION I.1 See, Park er, et al v. Bd. of C om mission ers , 2000W L 134 911 (Ten n. Ct. App. 2000 ). 2 Other than one tiger. 3 Tract s 29. 01, 11 & 12. -2- This is the second ap peal o f these consolidated cases. In the first appeal 1 we vacated the judgmentwhich (1) enjoined the Appellants from keeping e

xotic animals 2 on Parcel 22.06, (about nine acre s) an d (2) uphe

ld the refusal of

the County

to rezone adjac ent trac ts A-2, wh ich would permit the keeping of exotic animals thereon. 3 The dispositive issue on the first appeal was whether the trial court erred

in refusing to alter or amend the judgment based on newly discovered evidence that other property had been rez oned A -2. The Chairman of the Roane County Planning Commission testifie d that no pr operty in Roane Cou

nty was z oned A-2 ; after t he trial it w as discovered

that the Chairman mis-spoke, and that certain property, to wit, Parcels 38 and 39, Group B, Map 47, known as the Ladd property, had been rez oned A-2 several years previously. We held that Information about the c ircumstan ces of tha t A-2 zonin g may well

be criticalto the resolution of many of the issues raised at trial by the Appellant s. . . . [W]he ther the Board’s refusal to grant them A-2 zoning was arbitrary and capricious, whether the A- 2 zoning classification is unconst itutionally

vague and/or over

b road , and whether the Board’s refusal to rezone their prope rty to A -2 unreason ably discriminates. The exis tence of and circumstances surrounding the zoning of other property as A-2 in Roane Co unty is material t o the reso lution of tho se issues

. We declined to address other issues raised b y the Appe llants, ho lding that “ all parti es will have an oppor

tunity to appeal and raise any issue they believe appropr iate . . . ” Following remand and after extended colloquy concerning the relevancy of evidence propose d to be presented by the Appellants, the trial judge ruled:

Counsel, I am going to allow you to do this and only this, and thatis if you can show that Mr. Parker a nd his land

and his use

was simila

rly situated to that of Jane Todd’s (Ladd) and that they gave Jane Todd (Ladd) permission to do something that they did not give Mr. Parker and Tiger Hav en permi

ssion to do then I will hold that to be arbit

rary and capricious and strike the ordinance . That is all. And if you can show what Jane Todd and her property, what is going on out there , is the same o r essent

ially the s ame or sh ould be co nsidere d to be th e sameas what Mr. Parker wants to do with his land and they permitted one and did not permit the other that is arbitrary and capricious. And th at is as far as I am going to go with it. . . . I think A- 2 zo ne wa s-3- created be cause they realized that Mr. Parker had a pet tiger out there and that if he could bring one then he might bring some

others and that to avoid that situation they created the A-2 zone. In accordance with these comments a pre -t rial or der was entered which “limited the introduction of evide

nce to the facts and circumstances related to the zoning of other A-2 pr operty.” The Chancellor observed that “his task was to determine what ef fect ‘these facts’ have on

the issues as outlined by the Court of Appeals.” The principal witness at the hearing on remand was Ms. Jane Ladd Petruzzi who testified that she made application, in 1992, to have property owned by her father rezone d A-2 to e

nable her to (1) board small pets including small exotic animals, (2) use the property as a q uarantine for

the Knoxville Zoo, and (3) perhaps “big cats.” The re zoning request was approve d in May 1992. The Ladd property remains as rezoned, that is, A-2. Whe ther it was encircled with quan sitina [sic: concertina] razor wire, a s proposed, does not appear. The rezonin g reques t was app roved in M ay 1992. M s. Ladd’ s plans ne ver cam e to fruition owing to the death of her father, but her proper ty remains zoned A-2. Reitera ting his ea

rlier co mments, the

Chancellor held th at: The issue presented to the Chance ry Court on remand is straight forward. The County

would be ac ting arbitra rily or ca priciously

if it agreed to

rezone pr

o pert y upon the petition of someone who was si milar ly situated to the petitioners, but denied the petitioner’s request to rezone

their prop erty for th e sam e or simila r uses. (Emphasi s added). The question becomes: Is the use proposed b y Jane Todd Petruzzi and approved by the County Commission the sameor suffic ientlysimilar to the use being made of the pe titioners ’ land so to re nder ar

bitrary o r capri cious the

County’s r

efusal to rezone the pet itioners’ property? The court finds that the use made of petitioners’ land is significantly different from that proposed by Jane Ladd Petruzzi and that the Coun ty did n ot act arbitrarily or capric iously by denyin g petitione rs’ req uest whil e ap proving the request of Ms. Petr

uzzi. Bothuses are governe d by the pr ovisions of

the ordin ance wh

ich is reasona bly specific about

the types of

uses which are intended to be regulat ed. The a mended or

dinance provides : 1103.2.3 Permitted

uses and s tructure s. a. Animal she

lters, pr eserve s, reser

vations, k ennels , livestock pens or yards and ot her places and uses-4- in te nded for the keeping of wild, exotic, and other animals in a restrained or restricted space because of a potential threat to public health and safety. The Chancellor then f

ound that s hort term

boarding of dogs, c ats and “ small exot ics” whil e prohibiting lifetime housing of lions and tigers was not arbitrary “because such use s are not similar even though both are regulated by the same ordinance.”We note that this finding ignores much of Ms. Ladd’s testimony. The plaintiffs were enjoined from housing exotic animals on Parcels 22.06 and 29.01 [except the pet tiger] and the action of the County in refusing to rezone the adjace

nt tract w as held no t to have be en arbit

rary. Th e plaintif fs appea l. II. Because the issues presented

for review to an extent are overla pping and repetitive we will discuss them collectively. See, Hutcherso n v. Criner , 11 S.W.3d at 131, (Tenn. Ct. App. 1999). Review is de novo on the record with a presumption of the correctne ss of any factual determination un less the evidence otherwise prepondera tes. Campbell v. Florida Steel Corp. , 919 S.W.2d 2 6 (Tenn. 1996). The standar d of revi ew respecting the issuance of injunctive relief is whe ther the Chancellor erred in exercising his discretion to do so. The p rin cipal disp ositive iss ue is whe ther the defenda nt’s ref usal to re zone the

plaintiff s’ property was arbitrary, capricious and discr iminatory. Secondary issues are (1) whether the amendment to the Zoning Ordinance affected the uses of A-1 proper

ty, (2) the validity of the Amendment to the Regional Zoning Ordinance, (3) the admissibility of evid

ence, a nd (4) eq uitable e stoppel.

III. Ms. Parker purchased a nine-acr e tract, identified as Parcel 22.06, on May 24, 1991. It was zonedA-1, the least restrictive of the zoning districts. She later acquire d three a

djoining tr

acts, also zoned A-1 A few months after

acquiring the nine-acre tract, the Parke rs informed the County that they intended to house

a tiger thereon, a use permitted under the Gene ral Agricultural Classification. This precipitated

the adoption of a Resolution, No. 91-09-02, on November 19, 1991 , amending the Regional Zoning Ordinance. The amendment provided: Section 1. TitleII, Roane County Zoning Reg ulatio ns is hereby amended by inserting a new section, 1103.2, creating a new d istrict to be refer enced a s A-2, Spe cial Agr icultura l District

.-5-

Section 2. The spec ifics of t he district as follow s: 1103.2 A-2. Special Agricult ural Dist rict. This districtis intended for application to rural areas intended for special agricultural uses and uses that are

specific ally or generally similar to agriculturaluses that are or generally perceived to be a thr eat to the

social a nd econo mic health, s afety, a

nd welfa re of the county an

d its citiz ens. 1103.2.1 District determination criteria. The following criteria are provided as a guide for

determ ining the appropriateness of an A-2 designation.

a. The initial district should encompass no less tha n one acre of land but

may be incre ased in si ze in increments of less than one acre. b. The district should be adjacent to either General Agricultural or industri ally zoned properties and at least a mile from residentially zoned properties or any properties used for

residen tial pur poses tha

t has a density of four (4) dwellings per acre. 1103.2.2 Lot size a

nd struct ure heights.

a. No district shall contain les s than one (1) acre of land. b. All structures exceeding 48 feet shall be approved by the Boa

rd of Zon ing Appea

ls. 1103.2.3 Permitted

uses and s tructure s.

a. Animal she

lte r s, prese

rves, re servatio ns, kenne

ls, livest ockpe ns, or yards and other places and uses in te nded for the keeping of wild, exotic, and other animals in a

restrained

or restricted space because of a potential threat to public health and safety. b. Single family res identi al uses wh ere such use is required as an accessory use to the keeping of animals. 1103.2.4 Special exception.-6- a. Any agricultural or related use not specified above, that is determined by the planning commission to be a threat to the public health an d safety or the economic security of the county. Section 1103.2 is not readily clear, but we deduce that a new zoning district

described as “A2 Special Agricultural District” was created for special agriculturaluses in rural areas similar to agricultural uses which are perceived to be a threat to the health, safety, and welfare of the citizens of the county. (Emphasis supplied). T he k eeping of

Class I ex otic anima

l in the A- 1 zoning d

istrict wa s a non-c onformin g use permitte d pursuan

t to Tenn. C ode Ann. § 13-7-208 which pr ovides: (b) In the event that a zoni n g change occurs in any land area w here such land area was notpreviously covered by any zoning restrictions of any governme ntal agency of this state or

its political subdivisions, or where such land area is covered by z oning restrictions of a governmental agency of this state or its political subdivisio ns, and such zoning restrict ions differ from zoning restrictions imposed after the zoning change, then any industrial, commercial or business establishment in operation, permitted to operate under zoning regulations or exception s th ereto prior to the zoning change shall be allowed to continue in operation and be permitted; provided, that no ch ange in th

e use of t he land isunderta

ken by suc

h industry

or busine ss. (c) Industrial, commercial or othe r business establishments in operation and permitted to o pe rate under zoning regulations or exceptions thereto in ef fect immediate

ly preced ing a cha nge in zon ing shall be allowed

to expand operations and construct additional facilities which involve an actual continuance and expa nsion of the activities of

the industry or business which were permitted and being conducted prior to the change in zoning; provided, that ther e is a re asonable

amount of space for such expansion on the property owned by such industry or busine ss situated within the area which is af

fected by the cha

nge in zon

in g, so as t o avoid nu

isances to adjoining landowners. No building permit or like permission for construction or landscaping shall b e denied to an industry or business seeking to expand and continue activities conducted by that industry or business which were permitted prior to the change in zoning; provided, that there is a reasonable amount of space for suc h expansion on the prop erty owned by such industry or business situated within the area which is affected by the change in zoning, so as to avoid nuisances to adjoining landowne rs. IV. Analysis-7-

We first con sider the

argumen t of the Ap

pellants t hat rele vant and mate

ria l evidence was excluded on remand in direct

contravention of our initial opinion. Specifically, the Appellants say that the pre-trial order excluded: Evidence of any activity by the Roane County Planning Commission or the Roane County Commission to refine the zoning ordinance. Evidence of personal recollections of any commissioner or board membe r as an attempt to speak fo r all comm

issioners

. Evidence of the method which Kay Christophe r (pres ent zonin g office ) would use to approach the situation of zoning the Ladd-Petruzzi proper ty. Evidenc e of the purpose a nd crea tion of the

zoning or

dinance or its ame

ndments

. Evidenc e of the i ssue of va gueness o f the zon

ing ordina

nce or it s amendme

nts. The Chancellor reasoned that the case was r emanded for

a specific purpose, to-wit: to conduct a hearing on the issue of whether the County had rezoned other pr operties A-2 in a discretionary manner, as contr asted to a revers al and re

mand for a new tri al. He acc ordin gly declinedto allow the Plaintiffs to “try their cases anew” by the introduction of evidenc e that did not pertain to the issue of

other A-2 zoned properties. Tenn. Code Ann. § 27-3-128 is the statutory authority for a remand, but it does not authorize courts to encoura ge protracted

litigation by allowing piecemeal production of evidence. See, Killian v. Cam pbell , 760 S.W.2d 218 (Tenn. Ct. App. 1988). We find that the Chancellor correctly limited the evidence on remand for the stated purpose. V. The Appellan

ts next cla

im that t he ref usal of the County to rezone parcels 29.01, 12 & 16 was “an unreasonable discrimination against their property,” r elying on Shatz v. Phillips , 471 S.W.2d 944 (Tenn. 1971). In Shatz , a munici pal building inspect

or denie d Plaintiff

s’ right to use their pr ope rty for assembly, processing and storage of used and wa ste material. The zoning ordinance provided that the descri bed ac tivity was allowed on “M-2" zoned property, but not allowedon “M-1" zoned property. The zoning ordinance did not definethese designations, and the only difference in what

was allowed in them and onthem was no matter how conducted, “the storage and/or salvage of junk and other used material” was not allowed on M-1 zone d property. The Shatz Courtfound tha

t this disc riminatio n was unr easonab le, dire cted at th e Plaintif fs to their disadvantage, and based solely on the activity allowed on the property. The amendment to the zoning ordinance created, a s we have noted, a new zoning district, A2, intended for application in rural areas . (Emphasis supplied). Ms. Ladd’s property was designated as residential since it is locate d in the Roa

ne Hills Subdivision, which adjoins yet another Subdivision. This appears to b e in conflictwith the-8-

require ment that t

he A-2 z oning is ap

plicable only to rur

al area s. While th

e point is n ot cruci al, it is signific ant because of its relevancy to the issue of whethe r the County’s refusal to rezone Appellant s ’ property was arbitrary. Ms. Ladd’s property wa s rezoned A-2, which cle arly perm its the keeping

of large e xotic ani mals

. The Appellee’s argument that the Ladd property may only be used for dog kenne

ls, and the

like, alle gedly in

accordance with her testimony, cannot prevail, for at least two reasons : (1) She t

estified that she mi ght also us e the pro perty as a quarantine for the Knoxville Zoo, and m

ight keep large c ats on the

propert y, and (2 ) her sta

tements, for the purposes of these cases, are larg ely irrelevan t. We are here concer ned with an interpretation of zoning ordinances and their content, as contrasted to the reason and

manner of their enactment. District A-2 permits the keeping of Class I animals; as drafted and enacted, it cannot be limited, by the County , to a diffe rent Clas s of anima

ls such as dogs and c ats. Moreover, the Appellants’ pro pert y undisputa bly qualif ies for th e A-2 de signation . It is admittedl y rural, as that word i s c ommonly used, in contrast to the Ladd property. As a factual matter the Appellants’ property is morequalified for the A-2 classification than is the Ladd property. The discrimination is patent, but “if i t may be rested upon some reasonable basis, it is not forbidden . . .” Henry v. W hite , 250 S.W.2d 70 (Tenn. 1952). We see no reasona ble basis for the o bvious di scriminatory action of the County in rezoning the likely-unqualified property of Ms. Ladd, while refusing to rezone the

clearly qualifie d proper

ty of the A

ppellant s. As state d in Shatz , supra , “ restraints upon land use cannot be capricious or unduly discriminatory,” and, quoting fro m Yokley’s Zoning Law and Practice, “a zoning ordinance cannot unfairly di sc riminate against a particular parcel of land.” In Shatz , quoting Brooks v. Ci ty of Memphis , 241 S.W.2 d 432 (Te nn. 1951) , the Supre

me Court held: Where an affected property owner m akes an attack upon an

amendment

to a Zoning Ord ina nce, an d where municipa

l authorit y has observed all other requirements of d ue proce ss, to suppo

rt a charg e that a s to him or her, the amendment is arbitrary and confisc atory, the proper

ty owner has the burden of showing that the amendment

was not adopted in th e public interest, but was directed at him or her, to his or her disadvantage or prejudice. We think the Appellants carried the burden of proof that the ref usal of the County

to rezone their property was arbitrary and capric ious, was not fa ir ly debatable, and was directed to the Appellan ts to their di sadvanta

ge. While

it cannot reasona bly be sai d that the amendment was not adoptedin the public interest, since we are concerned with dangerous - or, at least, once dangerous animals - the tota

lity of the circumstances indicate s that the a mendment

was prima

rily dire cted to the Plaintiffs. The rezoning of the Ladd property - and its zonal continuation - is stark evidence of the fact. The County argues t hat it did not discrimin ate aga inst the Appellants because

their “busi ness and opera tion” did not exist at the time the A-2 zoning amendment was adopted, since they had only one tiger on Parcel 22.05. It is conceded that the A-2 z oning classification was-9-

provokedby the Plaintiffs’ possession of the tiger; the County argues that A-2 zoning was necessary to protect t he public, a

nd not to specifically disadva ntage the Plaintiff s. This ar

gument los es its significa nce when arr ayed against the fact that shortly after the A-2 Ame ndment was adopted the County rezoned the Ladd property to an A-2 classification which, as we have seen, clearly permitted the keepi ng of ClassI animals . The Coun ty rationa lizes its a ction re specting

the rez oning of th

e Ladd propert

y by insisting that its Co mm issi oners “considered the impact upon the community, enquiredregarding safety and other q ual ity of life issues” and granted the rezoning request. The County further

argues t h at the use of the two

propert ies [the L add prop erty and the Plainti ffs’ property] was completely different because Ms. Ladd inten ded to boa rd “dogs, cats and

small exotics”short-te

rm, as contr asted with long-term housing of big cats by the Plaintiffs. We have heretoforediscussed Ms. Ladd’s testimony and its irrelevancy; her property was rezoned A-2, for whatever reason, and, of course , may be used accordingly. VI. Appellan ts next argue that the A-1 classification permits them to use Parcel 22. 06 as they intend because

th e A-2 Regul ations do not apply to Parcel 22.06. Parcel 22.06, as we have repeat edly shown, is zoned A-1, the General Agricultural District, and a s stated, is the leas t restrictive of all the

14 distric ts. The of

ficials o f the Plan

ning Commiss i on and the Board of Commissioners of the County conceded that the mere crea tion of a new zoning district [A-2] did not abrogate t

he uses allowed on A- 1 property . (Emphasis supplied). When the Plaintiffs brought their pet tige r to Parc el 22.06, the County was galv anized t

o adopt a Resolution creating another District, A-2, a Special Agricultural District, “intended for application to rural areas . . . for special agric ultural areas that are . . . similar to agricultural uses

. . . generally perceived to be a threat to the social and economic, health, safety and we lfare of the County and its citizens.” But the question remains: Did the adoption of the A-2 Resolution change the permitted uses of A-1 property? The County officials essentially conceded that it did not. We agree. Hutcherson v. Criner , 11 S.W.3d 126 (Tenn. Ct. App. 1999) is instructive on the point. W e held that the enactment

of a zoning amendm

ent cre ating two new distri cts within a zoning classification did not remove landfills as a per

mitted use

within ano ther distr

ict. Moreover, the A-2 Resolution did not prohibit activity on A-1 property which was previous ly legal. See , Rives v. City of Clar

ksville , 618 S.W.2d 502 (Tenn. Ct. App. 1981) VII. We turn now to the insistence of the Appellants that the Amendment to theRegional Zoning ordinance is invalid because of its vagueness and over breadth. As we ruled in Hutc herson , supra , “the right of a county to enact or amend zoning regulations is based upo n powers delegat ed to it by th

e state le gislature

by specif ic enabl ing acts. State ex rel. Bro wning-Farris Indus. v. Boa rd of Comm’

rs , 806 S.W.2d 181, 187 (Tenn. Ct. App.-10-

1990) (citing Henry v. White , 194 Tenn. 192, 250, S. W.2d 70 ( 1952); State ex re l. Lightman v . City of Nashville , 166 Tenn. 191, 60 S.W.2d 161 (1933)). There isa presum ption in fa vor of the validity of an ordinance and those questioning its validity have the burden of proof. Town of Surgo insville v. Sandidge , 866 S.W.2d 553, 555 (Tenn. Ct. App. 1993) (citing Balsinger v. Town of M adisonville , 222 Tenn. 272, 435 S.W.2d 803, 805 (Tenn. 1968).” It is well se

ttle d that ordi nances a

nd statute s are va

gue and violate du e proce ss if their prohibitions are not clearly defined. H & L Messenger, Inc. v. City of Brentwood , 577 S.W.2d 444, 453 (Tenn. 1 979). If

the ordin ance is s o vague th at [per sons] of c ommo n intelli gence mu st necessa rily guess at its meaning, it cannot pass constitutional scrutiny. Davis Kidd Bookseller Inc. v. McWherter , 866 S.W.2d 520 (Tenn. 1993). Section 1103.2. of the Ordinance has already bee n exegeted. With out para phrasing , it is incomprehensible; with paraphrasing, the legislative intent adequately appears. The remainde r of the Ordinance is not beyond the ability of persons of ordinar y intellige nce to gr asp withou

t recour se to speculation. We accordingly find that the Amendment of

the Regional Zoning Ordinance is not invalid for reasons of vagueness or overbre adth. VIII. Finally, it is pertin

ent to note

th at this liti gation is concerned only with the zoning of Appellan ts’ property. The keeping of Class I [ ex otic] an imals ther

eon is con

trolled by a rigid statu tory scheme, Tenn. Code Ann. § 70-4-403, et seq ., which onerates the Tennessee Wildlife Resources Agency with the duty of permit ting and ov erseei ng the kee ping and ma

intaining o f Class I w ildlife. D oubtless in part because of this litigation, that Agency has carefully scrutinized the Appellan ts’ operation, and the facility on Parcel 22.06 meets or exceeds the requirements for c age and perimeter security. A determination of the number of Class I animals which may be housed on specific property is likewise within the prerogative and responsibility of the Tennessee Wildli fe Resources Agency. We conclude

that a discussion of the remaining issues would not be productive of any worthwhi le result

. In sum, we hold that (1) the refusal of the County

to rezone the property of the Plaintiffs from A-1 to A-2 was arbitrary and capricious, (2) the enactment

of the amendment to the Regional Zoning Ordinance is valid, (3) the Amendment did not abrogate the permitted uses of Property Zoned A-1, and (4) the injunction is dissolved. Costs are assessed to the Appellee.

___________________________________ WILLIAM H. INMAN, SENIOR JUDGE-11-