# FILED
February 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION AT KNOXVILLE
GREENBACK C RUSHED STONE, ) INC., ) ) Plaintiff/Appellant, ) Loudon Circuit No. 5832 ) VS. ) Appeal No . 03A01-9706-CV- 00207 ) LOUDON COUNTY COMMISSION, ) ) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF LO UDON COUNTY AT LOUDON, TENNESSEE THE HONORABLE RUSSELL E. SIM MONS, JR., JUDGE

DAVID T. BLACK KIZER AND BLACK Maryville, Tenness

ee Attorney for Appellant

DEAN B. FA

RMER HODGES, DOUGHTY & CARSON Knoxville, Tennessee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . WILLIAM H. WIL LIAMS, Sr. J. Plainti ff Greenback Crushed Stone, Inc., appeals the ju dgment o f the trial court2

upholding the validity of an amendment to the Loudon County zon ing laws enacted by Defendant/Appe llee Loudon C ounty Commi ssion. We affirm.

Greenba ckowns and oper ates a roc k quarry on B ig Hill Road in Loudo n County. The area of Loudon County in whi ch Greenback’s rock qu a rry i s located is zoned A-2, defined by Loudon County’s zoning laws as a Rural ResidentialDistrict. In distr icts zoned A-2, the subsurface extraction o f natu ral mi neral resources, such as Greenback’s rock quarry, is pe rmitte d as a special exception. Loudon County’s zoning laws also permit “accessoryuses which are customar ily incidental to t he permi tted principal uses” in A-2 districts.

In June 1996, Greenback submitted a r equest for a special ex ception to Loudon County’s zoning laws in whi ch it sought permission to operate an asphalt plant as an accessory use to its rock quarry. In April 1995, Loudon County’s Board of Zoning Appeals had denied a similar reques t submitted by Greenback. Thi s time, in response to Greenback’s request, the Loudon County Regional Planning Commissionrecommended to the County Commission that it enact legislation specifying that concrete and aspha lt plants are not permitted accessory uses in districts zoned A-1 or A-2. Consequently , the County Commission published a notice of a public hearing to discuss an amendment which provided that “[c]oncrete and asphalt plants/facilities are not c onsidered an accessory use“ to the “[s]ubsurface extrac tion of natural mineral resour ces.”

In Au gust 1996, the County Commis sion held a public hearing in which area residentsparticipated, as well as representatives of Greenback and the Office of Planning and Community Development. A t the hearing’s conclus ion, the County Commission voted to pass a resolution adopting the amendment by a 6-3 vote.

Greenback subsequently brought this action for a dec laratory judgment

in which it challenged the validity of the zoning am endment enacted by the County C ommission. After filing its answer,the County Commission moved for summary judgment contending,3

inter alia , that its passage of the zoning amendment was a le gislativ e ma tter over which the trial court had limited review and that, as a matter of law, the Commission’ s action withstood such scrutiny. The tr ial court agreed and en tered a judgment upholding the validity of the chall enged zoning amendment. This appeal followed.

This court recently summari zed the standard of review applicable in cases

wher e courts are asked to rule on the v alidity of a zoning ordinance or amend ment. In Family Golf of Nashville, Inc. v . Metropolitan Government of Nashville andDavidson County , No. 01A01-9612-CH-00557, 1997 WL 625281 (Tenn. App. Oct. 10,1997), a case involving the validity of an amendment to the defendant’s zoning or dinance adopted by its Metr opolitan Council, we stated: Local legislative bodies have broad discretion in

enacting or amending zoning ordinances. When the vali dity of a zoning ordinance is fairly debatable, the courts may not substitute their judg me n t for tha t of the l ocal legis lative bod y. A zoning ordinance should be found valid unless it is “c learly ar bitrary, capricious, or unreasonabl e, having no substan tia l relationship to the public health, safety, or welfare, or plainly contraryto the zoninglaws.” McCallen v. City of Memphis , 786 S.W.2d 633, 640 (Tenn. 1990). Be cause the “rational basis” test is the most deferen tial form of judic ial scruti ny, a reviewing court should uphold a challenged zoning ordinance if there is any possible reason that can be conceiv ed to justify it. Fallin v. Knox County Bd. of Comm’rs , 656 S.W.2d 338, 343-44 (Tenn. 1983). Family Golf , 1997 WL 625281, at *5.

At the August 1996 public heari ng on the zoning amendment, several residents w ho lived near the rock quarryexpressed their concer n over permitting an industri al use like an asphalt p lant in a rural area characterized primarily by residential and agricultural uses. Residents were concerned that the oper ation of an asphal t plant w ould result in an in crease in large truck traffic through residential streets, dust emissions from the pla n t itself, and wat

er runof f containing plant wastes. Jim Beel er, a salesman for a manufacturer of furnaces used in asphalt plants, spoke on behalf of Greenback. Beeler stated that dust emissions from asphalt plants were now kept to a minimum by modern technologies. As forthe waste wa terrunoff, Beeler explained that as phalt trucks would be c leaned at the asphalt plant by a system w hich separated the oils from the water. The waste water then1 Cont rary to Gree nback ’s conten tion, the zonin g am endm ent at issu e in this cas e did not tota ll y

exclude aspha lt plants from Loudo n Cou nty. Cf. Robertson County v. Brownin g-Ferris I ndus. , 799 S.W.2d 662, 666 (Tenn. App. 1990)(inval idati ng ordinance i nsofar as it totall y excluded sanitary landfills fr om coun ty). W e also reject

Greenback’s content ion that the Cou nty Co mm issio n’s enactment of the zoning amendment i mpaired a vested right of Gr eenba ck. See State ex rel , SCA Chemical Waste Servs. v. Koni gsb erg , 63 6 S.W .2d 430, 4 37 (Te nn. 1982 ); Schneider v. Lazarov , 390 S.W .2d 197, 200-01 (Tenn . 1965). 4 wou ld go into nearby concrete settli ng ponds. Although he indi cated that the concrete settling ponds would be designed for flood situations, Beeler acknowledged that accidents
wer e possible. Beeler also di d not dispute the residents’ claims that the asphal t plan t
wou ld increa se the truck traffic through the area. The Director of the Office of Pl anning and Community D evelopment indicated that, if the zoning amendmen t was passed, asphalt plants still would be permitted uses in M-1 in dustrial districts.

Given the argum ents and evidence before t he Loudo n County Co mmissio n, we conclude that the issue of whether the zoning amendment was in the community’s best interest was “fairly debatabl e.” The County Commission well may

have concluded that an asphalt plant was an in dustrial use which was not compati ble with the residenti al and agricultural uses of the A-2 Rural Residential District. Inasmuch as a rational basis could have existed for the approval of the amendment, we hold that the Commissi on’s action was valid. See Carter v.Adams , 928 S.W.2d 39, 41 (Tenn. App. 1996); see also Family Golf , 1997 WL 625281, at *6.

In opposing the Commission’s motion forsummary judgment, Greenback submitted the affidavits of industry consultants and one of Greenback’s owners, w ho attested to the cleanliness and safetyof modern asphalt plants, as w ell as the physical and financial impr acticality

of locating an asphalt plant i n the areas currently z oned M-1. 1 On appeal , Greenback contends that these affidavits demonstrated the exi stence of disputed issues of fact which precluded the grant of summary judgment. In our v iew, however , these affidavits further illustrate the “fairly debatable” n ature of the issue before the County Commission and, thus, we decline to substitute our judgment for th at of the Commission.

The ju dgment o f the tria l court is h ereby aff irmed. Co sts on app eal are ta xe d t o Greenba ck, for whi ch execut ion may iss ue if nec essary.5 HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

WILLIAMS, Sr. J.