### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE September 7, 1999 S ession CHARLES DALLAS CAUTHERN, ET AL 

### . v. CITY OF WHITE BLUFF, TENNESS EE
Appeal from the Chancery Court for Dickson County No. 4820-97 Leonard W. Martin, Judge

No. M1998-00991-COA-R3-CV - Filed June 27, 2002

This appeal stems fro

m two landowners’ efforts to chang e the zoning class

ification of their

property from residential t o commercial and industrial. After

the White Bluff Tow

n Council denied the

ir request, the landowners filed a petition fo r writ of common-la

w certiorari in

the Chancery Court for Dickson County alleging that the council’s action was invalid because one council member who had recused himself from voting on t he proposed zoning change actively opposed their request and caused another council

member to recuse

himself. The trial

court, sitting witho

ut a jury, denied the lando w ners’ petition, and the landowners have appealed. Treating the petition as a complaint of declaratory judgment, we have determined that the effectiveness of the council member’s recusal is a nonjusticiable political question. Acc ordingly, we affirm the trial court’s conclusion that the landowners were not entitled to judicial relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W ILLIAM C. K OCH , J R ., J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLIAM B. C AIN , J., joined.

Kevin T. Sommers, Kingston Springs, Tennessee, for the appellants, Charles Dallas Cauthern and Carolyn Sue Cauthern. Stan Reynolds, Dickson, Tennessee, for the appellee, The City of White Bluff, Tennessee.
OPINION

Charles Dallas Cauthern and Carolyn Sue Cauthern own lots 34, 35, and36 of the Howell subdivision in the City of White Bluff. Their home at 1020 Oak Drive is on lot 35, and lots 34 and 36 are on either sideof lot 35. All three lots are zoned R-1 (residential), as is every lot on Oak Drive. The Cautherns’ pr operty isbounded on the west and north by the lumber cutting operation of World Wide Woods, Inc. The company’s property on the west side of the Cautherns’ pr

operty1 The appellate c ourts hav e repeated ly pointed out that an act ion for declarator

y judgment, rather

than a peti

tion for common-law writ of ce rtiora ri, i s the only pr

oper vehicl

e forobtaining judicial review of a local legislative body’s decision not to am end a zo ning ord inance. Fallin v. Knox County Bd. of Commr’s , 656 S.W.2d 338, 342 (Tenn. 1983); Cato v. Montgomery County Bd. of Commr’s , No. M 2001- 01846 -COA -R3-CV , 2002 T enn. Ap p. LEX IS 369, a t *3 n.1 (May 23, 200 2); Day v. City of D echerd , No. 01A01-9708-CH-00442, 1998WL 684533, at *1 (Tenn. Ct. App. Jul y 1, 1998) (No Te nn. R. A pp. P. 11 application filed). Like the courts i n Fallin , Cato , and Day , we will r each the meri

ts of the landowners’ appeal in this case by tre a ting thei r petit ion for writ

of common-law certi

orari as a complaint f

or declarato ry judgm ent. -2- is zoned industrial.

Even though the co

mpany’s property

to the north of the Ca

utherns’ proper

ty is zoned residential, logging is permitted on this property as a prior nonconforming use.

The Cautherns became unhappy with havinga sawmill so close to their home. Accordingly, they tentatively agr eed to sell their three lots to World Wide Woods. The sale was contingent on rezoning lot 35 to C-1 (commercial) and lot 36 to I-1 (industrial). Accordingly, the C autherns appliedto the White Bluff Plannin g Commission to have lo

ts 35 and 36 rezone

d. Following a public hearing, the planning commission recommended approval of the requested rezoning.
Next, the Cautherns requested the White Bluff Town Council to enact an ordinance rezoning their property. During the public hearing, Eric Tidwell, a member of the town council, announced that he intended to recuse himself from voting on the Cautherns’ request because he lived near their pr operty and was biased ag

ainst any zoning c

hange. Following his

announcement, Mr

. Tid wel l spoke against the zoning change and called on another co uncil me mber, Mack Benne tt, to recuse himsel f as well. Mr. Bennett had previously done survey work for World Wide Woods and ha d approved the Cautherns’ re

quest when he was a member of the planning commission. Mr. Benn

ett acceded to Mr. Tidwell’s request and recused himself.

The three remaining members of the tow n council unanimously voted against rezoning the Cautherns’ property. They based their decision on three factors. First, they feared that

rezoning the Cautherns’ property might be construed as illegal “spot zoning” by a reviewing court. Second, they
were concerned that rezoning the Cautherns’ pr oper ty would increase logging activity and bring lumber cutting operations closer to the other residents on Oak Drive. Finally, they determinedthat lot 35 could not be zoned commercial because it was not served by a sanitary sewer.

The Cautherns fileda petition for common-law writ of certiorari 1 in the Chancery Court for Di ckson County alleging, am ong other things (1)

that the town counc

il arbitrarily fa

il ed to giv e consideration to t

he evidence in

favor of rezoning their property, (2) that Mr. Tidwell’s continued opposition to their request for rezoning“invalidated” th e vote, (3) that Mr

. Bennett was “wrongfully required” to rec use himsel f, and (4) that White Bluff has acted arbitrarily and capriciously by allowing industrial development to surroundtheir property bu t refusing to rez

one their property for its highest and best use

. The trial court d

enied the Cauth

erns’ petition on the grounds that the Council did not act illega lly, ar bitrarily, or cap riciously when it de

nied the Cauthern

s’ request to rezone their lot

s. The Cautherns n

ow appeal from th

is judgment.-3- II. T HE R OLES P LAYED B Y M ESSRS . T IDWELL AND B ENNETT
We first take up the two related issues regarding the pa rticip ation of Messrs. Tidwell and Bennett in the town council’s consideration of the Cautherns’ rezoning request. The C autherns arg ue that Mr. Tidwell’s vocal opposition to rezoning their property after he recused himself from voting
on their request and his request that Mr. Bennett likewise recuse himself somehow invalidated the council’s decision. These arguments reflect a funda

mental misconcep

tion regarding the

courts’ role when asked to rev

iew legislative de

cisions. Amending a zoning ordinance is a legislative act. McCallen v. City of Memphis , 786 S.W.2d 633, 639 (Tenn. 1990) ; Family Golf of Nashville, Inc. v

. Metro. Gov’t of Na

shville , 964 S.W.2d 254, 258 (Tenn. Ct. App. 1997). The procedures adopted by a legislative body for the conduct of it s business and its decisions regarding a particular legislative issue are not subject to the same standard of review routinely used

to review the fairness of judicial or administrative proceedings. In judicial anda dministrati ve proceedings, the litigants are entitled to the cold neutrality of an impartial tribunal. Davis v. Liberty Mut. Ins. Co. , 38 S.W.3d 560, 564 (Tenn. 2001) (judicialtribunal); Martin
v. Siz emore , No. M 1997-00203-COA-R3-CV, 2001 WL 950190, at *6 (Tenn. Ct. App. Aug. 22, 2001) (No Tenn. R. App. P. 11 application filed) (administrative tribunal); Kinnard v. Kinnard , 986 S.W.2d 220, 227 (Tenn. Ct. App. 1998) (ju dicial tribunal). Thus, judges and members of administrative tribunals must step a side when their imp

artiality might reasonably be questioned. Chumbley v. People’s Bank & Trust Co. , 165 Tenn. 655, 659, 57 S.W.2d 787, 788 (1933) (judges); Tennessee Cable Television Ass’n v. Tenne sse e Public Serv. Comm’n , 844 S.W.2d 151, 164-65 (Tenn. Ct. App. 1992).

The same cannot be sa

id for the legisl

ativ e arena. Persons seeking essentially legislative decisions from leg isl ative bodies are not entitled to the same degree of impartiality. Members of leg islative bodies are not acting like judges when they consider a proposed change in a n existin g zoning ordinance. As this court has p ointed out: Legislators,

however, do w hat leg islators do; they lis ten to their constituents; they test the wind; they try t o plea se as many people as possible, consis

tent with the consti

tutio n and good conscience. And they are not to be condemned f

or doing so. That is their job. Day v. City of Dec

herd , 1998 WL 684533, at *3.

The question of

recusal by membe

rs of local legisla

tive bodies in

the context of ame

ndments to a zoning ordinance is not new. Approximately twenty years ago, l andowners who were unsuccessful in having their property rezoned challenged the le

gislative body’s de

cision on the basis th at three of the local legislators were biased against their proposal for political reasons. Sensing-4-

the futility of challenging the decision on the legislators’ fai lu re to recuse themselves, the landowners argued that

the proceeding was “quasi-judicial” and, therefore, that they were entitled to an impartial hearing based only on the facts presented to the legislative body. This court rejected the characterization of the proceeding as “quasi-judicial” and upheld the loca l le gislative body’s decision. Fiser

v. City of Knoxville, 584 S.W.2d 659, 661 (Tenn. Ct. App. 1979). The courts cannot inquire into the motives or me thods of the local l

egislative body in m

atters such as t

his. White v. Henry , 199 Te nn. 219, 230, 285 S.W.2d 353, 358(1955) ; Davidson County v. Rogers , 184 Tenn. 327, 333-34, 198 S.W.2d 812, 815 ( 1947); Soukup v. Sell , 171 Tenn. 437, 441, 104 S.W.2d 830, 831 (1937). Thus, a legislative action by a local legislative body will not be second-guessed by the courts simply because one or m ore of the legisla

tors were biased

either for or ag

ainst the proposal under consideration.

The White Bluff Town Council’s decisions regarding amendments to its local zoning ordinance are essentially p olitical questions.

Unless the town cou

ncil violates the to

wn charter, sta

te law, or the state or federal constitutions, it’s actions are not subject to judicial review. While Tenn. Code Ann. § 12-4- 101(c)(3)(A) (1999) contains rules governing the conduct of members of local governing bodies who have a direct interest in a public contract,

we can find no sta

tute or other rule
o f law forbidding members of a town council who have recused themselves from consideri ng a change in a tract’s zoning classification from lobbying other council members either in favor of or against the proposed zoni

ng change. Thus, n

either Mr. Tidwe

ll’s conduct afte

r he recused hims

elf
nor Mr. Bennett’s dec

ision to recuse hims

elf or the effects of

their actions on th

e remaining counc

il members are reviewable by the courts. The Cautherns’ remedy is at the ballot box.

III. T HE A DEQUACY OF THE B ASIS FOR THE T OWN C OUNCIL ’ S D ECISION
The courts have consistently used a deferential standard to review a local legislative body’s enactment

or revision of its zoning ordinance. Because local legislative bodies have broad discretion in zoning matters, Family Golf of Nashville, Inc. v. Metropolitan Gov’t , 964 S.W.2d at 260 , the courts decline to second-guess a decision either to approve or disapprove an amendment to a zoning ordinance as long as the decision has some conceivable , appropriate

basis to justify it, Fallin v. Knox County Bd. of Commr’s , 656 S.W.2d at 343- 44, or if the issue is fairly debatable. Keeton v. City of Gatlinburg , 684 S.W.2d 97, 98 (Tenn. Ct. App. 1984).

The White

Bluff Town Council’ s denial of the Cau therns’ request

to rezone their pr

operty easily passes muster under this rational basis test because the record contains cogent reasons for

the decision. First, allowing the sawmill to expand its operations further into the residential neighb o rhoodsurrounding Oak Drive would simply pass the problems the Cautherns had been experiencing to the remaining homeowners
. Second, the town c ouncil determined that rezoning lot 35 from R-1 to C-1 would have violated another ordinance requiring permitted uses in C-1 districts2 White B luff, Tenn essee, M unicipal Z oning O rdinanc e § 5.06 2.1(B) (Ju ne 5, 19 90).
-5- to be served by public water and sanitary sewer. 2 Third, the Council found th at rezoning lot 36 t

o I-1 (industrial) would expand the existing logging operations, thereby incre asin g the danger to residents of Oak Drive. Finally, the town council fea red the courts

could invalidate the requested rezoning of lots 35 and 36 as illegal “spot zoning.”

IV.

We affirm the judgment dismissing the landowners’ c hal lenge to the White Bluff Town Council’s denia

l of the proposed change in the zoning classification of their property and remand the case to the trial court for whatever further proceedings may be required. We tax the

costs of this appeal to Charles Dallas Cauthern and Carolyn Sue Cauthern and their surety for which execution, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE