# FILED
March 8, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk PHYLL IS HOVENDEN, ) Petitioner /Appella nt, ) BIL L HOV ENDEN, E

LL EN WEMYSS, ) PATRICIA H

IGHERS, RICHA

RD ) ROUCH, and CITI

ZENS FOR AN ) ORDERLY DEVEL

OPMENT OF ) GALL ATIN, ) Petitioner s, ) Sumner Chancery ) No. 94C-243 VS. ) Appeal No. ) 01-A-01-9508-CH-00383 CITY OF G ALLAT IN, G ALLAT IN ) PLAN NING COM MIS SION , GA LLATIN ) CITY COU NCIL, L.A. GRE EN, III, ) TRUSTEE, L.A. GREEN, I II and ) CALV ERT GREEN

CLEVE NGER, ) Responde nts/Appellees, ) and WAL-MART STORES, INC., ) Intervenor/Appellee
. )

IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE APPEAL FROM THE CHANCERY COURT OF SUMNER COUNTY

AT GALL

ATIN, TENNESSEE HONORABLE I

RVIN H .KI

LCREASE, JR., BY INTERCHANGE RALP H W . ME LLO 101 Westpark Drive, Suite 250 Brentwood, Tennessee 37027 ATTORNEY FOR PETITI ONER/APPELLANT C.L. Rogers Joe H. Thompson ROGERS & M OORE 119 Court Square Gallatin, Tennessee 37066 ATTORNEYS FOR RESPONDENTS/APPELLEE S CITY OF GAL

LATI N, GALL ATIN PL ANNING COMMI SSION, AND GALLA TIN C ITY C OUN CIL Paul C. Ney, Jr. DORAMUS & TRAUGER 222 Four th Avenue , North Nashville, Tennessee 37219 ATTORNEY FOR RESPONDENTS/APPELL EES L.A. GRE EN, III and GRE EN & LITTLE , A P ART NER SH IP Robert E. Parker George A. Dean PARKER, LAWRENCE, CANTRELL & DEAN 200 Fourth Avenue, North - Suite 500 Nashville, Tennessee 37219 ATTORNEY S FOR I

NTERVENO R/APPEL

LEE WA L-MA RT STORES, I

NC. MODIFI ED, AFFIRMED AN

D REMANDED HENRY F. TODD, PRESIDI NG JUDGE, MIDDL

E SECTION CONCUR: SAMUEL L. L EWIS, JUDGE and WIL

LI AM C. KOCH, JR., JUDGE-2-

PHYLL IS HOVENDEN, ) Petitioner /Appella nt, ) BIL L HOV ENDEN, E

LL EN WEMYSS, ) PATRICIA H

IGHERS, RICHA

RD ) ROUCH, and CITI

ZENS FOR AN ) ORDERLY DEVEL

OPMENT OF ) GALL ATIN, ) Petitioner s, ) ) Sumner Chancery ) No. 94C-243 VS. ) ) Appeal No. ) 01-A-01-9508-CH-00383 CITY OF G ALLAT IN, G ALLAT IN ) PLAN NING COM MIS SION , GA LLATIN ) CITY COU NCIL, L.A. GRE EN, III, ) TRUSTEE, L.A. GREEN, I II and ) CALV ERT GREEN

CLEVE NGER, ) Responde nts/Appellees, ) and WAL-MART STORES, INC., ) Intervenor/Appellee
. )
O P I N I O N The captioned petitioners filed their “Petition for Writ of Certiorari and Verified Complaint” seeking review of the action of the City Council of Gallatin in regard to the zoning of certain property and for injunctive relief. From an adver se judgment in the Trial Court, one of the petitioners, Phyllis Hovenden, ha s appealed, presenting the following issues for review: 1. Whether the appropriate analy sis for reviewing the actions

of the Gallatin City Council in passing an or dinance to rezone propert y should be de clarato

ry judgmen t? 2. Whether the Chancery Court erred in failing to award petitioners a declaratory

judgment after determining that the Gallatin Planning Commission a

nd Gallat in City Council did not make t

he requi site findings of f

act? 3. Whether

the Galla tin Plannin g Commissi on and Ga llatin City Council violated the Gallatin Zoning Ordinance by considering and granting

a rezoning request before a preliminary master

plan was submitted? 4. Whether

the Galla tin Plannin g Commissi on and the Gallatin City Council violated the Gallatin Zoning Ordinance by considering a proposed master plan that did not include a certi ficat ion t hat th e servi ces of o ne or m ore des ign professionals were utilized in the preparation of the master plan?-3- 5. Whether the Chancellor erred in deny ing petitioner's motion to supplem

ent the r ecord w ith the minu

tes of the Gallatin Planning Commission a

nd the Ga llatin City Council? Petitioners are owners of property in the vicinity of a 23 acr e tract which is the subject of zoning action by the G allatin Planning Commission and the Gallatin City Council for the purpose of permitting the construction of a shopping complex for the use of the intervenor, Wal-Mart Stores, Inc.
Prior to the present proceeding, the subject prope rty was zoned “MRO-PUD,”which means “M

ultiple Re sidential

Office -Planned

Unit Deve

lopment.”Within this a

rea multi ple residences, off

ices and planned u

nit devel opments we

re allow ed. A “Pla

nned Unit Development” is a planned use which includes uses not ordinarily allowed in the zone if they are inc luded in a

plan for developm

ent of a p articula

r tract w hich specifies the

particular use to which each part of the tract is to be devoted. I f approved by

the City Council, the planned unit development is binding upon the developer and any change in the designated use of any part of th e develo pment must b e approv ed by the Counc il.
On May 21, 1984, the “F

inal Master Plan” of a planned unit development of the subject property unde

r the name “Village Gree n,” was approved and included in the planning records of the City of

Gallatin. The plan designated various sections of the tra ct for “Office/Commercial, to become retail (Ge neral Retail Sales and Services Food Services Commercial) to a maximum of 100,000 GAF and with minimum of 137 cars (1:800 GAF). To ex cl ud e m aj or de pa rt me nt or di sc ou nt st or es an d g as ol in e s ta ti on s s pe ci fi ca ll y. ” (Emphasis supplied.)
The emphasized words excluded the use of the land for the proposed Wal-Mart Store. The purp ose of thi s proceeding is to amend the

plan of Village

Green Pl anned Un

it Development to remove the above emphasized exclusion so that the Wal-Mart Store could be built.-4- There was a difference

of opinion as to the proper manner of removing the e xclusion. Some thought that it could be removed by simply amending the pr

ovisions of the 1984 Plan of Villag e Gree

n Planned Unit Deve

lopment. O thers thought tha t a chang e of the b asic zoning classification of the property was required. Ultimately both methods were pursued and consummated, and the results are the subject of this judicial review.
The plan to change the basic zoning wa s initiated first. On June 1, 1994, the Planning Commission recommended, and on June 28, 1994, the City Council enacted Ordina nce No. 094-981 c

hangin g the zoning of Vi llage G reen fr om “MRO-PU

D Gener al Commer

cial” to “CG-PUD General Commercial.”
On July 5, 1994, the City Council passed Ordinance 094-980 concurring in the action of the Pla nning Com

mission ame

nding the 1984 Plan o f Villag e Gree n Planned Unit Develop ment to “Co mmercia l Genera l,” ther eby removing

the above

emphasize d exclusion s.
On July 25, 1994, the Planning Commission finally approved the amendment of the plan of V illage

Green Pl anned Un

it Develo pment as c oncurred in by the City Council on

July 5, 1994.
On July 27, 1994, the captioned petitioners filed their “Petition for Writ of Certiora ri and Verified Complaint” seeking relief fr om Ordinance No. 094-981 changing the zoning of the subject property , Ordinance No. 094-980 concurring in the amendment of the plan of Village Green Planned Unit development, and the July 25, 1994 final approval of the amendment by the Planning Commission.
On August 30, 1994, the Trial Court remanded the cause to the City Council for finding s of fac t. On Nove mber 2, 19 94, the City

Council fi led findings of fa ct.-5- The Trial Judge filed a comprehensive Memorandum in which he disposed of 15 specific issues raised by

petitioners, dismissed the petition and affirmed the actions of the Ci ty C ou nc il an d P la nn in g C om mi ss io n. A j ud gm en t w as en te re d a cc or di ng ly.
Appellant’s issues and arguments are based upon the premise that legislative action was req uired to e liminate th

e provisi on in the pl an of Vill age Gr een Plann ed Unit Development forbidding “major department or discount store s and gasoline stations specifically.”

This Court r

espectf ully disagr ees.
In 1984, when the subject land wa s zoned for planned unit developments, a planned unit deve lopment of

the land w as duly

approved which pe

rmitted c ommercia

l activity within the development limited only by the quoted exclusion. The removal of that exclusion was properly a

ccomplished by amendme nt of the plan of the planned unit development, without any amendme

nt of the zoning ordinance. The state zoning statute and the Gallatin Ge neral Zoning Ordinance authorize this procedur e.
T.C.A. Sections 13-7-201, et seq. confer power up on municip al legi slative bo dies to establish zoning policies within their territorial jurisdiction and prescribe the procedure s for exercising the power.
In 1979, the Gallatin City Council adopted a Zoning Ordinance f or the City of Gallatin.

Article VII

I of said ordinance is entitled “Planne d Unit Development District Regulations.” It presc

ribes the requirements and procedure f or obtaining approval of planned unit developments.-6- Pertinent portions of the Zoning Ordinance a re: 81-101 Intent and Purpose. The purposes of these Planned Unit Development District Regula tions are as follow s: a. To promote flexibility in design and per mit planned diversif ication in the loca tion of str uctures ; b. To promote the efficient use of land in order to fac ilitate a more ec onomic ar

range ment of bu

ildings; circulati on sy stems, land use, and utiliti es; c. To preserve to the grea test extent possible the existing landsca pe feat ures and amenitie s and to uti lize such f eature s in a harmonious fashion; d. To encourage the total planning of tracts of land consistent with pert inent long -rang e plans.

. . . . 82-103 Application, Review, Public Hearing and Official Action of a Planned Unit Development The provisions of this Section set forth the requirements for the appli cation, o fficial

review a nd action for all pl anned un

it developments provided for by this article.

. . . . 82-103.4 Pl an ni ng Co mm is si on Ac ti on on Pr el im in ar y Application for Planned Unit Development Within 45 days after initial submission to the Planning Commission, the Commission shall take action on the preli minar y applica tion by any one of th e foll owing: a. Unconditional pr

eliminar y a pproval. b. Co ndit ional preli minar y approval , in wh ich th e Plan ning Commission expressly denotes modifications which must be a part of th e preliminary

approva l. c. Disap proval.

. . . . 82-103.402 City Council Approval of Preliminary Plan Any approva

l of a preliminary a

pplication by the Planning Commission sh all be tra

nsmitted to

the Galla tin City Council for their concurrence.-7- . . . . 82-103.5 Final Approval of the Planning Commission of the Proposed Planned Unit Development The concurrence of the City Council with the preliminary approval of a planned unit development shall authorize and form the basis for the Planning Commission final approval of said development. The final approval of the Gallatin Planning Commission of the planned unit development shall be subject to the procedures and requirements of this section.

. . . . 82-103.505 Final Planning Commission Action Upon receipt of the application for final approva l of a planned unit development, the Planning Commission shall examine such app lication including the plan a

nd deter mine whet

her it substantially conforms to all applicable c riteria and standards and whether it substantially conf orms in all respects to the previously approve d preliminary master development plan. The Commission may impose such conditions of approval as are in its judgment necessary to ensure conformity

to the applicable criteria and standards. I n so doing, the Commission may permit the

applica nt to revis e the pla

n and res ubmit it as a final master development plan within 30 day s. 82-103.506 Planned Unit Development and the Official Zoning Map The bo undar y of a plann ed uni t deve lopm ent ha ving a preliminary appr

oval by the Gallatin City

Council shall be placed by the

Zoning Administrator directly on the Official Zoning Map overlay

ing the existing zoning districts just prior to preliminary approva

l and identified by the ordina nce number providing the preliminary approval. Likewise, as a result of Planning Commission and City Council action, when the planned u nit devel opment is c ancele d, the pla nned unit development shall be removed from the Official Z oning Map by the Zoning Administrator, and the district which was shown on the map immediately prior to the mapping of the planned unit development shall appear thereon, unless an alternative district is recommended by the Planning Commission and enacte d by

the City Council. There is no requirement for concurre nce of the City Council in the final Planning Commission action prescribed by 82-103- 505.-8- Under the existing

zoning, a single c ommercia

l activity was not a

uthorized , but a Commercial Planned Unit Development was authorized, provided its internal structure (including the precise designation of va rious commercial activities) was duly approved under the above provisions of the General Zoning Ordinance.
On May 21, 1984, the Planning Commission approved a “Final Master Plan” for the subject property unde

r the name, Village Green. Proportions of the pr operty wer

e designated as follow s: Tract A II - Office/Commercial Site 8.0 acres Tract A II I - Shopping Village

5.9 acres Tract A IV - Convenie

nce Commercial 3.4 acres The plan map also c ontains the following nota tions: Tract A II - To become retail (General Retail Sales and Ser vices Food Services, Commercial)* to a maximum of 100,000 GAF and with minimum of 137 cars (1:8 00 GAF) * To exclude major department or discount stores, major groce ry stores and ga so li ne st at io ns sp ec if

ic al ly. Under the above quoted provision, the City Council approval of the Preliminary Plan was required. No approval by the Council of the Final Master Plan was required.

The mi nutes of the Plan ning C ommi ssio n for M ay 24, 199 4, con tain t he fol lowi ng: 11. L.A. Green 3-5- 94: Represented by B rown and Dedman, Inc. The applicant is requesting to amend the final master plan regarding commerc ial general planned unit development. Subject property is locate d on Highway 31 E at Belvedere Drive, is on tax map 126I/A/001.00 and is zoned MRO - Commercial PUD - General. Dean Carlson with Brown and Dedman Inc. ca

me forward to present this request. Mr. Allers stated that the applicant is requesting an amendment to the final master development plan. Currently the plan allows for 299,700 square feet of commercial use in the PUD. The applicant would like to amend the PUD as to the location of 200,000 square feet of density of the PUD will remain the same. The applicant also requested that the PUD plat be amended to delete the exclus ions on Tra

ct A-I I. Th ese exclusions do not allo w major de partmen t or discount store s,-9- major grocery

stores and gasoline stations. If the Planning Commission approves these amendments then its action will be to send this case to the City Council, for concur rence, with an approval recommendation. The staff rec ommends approval. . .

. On June 1, 1994, the Planning Commission approved the amended PUD.
On July 5, 1994, City

Council by Ordinance

No. 094-98D concurred in the action of the Planning Commission.
On July 25, 1994, the Planning Commission finally approved the PUD in accordance with Section 82-103.5 of the Zoning Ordinance quote d above.
The foregoing proceedings perfected the rig ht of the owners to develop the subject land in accordance with the amendment to the PUD approved by the Planning Commission and City Council, without any change of zoning. Any

zoning change by

the City Council was
su rp lu sa ge an d i rr el ev an t t o t he pr es en t c on tr ov er sy.
In this view of the case, it is unnece ssary to discuss appellant’s a rguments asserting the invalidity of Ordinance 094-981 which undertook to change the zoning cla ssification of the subject property
.
Appellant’s first issue relates entirely to Ordinance No. 094-981 which changed zoning. It will therefore not be discusse d.
Appellant’s Second Issue Appellant’s argument in support of this issue is directed solely at Ordinance No. 094- 981 which changed zoning designa tion and which this Court has determined to be irrelevant to the det erminati on of this a

ppeal. A ppellant ’s argument on th is issue co ncludes a s follows:-10- Based upon its ruling that the requisite findings of fa ct were not made, the Chanc ery

Court should have g

ranted p etitioner s a declar atory judgmen t, decla ring Or dinance 094-981 to

be void and of no effect. I

nstead, in violation of the Tennessee Constitution , the Chancery Court directed the

Gallatin City Council to make cer

tain findings of f

act while acting in its legislative capacity . . . . This is clear error for which the Chancery Court’s opinion should be reversed. In respect to Ordinanc e No. 094-980, the approval of the PUD, the actions were administrative, required findings of fact, and we re reviewable by

common law certiorari. State, ex rel Spence v. Metropolitan Government, etc., Tenn. 1971, 469 S.W.2d 777.

In re sponse to a

n order o f the Tri al Court, b oth the Pla nning Com

mission and

the City Council fi led writte

n finding s of fac t. This sat isfies la ck of fin dings of

fact in r espect t o Ordinance No. 094-980.
Appellant’s third issue also relates only to Ordinance No. 094-981 which changed the zoning. For the reasons already stated, it need not be discussed.
Appellant’s fourth issue complains that the plan of the PUD was approved without the certificate of a design prof essional as required by

Section 81-103 of the Zoning Ordinance
.

Section N o. 81-102

of the Zoning Or

dinance provides : No application for a PUD zoning shall be c onsidere d unless a master pl an of the

developm

ent meeting req

uiremen ts set for th in Section 82-103.2 is submitted therewith. (Emphasis added) The present controversy

does not relate to an application for PUD zoning. That procedure took place in 1984, when the original Green Acres PUD was presente d and approved. The original, 1984, application is not included in this record, so that it cannot be determined whether it bore the required ce rtificate.-11- The present proceeding wa s for approval of an amendment of a previously existing (1984) PUD. The requirement for certifica tion does not apply to an application for amendment of a pre-existing PUD. Nevertheless, the maps pre sented to the Commission and Council show plainly that they were prepared by

professionals, even though they do not bear an expres s certif

icate to t his effect.
The transcript of proceedings bef ore the Commission contains ample testimony that
necessa ry profess ionals we

re involv ed in plan

ning the amendme

nt.
Appellant’s fifth issue complains of the denial of her motion to supplement the record with the minutes of the Commission and Council when their findings of fact were approved. Essentially, this is a complaint of the exclusion of evidence. The record contains no tender of the excluded evidence or of its contents. I n the absence of an offer of e vidence and preservation of it in the record, no error c an be predicated upon its exclusion. Cohen v. Cook, 62 Tenn. App. 292, 462 S.W.2d 502, affd., 224 Tenn. 729, 462 S.W.2d 499.
Since the use of the subject property is strictly limited by

the details of the planned unit development, it

is difficult to conc eive how the change of it s zoning c lassific ation could enable its use outside the limits of the planned unit development. However, this court makes no determination of the validity of Or dinance No. 094-981 so that question may be open for decision in a case in which the validity of the ordinance is determinative.
The judgment of the Trial Court is modified to delete any determination of the validity of Ordinance

No. 094-981. As modified, the judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the appellant. The ca use is remanded to the Trial Court for any necessa ry further procee dings.-12- Modified, Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ WILL IAM C. KOCH, JR., JUDGE