FILED

March 12, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

HOOVER, INC., )

)

Plaintiff/Appellant, )

)

)

VS. ) Davidson Chancery

) No. 92-1993-III

)

METROPOLITAN BOARD OF ) Appeal No.

ZONING APPEALS FOR ) 01A01-9609-CH-00442

DAVIDSON COUNTY, )

TENNESSEE, )

)

Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For the Plaintiff/Appellant: For the Defendant/Appellee:

Thomas V. White Robert H. Jennings, Jr.

Tune, Entrekin & White Nashville, Tennessee

Nashville, Tennessee

James R. Tomkins

George A. Dean Glasgow & Veazey

Parker, Lawrence, Cantrell & Dean Nashville, Tennessee

Nashville, Tennessee

Herbert R. Rich

Nashville, Tennessee

Carrol D. Kilgore

Branstetter, Kilgore, Stranch

& Jennings

Nashville, Tennessee

MODIFIED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1

Persons desiring to engage in mining and extraction activities must first obtain a

conditional use permit. Metropolitan Gov’t of Nashville & Davidson County, Code §§

17.24.030, 17.124.010 (Mar. 1995).

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O P I N I O N

This expedited appeal involves the efforts of a quarry operator to obtain a

conditional use permit to operate at another location in Davidson County. The

operator filed a petition in the Chancery Court for Davidson County seeking

judicial review of the decision of the Metropolitan Board of Zoning Appeals to

deny a conditional use permit. On the second appeal from the trial court, this

court reversed the Board’s decision and remanded the case for further

proceedings. The trial court thereafter remanded the case to the Board with

directions to consider the operator’s application in light of the record at the

original hearing together with additional evidence of changed conditions in the

area since the original hearing. The operator asserts on this appeal that the trial

court should have ordered the Board to issue the conditional use permit. While

the trial court correctly remanded the case to the Board with directions to

deliberate and make a decision, we have determined that it erred by permitting the

parties to introduce new evidence once the case is remanded to the Board. We

have determined that the Board’s deliberations should be limited to the evidence

presented at the original hearing.

I.

Hoover, Inc. operated a quarry near Nashville’s airport for many years.

After it was forced to stop operations because of the expansion of the airport,

Hoover obtained an option to purchase a parcel of property on Murfreesboro Road

and applied to the Metropolitan Board of Zoning Appeals for a conditional use

permit.1

 The Board denied the application in January 1992. Hoover then obtained

an option for property on Nolensville Road and applied for another conditional

use permit in April 1992. This application was also denied following a

tumultuous public hearing on May 28, 1992, even though a majority of the

participating Board members stated at the conclusion of the proof that they

believed that Hoover had met the requirements for a conditional use permit.
2

Specifically, the trial court found that Hoover had not met the general requirements that

the use be “so designed, located, and proposed to be operated that the public health, safety and

welfare will be protected” and that the use “will not adversely affect other property in the area

in which it is located.” Metropolitan Gov’t of Nashville & Davidson County, Code §

17.124.040(A) & (B) (Mar. 1995). The trial court also found that the proposed quarry was not

located in an area that is likely to remain sparsely populated during the length of time quarrying

activity is anticipated, see Metropolitan Gov’t of Nashville & Davidson County, Code §

17.124.330(A) (Nov. 1992), and that the proposed reclamation plan envisioning that the quarry

would be filled with water did not meet the requirements of Metropolitan Gov’t of Nashville

and Davidson County, Code § 17.124.330(B)(8) (Nov. 1992).

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Hoover filed a petition for common-law writ of certiorari in the Chancery

Court for Davidson County seeking review of the Board’s decision. In February

1993, the trial court remanded the case to the Board for a new hearing because two

Board members who participated in the original hearing were disqualified and

because the Board had not made adequate findings of fact explaining its decision.

In June 1994, the Western Section of this court vacated the trial court’s order and

remanded the case to the trial court to consider Hoover’s petition on its merits.

Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, App. No. 01A01-9307-CH00312, 1994 WL 260693, at *3 (Tenn. Ct. App. June 15, 1994) (No Tenn. R. App.

P. 11 application filed).

The trial court considered the merits of Hoover’s petition following the

remand and in February 1995 entered an order affirming the Board’s denial of a

conditional use permit. The trial court specifically found that Hoover had not

satisfied the general conditions and two of the special conditions for a conditional

use permit to conduct quarrying activities.2 Hoover appealed to this court for the

second time, arguing that there was no competent evidence to support the Board’s

denial of the conditional use permit and that the Board had acted illegally,

arbitrarily, fraudulently, and beyond its jurisdiction. In January 1996, the Middle

Section of this court reversed the trial court a second time. Hoover, Inc. v. Metro

Bd. of Zoning Appeals, 924 S.W.2d 900 (Tenn. Ct. App. 1996).

This court’s last opinion contains three holdings. First, we held that courts

cannot determine whether an administrative decision is supported by substantial

and material evidence “unless the administrative body makes findings of facts

setting forth the reasons for its decision.” Hoover v. Metro Bd. of Zoning Appeals,

924 S.W.2d at 905. Second, we held that the Board acted arbitrarily by denying

Hoover’s application for a conditional use permit when “four of the five board
3This court granted Hoover’s motion for an expedited appeal on October 14, 1996. The

effect of this order was to submit the case on briefs. This is not an expedited civil appeal

pursuant to Tenn. Ct. App. R. 13. 

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members present at the public hearing expressed their beliefs that Hoover had met

the legal conditions required to obtain the conditional use permit.” Hoover, Inc.

v. Metro Bd. of Zoning Appeals, 924 S.W.2d at 905. Third, we held that two

Board members “acted illegally when they told board member Hoover that they

would abstain if Hoover did not resign from the board.” Hoover, Inc. v. Metro Bd.

of Zoning Appeals, 924 S.W.2d at 907. Based on these findings, we reversed the

trial court’s decision and remanded the case for further necessary proceedings.

After the case was remanded to the trial court, the parties became embroiled

in a dispute concerning the scope of our remand directions. Hoover asserted that

this court’s opinion required the trial court to remand the case to the Board with

directions to issue the conditional use permit. Hoover’s adversaries, on the other

hand, asserted that the trial court should remand the case to the Board to consider

Hoover’s application anew based on the evidence received during the May 28,

1992 hearing and “upon any additional evidence that it may receive when offered

by any party hereto or any other person entitled to offer evidence.” The trial court

entered an order on August 5, 1996, remanding the case to the Board to “consider

the case upon the record of all the evidence heretofore heard by it, together with

such additional evidence as may be offered by any party as to changed

circumstances that have occurred since it closed the record on evidence previously

received by it.” Hoover has appealed from this decision, and thus this case is

before this court for the third time.3

II.

This appeal concerns the scope of this court’s earlier mandate remanding

the case to the trial court for “any further necessary proceedings.” The resolution

of this dispute requires us to consider two issues. The first is the scope of relief

in zoning cases when the court finds that the local agency’s decision was

improper. The second issue concerns the proper remedy under the facts of this

case.
4The power is not inherent but rather is delegated by the General Assembly. Anderson

County v. Remote Landfill Servs., Inc., 833 S.W.2d 903, 909 (Tenn. Ct. App. 1991).

-5-

Zoning ordinances and decisions represent an exercise of local police

power4

 to protect the health, safety, and welfare of its citizens. Draper v. Haynes,

567 S.W.2d 462, 465 (Tenn. 1978); Metropolitan Gov’t of Nashville & Davidson

County, Code § 17.04-010 (Oct. 1994) (stating that the purpose of the zoning

ordinance is “to promote the public health, safety, morals, convenience, order,

prosperity and general welfare of the present and future inhabitants of

metropolitan Nashville and Davidson County”). Accordingly, the courts are

hesitant to interfere with zoning decisions unless clearly necessary, McCallen v.

City of Memphis, 786 S.W.2d 633, 641-42 (Tenn. 1990); Fallin v. Knox County

Bd. of Comm’rs, 656 S.W.2d 338, 342-43 (Tenn. 1983), and will not substitute

their judgment for that of the local officials. Whittemore v. Brentwood Planning

Comm’n, 835 S.W.2d 11, 15 (Tenn. Ct. App. 1992). 

The vehicle for reviewing decisions of local boards of zoning appeals is the

common-law writ of certiorari. McCallen v. City of Memphis, 786 S.W.2d at 639.

This writ requires the courts to determine whether the Board exceeded its

jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or

fraudulently, or acted without material evidence to support its decision. Hoover

v. Metro Bd. of Zoning Appeals, 924 S.W.2d at 904; Hemontolor v. Wilson County

Bd. of Zoning Appeals, 883 S.W.2d 613, 616 (Tenn. Ct. App. 1994). 

The common-law writ of certiorari is a supervisory writ, that provides the

courts with limited options for dealing with error discovered in the proceedings

being reviewed. Because courts should avoid requiring local zoning authorities

to take a particular action except in the most extraordinary circumstances, the

most common judicial remedy in zoning cases is to remand the case to the zoning

agency with instructions appropriate to the circumstances of the case. 4 Robert

M. Anderson, American Law of Zoning § 27.39, at 598 (3d ed. 1986). Rather than

shouldering the local agency’s responsibilities, the courts should insist that the

agency carry out its task in an appropriate manner. See Sanon v. INS, 52 F.3d 648,

652 (7th Cir. 1995); Rhode Island Higher Educ. Assistance Auth. v. Secretary,

U.S. Dep’t of Educ., 929 F.2d 844, 857 (1st Cir. 1991). The goal of a remand

should be to place the parties and the agency in the position they would have been
5Metropolitan Gov’t of Nashville & Davidson County, Code § 17.124.020 (Mar. 1995)

provides that the Board of Zoning Appeals must hold a hearing on an application for a

conditional use permit within sixty days after the application is filed unless the applicant

withdraws the application or requests a continuance.

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in had the agency not acted improperly. See Getty v. Federal Sav. & Loan Ins.

Corp., 805 F.2d 1050, 1061 (D.C. Cir. 1986); Revelle v. Marston, 898 P.2d 917,

921 (Alaska 1995). 

Under the facts of this case, the trial court correctly declined to direct the

Board to issue Hoover the conditional use permit it requested. However, in light

of the interests of these parties and the nature of the administrative and judicial

proceedings that have already occurred, we have determined that the most

appropriate remedy is to remand the case to the Board with directions to conduct

a new hearing based on the existing record without the introduction of additional

factual evidence. 

We base our decision on three considerations. First, the May 28, 1992

hearing provided Hoover and all other interested parties with a full and fair

opportunity to present evidence supporting the competing positions. Reopening

the record at this late stage would only give the parties a second bite at the apple.

See Roger Williams College v. Gallison, 572 A.2d 61, 62-63 (R.I. 1990). 

Second, we reversed the Board’s original decision not because of defects in the

fact-finding process or because the record contained inadequate evidence to

support the Board’s decision, but rather because the Board did not consider the

evidence in a fair and legal manner. Third, requiring additional evidentiary

hearings would be inconsistent with the understanding implicit in Nashville’s

zoning ordinance that the interests of the public and of the developers is best

served by the prompt consideration and disposition of applications.

5

 The outcome

of proceedings of this sort should not depend on the parties’ financial resources

or staying power. Patel v. Planning Bd., 609 A.2d 1319, 1324 (N.J. Super. Ct.

Law Div. 1992).

In reaching this decision, we are mindful that five years have elapsed since

the original hearing before the Board and that there may very well have been

changes in the property surrounding Hoover’s proposed quarry site. Reopening

the record to accept additional proof of these changes will only provide an
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incentive for others to use the judicial process to delay local zoning decisions.

Hoover’s proposal to operate a quarry in the area has been well known and hotly

debated for the past five years, and thus any development that has occurred in the

area has been undertaken with the understanding that Hoover might eventually

receive the conditional use permit it has been seeking since 1992. Thus, the

interests of the inhabitants are not being treated unfairly by requiring the Board

to base its decision on the evidence adduced at the May 28, 1992 hearing.

III.

For the reasons stated herein, we modify the trial court’s order remanding

the case to the Metropolitan Board of Zoning Appeals to provide that the Board

should conduct a hearing and render a timely decision on Hoover’s application for

a conditional use permit based on the record of the May 28, 1992 hearing. This

hearing shall be conducted in a manner consistent with our earlier opinion. We

also tax the costs of this appeal in equal proportions to Hoover, Inc. and its surety

and to the Metropolitan Government of Nashville and Davidson County.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

HENRY F. TODD, P.J., M.S. 

________________________________

SAMUEL L. LEWIS, JUDGE