# FILED

March 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

HOOVER, INC., ) ) Plaintiff /Appella nt, )

) ) VS. ) Davidson Chancery ) No. 92-1993-III ) METROPOLIT

AN BOARD O F ) Appeal N o. 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, E ntrekin & W

hite 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., JUDGE1 Persons desiring to engage

in mining and extraction activ it ies mus t first obtain a conditional use permit. Metropolitan Gov’t of Nashville & Davidson County, Code §§ 17.24.030, 17.124.010 (Mar. 1995). -2-



## O P I N I O N

This expedited appeal involves the efforts of a quar ry operat or to obtain

a conditi on al use permi t to operat e at anothe

r location in Davidso n County. T

he ope rator filed a petition in the

Chancer y Court for

Davidson C ounty se ekin g judicial review of the decisi o n of the Metropolitan Board of Z oning Appea ls to deny a conditional use permi t. On the se cond appea l from the

trial cour

t, this courtreverse d the Boar d’s decisi on a nd re manded the case for further procee dings. The tria

l court the

reafter remande d the case

to the Boar

d with dire ctions to consider

the opera

tor’s appl ication in l ight of the r ecord at t

h e original hearing to gether w ith additiona l evidenc e of chang ed condition s in the
area since th e ori ginal hearing. The operator asserts on this appeal that the trial courtshould have ordered the Board to issue the conditio nal use per mit. Whi le the trial cour

t correc tly reman ded the ca se to the Bo ard with d irections to delibera te and make a

decision, we have determined that it erred by permitt

ing the parties to introduce new evidence once the case is remanded to the Board. We have determined that the B oard’s de liberatio ns should be li mited to the evidence presente d at the ori ginal hear ing.

I.

Hoover , Inc. ope

rated a qu arry nea

r Nashvil le’s air

port for m any ye ars . After i t wa s forced t

o stop opera

tions becau se of the expansion of t he airpor t, Hoover obtained a

n optionto purchas e a parc el of prope rty onMurfreesboro Road and applied to the Metro politan Boa rd of Zoni ng Appeals for a cond itional 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 A

pril 1992. This appli cation wa s also denie d follow ing a tumultuous public hea

rin g on Ma y 28, 1992, even though a majority o f the part icipatingBoard me mbers sta ted at the conclusion o f the proof that t he y believed t hat Hoover

had met the

requirem ents for a conditional

use permi t.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 opera ted that the public health, safety and welfarewill be protected” and that the use “will not adversely affect other prope rty in the area in whic h it is locat ed.” Metropolitan Gov’t of Nashville & Davidson County, Code § 17.124.040(A) & (B) (Mar. 1995). The tria l court a lso found that the proposed quarry was not locatedin 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 C ou nty, Code § 17.124.330(A) (Nov. 1992), and that the proposed reclamation plan envisioning thatthe quarry would be fill ed with w ater did

not meet th

e requir ements of Metropolitan Gov’ t of Nashv ille and Davidson County, Code § 17.124.330(B)(8) (Nov. 1992). -3- Hoover filed apetition for common-law writ of certiorari in the Chancery Courtfor Dav idson County se eking revie w of the B oard’s de cision. In February 1993, the trial

court re manded the

case to the

Board for a ne w hearing be cause two Board m ember s who part icipated i n the origin al hearin g were di squalifie d and because the Board had not made adequate f indings of f

act expla ining its dec ision. In June 1994, the Western Section of this court vacated the trial court’s or der and remanded the case to the tria l court to c onsider H oover’s peti tion on its me rits. Hoover, Inc. v. Metropolit an Bd. of Zoning Appe als, App. No

. 01A01-93 07-CH00312, 1994 WL 260 693, at *3 ( Tenn. C t. App. June 15, 199 4) (No T enn. R. App. P. 11 application filed).

The trial cour

t consider

ed the mer

its of Hoov er’s peti tion follow ing the remand and in February 1995 entered an orderaffirming the Board’s denial of a conditional use permi t. The t rial cour t specific ally found t

hat Hoover

had not satisfied the general condition s and two of the specia

l conditions f

or a conditional
use permit to conduct quarrying activitie s. 2 Hoover appealedto this cour t for the second time, a rguing that there wa s no competent evidence to support the Board’s denial of the conditio nal use per mit and tha

t the Boar

d had acte d illegally , arbitrar ily, fraudule ntly, and beyond its jurisdiction. In January 199 6, the Mid dle Section of this cour

t reverse d the trial court a second ti me. Hoover, Inc. v. Metro Bd. of Z oning Appea ls, 924 S.W.2d 900 (Tenn. Ct. App. 1996).

This court’s la st opinion contains thre e holdings. First, w e held that courts cannot determine whether an administrative decision is supported by substantial and materia

l evidence

“unless the

adminis trative b ody makes f indings of f

acts setting forth the reasons f

or its decision.” Hoover v . Metro Bd. of Zoning A ppeals, 924 S.W.2 d at 905. S econd, w e held that the Board

acted ar bitrarily by denying Hoover’s applic at ion for a conditional use permit when “four of the five board3 This court granted Hoover’s motion for an expedited appeal on October 14, 1996. The effect of this order w as t o submit the case on briefs. This is not an expedited civil appeal pursuant to Tenn. Ct. App. R. 13. -4- 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 ZoningAppeals, 924 S.W.2d at 905. Third, w e h eld that t wo Board members “actedillegally 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 Appe als, 924 S.W.2 d at 907. B ased onthese find ings, we reverse d the trial cour t’s decisi on and rema

nded the ca se for fu

rther nec essary pr

oceedings.

After the case was rem anded 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 thatthe trial courtshould remand the case to the Board to consider Hoover’s applicati on anew bas ed on the ev idence re ceived dur ing the May 28, 1992 hearing a

nd “upon anyadditional 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, rem anding the case to the

Board to “consider the case upon t

he recor d of all the

evidence heretofore heard

by it, together

with such additional evidence a s may be of fered by a

ny p ar ty as to changed circumstances that have o ccurred since it c losed the r

ecord on e vidence pr

eviously received by it.” H oo ver has appealed fr om this dec ision, and thus this ca se is before this court for the third time. 3

II.

This appea l conce rns the sco pe of this c ourt’s ea rlier ma ndate rem anding the case to the t rial court for “any furt her necessa ry proceedi ngs.” The res olution of this dispute re quires us toconsider t wo issues. The fir st is the scope of relief in zoning cases when the court finds that the local agency’s decision was improper. The second issue conce rns the pro per reme dy under the facts of this
case.4 The power is not inheren t but rathe

r 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 ordinance s anddecisio ns represent an exercise of local police power4 to protect

the health, safety, and welfare of its citi zens. Draper v. Haynes, 567 S.W.2 d 462, 465 (Tenn. 1978) ; Metropoli tan Gov’t of Nashvi lle & Da

vidson County, Code § 17.04-010 ( Oct. 199 4) (stati ng that the p urpose of t he zoning ordinance is “to promote the publi c health , safety, morals, convenience, order, prosperity

and general welfare of the present and future inhabi tants of
me tro politan Nashville and Davidson County”). Accordingly, the courts are hesitant to interf ere wit h zoning dec isions unless clearly nece ssary, McCallen v. City of Memph is, 786 S.W. 2d 633, 641- 42 (Tenn. 1990); Fallin v. Kn o x County Bd. of Comm’ rs, 656 S.W. 2d 338, 342- 43 (Tenn. 1983), and will not sub stitute their judgment for that of t he local officials. Whittem ore v. B rentwood P lanning Comm’n , 835 S.W.2d 11 , 15 (Tenn. Ct. App . 1992).

The vehicle f

or review ing decisions of

local boar

ds of zoningappeals is the common-law writ

of certiorari. McCalle n v. City of Memph is, 786 S.W. 2d at 639. This writ requires the c ourts to determ ine wheth er the Boa

rd excee ded its jurisdicti on, followed an unlawful procedure, acted illegally, arb itr arily, or fraudule ntly, or acted without ma terial e vidence to support its de cision. Hoover
v. Metro Bd

. of ZoningAppeals, 924 S.W. 2d at 904; Hemontol or v. Wils on County Bd. of Z oning Appea ls, 883 S.W.2d 61 3, 616 (Tenn . Ct. App. 1994 ).

The common-la

w writ of certiorari is a supervisory writ, that provides the courts with limited options fo r dea ling with e rror disc overed in t

he procee dings being revie wed. Because courts should avoid requiring local zoning authorities to take a particular action excep t in the most extra ordinary c ircumsta

nces, the most common judicial remedy in zoning case s is to rem and the ca se to the zonin g agency with instr

uctions appr

opriate to the circumstances of the case. 4 Robert M. Anderson, American Law of Zo ning § 27.39, at 598 (3d ed. 1986). Rather than shoulderingthe local agency’s r esponsibilit

ies, the courts shoul d insist that the agency carry out it s task in a n appropr iate manner

. See Sanon v. IN S, 52 F.3d 648, 652 (7th Cir. 1 995) ; Rhode Island Higher Educ. Assistance Auth. v. Secretary, U.S. Dep’t of Educ ., 929 F.2d 844, 857 (1st Cir. 1991). The g oal of a rem and shouldbe to place

the partie s and the ag ency inthe position they would have been5 Metropolitan Gov’t of Nashville & Davidson County, Code § 17.124.020 (Mar. 1995)

provides that the Board of Zon in g Appeals must hold a hearing on an application for a conditional u se permit within sixty days after the application is filed unless the applicant withdraws the application or requests a continuance. -6- i n had the age ncy not ac ted impro perly. See Getty v. Federal Sav. & Loan Ins

. Corp., 805 F.2d

1050, 1061 ( D.C. Cir. 1986) ; Revelle v. Marst on, 898 P.2d 917 , 921 (Alask a 1995).

Under the facts of this case, the trial court correctly declined to dire ct t he Board to issue Ho over the c onditional us e permit it request ed. How ever, in

light of the intere sts of these

parties a nd the natur

e of the administrat

ive and judicia l p roceeding s that have already occurred, we have determined that the mos t appropria te remedy is to remand

the case to the

Board wi th directi ons to conduct
anew hear

ing based on the

existing re cord with out the introduction of additional factual evi dence.

We base our decision on three considera ti ons. Firs t, the Ma

y 28, 1992 hearing provided H oover and a ll other int

erested p arties w ith a

f ull and fair opportunityto present evidence supporting th e competi ng positions. Reopening the record a

t this late stage wou ld only give th e parties asecond bite at theapple. See Ro ge r Williams College v . Galliso n, 572 A.2d 61 , 62-63 (R.I. 19 90). Second, we reve

rsed the B oard’s or

iginal dec isio n n ot because of defec ts in the fact-f inding process or

because t

he recor d containe d inadeq uate evidence to support the Board’s decision, but rather because the Bo a rd did not co nsider the evidenc e in a fair and legal manner. Third, requiring additional evidentiary hearings would be in consistent w ith the under standing implic it in Nashville’s zoning ordinance that the int erests of the public a

nd of the de velopers i s best served by the prom

pt consideration and dis position of a pplications

. 5 The outcome of proceedings of this sort should not depend on the parties’ financial resources
or staying power

. Patel v. Plann ing Bd., 609 A.2d 13 19, 1324 (N .J. Supe r. 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 wel l have be en changes in the property surrounding Hoover’s proposed quarry site. Reopening the record to accept additional proof o f th ese changes will only provide an-7-

incentive for other s to use the j udicial pr ocess to de lay local z onin g decisi ons. Hoover’s proposal tooperate a quarry in the are a has been well know n and hotly debated for the pa stfive year s, and thus any developme nt that has o ccurred in the
area ha s been undertake n with the u nderstandi ng that Hoov er might e ventually receive the conditi onal u se per mit it has be en seeking s ince 1992. Thus, the interests of the inha

bitants ar e not being t

reated un fairly by r

equirin g the B oard to base its decision on t

he evidenc e adduced a

t the May 28 , 1992 hear

ing.

III.

For the reas ons stated he

rein, we modif

y the trial court’s or

der rema nding the case to the Metropolitan Board of Zoning Appeals to provide thatthe Board shouldconduct a hearingandrender a timely dec ision on Hoov er’s appl ication fo r a conditional use permit based on the record of the May 2 8, 1992 he aring. This he aring shall be co nducted i n a manner co nsisten t with our ea rlier opin ion. W e also tax thecosts of

this appea

l in equal pr

oportions to H oover, Inc. and it s surety and to the M etropolita

n Governm

ent of Na shville and Davidson C ounty.

_________________

____ _______ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

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

_________________

_______________ SAMUEL L. LEWIS, JUDGE