# FILED

October 10, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk 

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

FAMILY GOLF OF NASHVILLE, INC., ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 95-3832-I VS. ) ) Appeal N o. ) 01A01-9612- CH-00557 THE METROPOLITAN GOVERNMENT ) OF NASHVILLE AND DAVIDSON ) COUNTY, ) ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONO RABLE IRVIN H. KILCRE

ASE, JR., CHANCELLOR

For the P laintiff/

Appellant : For the Defendant/Appellee : Peter H . Curry Thomas G . Cross Tuke, Yopp & Sweeney Metropolitan Attorney Nashville, Tennessee Nashville, Tennessee



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE 

## O P I N I O N1 Metropo litan Gov’t of Nashville and Davids on County, Tennessee, Code § 17.20.020 (1994)

(“Metro Code”) d escribe s the purp oses of A R2a distri cts as fo llows: These districtsare des igned toprovide suitable areas for the grow i ng of crops, animal husbandry, dairying, forestry and other similaractivities which generally occur and characterize rura

l rather than urban areas. These districts are designe d, fu rthermor e, to provide for very low-density residen tia l development generally on unsu bdivided tracts of land whereon public sanitary sewer s ervice an d public water supply is least practical . T hese districts also include commu nity facilitie s, public u tilities, a nd open us es which

se rv e specific ally the residents of these districts or which are benefittedby an open res idential e

nvironme nt with out c reating objectionable or undesira ble influ ence s upon residential developments or influences which are inc ompatible

with a rur

al envir onment. Fur

ther, it ist h e intentof this title that these districts be located and developed so that urban expansion of the metropolitan area will be facilitated. -2- This case invol ves the val idity of an a mendment t

o the Zoning Or

dinance f or Metropol itan Government of Nashville and D avidson Count y intended topermit a family recrea

tion cente r to construct

ago-cart track. After t

he Metropo litan Planning Commission

refused to amend the zoning map in accordance with the amendm ent, the operator of the recreation center filed a declara tory judgme nt action in the Chancery Court for

Davidson C ounty. Fol lowing a bench trial, the trial court struck down the ordinance because it conflicted with the Gener al Plan f or Nashville

and Davi d son County. T

he operator has appe aled. W e have det ermined t

hat the amendmentis valid as long as it w as passed i n accorda nce with t

he super- majority requirem ents of th e Metropol itan Charter and, accordingly, remand the case for a definitive factual determination of that issue.

I.
Family Golf of Nashville, Inc. operates an outdoor f amily rec reation c enter on
aleased 4. 32 acre tract at the intersec tion of Bel l Road and B lue Hole R oad. The propertylies near

th e Hickor

y Hollow C ommercia

l Center and is loca

ted in the floodplai n. Family G olf has alr eady constr

ucted a mi niature gol f course, a drivi n g range, and a batti ng cageon the property. The present dispute arises out of its desire to const ruct a go-car t track and an arcade.

The property i s presentl y zoned AR2a which permits a variety of agricultural
a nd low-dens ity reside ntial uses. 1 Acting on t he advice of repre sentatives of the Metropolitan Planning Commission that go-cart tracks w ere not permitte d in AR2a2 Metro. Code § 17.56.0 80 des cribes the purposes of CS, commercial service, districts as

follows: These districts are designed to provide fo r a wide range of commercial uses concerned withretail tr

ade and consumer

service s; amusement

and enterta

inment est

ablishmen

ts; drive- in stores, eating places and financial institutions; and offices. The uses in the se districtsservice a wide market area and, therefore, e ase of automotive accessis a requisite. Howeve r, it is not intend

ed that these distr

icts perm it uses which generate large volumes of truck tra ffic. Bul k reg ulations are designed to control building volumes such t ha t compatib ility with vicin ity reside ntial use s is promoted , while maintaining maximum fl exibility in commer cial a ctivities

. Appropr iateopen space between commercial a nd residential areas is required unless appropriate design features are a ccomplished un der the planned unit developmen t proced ures for this district.

3 Metro. Code § 17.24.030(A)(16) (1994). -3- zones, Family G olf reque sted the Metropolitan Council to r ezo ne the prope

rty to place it in a CS zone. 2 The record does not contain a p recise e xplanation c oncerning why this rezoning was ne cessary. The exis ting uses of the proper

ty, inc luding th e miniature golf cours e, the dr iving range , and the b att ing cage are permissible as conditional uses in an AR2a dist rict beca use they ar

e “extens ive impac t” communi ty faciliti es. 3 An extens ive impac t facilit y conducts a

ctivities s uch as “boating, picnic grounds and racin g facilit ies seatin g over twenty-five t housand, but

not . . . ot he r motor-driven activitie s.” Metr o. Code § 1 7.12. 07 0(E)(13) (19 97). Presumab ly, a largemotor spee dway cat ering to pr

ofessional

racing is permitt

ed as a conditional

use in an AR2a d

istrict but a go-car t track is no t. See Metro. Code §§ 17. 12.080(18) (1997), 17 .60.020(C) (18) (199 6).

Interest ingly, the planningcommission opposed F amily Golf’s proposed ordi nance even though i t had earl ier rec ommended t hat Famil y Golf re zon e th e propertyto a CS distr

ict. Th e planning com

mission took t

he position th at rezoni ng this property t

o aCS districtwould viola te the land

use policie s in Nashvi lle’s cur rent general plan entit

led Conce

pt 2010 - A G

eneral Pl an for Nashvi lle and Dav idson County (1992) . Speci fically, the planningcommission pointed out th at its plan f or th e are a called for (1) m edium densi ty land use p olicy, (2 ) confine ment of commercial activitie s to comme rcial ce nters, a

nd (3) prot

ection of f

loodplains by favoring z oning that pe

rmitted lo w impact

uses. Even though the proposed go-cart track arguably complies with these criteria, other commercial uses permitted in CS districts, such as dry

cleaning b usinesses, service stations, and auto re pair shops, do4 See Metro. Code §§ 17.12.080(10) (1997), 17.60.020(16) (1996) (dry cleaning businesses);

Metro. Code §§ 17.12.080(11 ) (199 7), 17.60.020(C)(3) (1996) (gas stations); Metro. Code §§ 17.12.080(4) (1997), 17.60.020(C)(19) (1996) (auto repa ir shops).

5 Because the prope rty is located in a floodplain, Family Golf must obtain a conditional use permit from the Metropolitan Board of Zoning Appeals for any use of the property other

than “[c]rop and animal ra

ising” or a “[p]l a nt nursery.” Metro. Code §§ 17.116.020, 17.116.030 (1992). In addition, all struc tures co nstructe d in a floodpl ain are subject to

stringent requirements such as (1) minimal floor elevations that are equal to or higher than the “f lood protection elevation,” Metro. Code § 17.124.360(B), (C) (1992); (2) placement on the site so as “to minimize obstruction to the flow of floodwaters,” Metro. Code § 17.124.36 0(D); (3 ) being f irmly anchored to

prevent flotation and movement, Metro. Code § 17.124.360(E); and (4) the prior approval of the project by the board of zoning appeals and the D irector of Public W

orks, Met ro. Code § 17.124.36 0(A), (F). It see ms likelythat most structures would have to be built on stilts to satisfy these requirements. Even presuming that the owner of a dry cleaningbusiness, gas station, or auto rep air shop c ould compl y withthese ordinances, the expense of doing so would, as a pr actical matter, make the project uneconomic.

6 The Metropolitan Department of Law must provide legal advice to and represent the Metropolitan Governm

ent, in clu ding the Metropolitan Council and the planning commission. Charter of the Metropolitan Gov’t of Nashville and Davidson Coun t y, Tennessee § 8.602(a)-(c) (“M etro. Charter”). In the present case, the Department of Law is representing the plann in g commission but not the Metropolitan Council. The Council has not retained independent counsel even though it c ould do so. Metro. Cha rter § 8. 607. Thus, the Counc il is unrepre sented in this proceeding even though the legality of one of its ordinances is at issue. -4- not. 4 While te chnic al ly correc t, the pla nning commis sion’s conc ern seem s to be somewhat

overly ca utious. 5

The Metropolitan Council eventually adopted Ordinan ce No. 94-1222 that rezoned the property to a CS district. Notwithstan d ing the Counc il’s acti on, the planning commission

refused t o amend the

officia l zoning mapto refle ct the zoni ng changein the ordinance. The planning commission justified its conduct by pointing to an opinion of

the Metro politan De

partment of Law that a zoni ng ordinanc e in conflictwith Na shville’s g eneral pl an was inv alid. 6 As a re sult, Fam ily Golf could not obtain a building per

mit to const

ruct its go- cart tra

ck.
Family Golf filed suit in the Chancery Court fo r Da vidson County s eeking a declara tion that O rdinance No. 93-12 22 was val id notwithst anding the pl anning commission’s assertion

that the or

dinance w as inconsist

ent with Nashville’s general plan. The trial court found that the ordinance was incon sistent wi th the general plan and declare d it invalid. The trial court re sted its dec ision on Metr o. Chart er § 18.02 which states, in part, that

“[z]onin g regulati ons shall be enacted b y the counci l only
on the basis of

a comprehensive pla

n prepare d by the met

ropolitan pl anning7 Metro. Cha rter § 18 .02 read s in full asfollows: Zoning regulations shall be enacted by the council only on the basis of a comprehensive plan prepared by the metropolitan planning commission in accor

dance w ith the ap

plicable state law s a nd as provided in section 3.05 of this Charter. Any revision, modifica t ion or change in the zoning regulations of the metropolitan gov er nment as p rovided in this section shall be made only by ordinance. Where a proposed ordinance revises , modifies , or changes the zoning regulations and is notaccompanied at intro duc tion by a favorable recommendation of the metrop olita n planning commission, a copy thereof shall be promp tly furnished by the metropolitan clerk to said planning commission, and the same shall not be passed on second

reading until the recommendationof said pl anning co mmission wit h respect to the proposal has been re ceived o r thirty (30) days have elapsed without such recomme

ndation. No ordinance ma king any revision, modification or c h ange in the zoning regulations which has been disappro ved by the metropoli tan planning

commission

shall be f inally passedor become effective

unless it shall be adopted by a two-thirds majority of the whole membership of the co uncil a nd also then be approved by the metropolitan mayor, with a thr ee-fou rths major

ity of the whole membership of the council required to override a veto. -5- commissi on.” 7 This appeal by Family Golf req uires us to e xamine the manner in which the Chart

er of the Metropolit an Government of Nashville and D avidson County h as alloca

ted land use

control au thority bet

ween the Metropolit an Council and the pla

nning commis sion.

II. L AND U SE C ONTROL IN N ASHVILLE AND D AVIDSON C OUNTY

Local governments lack inherent power to control t

he use of land withi n their boundaries

. Th is power re sts with the State; however, the General Assembly may delegate it to local govern ments. See Henry v. White , 194 Tenn. 192, 196 , 250 S.W.2 d 70, 71 (1952 ); Anderson County v. Remot e Landfil l Servs., Inc., 833 S.W. 2d 903, 909 (T enn. Ct. App. 1991) ; State ex rel. Browning-Ferris Indus. of Tenn., Inc.

v. Board of Co mm’rs , 806 S.W. 2d 181, 184 ( Tenn. Ct. App. 1990) ; State ex rel. SCA Chem. Servs., Inc. v. Sanidas , 681 S.W .2d 557, 56 2 (Tenn . Ct. App. 1984). Accordi ngly, local governments must exercise their deleg ated p owers co nsistently with the de legation statutes

. Henry v. White , 194 Tenn. at 197, 250 S.W. 2d at 72.-6- The General Assembly h as empowe red county a

nd municipa

l legislativ e bodie s to zone prop erty. See Tenn. C ode Ann. §§ 13-7-101 to 13-7- 210 (1992 & Supp

. 1996). At thesame time , it has de legated th e land use p lanning func tion to loca l and regional pla nning com mission s. See Tenn. C ode Ann. §§ 13-3-101 to 13-4-309 ( 1992 & Supp. 1996). The p ower to zone must be di stingui shed from t he power to p lan.
Zoning and planning

are comp lementar

y pursui ts that are largely concerned withthe same sub

ject matter. They are not, however, identical fields of municipal endeavor. See 1 E. C. Yokley, Zoning Law and Practice §§ 1-2, at 2 (4th ed. 1978) (“Yokley”). Pl anning i nvolves coor dinating the

orderly de velopment o f all interrelated aspects of

a communit

y’s physica

l environment as well

as all the community’s closely as sociated s ocial and ec onomic act ivities. See 1 Norman Williams , Jr. & John M. Tay lor, Americ an Land Plan ning Law§ 1.05, at 13 (rev. ed. 1988) (“Amer

ican Lan d Pl anning Law”) ; Robert W. Pha ir, Planning and Zoning: Principles and Practice , 29 Tenn . L. Rev. 514, 514 (19 62). It i s a continuous process carried out indefinitely throu gh time . Common sense and r eality dic tate that a general plan “is not

like the la

w of the M edes and

the Persians; it must be subject to reasonabl e change from time to time” as conditions in the community change. Furniss v. Lower Me rion, 194 A.2d 926, 927 (Pa. 1963).
Zoning, on the other

hand, invol ves the ter

ritorial division of la

nd into distri cts accordingto the character of the land an d bu i ldings, their suitability for particular uses, and the un iformity o f these use s. See 1 Kenneth H. You ng, Anderson’s Americ an Law of Zoni

ng § 1.13, at 19 (4th ed. 1996) (“Young”) (citi ng Schultz v. Pritts , 432 A.2d 13 19, 1330 (M d. 1981)). Zoni ng ordinance s are now the most importa nt and preval ent type o f American lan d use cont rol. See Americ an Land Planning Law § 16. 01, at 434. These or dinances f

ocus prima

rily on the u se of propertyand the str

uctural a nd archite ctural de sig n s of the bu ildings

. See In re Sundance Mountain Ranches, Inc., 754 P.2d 1211, 1213 (N.M. Ct. App. 1988); Kaufman v. Planning & Zoning Comm’n, 298 S.E.2d 148, 153 (W.Va. 1982); Yokley §§ 1-2, at 1 4-15.-7- The state ena

bling legisla

tion place s the authorityto plan and t he authorit

y to
zone with diff

erent loc al g o vernmental entities. Planning is entrusted to appointed municipal or regiona l planni ng commis sions. See Tenn. C ode Ann. §§ 13-3-101, 13- 4-101 (1992 & Supp . 1996). In contra st, the z oning power is squarel y placed in

the hands of the local legislat ive bodi es because t he powe r to zo ne is viewed as essential ly a legisla

tive exercise of the government’s police po wer. See Holdre dge

v. City of Cleveland, 218 Tenn. 239, 247-48 , 402 S.W .2d709, 712 (1966); Brooks v. City of Memphis, 192 Tenn. 371, 375, 2 41 S.W.2 d 432, 434 (1 951). Lo cal legisl ative bodies may enac t zoning plan s recommended by pla nning commissions, but they are not obligat ed to. See Tenn. C ode Ann. §§ 13-7- 102, 13-7-202. Local le gislative bodies may also am end z oning ordinances; however, they must submit proposed changes to the pla nning co mmission for review. If the p lanning com mission disapproves of a propos ed change, a majorit y of the “entir e member ship” of the local legislativ e body must app rove the pr oposed chang e in or der for it to be va lid. See Tenn. Code Ann. §§ 13-7-105( a), 13-7 -203(b), 13- 7-204. Accordi ngly, the s tate enabling legislation vests the local legislative bodies with the prer og ative to ma ke final d ecisions on all zon ing matter s. See State ex re l. SCA Chem. Servs ., I nc. v . Sanidas , 681 S.W .2d at 564; E.C. Yok ley, The Plac e of the P lanning Commission and the Board of Zoning Appeals in Community Life, 8 Va nd. L. Rev. 794, 795 (1955).

Loca l governments may decide for themselves how best to exercise t he lan d
use controlpowers de legated by the Gene ral Asse mbly as long as th eir decis ions do not conflictwith stat

e law. In the case

of the Met

ropolitan G overnment

of Nashvi lle and Davidson County, the Charter Commission allocated portions of these pow ers to the Metropolitan C ouncil and to the Metropolitan Planning Commis sion. Consi stent with state law, the Metropolitan Council re ceived the power to c ontrol land use in the c ity. See Metro. C harter §§ 2.01(25), 3.06. The Met ropolitan Planning Com

missionwas vested with the powers “granted . . . by general state law. ” Metro. Charter § 11.504. By allocatin g the power s in this way, the Charter Commission

stated cle arly that t

he Metropolit an Council has the fin al say over zoning matt

ers.-8- The division of po wer evid ent in the st ate enabli ng legislat ion is mirr

ored in Metro. Charter

§ 18.02 – the

very sect

ion on which

the Metropo litan Planning Commission

relies in this case. T

his provision

states tha t a propose d zoning cha

nge that has been di sapproved b y the plannin g commission can become effect ive only if adopted by a two-t

hirds major

ity of the “ whole me mbership of the counci l.” If the mayor vetoes the ordinance containing the p roposed zo ning change , then it c annot become e ffective

unless a thr

ee-four ths majori ty of the “w hole membe rship” of the Metropolitan Council overrides the veto. The primary difference between the state enabling legislatio n and Metr o. Chart er § 18. 02 is the charter’s requirement that changes in zoning ordinances that are either dis approved by the planningcommission
or vetoed by the

mayor ca n become e ffective

only with th e vote of a

super-ma jority of the enti re membershi p of the Met ropolit an Counci l.

The Metropol itan Plann ing Commi ssion’s interpret ation of Me tro. Char ter § 18.02 rests on its perception that there should be a distinction between proposed zoning changes that violate the general p lan and prop osed zoning regulatio ns that it has disapproved. The former, the commiss ion contends , are in valid under all circums tances; wh ile the la tter may b e overrid den by a supe r-major ity of the Metropolitan Council. This distinction is extremely subtle, especial ly in light of the

u npreced ented shift of pow er it woul d accompli sh. It is a lso not suppor

ted by the Metropolitan Charter.
Metro. Charter § 11.505 states, in part, that [w]henever

the commission

shall have

adopted the master or general p lan . . . thencefo rth no st reet, park or other public way . . . [or] no public building or structure .

. . shall be constructed or authorized . . . un less . . . approve d by the planning commission ; provided, that i n case of disapproval

. . . said council by a

vote of a major

ity of its membe

rship, shall have the power

to overrul e such disa

pproval. This section refers to the “general plan” and the planning commission’s “disapprov al” in the same sentence without dis tinguishing the terms. There i s good
reason for this. The planning commiss ion may amend the gener al plan by r esolution atany time. See Tenn. Co de Ann. § 13-4-201; Metro. Charter § 11.504(e). Therefore, the planning commission’s approval or disapp roval of any proposed8 We note parenthetically that our interpretation of Metro. Charter § 18.02 is co nsistent w ith

the conclusi ons of othe

r courtsthat have

been co nfronte d with simila r issues. See Young § 5.06, at 369-73.

9 See Metro. Charter § 3.01. -9- zoning ordinance

is, in tha t sense, s ynonymous with the general p lan. Ac cordingly, the Metropolitan Charter does not distinguish between zoning ordinances that ar e contrary to the gene

ral plan a nd ones th at have be en disappro ved by the pla nning commission. Either may be validlypassed by a super- majority of the Metropolitan Council.

Had the Charter Commission intended to give th e appointed Metropolitan Planning Commission

veto author

ity overthe Metropolitan Council’s zoning power, itwould have done so more clearly. We do not read Metro. Charter § 18.02 as some sort of surreptitious departure from the state law. Instead, we view Section 18.02 as clear confirma

tion of the i mportant a dvisory rol e t he Metropo litan Planning Commissio n plays in the contr ol of the use

of land in N ashville. By requir ing a super-ma jority of the Metropolitan Council to over rid e the planning commission’s disapproval of a p roposed zoning chang e, the Charter Commission intended to protect against random or ad hoc zoning a nd to ensure that the Metropolitan Council takes the carefull y crafted gen eral plan s eriously

.

In summary, any zoning ordinance that confl icts with the general plan or that has been disapproved by the Metro politan Pla nning Commis sion is never theless va lid if it wa s enacted in accordance with the super-majority requirements of Met ro . Charter § 18.02. T

his charte

r provis ion does not change the balance of power between the Metro politan Coun cil and the Metropolit an PlanningCommission

. 8

III. T HE E NACTMENT OF O RDINANCE N O . 94-1222

We must also determine whether the e na ctment of Ordinanc e No. 94- 1222 complies with the s uper-ma jo rity requi rements o f Metro. Charter § 18.02. In the absence of a mayoral veto, this provisi on require s a zoning or dinance to be passed by
atwo-thir ds vote of th e “whole

members hip” of the

council. Since the Metropolitan Councilconsists of

forty mem

bers, 9 twenty-seven memb ers or mor e must vote

in10 Under Metro. Charter § 5.04, the mayor may veto or “disapprove”an ordinance by returning it unsigne d to the council at or pr ior to the next regular council meeting occurring ten days or more subsequent

to the date that the ordinance was delivered to the mayor for consideration. The mayor may, but is not required to, attach a message explaining the reasonsfor his or her disappro val. If the mayor does not return the ordinance within the prescr ibed time, it automatically becomes effective. -10- favor of the ordi nance in or

der for i tto be valid. If the mayor vetoes 10 the ordinance, three-f ourths of the “w hole membe rship” of t

he council, thirty or more me mbers, must vot e to overri de the veto

.
The appellate

record do es not reve al the numbe r of cou ncil mem

bers who voted in favor of Ordinanc e No. 94- 1222. Nor does it re veal whe n the ordi nance wa s delivered to the mayo r for cons ideration or what di sposition the mayor

made of th e ordinance. Since the Metropolitan Council enacted the ordinance over the pl anning commission’s objection , i t seems pr obable that

at least t

wenty-se ven council members voted in its f

avor. N everthel ess, the r

ecord does not revea

l the vote, and if less than tw enty-seve n council members vote d for the or dinance, it is invali d.
By the same toke n, we c an only speculate concerning when the mayor received the ordinance

and what he di d with it a fter he r eceived i t. If he signed the ordinance and returned it or held it for more th an the time provided in Metro. C harter § 5.04, then the or

dinance is valid. I f, howe ver, he v etoed or di sapproved t he ordinanc e in the manner provided in Metro. Charter § 5.04, th en the ordinance is valid only

if the Metropolitan Council overrode the mayor’s disapproval by a vote of three-f ourths of its entire membership. There i s no evidenc e in the re cord of th e mayor’ s action or whether the Metropol itan Coun cil took another vo te on Ordin ance No. 94-1 222.

IV. T HE C ONSTITUTIONALITY OF O RDINANCE N O . 94-1222

The Metropolit an PlanningCommission finally as serts that Ordinanc e No. 94- 1222 is un constitutional because it lacks any rational or justifiable basis. It argues that the ordinance amounts to sp otzoning because the Metropolitan Council singled out Family G olf’s prop erty for rezoning and thus conferred on Family Golf a benefit denied to similarly

situated pr

operty own ers. T

hus, the c ommission

contends tha

t the-11-

ordinance does not leg itimately advance t

he health, safety, morals, or welf are of th e Nashville community. We disagree.

Local legislativ e bodies have broad disc retion in e nacting or amending z oning ordinance s. When the validity of a zoning ordinance is fairly deb atabl e, the c ourts may not substitute their judgment for that of t he local legi slative body . A zoni ng ordinance should be fou nd valid unle ss it is “cl early ar bitr ary, capricio us, or unreasonable, having no sub sta ntial rel ationship to t he public he alth, saf

ety, or welfare, or plainly

contrary to the zoning laws.” McCalle n v. City of Memph is, 786 S.W.2 d 633, 640 (T enn. 1990) . Beca use the “r ational ba sis” test i s the most deferential form of judicial scrutiny, a reviewing court should u phold a challenged zoning ordinance

if there is any possibl e reason t

hat can be

conceived

to justify i t. Fallin v. Knox County

Bd. of C ommr’s, 656 S.W.2d 33 8, 343-44 (Tenn. 1983 ).

We find that it is possible to c onceive of reasons tojustify Or

dinance N o. 94- 1222. The Council could very well have believed that permitting a go-cart track at this location w as not as ra dical a de parture f rom theexisting uses of the property as
aminiature

golf cours e, drivin g range, and a batti n g cag e. The Council co uld also have believed t

hat the sur

rounding com

munity woul d benefit f

rom having t

his type of activi ty nearby sin ce the pro perty is in t he floodpla

in and surr

ounded by land zoned for agri cultur al and low-densi ty residential devel opment, a nd since the propertyis located on a major roadway very close to Hickory Hollow Mall, one o f Nashville’s major com

mercial activity c enters. Under the se circumst ances, i t is not for this court t

o substitute i ts judgment f or that of the

Metropolitan Council. Hence, Ordinance No. 94-1 222 survives rational b asis scrut iny and thu s pas ses constitutional muster.

V.

We vacate t

he judgment

and r emand th e case to the trial court to en able the parties to introduce competent evidence concerning the Metropolitan Council’s and the mayor’s actions regarding Ordinance No. 94-1222. If the ordinance was enacted in complianc e with Metro. Cha rter §§ 5. 02 & 18.02, then thetrial court should enter
ajudgment upho lding the val idity of the ordinance. We tax the costs of this appeal to the Metr

opolitan Go vernment o f Nashvil le and Da vidson County.-12- _________________ ___________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_______________ WILLIAM B. CAIN, SPECIAL JUDGE

NOT PARTICIPATING: BEN H. CANTRELL, JUDGE