FILED

Jan. 5, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

HOOVER, INC., )

)

Petitioner/Appellant ) Appeal No.

) 01A01-9506-CH-00277

v. )

)

METRO BOARD OF ZONING APPEALS, ) Davidson Chancery 

et al., ) County No. 92-1993-III

)

Respondent/Appellee )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT, PART THREE

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

THOMAS V. WHITE ROGER A. HORNER

Tune, Entrekin & White P.O. Box 788

Twenty-First Floor Brentwood, Tennessee 37024-0788

First American Center ATTORNEY FOR RESPONDENT/APPELLEE

315 Deaderick Street CITY OF BRENTWOOD

Nashville, Tennessee 37219

 ATTORNEY FOR PETITIONER/APPELLANT

JAMES D. PATERSON

GEORGE A. DEAN 306 Court Square

Parker, Lawrence, Cantrell & Dean Franklin, Tennessee 37064

200 Fourth Avenue, North ATTORNEY FOR RESPONDENT/APPELLEE

5th Floor, Noel Place WILLIAMSON COUNTY

Nashville, Tennessee 37219

 ATTORNEY FOR PETITIONER/APPELLANT

Herbert R. Rich

JAMES L. MURPHY III 213 Third Avenue, North

STEPHEN NUNN Nashville, Tennessee 37201-1680

204 Metropolitan Courthouse ATTORNEY FOR RESPONDENT/APPELLEE

Nashville, Tennessee 37201 PAUL JOHNSON

 ATTORNEYS FOR RESPONDENT/APPELLEE

 METROPOLITAN BOARD OF ZONING APPEALS

 METROPOLITAN GOVERNMENT OF NASHVILLE

 AND DAVIDSON COUNTY

ROBERT H. JENNINGS, JR.

JAMES R. TOMKINS

Jennings and Tomkins

Suite 2240-L&C Tower

Nashville, Tennessee 37219

 ATTORNEYS FOR RESPONDENT/APPELLEE

 EDWARD KNIGHT, BEVERLY KNIGHT, JAMES

 PHILLIP CARTER, MARIDEE CARTER, MARIE

 CARTER, WILLIAM CARTER, MARY JANE

 CARTER AND STOP THE QUARRY

REVERSED AND REMANDED

SAMUEL L. LEWIS,JUDGE
1

 The area at issue is a AR2a zone district, an agriculture and

residential area with a two acre minimum.

2

OPINION

This is an appeal by petitioner/appellant, Hoover

Inc. ("Hoover"), from an order of the chancery court

affirming the Metropolitan Board of Zoning Appeal's

decision to deny Hoover's application for a conditional

use permit.

The pertinent facts are as follows. On 23 April

1992, Hoover filed an application for a conditional use

permit with the Metropolitan Board of Zoning Appeals

("the Board"). Hoover wanted the permit in order to

build a stone processing plant and related plants at

6682 Nolensville Road.1 To aid it in its decision, the

Board asked for comments from various public offices

and held a public hearing on 28 May 1992. At the

hearing, Hoover presented evidence to prove that its

project complied with the Zoning Regulations of the

Metropolitan Government of Nashville and Davidson

County. Opponents to Hoover's application also

presented evidence showing that Hoover had not

fulfilled the necessary requirements. Needless to say,

Hoover's application generated a great deal of public

concern and action.

At the conclusion of the hearing, the board members

voted as follows: 2 against, 0 in favor, 3 abstentions,
3

and 1 absent. Hoover needed four concurring votes in

order to prevail. Typically, there are seven persons

on the Board. Prior to the public hearing, however,

one member resigned leaving a vacancy. Of the six

remaining members, board member Hoover, president of

appellant, did not attend the hearing because of the

obvious conflict of interest and board members Spann

and Karr abstained because they felt it was

inappropriate for them to vote on the matter unless

board member Hoover resigned from the Board.

Four months before the hearing board members Spann

and Karr sent a letter to board member Hoover

explaining their position. Subsequently, they met with

board member Hoover and again explained their decision

to abstain. Despite their predisposition, both board

members attended the meeting "to allow a quorum to be

present so that the matter could be heard [on that

night] rather than lingering on for several months." 

After the hearing, the Board entered an order

denying the application pursuant to section 17.16.060

of the Zoning Regulations of the Metropolitan

Government of Nashville and Davidson County Tennessee. 

The applicable portion of that regulation provides as

follows:

The presence of four members shall

constitute a quorum and the concurring vote of

at least four members of the board shall be
2

 The private individuals included Edward Knight, Beverly Knight, James

Phillip Carter, Maridee Carter, Marie Carter, William Carter, and Mary Jane

Carter. Hereinafter, this opinion will refer to these individuals as "the

Citizens."

4

necessary to deny or grant any application

before the board. In the event that five or

more members are present, failure to receive

four concurring votes within thirty days of the

public hearing shall be deemed a denial.

Zoning Regulations of the Metropolitan Government of

Nashville and Davidson County Tennessee §

17.16.060(A)(hereinafter Zoning Regulations). Board

members Karr and Spann knew of this rule. Thus, they

knew that Hoover could not get the permit if they

abstained because, after taking into account the

vacancy and board member Hoover's conflict, there were

only three votes left.

Hoover appealed the Board's decision to the

Davidson County Chancery Court under a common law writ

of certiorari. Later, the chancery court entered an

order allowing several private parties2, Stop the

Quarry, Paul Johnson, the City of Brentwood, and

Williamson County to join as respondents. In his

Memorandum Opinion, dated 26 February 1993, the

chancellor concluded that the Board failed to follow

procedure when it allowed board members Karr and Spann

to vote despite certain disqualifications. Further,

the chancellor concluded that the Board's failure to

make findings of fact precluded judicial review. Based

on these conclusions, the chancellor remanded the case

to the Board for a new hearing.
5

All of the respondents appealed the chancellor's

decision to the Court of Appeals for the Middle

Section. At the time of oral argument, the Western

Section was sitting in Nashville. The Western Section

stated that the issue was "whether the Board failed to

make a legally effective decision regarding Hoover's

application." Hoover, Inc. v. Metropolitan Bd. of

Zoning Appeals, et. al, No. 01A01-9307-CH-00312, 1994

WL 260693, at *2 (Tenn. App. 15 July 1994). In

resolving this issue, the court only addressed those

conclusions made by the chancellor. The Western

Section reversed the chancery court and held that the

Board properly allowed both Karr and Spann to

participate in the decision. Id. In addition, the

Western Section found that it was not necessary for the

Board to make any findings of fact because "the Board

failed to obtain a concurring vote (either

affirmatively or negatively)." Id. at *3. In support

of this conclusion, the court cited, with approval,

Mayor and City Council of Baltimore v. Bierman, 50 A.2d

804 (Md. 1947) and Sokolis v. Zoning Board of Appeals

of Springfield, 157 N.E.2d 427 (Ill. App. Ct. 1959). 

The Western Section found that the Board's decision was

legally effective and remanded the case to the chancery

court "to review the Board's decision on its merits." 

Hoover, 1994 WL at *3.
3 The "general requirements" referred to throughout this opinion are

found at section 17.124.040 of the Zoning Regulations. This section states as

follows:

A conditional use permit shall be granted provided the board

finds that it:

A. Is so designed, located, and proposed to be operated

that the public health, safety and welfare will be protected;

B. Will not adversely affect other property in the area in

which it is located;

C. Is within the provision of "conditional uses" as set out

in this title; and

D. Conforms to all applicable provisions of this title for

the district in which it is to be located and necessary for public

convenience in that location. (Prior code Appx. A § 103.21)

Zoning Regulation § 17.124.040.

4

 The "specific requirements" at issue in this case are found in

section 17.124.330 and include the following:

A. The location of such an activity shall be in an area

sparsely developed and likely to remain sparsely developed during

the length of time the sawmill, mining or quarrying activity is

anticipated and no new location shall be considered within a onemile radius of an existing quarry.

B. Any permit issued under this chapter shall be based on

a site plan or other documents submitted with an application which

shall provide for the following:

. . . .

8. Finished contours of the site after the quarrying

operation has been terminated. The site shall be graded and/or

filled so as to be in substantial conformity with the topography

of the surrounding lands. All fill material shall be nontoxic,

nonflammable, and noncombustible solids. All areas that are

backfilled shall be left so that adequate drainage is provided.

Zoning Regulation § 17.124.330 (A),(B)(8). 

6

 On 22 February 1995, the chancellor filed a

Memorandum Opinion holding that Hoover did not

establish that the plan satisfied the general

requirements.3 In addition, the chancery court found

that Hoover's reclamation plan was inappropriate and

that Hoover did not establish that the area was

"sparsely developed."4 As a result, the chancery court

entered final judgment affirming the Board's decision. 

Hoover filed its notice of appeal on 22 March 1995. 

The Citizens and Stop the Quarry filed a brief

together, and the Board and the Metropolitan Government

of Nashville and Davidson County also filed a brief. 
7

All of the other parties filed notices of intent to

join in the brief of the Citizens and Stop the Quarry. 

The parties presented a variety of issues. 

Nevertheless, the only issue raised by a writ of common

law certiorari is whether the Board exceeded its

jurisdiction or acted illegally, arbitrarily, or

fraudulently. Hoover Motor Exp. Co. v. Railroad & Pub.

Utils. Comm'n, et. al, 261 S.W.2d 233, 238, 195 Tenn.

593, 604-5 (1953); Tenn. Code Ann. §27-8-101 (1980). 

Moreover, upon a common law writ of certiorari, a court

is not to weigh the evidence. Watts v. Civil Serv. Bd.

for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980), cert.

denied, 450 U.S. 983 (1981). 

During oral argument, there seemed to be some

confusion as to whether the chancery court or the

Western Section had addressed this issue. It is the

opinion of this court that neither court considered the

issue. The chancery court simply decided that it could

not review the Board's decision because it was not

legally effective without findings of fact. The

Western Section then reversed the chancery court and

held that the Board's decision was legally effective

and subject to judicial review. Up to this point,

neither court had addressed the issue of whether the

Board's decision was illegal, arbitrary, or fraudulent.
8

The decision of the chancery court, entered on 22

February 1995, addressed the issue presented by a

common law writ of certiorari, but was without affect. 

To explain, the chancellor applied the correct law to

the wrong facts. In his opinion, the chancellor

correctly stated that the standard of review was

whether there was any material evidence to support the

Board's decision. In other words, if a reviewing court

finds that there was no material evidence to support an

administrative body's decision, the reviewing court

must conclude that the administrative body acted

illegally. Watts, 606 S.W.2d at 276-77; Hoover Motor

Exp. Co., 261 S.W.2d at 238-39.

In this case, the chancery court affirmed the

decision of the Board because it found that there was

material evidence to support the Board's conclusions

that Hoover's plan did not meet the general

requirements, that it did not establish that the area

was sparsely developed, and that it did not include an

appropriate reclamation plan. The problem with the

chancery court's decision is that these conclusions

were not the reasons given by the Board for denying the

permit. The denial was by operation of law. It had

nothing to do with whether Hoover had met the specific

or the general requirements. 

It is the position of this court that a reviewing
9

court can not determine whether the decision of an

administrative body is supported by material evidence

unless the administrative body makes findings of facts

setting forth the reasons for its decision. We do not

express an opinion as to whether the Western Section

was correct in concluding that it was not necessary for

the Board to set out findings of facts absent four

concurring votes. Instead, it is our opinion that a

reviewing court can not determine if there was material

evidence to support a decision if the reviewing court

is unaware of the basis for the decision. Thus,

although the chancellor stated the law correctly, the

law was not applicable to the facts of this case. 

The issue of whether an administrative body has

acted illegally, arbitrarily, or fraudulently is not

limited to a determination of whether material evidence

supported the administrative body's decision. An

illegal, arbitrary, or fraudulent action could be any

number of things. Examples include the following: 1)

the failure "to follow minimum standards of due

process"; 2) "the misrepresentation or misapplication

of a legal standard"; 3) the making of a decision for

"ulterior motives"; or 4) the violation of a

constitutional standard. Ben H. Cantrell, Review of

Administrative Decisions by Writ of Certiorari in

Tennessee, 4 Mem. St. U. L. Rev. 19, 28-29 (1973). 

Moreover, "[w]here a petitioner for a zoning permit has
10

met all of the requirements of the applicable zoning

resolution, and where the zoning authority denies the

permit based on reasons other than the petitioner's

compliance with the resolution, the [zoning

authority's] action in denying the permit is arbitrary

and unreasonable." Roger's Group, Inc. v. County of

Franklin, No. 01A01-9110-CH-00378, 1992 WL 8505, at *5

(Tenn. App. 1992); see Father Ryan High School, Inc. v.

City of Oak Hill, 774 S.W.2d 184, 191 (Tenn. App.

1988); Merritt v. Wilson County Bd. of Zoning Appeals,

656 S.W.2d 846, 854-55 (Tenn. App. 1983). In other

words, a board member can not vote to deny an

application when the board member believes the

applicant has met the necessary zoning requirements. 

Further, when an applicant has complied with the

requirements of the ordinance, an administrative body

may not deny the permit because of the concerns of

neighboring landowners. Brooks v. Fisher, 705 S.W.2d

135, 138 (Tenn. App. 1985). In this case, four of the

five board members present at the public hearing

expressed their beliefs that Hoover had met the legal

conditions required to obtain the conditional use

permit.

The most striking conduct was that of board member

Emamalie. After board member Meeks moved to deny the

motion, board member Emamalie seconded the motion and
5

 Prior to the polling of the board members, board member Price made

the following statement:

My -- I guess my sympathies lie with the residents in this area. 

I think the way the law is structured, however, at the present

time that the application by Hoover, Incorporated will probably be

well taken. I think it's obvious by people's position that at

this stage of the game, that it's not going to pass. But I think

under the law in terms of requirements, that they have met the

requirements. Unfortunately, the way the law, as I read it and

understand it at this point, that would say to them that once they

have met those general -- those specific requirements, that they

would be entitled to a conditional use permit.

I believe that something needs to be in the law that

specifically sets out what we can consider beyond that in relation

to the general requirements, because I think they are only

entitled to a presumption from meeting the specific requirements.

. . . . You know, my sympathies lie with you, but I believe

that the state of the law as it is right now, and looking at the

cases, they're probably entitled to it.

At the conclusion of the hearing, board member Spann stated as follows:

Ladies and gentlemen, I feel like with the conditions that

could be placed on this, that Hoover would meet the legal

requirements necessary to be granted a permit.

I want to also state that that's based on my analysis of the

legal interpretation. . . .

11

voted to deny the permit. Immediately preceding the

taking of the vote, board member Emamalie stated as

follows:

Due to all the facts that have been placed in

front of me here, I think Hoover, Inc., and

based on the legal matters put before me and

all the rest of the testimony, I think that

they meet all the obligations for us to grant

them this permit. But as a human body here and

as a person, I feel a moral obligation to the

people that live out there. And a lot of them

are neighbors to me, and I think I owe them

much to, as I said, disapprove this quarry.

This testimony establishes that board member Emamalie

based his decision to deny the permit on something

other than whether Hoover had met the required

conditions. Such a decision is arbitrary under the

laws of Tennessee.

Unlike board member Emamalie, board members Spann,

Karr, and Price, who also believed that Hoover had met

the Zoning Requirements, abstained from the vote.5 It
. . . I want you to know, though, that while I feel they

might legally qualify, I would be very uncomfortable having to

vote for this because from a moral standpoint, I think it would be

a mistake to put a rock quarry at this location. A rock quarry is

unquestionably an industrial operation.

It is the Metro zoning regulation, not Hoover, that's at

fault for this. But the regulations are wrong.

After board member Spann finished giving his statement, board member Karr

stated that he concurred in the thoughts expressed by board member Spann. 

12

is the opinion of this court that we should treat these

abstentions as if they were votes to deny the

application.

Section 17.16.060 of the Zoning Regulations

provides that the Board shall adopt rules for its

meetings. There is nothing in these rules regarding

abstention. There is, however, a provision which

states: "When an issue arises which is not

specifically covered by these rules, the Board will be

governed by Robert's Revised Rules of Order." Metro.

Bd. of Zoning App. R. of P. Rule 14 (filed in the

Metro. Council Clerks Office 2 March 1992). This book

does address the issue of abstention, albeit briefly. 

It states: "While it is the duty of every member who

has an opinion on the question to express it by his

vote, yet he cannot be compelled to do so. He may

prefer to abstain from voting, though he knows the

effect is the same as if he voted on the prevailing

side." General Henry M. Robert, Robert's Rules of

Order Revised, §46 p.193 (1971). 

When a board member chooses to abstain from a vote,
13

he creates a peculiar situation. One who abstains

knows that he might as well have voted for the

prevailing side, but for some reason chooses to keep

his decision out of the public record. Because board

members realize that an abstention is essentially a

vote for the prevailing side, it is the opinion of this

court that it be treated as such for the purposes of

determining whether an administrative body acted

illegally, arbitrarily, or fraudulently.

In the instant case, there was no prevailing side. 

There was, however, a regulation allowing the Board to

deny the application by operation of law. Board

members Karr, Spann, and Price all knew of this

regulation and knew that if they abstained the

regulation would operate to deny Hoover the permit. 

Treating the abstentions as if they were denials, we

must conclude that the board members acted illegally,

arbitrarily, or fraudulently because they

constructively denied the permit despite their beliefs

that Hoover had fulfilled the zoning requirements.

There is no doubt that the public opposition to the

quarry influenced the board members who abstained, but

it also seems that they chose to abstain because the

Zoning Regulations dissatisfied them. While it is not

the position of this court to state when a board member

may abstain from a vote, it is important to point out
14

the problems with allowing board members to abstain for

any reason whatsoever. To begin with, board members

who abstain because they do not believe the law is

correct are, in essence, legislating. Allowing such

action by board members is an unlawful delegation of

legislative authority. Lobelville Special School Dist.

v. McCanless, 381 S.W.2d 273, 274, 214 Tenn. 460, 464-

65 (1964). To explain, board members Karr, Spann, and

Price were able to deny Hoover a permit even though

they believed Hoover had satisfied the requirements of

the law. That is, they were able to circumvent the

dictates of the regulations and essentially amend the

law to suit their desires. While such a situation may

not be common, the facts of this case reveal that it is

certainly a possibility. A second reason for

establishing when an abstention is valid is that board

members can abstain simply to save face leaving the

final determination to the courts. This destroys any

purpose that could be set forth in favor of having such

an administrative body. 

Our final point concerns the coercive manner in

which board members Spann and Karr treated board member

Hoover. Both the Zoning Regulations and the

Metropolitan Board of Zoning Appeals Rules of Procedure

address the issue of conflict of interest. The Zoning

Regulations states as follows: "Any member of the

board who shall have a direct or indirect interest in
15

any property which is the subject matter of, or

affected by, a decision of the board shall be

disqualified from participating in the discussion,

decision, or proceedings of the board in connection

therewith." Zoning Regulations § 17.16.050(C). The

board's rules further state: "Any Board member who may

have an interest in the issues in a given case shall

publicly state that fact on the record so that either

party or a member of the Board might object to his-her

further participation in the case." Metro. Bd. of

Zoning App. R. of P. Rule 6(B). Nowhere does it state

that a board member must resign when facing a conflict

of interest or that another board member may ask an

interested board member to resign. Further, there is

no evidence that board member Hoover did anything in

contravention of the regulations or rules. Therefore,

it is the opinion of this court that board members

Spann and Karr acted illegally when they told board

member Hoover that they would abstain if Hoover did not

resign from the Board.

For the above stated reason, we reverse the

decision of the chancery court and remand the case to

the chancery court for any further necessary

proceedings. Cost on appeal are taxed to

respondents/appellees.
16

____________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

____________________________

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

____________________________

WILLIAM C. KOCH, JR., JUDGE