# 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 AP PEALS OF TE NNESSEE MIDDLE SECT ION AT NASH VILLE APPEAL FROM

THE CHANCE RY COURT, PART THREE AT NASHVILL E, TENNESSE E THE HONORAB LE ROBERT S . BRANDT, C HANCELLOR

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. L EWIS,JUDGE1 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 p etitioner/appellant, H oover Inc. ("Hoov er"), from an order of the chance ry court affirming t he Metropol itan Board of Zoning A ppeal's decision todeny Hoove r's applica tion for a conditional use permit.

The pertine nt facts ar e as follow s. On 23 A pril 1992, Hoove r filed an application for a cond itional use permit with

the Metrop olitan Boar d of ZoningAppeals ("the Board "). Hooverwanted thepermit in order to build a sto ne processi ng plant and related p lants at 6682 Nolens ville Road. 1 To aid it in its dec ision, the Board asked

for commen ts from var ious public offices and held a public hear ing on 28 M ay 1992. A t the hearing, Ho over presen ted evidenc e to prove that its project com

plied with the Zoning Regulations of the Metropolita n Governmen t of Nashvi lle and Dav idson County. Opponents to Hoover's application a lso presented e vidence sho wing that H oover had n ot fulfilled t he necessary requireme nts. Needl ess to say, Hoover's application g enerated a great deal of public concern and

action.

At the conc lusion of t he hearing, the board members voted as fo llows: 2 ag ainst, 0 in favor, 3 a bstentions,3

and 1 absen t. Hoover needed fourconcurringvotes in order to pr evail. Typ ically, the re are seve n persons on the Boar d. Prior t o the publi c hearing, however, one member resigned le aving a vac ancy. Of t he six remaining members, boa rd member H oover, pres ident of appellant, did not att end the hea ring becaus e of the obvious con flict of in terest and board membe rs Spann and Karr ab stained bec ause they f elt it was inappropria te for them to vote on

the matterunless board membe r Hoover re signed from the Board.

Four months before thehearing bo ard members Spann and Karr se nt a letterto board member Hoove r explaining their posit ion. Subse quently, th ey met with board membe r Hoover and again exp lained thei r decision to abstain. Despite t heir predis position, b oth board members att ended the meeting "to allow a quo rum to be present so that the ma tter could be heard [o n that night] rath er than lin gering on f or several months."

After the h earing, theBoard ente red an orde r denying theapplicatio n pursuant to section 17.16.060 of the Zoni ng Regulati ons of the Metropolita n Government of Nashvill e and David son County Tennessee. The applica ble portion of that re gulation pr ovides as follows: The presenc e of four members shal l constitute a quorum and the concu rring vote of at least fo ur members of the boar d shall be2 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 t o deny or g rant any application before the board. In the event t hat five or more member s are prese nt, failureto receive four concur ring votes within thir ty days of the public hear ing shall b e deemed a denial. Zoning Regu lations of the Metropo litan Gover nment of Nashville a nd Davidson County Tennessee § 17.16.060(A )(hereinaft er Zoning R egulations) . Board members Kar r and Spann knew of th is rule. Thus, they knew that H oover could not get th e permit if they abstained b ecause, aft er taking i nto account the vacancy and

board memb er Hoover's conflict, there were only three votes left.

Hoover appe aled the Bo ard's decis ion to the Davidson Co unty Chance ry Court under a commo n law writ of certiora ri. Later, the chance ry court en tered an order allow ing several private pa rties 2 , Stop the Quarry, Pau l Johnson, the City of Brentwood, and Williamson County to j oin as resp ondents. I n his Memorandum Opinion, da ted 26 Febr uary 1993, the chancellor concluded t hat the Boa rd failed t o follow procedure w

hen it allo wed board members Karrand Spann to vote des pite certai n disqualif ications. Further, the chancel lor conclud ed that theBoard's fa ilure to make findin gs of fact precluded j udicial rev iew. Based on these co nclusions, the chancel lor remande d the case to the Boar d for a new hearing.5

All of the respondents appealed t he chancell or's decision tothe Court of Appeals for the Middle Section. A t the time of oral arg ument, the Western Section was sitting in Nashville. The Weste rn Section stated that the issue was "whethe r the Board failed to make a lega lly effecti ve decision regarding Hoover's application ." Hoover, Inc . v. Metrop olitan Bd. of Zoning Appe als, et. al , No. 01A01 -9307-CH-00 312, 1994 WL 260693, at *2 (Tenn . App. 15 J uly 1994). In resolving t his issue, the court o nly address ed those conclusions made by th e chancello r. The Wes tern Section rev ersed the c hancery cou rt and held that the Board prope rly allowed both Karr and Spann t o participatein the dec ision. Id. In additi on, the Western Sec tion found that it was not necess ary for the Board to ma ke any find ings of fac t because " the Board failed to o btain a con curring vot e (either affirmative ly or negat ively)." Id. at *3. In support of this con clusion, th e court cit ed, with approval, Mayor and C

ity Council of Baltimore v. Bierm an , 50 A.2d 804 (Md. 19 47) and Sokolis v. Zoning Boar d of Appeal s of Springfi eld , 157 N.E.2 d 427 (Ill. App. Ct. 1 959). The Western

Section fo und that th e Board's d ecision was legally eff ective and remanded th e case to t he chancery court "to r eview the B oard's deci sion on its merits." Hoover , 1994 WL a t *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 isanticipated 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 Febr uary 1995, the chancel lor filed a Memorandum Opinion hol ding that H oover did n ot establish t hat the pla n satisfied the genera l requirement s. 3 In additi on, the cha ncery court found that Hoover 's reclamat ion plan wa s inappropr iate and that Hooverdid not es tablish tha t the area was "sparsely d eveloped." 4 As a resu lt, the cha ncery court entered fin al judgment affirming the Board's decision.

Hoover file d its notic e of appeal on 22 Marc h 1995. The Citizen s and Stop the Quarry filed a bri ef together, a nd the Boar d and the M etropolitan Government of Nashvill e and David son County also filed a brief.7

All of the other parti es filed no tices of in tent to join in thebrief of t he Citizens and Stop t he Quarry.

The parties presented a variety o f issues. Nevertheles s, the only issue rais ed by a wri t of common law certior ari is whet her the Boa rd exceeded its jurisdictio n or acted illegally, arbitrarily , or fraudulentl y. Hoover Mo tor Exp. Co . v. Railroad & Pub. Utils. Comm 'n, et. al , 261 S.W.2 d 233, 238, 195 Tenn. 593, 604-5 (1953); Tenn. Code Ann . §27-8-101 (1980). Moreover, upon a commo n law writ of certiora ri, a court is not to w eigh the ev idence. Watts v. Ci vil Serv. Bd. for Columbi a , 606 S.W.2 d 274, 277 (Tenn. 1980 ), cert. denied , 450 U.S. 983 (1981).

During oral argument, there seeme d to be some confusion a s to whethe r the chanc ery court o r the Western Sec tion had addressed thi s issue. I t is the opinion of this court that neithe r court con sidered the issue. Thechancery c ourt simply decided th at it could not review the Board's decision b ecause it was not legally eff ective with out finding s of fact. The Western Sec tion then r eversed thechancery c ourt and held that t he Board's decision wa s legally e ffective and subject to judicia l review. Up to this point, neither cou rt had addr essed the i ssue of whe ther the Board's dec ision was i llegal, arb itrary, or fraudulent.8

The decisio n of the ch ancery cour t, entered on 22 February 19 95, address ed the issu e presented by a common law writ of cer tiorari, bu t was witho ut affect. To explain, the chance llor applie d the corre ct law to the wrong f acts. In h is opinion, the chance llor correctly s tated that the standar d of review was whether the re was any material ev idence to s upport the Board's dec ision. In other words , if a revi ewing court finds that there was n o material evidence tosupport an administrat ive body's decision, t he reviewin g court must conclude that theadministra tive body a cted illegally. Watts , 606 S.W.2 d at 276-77 ; Hoover Motor Exp. Co. , 261 S.W.2 d at 238-39 .

In this cas e, the chan cery court affirmed th e decision of the Board because it found that there was material ev idence to s upport the Board's con clusions that Hoover 's plan did not meet t he general requirement s, that it did not est ablish that the area was sparsel y developed , and that it did not include an appropriatereclamatio n plan. Th e problem w ith the chancery co urt's decis ion is that these conc lusions were not th e reasons g iven by theBoard for denying the permit. Th e denial wa s by operat ion of law. It had nothing to do with whe ther Hooverhad met th e specific or the gene ral requirements.

It is the p osition of this court that a revi ewing9

court can n ot determin e whether t he decision of an administrat ive body is supported by material evidence unless the administrat ive body ma kes finding s of facts setting for th the reas ons for its decision. We do not express an opinion as to whether the Western Section was correct in conclud ing that it was not ne cessary for the Board t o set out f indings of facts absen t four concurring votes. Ins tead, it is our opinio n that a reviewing c ourt can no t determineif there was material evidence tosupport a decision if the review ing court is unaware of the basi s for the d ecision. Thus, although th e chancello r stated th e law corre ctly, the law was not applicableto the fac ts of this case.

The issue o f whether a n administr ative body has acted illeg ally, arbit rarily, or fraudulentl y is not limited to a determina tion of whe ther materi al evidence supported t he administ rative body 's decision . An illegal, ar bitrary, orfraudulent action cou ld be any number of t hings. Examples include the foll owing: 1) the failure"to follow minimum st andards of due process"; 2 ) "the misr epresentati on or misapplication of a legal standard"; 3) the maki ng of a dec ision for "ulterior motives"; or4) the vio lation of a constitutio nal standar d. Ben H. Cantrell, Review of Administrat ive Decisio ns by Writ of Certiora ri in Tennessee , 4 Mem. St . U. L. Rev . 19, 28-29 (1973). Moreover, " [w]here a p etitioner f or a zoningpermit has10

met all of the requirements of th e applicabl e zoning resolution, and where the zoning authority d enies the permit base d on reason s other tha n the petit ioner's compliance with the re solution, t he [zoning authority's ] action in denying th e permit is arbitrary and unreaso nable." Roger's Group, Inc. v. County of Franklin , No. 01A01 -9110-CH-00 378, 1992 W L 8505, at *5 (Tenn. App. 1992); see Father Ryan High S chool, Inc. v. City of Oak

Hill , 774 S.W.2 d 184, 191 (Tenn. App. 1988); Merritt v. Wilson County Bd. of Zoning Appe als , 656 S.W.2d 846, 854-55 (Tenn. App . 1983). In other words, a bo ard member can not vot e to deny a n application

when the b oard memberbelieves t he applicant h as met the necessary z oning requi rements. Further, wh en an appli cant has complied with the requirement s of the or dinance, an administra tive body may not den

y the permi t because o f the conce rns of neighboringlandowners . Brooks v. Fisher , 705 S.W.2 d 135, 138 (T enn. App. 1 985). In t his case, f our of the five board members pre sent at thepublic hea ring expressed t heir belief s that Hoov er had met the legal conditions required toobtain theconditiona l use permit.

The most st riking conduct was tha t of board member Emamalie. After board member Mee ks moved todeny the motion, boa rd member E mamalie sec onded the motion and5 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 de ny the perm it. Immedi ately prece ding the taking of t he vote, bo ard member Emamalie st ated as follows: Due to all the facts t hat have be en placed i n front of mehere, I th ink Hoover, Inc., and based on th e legal mat ters put be fore me and all the res t of the te stimony, I think that they meet a ll the obli gations forus to gran t them this p ermit. But as a human body here and as a person , I feel a moral oblig ation to th e people that live out t here. And a lot of th em are neighbo rs to me, a nd I think I owe them much to, as I said, di sapprove th is quarry. This testimony establi shes that b oard memberEmamalie based his d ecision to deny the pe rmit on something other than whether Hoo ver had met the requir ed conditions. Such a de cision is a rbitrary under the laws of Tennessee.

Unlike boar d member Emamalie, boa rd members Spann, Karr, and P rice, who a lso believe d that Hoov er had met the Zoning Requirement s, abstaine d 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 opin ion of this court that we should treat these abstentions as if they were votes to deny th e application .

Section 17. 16.060 of t he Zoning R egulations provides th at the Boar d shall ado pt rules fo r its meetings. There is no thing in th ese rules r egarding abstention. There is, however, aprovision which states: "When an issu e arises wh ich is not specificall y covered b y these rul es, the Boa rd will be governed by Robert's Re vised Rules of Order. " Metro. Bd. of Zoni ng App. R. of P. Rule 14 (filed i n the Metro. Coun cil Clerks Office 2 Ma rch 1992). This book does addres s the issueof abstent ion, albeit briefly. It states: "While it is the duty of every member who has an opin ion on the question toexpress it by his vote, yet h e cannot becompelled to do so. He may prefer to a bstain from voting, th ough he kno ws the effect is t he same as if he voted on the pre vailing side." Gen eral Henry M. Robert, Robert's Ru les of Order Revis ed , §46 p.193 (1971).

When a boar d member ch ooses to ab stain from a vote,13

he creates a peculiar situation. One who ab stains knows that he might as well have voted for t he prevailing side, but f or some rea son chooses to keep his decisio n out of th e public re cord. Beca use board members rea lize that a n abstentio n is essent ially a vote for th e prevailin g side, it is the opin ion of this court that it be treat ed as such for the purposes of determiningwhether an administra tive body a cted illegally, arbitrarily , or fraudu lently.

In the inst ant case, t here was noprevailingside. There was, however, a regulation allowing th e Board to deny the application b y operation

of law. B oard members Kar r, Spann, a nd Price al l knew of t his regulation and knew th at if they abstained t he regulation would opera te to deny Hoover the permit. Treating th e abstentio ns as if th ey were den ials, we must conclude that theboard memb ers acted i llegally, arbitrarily , or fraudu lently beca use they constructiv ely denied the permit despite the ir beliefs that Hooverhad fulfil led the zon ing requirements.

There is nodoubt that the public opposition to the quarry infl uenced the board membe rs who abst ained, but it also seems that the y chose to abstain bec ause the Zoning Regu lations dis satisfied t hem. Whileit is not the positio n of this c ourt to sta te when a b oard member may abstain

from a vot e, it is im portant to point out14

the problem s with allo wing board members to abstain for any reason whatsoever. To begin with, board members who abstain

because th ey do not b elieve the law is correct are , in essenc e, legislat ing. Allow ing such action by b oard member s is an unl awful deleg ation of legislativeauthority. Lobelville Special Sch ool Dist. v. McCanless , 381 S.W.2 d 273, 274, 214 Tenn. 460, 464- 65 (1964). To explain , board mem bers Karr, Spann, and Price were able to den y Hoover a permit even though they believ ed Hoover h ad satisfie d the requi rements of the law. That is, the y were ableto circumv ent the dictates of the regula tions and e ssentially amend the law to suit their desi res. Whilesuch a sit uation may not be common, the fac ts of this case reveal that it is certainly apossibilit y. A second reason fo r establishin g when an a bstention i s valid is that board members can

abstain si mply to sav e face leav ing the final determination tothe courts . This des troys any purpose tha t could be set forth i n favor of having such an administ rative body .
Our final p oint concer ns the coer cive mannerin which board

members Sp ann and Kar r treated b oard member Hoover. Bo th the Zoni ng Regulati ons and the Metropolita n Board of Zoning Appe als Rules o f Procedure address theissue of c onflict of interest. The Zoning Regulations states as follows: " Any member of the board who s hall have adirect or indirect in terest in15

any propert y which is the subject matter of, or affected by , a decisio n of the bo ard shall b e disqualifie d from part icipating i n the discu ssion, decision, o r proceedin gs of the b oard in connection therewith." Zoning Re gulations § 17.16.050( C). The board's rul es further state: "An y Board mem

ber who may have an int erest in th e issues in a given ca se shall publicly st ate that fa ct on the r ecord so th at either party or a member of t he Board mi ght object to his-her further par ticipation in the case ." Metro. Bd. of Zoning App. R. of P. Rule 6(B). Nowhere doe s it state that a boar d member mu st resign w hen facing a conflict of interest or that an other board member may

ask an interested board membe r to resign . Further, there is no evidencethat board member Hoo ver did any thing in contraventi on of the r egulations or rules. Therefore, it is the o pinion of t his court t hat board members Spann and K arr acted i llegally wh en they tol d board member Hoov er that the y would abs tain if Hoo ver did not resign from

the Board.

For the abo ve stated r eason, we r everse the decision of the chance ry court and remand th e case to the chancery court forany furthe r necessary proceedings . Cost on appeal are taxed to respondents /appellees.16

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______ SAMUEL L. L EWIS, JUDGE

CONCUR:

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______ HENRY F. TO DD, P.J., M .S.

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______ WILLIAM C. KOCH, JR., JUDGE