IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 16, 2011 Session

411 PARTNERSHIP, v. KNOX COUNTY, TENNESSEE, et al.

Appeal from the Circuit Court for Knox County

No. 2-26-10 Hon. Harold Wimberly, Judge

No. E2010-02390-COA-R3-CV-FILED-NOVEMBER 16, 2011

The Knox County Board of Zoning Appeals denied plaintiff's use on review application for

a proposed shopping center. Plaintiff appealed the decision to the Circuit Court by way of

a Writ of Certiorari. The Trial Court upheld the Board of Zoning Appeals' decision and

plaintiff appealed to this Court. We reverse the decision of the Circuit Court on the grounds

the record before the Board of Zoning Appeals does not contain substantial material evidence

to uphold the Board's ruling. We reverse the Judgment of the Trial Court and remand.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY, J., and JOHN W. MCCLARTY, J., joined.

Arthur G. Seymour, Jr., and Benjamin C. Mullins, Knoxville, Tennessee, for the appellant,

411 Partnership.

Daniel A. Sanders, Deputy Knox Law Director, Knoxville, Tennessee, for the appellees,

Knox County, Tennessee, and the Knox County Board of Zoning Appeals.

OPINION

This is an appeal of the Knox County Board of Zoning Appeal’s (BZA) decision to

deny plaintiff/appellant’s use on review application for a proposed shopping center
development. 411 Partnership appealed the BZA’s decision to the Circuit Court for Knox

County, by a Writ of Certiorari and Complaint for Declaratory Judgment. 411 Partnership

contended that the BZA record was devoid of evidence to justify the denial of the use-on

review or to support justification that the development was not reasonably necessary.

The Trial Court held a hearing and entered a judgment affirming the BZA’s decision

and dismissing 411 Partnership’s Petition for Writ of Certiorari and Complaint for

Declaratory Judgment. The Circuit Court incorporated its Memorandum Opinion in the Final

Judgment, wherein the Circuit Court stated that since this matter was before it pursuant to

a Writ of Certiorari it was not the purpose of the Court to weigh the evidence but, rather, to

determine if there was evidence presented to the BZA that would support the BZA’s denial

of 411 Partnership’s use on review application. The Court found that while there was

“stronger evidence in favor of . . . [411 Partnership] here, the evidence opposed to it still

exists, so that the BZA . . . could appropriately have found against the project.” 411

Partnership has appealed to this Court.

The subject property of approximately twelve acresislocated in Knoxville, Tennessee

on the south side of Norris Freeway and west of Maynardville Pike. The property is zoned

SC (Shopping Center), A (Agricultural), and F (Floodway). Crossroads Center, a shopping

center anchored by Wal-Mart and Ingle’s, is across Norris Freeway to the north of the subject

property. Land west of the subject property has been designated to be developed as a park,

to be known as Halls Park and Greenway. The subject property is divided by Beaver Creek,

which runs through the southeast portion of the property. The Knox County Commission had

approved the rezoning of approximately 4.2 acres of the subject property to SC in April,

2006.

In early 2005, 411 Partnership began planning to develop a shopping center on the

subject property. In 2008 plaintiff purchased the subject property and initially sought the

approval of the Knoxville-Knox County Metropolitan Planning Commission (MPC) for a

use-on-review to construct a retail shopping center of approximately 31,000 square feet in

the area of the property designated as SC. The MPC staff and the Knox County Department

of Engineering and Public Works reviewed the proposal and recommended it for approval

subject to seventeen conditions. MPC approved the use-on-review at its August, 2008

meeting. The MPC decision was appealed to the BZA by opponents of the development.

The appeal was granted and at its September, 2008 meeting, BZA overturned the MPC’s

decision to grant use on review approval. Plaintiff appealed the BZA’s decision to the

Chancery Court by Petition of Certiorari, and the Chancellor upheld the BZA’s decision to

deny use on review.

Following the Chancery Court’s affirmation of the BZA decision, plaintiff returned

-2-
to the MPC where it submitted a new application for essentially the same development with

the hopes of creating a more complete record and providing additional information that

addressed the issues that had been raised regarding the development. 411 Partnership’s

second application was approved by the MPC staff subject to thirteen conditions. The MPC,

however, denied the use on review application at its November 2009 meeting. 411

Partnership appealed the MPC’s decision to the BZA. The BZA considered the appeal at its

December 2009 meeting and heard extensive presentations by both one of the principals of

411 Partnership and those in opposition to the development.

Nathan Silvus, one of the owners of the 411 Partnership development and the project

engineer for the development, spoke at length at the BZA hearing. He explained that as part

of the development of the twelve acres owned by 411 Partnership, the developers planned

to offer the Halls Park and Greenway, which adjoined 411's property, a five and a half acre

conservation area to expand the park and to construct a mitigation wetland on the site. He

explained that the wetland would capture and filter water from 411's site as well as water

from the much larger shopping center across the street. He noted that the Knox County

Storm Water Ordinance requires that a commercial site remove at least eighty percent of the

total suspended solids from runoff but that in the case of his project, they would be removing

a higher percentage of the total suspended solids. He stated that the waters of Beaver Creek,

which runs through the proposed development, will be cleaner after the project is completed

than they are now. Additionally, the total pollution load in Beaver Creek will be lower after

the project is constructed than at the present. He summarized that there will also be more

wetlands, not less, better water quality, not worse and lower pollutants, not higher. He also

stated that the project would not adversely impact Beaver Creek. He noted that in response

to earlier opposition to the 411 project, they had modified the project to decrease the layout

of the shopping center by thirty percent of leaseable space and had added a comprehensive

outdoor dining and landscaping plan to enhance the use of the adjacent park. In response to

the concerns of some opponents of the shopping center over increased flooding in the area,

Mr. Silvus stated that his project would reduce the one hundred year flood plain by nearly

two feet. In support of Mr. Silvus’ testimony regarding the 411 Partnership project, plaintiff

presented as exhibits its Flood Study Plan and a Wetland Mitigation Plan prepared by a

geologist.

Opponents of the 411 Partnership project and supporters of the planned Halls Park and

Greenway adjacent to the property also spoke at the hearing. One of the opponents to the

project, Wilma Jordan, was represented at the hearing by attorney John King. Mr. King

pointed to the North County Sector Plan that provided for the “protection of the water quality

of Beaver Creek . . . by minimizing impervious surfaces and preserving vegetation along all

creek corridors to reduce surface runoff.” He stated that the 411 Partnership project would

require extensive fill above Beaver Creek and would create four acres of impervious surface

-3-
on property within the flood plane. He presented photographs of existing flooding in the area

near the proposed project. Mr. King estimated that the amount of fill proposed by the

developer’s plans would leave portions of the property “some ten to fourteen feet higher than

the adjoining property with no connectivity to the park. He also stated that the 411

Partnership project is adjacent to residential property and a community park and that the

substantial fill included in the project’s plans would result in topographical changes within

the Beaver Creek flood plain that would exacerbate flooding of those adjacent properties.

Mr. King also noted that the North County Sector Plan referred to the subject area as

“saturated” with shopping centers that exceeded what the population could support.

Marvin Hammond, the president emeritus of the Hallsdale-Powell Utility District,

stated that he had been a utility operator for forty-five years and a conservationist who had

devoted his life to the protection of wetlands and to water shed issues. He stated that the 411

Partnership’s proposal would cause degradation of Beaver Creek, which was already

impaired. He stated that the impairment had occurred over a long period of time and at the

present time the fish from the creek could not be eaten nor could the creek be waded in. Mr.

Hammond argued that he knew from forty-five years of experience that engineers can make

mistakes in their plans and that “we can’t afford to have mistakes made” with Beaver Creek.

In addition to the testimony of Mr. Hammond and the presentation made by Mr. King,

seven homeowners who lived in the immediate area of the proposed developmentstated their

opposition to the project based on their concerns about the exacerbation of the already

existing flood problems in the neighborhood. These homeowners also stated they were not

against the development per se, but were concerned about property values, damage to

property and unsafe conditions caused by increased flooding.

At the conclusion of the testimony from the proponents and opponents of the 411

Partnership project, BZA Chairman William Daniels made several comments. He stated that

he has a good understanding of hydrology and that, in his experience, engineers can and do

make mistakes. He noted that if 411's engineers’ designs fail and the neighborhood floods,

it will be the County and the insurers of the individually owned properties who will be

responsible for taking care of the problem and not Mr. Silvus or his engineers. He stated that

“when you throw a brick in a bucket of water, that water’s got to go somewhere . . .”

Chairman Daniels went on to express scepticism regarding Mr. Silvus’s testimony on the

issues of flood control and storm water runoff. A motion was made to deny 411 Partnerships

appeal, which was passed unanimously by the BZA. No reasons for this decision were

stated.

The issue raised on appeal is:

-4-
Whether the record before the Knox County Board of Zoning Appeals contains any

evidence of a material or substantial nature from which the Board could have denied

411 Partnership’s use on review application?

An action by a board of zoning appeals is an administrative or quasi-judicial act rather

than a legislative act. McCallen v. City of Memphis, 786 S.W. 2d 633, 638 - 639 (Tenn.

1990). The proper method of judicial review of an action of a board of zoning is through the

common law writ of certiorari. Tenn. Code Ann. § 27-9-101 et seq.; McCallen at 639. The

Middle Section of this Court, in State ex rel. Moore & Associates, Inc. v. West., 246 S.W.3d

569 (Tenn. Ct. App. 2005), explained that “the primary consequence of a determination that

a party must seek judicial review through the common law writ of certiorari procedure is that

the trial court must apply a limited standard of review to decisions already made by

administrative officials, rather than address the issue de novo as the initial decision maker.”

Moore at 574. The Moore court explained this limited standard of review as follows:

Under the limited standard of review in common law of writ of certiorari proceedings,

courts review a lower tribunal's decision only to determine whether that decision

maker exceeded its jurisdiction, followed an unlawful procedure, acted illegally,

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

Petition of Gant, 937 S.W.2d 842, 844–45 (Tenn.1996), quoting McCallen v. City of

Memphis, 786 S.W.2d 633, 638 (Tenn.1990); Fallin v. Knox County Bd. of Com'rs,

656 S.W.2d 338, 342–43 (Tenn.1983); Hoover Motor Exp. Co. v. Railroad & Pub.

Util. Comm'n., 195 Tenn. 593, 604, 261 S.W.2d 233, 238 (1953); Lafferty v. City of

Winchester, 46 S.W.3d 752, 758–59 (Tenn. Ct. App.2001); Hoover, Inc. v.

Metropolitan Bd. of Zoning Appeals, 955 S.W.2d 52, 54 (Tenn. Ct. App.1997);

Hemontolor v. Wilson Co. Bd. of Zoning Appeals, 883 S.W.2d 613, 616 (Tenn. Ct.

App.1994).

Under the certiorari standard, courts may not (1) inquire into the intrinsic correctness

of the lower tribunal's decision, Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478,

480 (Tenn.1997); Powell v. Parole Eligibility Rev. Bd., 879 S.W.2d 871, 873 (Tenn.

Ct. App.1994); (2) reweigh the evidence, Watts v. Civil Serv. Bd. for Colum., 606

S.W.2d 274, 277 (Tenn.1980); Hoover, Inc. v. Metro Bd. of Zoning App., 924 S.W.2d

900, 904 (Tenn. Ct. App.1996); or (3) substitute their judgment for that of the lower

tribunal. 421 Corp. v. Metropolitan Gov't of Nashville, 36 S.W.3d 469, 474 (Tenn. Ct.

App.2000). It bears repeating that common law writ of certiorari is simply not a

vehicle which allowsthe courtsto consider the intrinsic correctness of the conclusions

of the administrative decision maker. Powell, 879 S.W.2d at 873; Yokley v. State, 632

S.W.2d 123, 126 (Tenn. Ct. App.1981).

-5-
Further, especially where zoning decisions by local officials are involved, the

common law writ of certiorari, being a supervisory writ,somewhat limitsthe remedies

courts employ when there has been error. 421 Corporation, 36 S.W.3d at 474;

Hoover, Inc., 955 S.W.2d at 55. Remand is most commonly used, because courts

should give local zoning officialsthe opportunity to perform their duties appropriately

rather than substituting the courts' own judgments for those of the zoning officials.

421 Corporation, 36 S.W.3d at 475; Hoover, Inc., 955 S.W.2d at 55.

In fact, one principle that infuses the approach of Tennessee courts to judicial review

of local land use decisions, whether those decisions are legislative or administrative

in nature, is that “the court's primary resolve is to refrain from substituting its

judgment for that of the local governmental body.” McCallen, 786 S.W.2d at 641.

There exists a public and judicial policy that favors permitting the community

decision-makers closest to the events, who have been given broad powers in the area,

to make zoning and land use decisions. Consequently, courts give wide latitude to

local officials who are responsible for implementing zoning ordinances, are hesitant

to interfere with zoning decisions, and will refrain from substituting their judgments

for that of the local governmental officials. Lafferty, 46 S.W.3d at 758; Hoover, Inc.,

955 S.W.2d at 54; Whittemore v. Brentwood Planning Comm'n., 835 S.W.2d 11, 15

(Tenn. Ct. App.1992).

Moore at 574 - 575.

Here, this Court’s task is to determine whether the BZA’s decision to deny 411

Partnership’s appeal was supported by sufficient substantial evidence. We are not permitted,

however, to inquire into the intrinsic correctness of the BZA’s decision, reweigh the evidence

or substitute our judgment for that of the BZA. The question of whether there is sufficient

evidence to sustain a zoning action is a question of law, thus appellate review is de novo

without a presumption of correctness. Wilson County Youth Emergency Shelter, Inc. v.

Wilson County, 13 S.W.3d 338, 342 (Tenn. Ct. App. 1999)(citing MC Properties, Inc. v. City

of Chattanooga, 994 S.W.2d 132, 134 (Tenn.App.1999)).

As a preliminary issue, we note that although both appellant and appellee rely on the

Knox County Zoning Ordinancesto support their arguments, neither party put the relied upon

ordinances into the record at the proceedings below or at the BZA zoning proceeding. Prior

to the enactment of the Tennessee Code of Evidence on January 1, 1990 the law in Tennessee

was that courts could not take judicial notice of municipal ordinances because the ordinances

were not readily available to the courts and could be amended at frequent intervals. In cases

involving such ordinances it was necessary for the parties to stipulate the existence and the

accurate texts of ordinances or else to prove the same through municipal officials or by

-6-
supplying certified copies in accordance with the Tennessee Rules of Civil Procedure.

Metro. Gov't of Nashville & Davidson County v. Shacklett, 554 S.W.2d 601, 605 (Tenn.

1977). On January 1, 1990, the Tennessee Rules of Evidence was enacted and Tenn. R.

Evid. 202 provides for judicial notice of law. Rule 202(a) requires the courts to take

mandatory judicial notice of certain laws, including “the constitutions and statutes of the

United States and of every state, territory and other jurisdictions of the United States.” Rule

202(b) provides that courts may also take, at their option, judicial notice of other rules, laws,

ordinances and treaties. The Rule 202(b) states:

Optional Judicial Notice of Law. Upon reasonable notice to adverse parties, a

party may request that the court take, and the court may take, judicial notice of

(1) all other duly adopted federal and state rules of court, (2) all duly published

regulations of federal and state agencies and proclamations of the Tennessee Wildlife

Resources Agency, (3) all duly enacted ordinances of municipalities or other

governmental subdivisions, (4) any matter of law which would fall within the scope

of this subsection or subsection (a) of this rule but for the fact that it has been

replaced, superseded, or otherwise rendered no longer in force, and (5) treaties,

conventions, the laws of foreign countries, international law, and maritime law.

Tenn. R. Evid. 202(b)(emphasis added).

During the certiorari proceeding at the Trial Court neither the BZA nor 411

Partnership informed the other party that it intended to rely on any of the Knox County

Zoning Ordinances, nor did either party request that the Trial Court take judicial notice of

any ordinance or submit a copy of that ordinance to the Trial Court. Nor is there an

authenticated copy of the ordinances relied upon on appeal in this appellate record.

Accordingly, the parties did not comply with Rule 202 (b) and this Court will not take

judicial notice of the ordinances cited in the parties’ briefs. Moreover, the ordinances relied

on in the parties’ appellate briefs were not included in the record of the BZA proceeding,

and review under the common law writ of certiorari is generally limited to the record made

before the lower tribunal or board, and as the ordinances are not included in the BZA record,

it is inappropriate to consider them. See 27–9–111(b); Kittrell v. Wilson County, M2010-

00792-COA-R3CV, 2011 WL 3339132 at * 5(Tenn. Ct. App. Aug. 3, 2011)(citing 421 Corp.

v. Metro. Gov't of Nashville & Davidson County, 36 S.W.3d 469, 474 (Tenn. Ct. App.

2000)).

411 Partnership contendsthat the record lackssubstantial material evidence to support

a denial of the use on review and that 411 presents sufficient substantial evidence to support

the use on review. To support this contention, 411 Partnership points to the detailed Flood

Study Plan it prepared with a licensed engineer and the Wetland Mitigation Plan and Permit

-7-
Application it had prepared by a group of professional geologists. 411 Partnership contends

that the Flood Study Plan, which was approved by the Knox County Department of

Engineering and Public Works before it was presented to the MPC and later the BZA, shows

that the project would not increase the flooding and that the development would actually

reduce the 100-year flood plain elevation by two feet. 411 also contends that its Wetland

Mitigation Plan shows that its proposed development would actually create additional

wetlands on the site and that the additional wetlands would be of a higher quality than

actually exists, causing an improvement in the water quality and functionality of Beaver

Creek, which has been classified as an impaired stream. In addition to the documents

prepared and presented by 411 Partnership, one of the principals of 411, Nathan Silvus, a

project engineer, explained the studies.

On the other hand, 411 Partnership contends that the testimony presented by the

opponents to its development was based on their fears that the pre-existing flood conditions

in the neighborhood might get worse because of the proposed development. 411 Partnership

points to the testimony of several people who live in the neighborhood of the proposed

development who testified to the current flooding situation in that neighborhood. These

individuals testified that they believed that the development would make the flooding worse,

although none of the neighbors pointed to facts to back up their fears.

In addition to the neighbors' testimony, the opponents to the project presented the

arguments of attorney John King, on behalf of a neighboring landowner, who showed that

the North County Sector Plan provided for the “protection of the water quality of Beaver

Creek . . . by minimizing impervious surfaces and preserving vegetation along all creek

corridors to reduce surface runoff.” He argued that the project would require extensive fill

above Beaver Creek and would create four acres of impervious surface on property within

the flood plane and cause topographical changes within the Beaver Creek flood plain that

would exacerbate flooding of those adjacent properties. King also relied on the North

County Sector Plan to argue that the area was “saturated” with shopping centers that

exceeded what the population could support. King did not present himself as an expert in

the areas of engineering, hydrology or urban planning.

Marvin Hammond, the president emeritus of the Hallsdale-Powell Utility District, also

testified on behalf of the opponents to the project. He did not provide any information

regarding his education or describe his areas of expertise related to his former position as

president of the utility district. His testimony was that it was his opinion that the proposed

development would cause degradation of Beaver Creek, which was already impaired. Mr.

Hammond made the argument that he knew from forty-five years of experience that

engineers can make mistakes in their plans and that “we can’t afford to have mistakes made”

with Beaver Creek.

-8-
411 Partnership contends that although all of the opponents to the project who

testified believed the development would make flooding worse, none of them provided a

factual basis as to why they disagreed with the engineering plans and calculations that

showed that the grading and wetlands mitigation would actually better prevent flooding by

improving the capacity of Beaver Creek to carry storm water runoff away from the

neighborhood. 411 argues that instead of offering countervailing facts regarding hydrology

and engineering to back up their position, the opponents “merely speculated that the

extensive engineering and permitting process intended to ensure compliance during the

phases of construction and development would be inadequate, might be wrong, and might

have an adverse effect on Beaver Creek and local neighborhoods.” 411 contends that the

statements of the opponents to the project “merely amounted to expressions of opinions on

the ultimate issue, unsubstantiated by any factual premise.”

In the context of quasi-judicial tribunals, such as the BZA, material evidence is

defined as “such relevant evidence as a reasonable mind might accept as adequate to support

a rational conclusion and such as to furnish as reasonably sound basis for the action under

consideration. . . . Mere beliefs, opinions and fears of neighborhood residents do not

constitute material evidence.” Sexton v. Anderson County, 587 S. W. 2d 663, 666 (Tenn. Ct.

App. 1979). This Court, in Sexton considered the denial of the BZA of plaintiff’s application

for permission to operate a sanitary landfill. The BZA had denied the application for a

permit after a hearing where the opponents to the landfill had voiced their fears and

objections about possible contamination of the land by using it as a landfill. The trial court

and this Court held that the BZA denial of the permit was arbitrary upon a finding that no

material facts were set forth by the opponents to support their position, thus, the action of the

BZA was held to be invalid. This Court stated:

Various members of the community expressed beliefs and opinions that the presence

of the landfill would create noxious odors and result in falling property values; they

also thought that trucks delivering refuse to the site of the fill would cause additional

damage to the local roads. These statements were offered on the issue of whether the

intended use is “potentially dangerous, noxious or offensive.” None rises to the

dignity of being material evidence on the issue. In each instance, the statements

amount to an expression of opinion on the ultimate issue, unsubstantiated by factual

premises. Speculations, expression of fears and considerations of an aesthetic or

political nature do not form a basis to support a decision made by an administrative

body charged with adjudicatory responsibility. Harvey v. Rhea County Beer Board,

563 S.W.2d 790 (Tenn.1978); Ewin v. Richardson, 217 Tenn. 534, 399 S.W.2d 318

(1966).

-9-
The opponents of the landfill attended the public hearing conducted by the board in

substantial numbers and voiced strong and sincere beliefs that the operation would

have an adverse impact on their community but none of their suggestions was

supported by facts. No witness purported to have any knowledge of any odor

problems at a landfill, either operated by Waste Management or operated in the same

manner as the one proposed. . . .

In the absence of material evidence on these issues, the expression of fears by

members of the community alone, howeversincere, will notsupport the determination

of the Board of Zoning Appeals.

Sexton at 665 - 666.

Here there is no doubt that those in opposition to the 411 Partnership development

were sincere in their concern and fears that the project would cause an increase in flooding

in the adjacent neighborhood and cause further degradation to Beaver Creek. However, not

one opponent, including Mr. Hammond, offered any facts to refute the engineering plans

submitted by 411 Partnership or to support their own contention that there would be

increased flooding such that “a reasonable mind might accept as adequate to support a

rational conclusion and such as to furnish as reasonably sound basis” for the denial of the

use on review requested by 411. The testimony offered by the opponents to the project was

based on opinions unsubstantiated by facts, including the statement of Mr. Hammond that

“engineers make mistakes.” If Mr. Hammond had provided reasons why the engineers had

made mistakes in the plans at issue, his testimony could have provided material evidence to

support the BZA’s decision, but he did not. After a careful review of the BZA record, we

conclude that the Trial Court was in error when it affirmed the BZA decision as there was

no material substantial evidence in the record to support that decision. Essentially, the

opponents of the development's evidence was opinion without a factual basis, and mere

conclusions which is not sufficient to deny the development. We hold that the BZA's denial

of 411 Partnership’s appeal was arbitrary and invalid, and not supported by substantial

material evidence.

We reverse the Trial Court's affirmation of the BZA's decision and hold that the

BZA's decision was arbitrary and invalid. The decision of the Trial Court is reversed, and

the cause remanded, with the cost of the appeal assessed to Knox County.

_________________________________

HERSCHEL PICKENS FRANKS, P.J.

-10-