### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE November 8, 2000 Session SOUTH HARPETH FARMS, L.L.C., ET AL 

### . v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL 

### .

Appeal from the Chancery Court for Davidson County No. 98-3413-1 Irvin Kilcrease, Chancellor

No. M2000-00635-COA-R3-CV - Filed April 5, 2001

The Metropolitan Board of Zoning Appeals granted a special use excep tion to the Metropolitan Government

of Nashville and Davidson County for the construction of a tower for a new emergency response system . The a ppell ants, Sout h Harp eth Fa rms, LLC , Jam es A. W ebb, III and William H. Freeman appeal the tri al court ’s order. The tri al court held that

the granting o

f the special use exception was supported by material evide nce an d that the Board of Zoning Appeals did not act ill egal ly, arbitrarily or

fraudulently. The appellants appeal on the grounds that: (1) The Metropolitan Government

of Nashville and Davi dson County was no t a proper applic

ant for a specia

l use exception under the Metropolitan Zoning Regul ations; (2) the Metropolitan Government of Nashv ille andDavidson County misrepresented to the Board of Zoning Appeals that the proposed site for the project was the only possible location for the radio tower; and (3) the Board of Zo ning Appeals arbitrarily and capriciously

granted the spe

cial use exception

in the absenceof any material evidence to support its decisi

on. We affirm the d

ecision of the tria

l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered th e opinion of the co

urt, in which W ILLI AM C. K OCH , J R
. and P ATRICIA J. C OTTRELL , JJ., joined. Hugh C. Howser, Nashville, Tennessee, for the appellan ts, South Harpeth F

arms, L.L.C., James A. Webb, III and William H. Freeman.
Karl F. Dean , Sh ayn a Abrams and John L . Kennedy,

Nashville, Tenne

ssee, for the app

ellees, Metropolitan Government of Na shville and Da vidson County and Metropolitan Board of Zoning Appeals.-2- OPINION
I.
In 1998, the Metropolitan Government of Nashville and Davidson County (“Metro”) bega n a county-wid

e program to

upgrade Metro’s emerg

ency dispa

tch response sy

stem. As part of thi

s program,Metro planned to add a new radio tower at 8871 Griffith Road in Nashville. The State of Tennessee owned the land on Griffith Roadand gave Metro a right-of-entry to begin constructionrelated tasks

. A 400 foot tower owned and operated by the Tennessee Emer gency Management Agency (“TEMA”) was alrea dy present on this land.
South Harpeth Farms,

LLC (“South Harpeth”) owns some adjacent land which it maintains as a natural conservation area to protect and enh

ance migrator

y birds. South Harpeth, wor king with the Tennessee Wildlife Resources Agenc y, has spent $400,000 to $5 00,000 to place the property back in its natural state.
On June 6, 1998, Metro requested a special use exception to the tower height require

ments from the Board of Zoning Appeals (“BZA”). Th e BZA granted the special use permit despite the appellants’ contention that Metro was not a proper applicant because it did not own the land.
The BZA found that the health, safety and welfare of the general public would be protected by the ins t allation of the tow er, and that the pr

oposal would not adv

ersely af fect property

values. Therefore, Metro satisfied the general conditions for a special use exception. In addition, the BZA found that Metro had satisfied the specific conditions for a special use exception because existing towers were not available in the immediate area to accommodate the equipment required for the communication system.
The BZA con ditioned its order on the following requirements: (1) that Metro remove the existing tower and deter

iorating facili

ties; (2) t hat Metro maintain the property and perform the necessary en vironmenta

l clean-up; (3) that Metro secure the existing fallout shelter; and (4) that Metro install t he tower ligh ting accordi ng to the pla n presented to the BZA dur ing t he heari ng. Met ro an d th e St ate sub seq uen tly e nte red i nto a le ase a gree men t wi th r esp ect to t he p rop ert y. On November 17, 1998, the appellants filed a petition for writ of certiorari and supersedeas pursuant to Tennessee Code

Annotated §§ 27-8-101, et. seq. and 27-9-101, et. seq. asking thetrial court to review the actions of theBZA and to enjoin Metro from further work on the proposed tower. The trial court issued the writ of certiorari, but did not grant the w rit of supe rsedeas. After conducting a hearing on November 1 2 , 1999, the trial court dismissed the appellants’ petition for writ of certiorari finding that the decision of the BZA was supported by material evidence and that the BZA d id n ot e xce ed i ts j uri sdi cti on o r act ill egal ly, a rbi tra ril y, or frau dul ent ly.-3- II.
There are three issues in this appeal: (1) Whether Metro wasa proper applicant for a special use exception under

the Metropolitan Zoning Regulations; (2) whether Metro misrepresented to the BZA that the proposed site for the project was the only possible location for the radio tower; and (3) whether the BZA arbitr

arily and capriciously

granted the spe

cial use exception in the absence of any material evidence to support its decision.
The standard of r eview for a petition for writ of certiorari is whether the BZA’s actions violated constitutional and statutory provisions, whethe rthe BZA exceeded its own statutory aut hor ity, followed an unlawful procedure, or acted arbitrarily, capr iciously or

illegally by reaching a decis ion without any material evidence. See Hoover, Inc . v. Metro. Bd. of Zon

ing Appeals , 924 S.W.2d 900, 904 (Tenn. Ct. A pp. 1996); Hoover Motor Express Co. v. R.R. & Pub. Utils. Comm’n , 261 S.W.2d 233, 238 (1953).
A. Appellants

make several arguments as to why Metro is not a proper a pplicant for the special use exception. Appellants first argue that Metro fraudulently misrepresented to the B ZA that it was a lessee of the property. Appellants contend that Metro’s completed application stated that Metro was a lessee of the pr

operty whe

n in fact, Metro on

ly had a right of

entry onto the property from the State. At the time of t he hearing, Metro and the State were in the process of negotiating a le ase. Metro did enter into a lease with the State after the BZA granted the specia l use exception.
We are at a loss

to understand just how this issue affects the merits of this controversy. The appellants

do not allege tha

t they relie

d to their detriment on Metro’s representation that they had leasedthe property, see Dobbs v. Guenther , 846 S.W.2d 270 (Tenn. Ct. App. 1992), and the record is clear that the true state of aff airs was fully

revealed to the B

ZA. The appella

nts’ position amounts to an assertion that Metro is guilty of havin g unclean hand

s and should be deni

ed the special use exception on t hat basis. Assuming, however, that the doctrine could be invoked by an interested party in an administrative proceeding, we think the application of the doctrine w o uld be entirely wit hin the dis cret ion of t he ag ency. In addition, the assertion that Metro misrepresented its interest in the property by c laiming to have it under

lease is based on a hypertechnical definition of the term “lease .” The term covers a broad array

of interests in pro

perty. One

simple definition is:“any gra nt of permissi

ve use .” Peoplev. City of Chicago , 182 N.E. 419 (Ill. 1932). We think that Metro’s “right

of entry” w

as in f act a lease of the pr

operty. As a

lessee, Metro wa

s also an owner of

a special intere

st in th e property. See Helton v. Reynolds , 640 S.W.2d 5 (Tenn. Ct. App. 1982). Appellants

also argue

that amendments

to the ordinances dealing with special use exceptions were not properly adopted and, ther efo re, should be struck down. These amendments occurred betweenthe time of

Metr o’s special use exception application and the BZA hearing. The Metro-4-

Code § 17.40.290 former ly read, “S

pecial exception a

pplicatio ns shal l be filed by the landowner (oragent) in form and content established by the board of zoning appeals. . . .” (emphasis adde d). The amendment repl aced the term “landowner (or agent)” with the term “applicant.” I n addition, a new ordinance, Metro Code § 17.40.275, was added defining the term “applicant” as “an owner, optionee, agent, trustee, lessee, government official or department.” Metro C ode § 17.4 0.275. App ellants contend that the adoption of these amendments to the Metro Code were adopted i n violation of Tennessee Code Annotated § 13-7-105.
Since we have decided that the B ZA could grant the special use exception based on the ordinances bef

ore they we

re amended we th

ink the question is mo

ot. We decline the i

nvitation to address the validity of the ordinances in question.
We have found no merit in the appellants’ arguments that Metro is not a proper applicant for a special use exception.
B. Appellants’ n ext issue is that Metro misrepresented to the BZA that the proposed site was the o nly possible location for the radio tower. The trial court found this argument to be withou t merit based on testimony

at the hearing that six (6) other sites were considered for the tower. The appellants

argue on appeal

to this court that the

y are not ar

guing that the a

ppellees did

not consider other sites, but rather that Metro misrepresented to the BZA that this was the only satisfac tory site. The record shows the following proof was submitted to the BZA: [I]t’s an obligation . . .

when we embark o

n projects like this, to find the highest and best use of land at the l

owest cost. And we looked at this area and found out that we hada piece of government property, which we could obtain a lease for and not

spend moneym onthly, or a large amount to purchase it, and it fit all the criteria for th e tower needs, that’s why we selected the TEMA site.

. . . The proposed facility is merely one of a tot a l of seven sites selected to create a network of radio antennas operating at 800 MHz, in o rder to pro vide coverage for emergency

services in the Metro area. The system is designed by the cr eation of a grid consisting of “honeycomb” cells. Each cell covers a limited g eog raphic area, depending upon topography , vegetative c

over and other ob

jects that might b

lo ck radiowaves. In order to provide seamless coverage of the Metro area, there must be a series of continuous, overlappingcells. The proposed facility must be located close to the center of a c

ell in [sic] ensure a

dequate covera

ge; in additi

on, the antennas must be of sufficient height to clear obstructions such as trees, mountains and other structures. There is therefore limited flexibility in siting an antenna faci lit y. The area of the subject prope

rty was chosen in order to provide a single “link” in the network.-5-

Whenever

possible, an exi sting structure is selected for a

ntenna placemen

t. However, where no such structures exist or where the structure is otherwise unavailable, because of diff icult leasing ter

ms or because it

is already at its structural capa cit y, a new structure

must be constructe

d. Alth ough there is a nearby TEMA tower, this structure cannot support the proposed facility; indeed, the TEMA tower will be removed and TE

MA equipment installed on the proposed tower in the event that the instant special exception is approved.

Metro considered several sites for the tower, but fou nd this site to be the best choice for many reasons. We do not believe that Metro misrepresented that this was th

e only s atisfact ory sit e. We find that this issue i

s without merit. C. Appellants’ final issue is t hat the BZA arbitrar

ily and capr

iciously gr

anted the specia

l use exception in the absence of any material evide nce to support its decisi

on. Appellants con

centrate on two areas to prove that the BZA acted without material evidence. First, the ap pellants argue that an old bomb shelter located on the property which wa s constructed

to house the Governor and Legislature of the State of Tennessee should be considered a building or site of

historic signific

ance. Appellant

s quote Metro Code §

17.16.150(F) wh

ich states, “Features of historical signi fi cance shall not be adversely affected by the granting of any special exception. The metropolitan historic zoning commission shall be consulted regarding those features essential to

preserve the historical integrity of a building or site of historical significance.” Metro Code § 17.04.060, de

fines “historica

lly signific

ant structure” a

s: 1. The structure is i

ndividually l

isted or is eligibl

e for listing in

the National Register of Historic Places as determined by the metropolitan historic zoning commission of Nashville and Davidson County, or by the Tennessee Historical Commission; or,
2. The s tructure is within a district listed or e

ligible for listing

in the Nati ona l Register of His tor ic Places or is within an historic overlay district, such structure having been determined

to contribute

to the architectural character of the district by the metropolitan historic zoning co mmission of Nashville

and Davidson County or by the Tennessee Historical Commission; or,
3. Th e structu

re is within a histor

ic overlay district, or within a

district that meets the criteria for de

signation as a

historic overlay district, such structure having been determinedto contribute to the ar chite ctural character of the district by the met rop oli tan zon ing c omm iss ion of N ash vil le a nd D avi dso n Co unt y.-6-

At the hearing, the a

ppellantsraised the issue of the historic significance of the bomb shelter. The Board stated that it did not believe that the bomb shelter was historic. In his motion to grant the special exception

, a BZA member

stated, “This is not

a historic site . . . it’s not on anybody’s list. If it’s on our list, Mr. H

owser with all of h

is thoroughness s

urely would h ave found that and presented it to us.” The property clearly doe s not meet either definition two (2) or three (3) for “historically

significant

structure.” There was no evidence at the hearing that the

bomb shelter fell within definition one (1) . Therefore, un der the ordinanc

es it does not meet the definition of an historically significant structure.
The appellants also argue that the granting of

the special use exception will adversely affect the adjacent property in violation of § 17.16.150(C) of the Metro Code. The appellants first attack the credentials of one of Metro’s witnesses who testified that the new tow er would not affect the value of t he s urr oun din g pro pert y. His testimony, however, went into the record without objection, andit is certainly material evidence on whi ch the BZA cou ld base a conclusion that the adjacent property would notbe adversely affect ed from an eco nomic stan dpoint. Ou r job is not to re-weigh the evidence. See Hoover v. Metro Bd. of Zonin

g Appeals , 924 S.W.2d 900 (Tenn. Ct. App. 1996).
The appellants and the appellees also presented a great deal of evidence to the BZA concerning the possible

effects of the tower on migrato ry birds. Suf

fice it to say

that there is evidence in the record tha t the new tower wil

l be less of a hazard than

the old one, because of a new lighting system and the removal of the guy wires supporting the old tower. In the end the BZA concluded

that the public go

od served by

the new tower outw

eighed the thre

at to migratory

birds. We find that

this decision was du

ly supported

by materia

l evidence and wa

s clearly not an arbitrary decision on the part of the BZA.
When reviewing a local agency’s a ctions under a writ of

certiorari, we

are limited to

deciding whether the agency has acted illegally , arbitrarily or

fraudulently. See Hoover , 924 S.W.2d at 904; Hoover Motor Express, 261 S.W.2d at 238. Therefore, we cannot decide whether the decision was correct or not, but rather whether the BZA exceeded its authority

. Id.
For the reasons stated above, we affirm the trial co urt’s decision tha

t the special use exception was supportedby ma terial evidence and that the Board of Zoning Appeals did not act ill egal ly, arbitrarily or

fraudulently. Remand this cause to the Chancery Court of Davidson County for any further proc eedings that may become

necessary . Tax the costs on app eal to the appella

nts, South Harpeth Farms, LLC, James A. Webb, II I and William H. Freeman.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.