# FILED
July 1, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

BENNIE DAY and KARE N DAY, ) ) Petitioners/Appellants, ) ) Appeal No. ) 01-A-01-9708-CH-00442 VS. ) ) Franklin Chancery ) No. 14,381 CITY OF DECHERD, ) OTIS B. SMITH, JR., MAYOR , ) HANK WEDDINGTON, BILL ) VAN HOOSIER, FRANK GREEN, AND ) DARYL DONEY, COM MISSIONERS, ) ) Respondents/Appellees. )
APPEALED FROM THE CHAN CERY COUR T OF FRANKLI N COUNTY AT WINCHESTER, TENNESSEE THE HONORABLE L. CURTIS SM ITH, SITTING BY INTERCHANGE

MICHELLE M. BENJAMIN 10 2 F ir st Av en ue , N .W. P. O. Box 177 Winchester, TN 37398 Attorney for Petitioners/ Appellants J. RUSSELL FARRAR DEBORAH R. SOWELL FARRAR & BATES 211 Seventh Street No., Suit e 320 Nashville, Tennessee 37219- 1823 Attorney for Respondents/Appel lees

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE 

## O P I N I O N- 2 - Property owners alleged in a petition for common law certiorari

that the city of Decherd acted arbitrarily and capriciously in refusing to rezone their property from residential to commercial. The Chancery Court of Franklin County dismissed the petition. We affirm.

I.

Ben nie Day and wife, Karen D.Day, own a city lot in Decher

d. O n March 1, 1995 they filed a petition for writ of certiorari

in th e Chancery Co urt of Franklin County alleging that the City and its commissi oners had arbitrarily and capriciouslyrefused to rezone the property from residential to commercial uses. The petition prayed for the writ of certiorari to issue pursuant to Tenn. Code Ann. § 27-9- 107; that the court set aside the C ity’s action and enjoi n the City from en f orcing the zoning ordinance.

The City filed an answer and moved for su mmary judgment. The petitioners also moved for summary judg ment. The court’s order denied both motions but found that the City’s deni al of the requested zone change was supported by the record. The court, therefore, denied the peti tion for the common law writ of certiorari.

II.

If the court’s order is confusing, the c onfusion can, perhaps, be traced to the initial pleading in this ca se. The common law writ of cer tiorari is not the appro priat e vehicle by wh ich to revie w the “pure ly legislati ve” acts of a legislat ive body. Fallin v. Knox County Bd. of Commissioners , 6 56 S.W.2 d 338 (Tenn. 1983). The statute that authorizes i ssuance ofthe writ authoriz es its use to review the ac tions of an inferior tribunal exercising judicial functions . Tenn. Code Ann. § 27-8-101. In this context, “judicial”

refers to aproceeding where a decision is rendered on a record- 3 -

made at a hearing require d by law. L. Jaffe, Judicial Control of Adm inistrative Action, 166 (1965). The writ of certiorari itself is a command to the lower tribun al to certify the record to the review

ing court.

In Fallin the Supreme Court held that “an action for declaratory judgment, as provided by T.C.A. §§ 29- 14-1 01 -- 29-14-113, rather than a petition for certiorari is t h e proper remedy to be employ ed by one who seeks to invalidate an ordinance, resolution or other legislati ve action of county, cit y or other municipal legislati ve authority enacting or amending zoning legislation.” 656 S.W.2d at 342. The Court went on to point out that an action cr eating or amending zoning regulations , “is a legislativ e, rather than administrativ e, action and i s not ordinarily accompani ed by a record of evidence , as in t he case o f a n adminis trative hearing.” Id. See also McCallen v. City of Memphis , 786 S.W.2d 633 (Tenn. 1990).

Since lawyers continue to file petitions for certiorari to review purely legislati ve zoning decisions -- fifteen years after the Fallin decision -- apparently the story needs to be retold. We add our voices to the Supreme Court’s chorus.

In Fallin the Court did, however, get to the merits of the case by treati ng the p etition as one for a declarator y judgment. We will do the same in this case. Once we arrive at

that point, however, w

e encounter

an even greater limitation on the scope of review. L egislative classifi cations i n a zoning la w a re v alid if any possible
reason can be conceived to justi fy them. State ex rel. SCA Chemical Waste Services, Inc. v. Konigsberg , 636 S.W. 2d 430 (T enn. 198 2). Speci fically, zoning decisions are immune from judicial interference if the validity of the ordinan ce is “fairly debatable. ” Fallin v. Knox County Bd. of Commissioners , 656 S.W.2d 338 (Te nn. 1983).- 4 - In this case theDays purchased the resi dential property and pres ented
a plat t o the Decherd planning commis sion seeking a zone chan ge so that the property could be used for mini-w ar ehouses. The planning commissi on recommended the change but apprised Mr. Day of the

fact that the ordinance would have to pass three readings before the Board of Mayor and Aldermen. The ord inance passed the first two readings, butwhen moved for pa ssage on third and fin al reading, it failed for lack of a second.

The property involv

ed is a large lot on the hi ghway out of town. An old home sits at the back of the lot, and the property o n three sides is currently zoned for residential purposes. The state communit y pla nner, who consults w ith the City on land use problems, advised the plann ing commission that he had reservations about using the property for mini-w arehouses, considering other plans for the d ow ntown area.

We think that the question of w hether the p roperty sh ould have been rezoned is fairly debatable. The Board, performingits legislativ e function, decided not to rezone the property,and that decision is not our s to change.

The appellants argue that the Board’s action should be set aside b ecause the Board refused to re-zone the property solely on the basis of neighborhood opposition. They argue that this court’s deci sion in Hoo ver, Inc. v. Metropolitan

Board of Zoning Appeals , 924 S.W.2d 900 (Tenn. App. 1996), makes the Board’s d ecision a rbitrary.

We have a lready noted that the record contains other evidence on which the Board could have acted. But the appellants’ argument is based on a fundamentally flawed view of the tw o cases. Hoover

involved an app lication for a conditional use permit before the Board of Zoning Appeals. Under the zonin g- 5 -

ordinance, the applicant was entitle d to the permit when all the ordinance requirements

had been met. The Board of Zoning Ap peals in that case was acting in an administrative or q uasi-judicial capacit y, compiling a rec

ord that could be
rev iewed un der the common-law wr it of certiorari. See Fallin v. Knox Co. Bd. of Commissioners , 656 S.W.2d 338 (Tenn. 1983). In that case it was wrong to bas e a decision solely on the n eighborhood opposition.

Legislators, however, do what legislators do: they listen to their constituents; they test the wind; the y try to please as many people as possi ble, consistentw ith the constitution and a good conscience. And they ar e not to b e condemned for doing so. That is thei r job.

The judgment of the trialcourt i s affirmed and the cause is remanded to the Chancery Court of Fr anklin County for

any further proceedings necessary. Tax the costs on appeal to the appellants.

____________________________ BEN H. CANTRELL, JUDGE CONCUR:

__________________________________ WILLIAM C. KOCH, JR., JUDGE
SEPARATE CONCURRING OPINION: WALTER W. BUSSART, SPECIAL JUDGE