FILED

January 28, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

MC PROPERTIES, INC., ) C/A NO. 03A01-9807-CH-00216

)

Plaintiff-Appellee, ) HAMILTON CHANCERY

)

v. ) HON. HOWELL N. PEOPLES,

) CHANCELLOR

THE CITY OF CHATTANOOGA and )

THE CHATTANOOGA CITY )

COUNCIL, ) REVERSED

) AND

Defendants-Appellants. ) REMANDED

JOHN R. ANDERSON and HARRY R. CASH, GRANT, KONVALINKA &

HARRISON, P.C., Chattanooga, for Plaintiff-Appellee.

PHILLIP A. NOBLETT and LAWRENCE W. KELLY, Chattanooga, for DefendantsAppellants.

O P I N I O N

Franks, J.

The City Council denied plaintiff’s request to rezone 10.2 acres of a

certain tract of land on and near Shallowford Road in Chattanooga. Plaintiff filed a

petition for certiorari in the Chancery Court and after trial, the Chancellor ordered

rezoning of the prope rty. The City has appealed to this court.

The issues raised on appeal are:

1. Whether the Trial Court erred in admitting evidence and

testimony which had not been presented to the City Council.

2. Whether the Trial Court erred in finding that the action of the

City Council was illegal, arbitrary or capricious.

3. Whether the denial of the rezoning request constitutes an

unconstitutional taking of prope rty.

Zoning cases have historically entered the court system through two
2

different procedures, i.e., a writ of certiorari and a declara tory judgment action. 

Tenness ee Code Annotated §27-8-101 addressing the common law writ of certiorari,

provides that the “writ of certiorari may be granted whenever authorized by law, and

also in all cases where an inferior tribunal, board, or officer exercising judicial

functions has exceeded the jurisdiction conferred, or is acting illegally, when in the

judgment of the court, there is no other plain, speedy or adequate remedy.” The Code

also provides for a statutory writ of certiorari: “anyone who may be aggrieved by any

final order or judgment of any board or commission func tioning under the laws of this

state may have said order or judgment reviewed by the courts.” T.C.A. §27-9-101.

The language of the Code appears to limit the writ to judicial determinations by lower

tribunals or administrative agencies, making the writ appropriate for such matters as

appeals from determinations made by a Board of Zoning Appeals, which are

administrative, but inappropriate for such matters as challenges to the enactment of

ordinances or resolutions which create or amend zoning regulations, which are

legislative. Fallin v. Knox County Bd. Of Comm’rs., 656 S.W.2d 338, 342 (Tenn.

1983). The Tennessee Supreme Court has said that “an action for declaratory

judgment, as provided by T.C.A. §§29-14-101--29-14-113, rather than a petition for

certiorari is the proper remedy to be employed by one who seeks to invalidate an

ordinance, resolution or other legislative action of county, city or other municipal

legislative authority enacting or amending zoning legislation.” Id. The Court,

however, went on to say that “where, as here, the plaintiff mistakenly employs the

remedy of certiorari the court may treat the action as one for declaratory judgment and

proceed accordingly, rather than dismiss the action.” Id.

The review by courts in a declaratory judgment action examining the

validity of a zoning ordinance is limited. Zoning has long been accepted a s a valid

exercise of the police power. See Spencer Sturla Co. V. City of M emphis, 155 Tenn.
3

70, 290 S.W. 608, 612-613 (1927). When faced with such an exercise of police power

the Supreme Court has stated:

Zoning is a legislative matter, and, as a general proposition, the exercise

of the zoning power should not be subjected to judicial interference

unless clearly necessary. In enacting or amending zoning legislation, the

local authorities are vested with broad discretion and, in cases where the

validity of a zoning ordinance is fairly debatable, the court cannot

substitute its judgment for that of the legislative authority. If there is a

rational or justifiable basis for the enactment and it does not violate any

state statute or positive constitutional guaranty, the wisdom of the zoning

regulation is a matter exclusively for legislative determination. In

accordance with the se principles, it has been stated that the courts

should not interfere with the exercise of the zoning power and hold a

zoning enactment invalid, unless the enactment, in whole or in relation

to any particular property, is shown to be clearly arbitrary, capricious, or

unre asonable, having no substantial re lation to the public hea lth, safety,

or welfare , or is plainly contrary to the zoning laws. (Emphasis

supplied).

Fallin, 656 S.W.2d at 342-343, also see Davidson County v. Rogers, 184 Tenn. 327,

198 S.W.2d 812-814-815 (1947); Family Golf of Nashville, Inc. V. The Metropolitan

Gov’t of Nashville and Davidson County, 964 S.W.2d 254, 260 (Tenn. App. 1997);

Carter v. Adams, 928 S.W.2d 39, 40 (Tenn. App. 1996); Copeland v. City of

Chattanooga, 866 S.W.2d 565, 567 (Tenn. App. 1993). 

Though there a re procedural differenc es between common law certiorari

and decla ratory judgment, any distinction in the application of the substantive law to

legislative and administrative actions has “dissipated with the passage of time.” 

McAllen v. City of Memphis, 786 S.W.2d 633, 641 (Tenn. 1990). The Tennessee

Supreme Court has found:

The “fairly debatable, rational basis,” as applied to legislative acts, and

the “illegal, arbitrary and capricious” standard relative to administrative

acts are essentially the same. In either instance, the court’s primary

resolve is to refrain from substituting its judgment for that of the local

government body. An action will be invalidated only if it constitutes an

abuse of discretion. If “any possible reason” exists justifying the action,

it will be upheld. (Id.)

Whether there is sufficient evidence to support the zoning action is a

question of law, making appellate review de novo without a presumption of
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correctness. Carter v. Adams, 928 S.W.2d 39, 40 (Tenn. App. 1996). Tennessee Rules

of Appellate Procedure 13.

Though the Trial Court did not state it was treating the matter as a

declaratory judgment action, that is essentially what it did by admitting additional

evidence. It allowed in evidence what it considered relevant to any of the matters that

were discussed by the members of the City Council, instead of limiting the evidence to

the record of the hearing.

Under the declaratory judgment provisions, the admission of new

evidence is not limited as it is under a writ of certiorari. The statute provides that

“[w]hen a proceeding under this chapte r involves the determination of an issue of fact,

such issue may be tried and determined in the same manner as issues of fact are tried

and determined in other civil actions in the court in which the proceeding is pending.” 

T.C.A. §29-14-108. It also provides that the chapter “is to be liberally construed and

administered.” T.C.A. §29-14-113. Any evidence that is relevant to the court’s

responsibility of determining whether the zoning decision is “fairly debatable” or

whether there is “any possible reason” for the zoning regulation should be admitted. 

That is what the Trial Judge did in this case, and it was proper to do so.

We conclude the Trial Court was in error in finding that the action of the

City Council was illegal, arbitrary or capricious. The Supreme Court has determined

that “‘fairly deba table, rational basis,’ as applied to legislative ac ts, and the ‘illega l,

arbitrary and capricious’ standard relative to administrative acts are essentially the

same. In either instance, the court’s primary resolve is to refrain from substituting its

judgment for that of the local governmenta l body. An ac tion will be invalidated only

if it constitutes an abuse of discretion. If ‘any possible reason’ exists justifying the

action, it will be upheld.” McAllen, 786 S.W.2d at 641. 

The City advanced several reasons why the Council properly denied the
1

 The plaintiff did not request R-4 or O-1 zones in this case. 

2

Bennett conceded on cross-examination that the City does not always adhere to the plans it

creates for development. He observed:

You know, and it’s our hope that they adhere to the plans, but sometimes that isn’t always

the case.

The record demonstrates that the City has not adhered to its plans for the development of this

5

change of zoning. They may not be good reasons, but this is not for the Court to

determine so long as the issue is fairly debatable. Barry Bennett, the Director of

Current Planning and Operations of the Regional Planning Agency, offered testimony

that the staff of the Planning Agency recommended denial because under the current

policy, Shallowford Road has been established as the most definable stopping point

for the northward expansion of commercial development in the area, and the area

south of Shallowford Road is all commercial and the area north of Shalllowford Road

is predominantly residential. He explained that the policy recommends R-4 and O-1

type zones on the frontage properties, which would be low density, low traffic office

or institutional zones which would serve as a buffer be tween the comme rcial areas to

the south and the residential areas to the north.1 The staff also wanted to set a

precedent, because if the properties in question were rezoned, Mr. Bennett anticipated

rezoning requests for another 70 or 75 acres of property in the area currently zoned

residential. He stated that the street system could not accommodate the traffic that

would be generated by 70 more acres of commercial development, and that

improvements would need to be made to the roads before any rezoning takes place . 

Bennett believes that the area will go commercial eventually, but he wants the

improvements to the roads to be made first. Bennett testified that the staff also

considers the impact on people who live in the a rea and people who shop in the area. 

This potential rezoning, along with other potential rezoning, would have a significant

impact on the residents and shoppers until the new infrastructure is in place.2
area, and such deviations needlessly raise the specter of favoritism and diminish the legitimacy of

such plans.

6

Even though plaintiff in this case offered evidence that it could

accommodate any additional traffic, it might generate, limiting commercial

development in this area until the appropriate infra structure can be built is a fairly

debatable issue. While the City Council has previously allowed rezoning, without

having proper infrastructure in place, and the fact that the City Council often goes

against the recommendations of the planning agency staff, the Council has the power

to zone property in its discretion, so long as it is rationally related to the welfare of the

people. Waiting to rezone property until the road system can handle the additional

traffic, is in the power of the legislative body, and if the Council’s decision diminishes

the value of property, it is in their legisla tive power to do so, as well. See Nichols v.

Tullahoma Open Door, Inc., 640 S.W.2d 13 (Tenn. App. 1982). The legislative body

does not have to enact zoning regulations which would provide the best use of the

property. It has broad discretion to zone a s it feels proper, which it exercised in this

case.

Though the property in question should, and probably will, eventually be

zoned commercial, the issue is fairly debatable at the present time, and we may not

substitute our judgment for the City Council. We find no basis to overturn their

decision.

Finally, the Trial Court dismissed plaintiff’s claim of an unconstitutional

taking under inverse condemna tion, before the hearing on this matte r. It does relate to

our prior determination that the issue to rezone was a fairly debatable issue.

This Court has previously held that zoning regulations may not deprive

property owners of the beneficial use of their property. Campbell v. Nance, 555

S.W.2d 407 (Tenn. App. 1976); Bayside Warehouse Co. v. City of Memphis, 63 Tenn.
7

App. 268, 470 S.W.2d 375 (1971). These cases are distinguishable from the present

case. In Campbell, the property in question was zoned residential and was surrounded

by property zoned commercial. The property never had a home on it and was not

suitable for residential purposes in its condition. The entire area had become

comme rcially oriented, and based upon these factors, the Court determined that to

leave the lot zoned residential would deprive the owners of the beneficial use of their

property.

Similarly, in Bayside, the City Council of the City of Memphis rezoned

twenty-three acres of land owned by Bayside Warehouse Company from M-2

Industrial to C-3 Commercial. The property was located on Mud Island. The Court

found that the property was ideally suited for river-oriented industry, because it had

virtually no access by land and there were no plans to build access in the ne ar future. 

In its then condition it was not at all suitable for commercial use, so commercial

zoning would deprive the owners of any bene ficial use whatsoever. Id. at 377. 

Here, the property owners, while not receiving the most beneficial use

of their property, do have a beneficial use. The land consists of a church and two

residential homeowners. The church is currently using the property as a church. It

wants to se ll the property so that it can move to a larger trac t of land down the stre et,

but it is still able to use its property. Only one residential homeowner testified. He

testified that the area has changed drastically since he moved there, and that he does

not want to live there any longer. He said he has not received offers to buy his

property from anyone other than commercial developers. Though he has not received

any offers, he did not testify that he has actively tried to sell his property as office

property or residential property. The record shows available beneficial uses of the

properties, contrasted with Campbell and Bayside. Accordingly, there is no basis to

hold that there has been an unconstitutional taking absent rezoning.
8

For the foregoing reasons, the decision of the Trial Court vacating the

denial of the rezoning petition by the City is reversed, and the decision of the City

Council is reinstated.

The cost of the appeal is assessed to appellee, and the cause remanded.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

Charles D. Susano, Jr., J.