### FILED January 28, 19

99 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

MC PRO PER TIES , INC., ) C/A NO. 03A01-9807-CH-00216 ) Plaintiff- Appellee, ) HAMILTON CHANCERY ) v. ) HON. HOWELL N. PEOPLES, ) CHANCELL OR THE CITY OF CHATTA NOOGA and ) THE CHATTANOOGA CI TY ) COUNCIL, ) REVERSED ) AND Defendants-Appellants. ) REMANDED

JOHN R. ANDERSON an d HARRY R. CASH, GRANT , KONVALI NKA & HARRISON , P.C., Chatt anooga, for Plaint

iff-Appellee. PHILLIP A. N OBLETT and LAWR ENCE W . KELLY, Chattanooga, for D efendantsAppellants.

O P I N I O N Franks, J. The City Council deni

ed plaintiff

’s request t

o rezone 10.2 acres of a certain tr act of land on and near Shal lowford Road in Chattanooga. Plaintiff fi led a petition for

certiorar i in the Chancery

Court and after tr

ial, the Chancel

lor ordered rezoning o f the prope rty. The City has ap pealed to th is court.

The issues rais ed on appeal are: 1. Whether the Trial Court erred in admitt

ing evidence and testimony wh ich had no t been prese nted to the C ity Council. 2. Whether the Trial Court erred in findi

ng that the act

ion of the City Council was illegal, arbit rary or capricious. 3. Whether the denial of t he rezoning request

constitut

es an unc onst itutio nal ta king of p rope rty. Zoni ng ca ses have hist

ori cal ly ente red t he co urt system t hrou gh two2

differe nt proc edures , i.e., a writ o f certior ari and a declara tory judgm ent actio n. Tenness ee Code Annota ted §27-8 -101 add ressing the c ommo n law w rit of certiorari, provides that

the “writ of cert

iorari may

be granted whenever author ized by law, a

nd also in all

cases where an inferior tribunal , board, or offi cer exercisi

ng judicial functions has exceeded the jurisdi ction conferred,

or is acti

ng illegall

y, when in the judgment of the court, there is no other plain,speedy or adequat e remedy.” The Code also provides for

a statutor

y writ of cer

tiorari : “anyone who may be aggr ieved by any final order o r judgmen t of any board or comm ission func tioning und er the laws o f this state may have s aid order or judgment reviewed by the cour

ts.” T.C.A. §27- 9-101. The language of the Code appears t o limit the wri

t to judicial determinat

ions by lower tribunals or

administrat

ive agencies,making the writ appropr iate for such matt

ers as appeals from determ inations made by a Bo ard of Zoning A ppeals, which are administrat

ive, but inappr

opriate for suc

h matters as chal

lenges to the enac

tment of ordinances or resolutions w hich create or amend zoning regulations, wh ich are legislativ e. Fallin v. Knox County Bd. Of Comm ’rs. , 656 S.W.2d 338, 342 (Tenn. 1983). The Te nnessee Suprem e Court has said that “an action for declaratory judgment, as provi

ded by T.C.A. §§29-14-101- -29-14-113, rat her than a petit

ion for certiorar i is the prope

r remedy to be employed by one who seeks t o invalidate

an ordinance, res olution or ot her legisl ative action of county, ci ty or other

municipal legislat ive authorit

y enacting or

amending zoning legis lation.” Id. The Co urt, however, went on to say that “where, as he

re, the plai

ntiff mistakenl

y employs t

he remedy of certi

orari the cour

t may treat

the action as one f

or declarator

y judgment and proceed accordingl

y, rat her than dismiss

the action. ” Id. The review by courts

in a declarat

ory judgment act

ion examining the validity of a zon ing ordinan ce is limited. Z oning has long been accepted a s a valid exercis e of the police p ower. See Spen cer Sturla C o. V. City of M emphis , 155 Tenn.3

70, 290 S.W. 608, 612-613 (1927) . When faced with such an exerci se of police power the Supreme Court has st ated: Zoning is a legislative matter, and,as a general proposition, the exercise of the zoning power should not be subjected to j udicial int erference unless clearl

y necessary . In enacting or amending zoning legis lation, t he local authori

ties are vest

ed with broad discre

tion and, in cases where the validity of a zoning ordinance is fairly debata ble , the court ca nnot substitute its j udgment for that of the legislative authority . If there is a rational or ju stifiable basis for the enactment and i t does not viol ate any state statu te or po sitive co nstitution al guara nty, the wisdom of the zoni ng regulation i

s a matter exclusi

vely for legi

slative det

ermination . In accordan ce with the se principles, it h as been state d that the co urts should not inte

rfere with the exe

rcise of the zoni

ng power and hold a zoning enactment inva

lid, unles s the enactment,in whole or in relation to any part

icular proper

ty, i s shown to be clearly arbitrary, capricious , or unre ason able , hav ing n o sub stan tial re latio n to t he p ubli c hea lth, s afet y, or welfare , or is plainly contrar y to the zoning laws. (Em phasis supplied). Fallin , 656 S .W.2d at 342- 343, also see Davidson County v. Rogers, 184 Tenn. 327, 198 S.W .2d 812-8 14-815 (1 947); Family Golf of Nashvil le, Inc. V. The Metropolitan Gov’t of N ashville and Davidso n Coun ty , 964 S.W.2d 25 4, 260 (Tenn. A pp. 1997); Cart er v. Adams , 928 S.W .2d 39, 40 (T enn. Ap p. 1996); Copeland v. City of Chattanooga , 866 S .W.2d 565, 56 7 (Ten n. App . 1993)

.

Though there a re procedural differenc es between com mon law certiorari and decla ratory judgme nt, any distinction in the applicatio n of the su bstantive law to legislat ive and administr

ative actions has “dissipa ted with the pass age of time.” McA llen v. C ity of M emph is, 786 S.W.2d 633, 641 (Tenn. 1990). The Tennessee Supreme Court has found:

The “fairly

debatable, r

ational basi s,” as applied to legislative acts, and the “illegal, arbit

rary and capr

icious” sta

ndard relati

ve to administr

ative acts are essentially the same. In either instance, the court’s prim ary resolve is t

o refrain from subst

ituting i ts judgment for t

hat of the local government body. An act ion will be inval

idated only

if it const

itutes an abuse of discret

ion. If “any

possible reas on” exists justifyi ng the action, it will be upheld . ( Id. ) Whether there is sufficient evidence to support the zoning action is a ques tio n of l aw, ma

king appe lla te r evie w de novo without a presumption of4

correct ness. 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 ess entially what it did by

admitting addi

tional evidence. It

allowed in evidence what i t considered re

levant to any

of the matters t

hat were disc ussed by the m embers o f the City Co uncil, instead o f limiting the e vidence to the record of the he aring.

Under the declarat

ory judgment pr

ovisions, t

he admission of new evidence is not l

imited as it

is under a writ of c ertiorari . The statute provides that “[w]he n a procee ding und er this chapte r involves th e determin ation of an issue of fa ct, such issue may be t

ried and determi

ned in the same manner as i ssues of fact are tried and determined in ot

her civil act

ions in the cour

t in which the procee

ding is pending. ” T.C.A. §29-14-108. It

also provides t

hat the chapter

“is to be li

berally construed and administered.” T.C.A . §29-14-113. An y evidence that is relevant to the court’s responsibil

ity of det ermining whether the

zoning decision i s “fairly debatable” or wheth er there is “any po ssible re ason” f or the zo ning re gulation should be adm itted. That is what the Tri al Judge did in t his case, and i

t was proper to do so. We conclude the Trial Court was in error in fi

nding that the a

ction of the City Council was i

llegal, a rbitrary or capricious.The Supreme Court has determined that “‘fairly deba table, rational b asis,’ as applied to legislative ac ts, and the ‘illega l, arbitrary and capricious’ standard rela tive to admini strative

acts are essent

ially the same. In eith er instance, the court’s prim ary resolve is to ref rain from s ubstituting its judgmen t for that of th e local gov ernmenta l body. An ac tion will be in validated o nly if it const

itutes an abus e of discretion. If ‘ any possibl e reason ’ exists justifyi

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

The City advanced sever al reasons why t

he Council properly

denied the1

The plaintiff did not request R-4 or O- 1 zones in this case. 2 Bennett conce

ded on cross-

examination

that the City

does not alwa

ys adhere to the plans it creates for development. He obs erved: You know, and it’ s our hope that they adhere to t he plans, but sometimes that i sn’t always the case. The record dem

onstrates that t

he City has n

ot adhered to i

ts plans for the

developme

nt of this 5 change o f zoning. T hey may not be good rea sons, but this is n ot for the C ourt to determine so long as

the issue is

fairly debatable. Barr

y Bennett, t

he Director of Current Planning and Operat ions of the Regional Planning Agency, offer ed testimony that the st

aff of the Planning Agency recommended denial because under the current policy,Shallowford Road has been establ ished as the most de

finable stoppi

ng point for the northward expans ion of commercial development in the area, and the area south of Shallowford Road is a ll commercial and t

he area north of Shall

lowford Road is predominantly residential. He exp lained that the policy recommen ds R-4 and O -1 type zones on t

he frontage propert

ies, which would be low densi ty, low traffic office or institutional z ones wh ich wou ld serve as a buffer be tween the comme rcial areas to the south and the r

esidential

areas to the nor

th. 1 The staff also wan ted to set a precedent, becaus e if the propert ies in questi

on were rezoned, Mr. Bennett a nticipated rezoning requests for another 70 or 75 ac res of property

in the area curr

ently zoned residenti al. He stated t

hat the str

eet syst em could not accommodate the t raffic that would be generated by 70 more acres of commercial deve lopment, and that improv emen ts wou ld need to be m ade to th e roads before any rezo ning tak es place

. Bennett believes

that the area

will go commercial eve ntually , but he wants the improvements to the roads to be made first. Bennett testified that the staff also consid ers the im pact on people who liv e in the a rea and people who s hop in t he area

. This potential

rezoning, along wit

h other potential rezoning, would ha ve a significant impact on the resi

dents and shoppers unt

il the new infrastructure i s in place. 2area, and such deviations needlessly ra ise the specter of favoritism and dim inish the legitimacy of such plans.
6

Even tho ugh plaintif f in this case o ffered ev idence that it c ould accommodate any addit ional traffi

c, it might

generate, l

imiting commercial developm ent in this area until the app ropriate infra structure can be built is a fa irly debatable issue. While the City Council has previous ly allowed rezoning, without having proper infr

astructure i

n place, and the fac

t that the Ci

ty Council oft

en goes against the r

ecommendations of the pla nning agency st

aff, the Council has

the power to zone property

in its dis cretion, s o long as it i s rational ly rela ted to the welfar

e of the people. Waiting t

o rezone property

until the r

oad system can handl

e the additional traffic, i s in the power of the l egislati ve body, and if t

he Council’s decision diminishes the valu e of pro perty, it is in th eir legisla tive pow er to do so, as w ell. See Nichols v. Tullahoma Open Door, Inc. , 640 S.W.2d 13 (Tenn. App. 1982). The legislat ive body does not have to enact

zoning regulati

ons which would provide the best use of the property. It has br oad discretio n to zone a s it feels prop er, which it e xercised in th is

case. Though the property in question shoul

d, and probably

will, eventua

lly be zoned commercial, t

he issue is fai

rly debat able at the pre sent time, and we may not substitute ou r judgmen t for the City C ouncil. W e find no b asis to overtu rn their decision. Finally , the Trial Court dismissed plaintiff’s claim of an unconsti

tutional taking und er inverse co ndemna tion, before the hearing on this matte r. It does relate to our prior deter

mination that

the issue to r

ezone was a fairly

debatable issue. This Court has previously held t hat zoning regulat

ions may not depr

ive proper ty owne rs of the benef icial use of their proper ty. Campbell v. Nance , 555 S.W.2d 4 07 (Tenn . App. 197 6); Bayside W arehouse Co. v. City of Memp his , 63 Tenn.7

App. 268, 470 S.W.2d 375 (1971). These cases are dist

inguishable fr

om the present case. In Camp bell , the propert y in questi

on was zoned residenti al and was surrounded by property

zoned commercial. The proper ty never had a home on i t and was not suit able for r esid enti al pur

poses in it s cond ition. The ent

ire a rea ha d becom e

comme rcially oriented, an d based u pon these factors, the C ourt determ ined that to leave the lot z oned resid ential wou ld deprive th e owne rs of the be neficial use o f their prop erty. Similarly , in Bayside , the City Council of the City

of Memphis rezoned twenty-three acres of land ow ned by Bayside Wareh ouse Comp any from M-2 Industrial to C-3 Com mercial. The property was lo cated on Mu d Island. The Co urt found that the proper

ty was ideal

ly suit ed for river-or

iented indust

ry, becaus e it had virtually no access by land a nd ther e were no plan s to build access in the ne ar futur e. In its then c ondition it

was not at all suitable for commercial use, so commercia l zoning would depriv e the ow ners of any bene ficial us e wha tsoeve r. Id. at 377.

Here, the property owners, while not receiving the most beneficial use of th eir prop ert y, do ha ve a b enef

ici al us e. The la

nd co nsi stsof a church and two residential homeow ners. The church is cu rrently using the property as a church. It wants to se ll the property so th at it can mov e to a larger trac t of land do wn the stre et, but i t is sti ll a ble t o use its prop ert y. Only one r esi dent ial homeo wner t

est ifi ed. He testified that the are a has changed drasti cally si nce he moved there, and t hat he does not wan t to live there an y longer. He s aid he has n ot received offers to b uy his property fr

om anyone other than c ommercial developers . Though he has not recei ved any offers,he did not test ify that he has actively

tried to se

ll his proper

ty as office property or

residenti al property . The record shows available beneficial uses of the properties,

contrasted wit

h Camp bell and Bayside. Accord ingly, there is no b asis to hold that ther

e has been an unconstit utional taki

ng absent rezoning.8 For the foregoing re asons, the deci sion of the Trial Court vacating t

he denial of th e rezoning petition by the C ity is reversed, and the decision of the City Council is rei

nstated. The cost of the appeal i s assessed to appel lee, and the caus e remanded.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.