# FILED Nov. 1, 1995 Cecil Crowson, Jr . Appellate Court Clerk DAVIS GROUP (MC), I

NC., ) ) Petitioner/Appellee, ) ) Davidson Chancery ) No. 94- 162 0-II VS. ) ) Appeal No. ) 01-A-01-9501-CH-00010 THE METROPOLI

TAN GOVERNMENT ) OF NASHVIL

LE AND DAVI

DSON ) COUNTY; and THE METROPOLI TAN ) PLANNI NG COMMISSION , ) ) Responde nts/Appellants. )
IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CHANCERY COURT OF DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE
HONORABLE C. AL

LEN HIGH, CHANCELL OR George A. Dean PARKER, LAWRENCE, CANTRELL & DEAN Fifth Floor 200 Four th Avenue , North Nashville, Tennessee 37219 ATTORNEY FOR PETITI ONER/APPELLEE Ja mes L. Mu rph y, III, Director of Law Joseph R. Mouer Leslie Shechter Francis H. Young Me tr op ol it an At to rn eys THE DEPARTMENT OF LAW OF TH E METROPOLI

TAN GOVERNMENT OF NASHVIL

LE AND DAVI

DSON COUNTY 204 Metro

politan Cou

rthouse Nashville, Tennessee 37201 ATTORNEYS FOR RESPONDENTS/APPELLA NTS AFFIRMED AND

REMANDED HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR: SAMUEL L . LEWIS, JUDGE CORNELI

A A. CLARK, SPECIAL JUDGE-2-

DAVIS GROUP (MC), I

NC., ) ) Petitioner/Appellee, ) ) Davidson Chancery ) No. 94- 162 0-II VS. ) ) Appeal No. ) 01-A-01-9501-CH-00010 THE METROPOLI

TAN GOVERNMENT ) OF NASHVIL

LE AND DAVI

DSON ) COUNTY; and THE METROPOLI TAN ) PLANNI NG COMMISSION , ) ) Responde nts/Appellants. )

O P I N I O N This is a proceeding for judicial review of the action of the Metropolitan Council, the el ec te d l eg is la ti ve bo dy o f t he Me tr op ol it an Go ve rn me nt of Na sh vi ll e a nd Da vi ds on Co un ty, Tennessee, in refusing to concur in the a ction of the Metropolitan Planning Commission approving a "Pla

nned Unit Develop ment." T

he Trial Court rev ersed the action , and the C ity filed notice of its "intention to appeal" which, in the absence of challenge, will be treated as a notice of appea l. The City

present s the follo wing issu es: 1. Whether it was error to deny the Metropolitan Government's motion to dismiss, since this action should have been brought as a declara tory judgment a

ction. 2. Whether there was sufficient evidence to support the decision of the Me

tropolita n Council. On February

24, 1994, the captioned petitioner filed with the Metropolitan Planning Commission a

n applica tion for a pproval o f a propo sed comme rcial pla nned unit development to be known as "Music City Cafe," containing separa te places of entertainment and dining , upon a 10 .3 acre tract ne ar the in

tersec tion of Old

Hickory Bouleva rd and U. S. Interstate Highw ay 65. The pe tition alleged that petitioner held an option to purchase the tract and intended to construct the improvement if permitted to do so.-3- On March 20, 1994, the Planning Commission granted "conditional preliminary approval," but the local ordinance, COMZ O §17.100.010 et seq, required concurrence of the Metropolitan Council to effectuate the action of the Commission.
Thereafter, two proposed ordinance s were presented to the Metropolitan Council. Coun cil Bi ll #0 94-10 08 mad e appl icabl e to th e subj ect tr act th e prov isio ns of C OMZO (Metrop olitan Zoning Cod e) rela ting to c ommercia

l planned unit deve lopments. Council Bill #094-1009 changed the zoning classification of the tract from R20 (residential with a 20,000 squ are foot minimum) to O.G. (of fice g eneral ). Both b ills were approve d on first reading, but passage upon three readings is required by Metropolitan Charter §3.05. A public hearing on both bills was held by the council on May 5, 1994. On Ma y 17, 1994, both bills were defeated.
On May 27, 1994, the ca

ptioned petitioner filed the present petition for certiorari for ju di ci al re vi ew of

th e a ct io n o f t he co un ci l i n d is ap pr ov in g B il l # 09 4- 10 08 on th e t he or y that such action wa s administr

ative in n ature a

nd subjec t to judicia

l review as such. B ill #094- 1009 t o chan ge zon ing cla ssifi catio n is n ot in volv ed in t he pres ent ju dicia l proc eedin g.

On Nov ember 2 , 1994 , the T rial C ourt r everse d the d ecisi on of t he cou ncil, stati ng: Conclusions of Law At the pub lic hear

ing bef ore the M etropolit

an Counci l, residents of the affected area voiced sincere concerns about possible tr

affic p roblems, a possible

decrea se in prop erty values, a nd unhapp iness with

the propo sed use of

the prope rty as an entertainment facility . None of these opinions was based upon any factual premise apparent in the record. Expression of fears by

members of the community alone , no matter how sincere, will not support the decision. Sexton v. Anderson County, 587 S.W.2d 663, 666 (Tenn. App. 1979). There is no material proof in the record that the proposed use of the propert y a s a resta

urant and entert

ainment f acility is incompatible with the Subarea 12 Land Use Plan.-4- -First Iss ue: Prop er Form of Action for

ReviewThe determination of this issue depends upon the character of the action under review. If the a

ction is legislative in character, it is not subject to review by certiorari, but only by an action for declaratory

judgment. If the action is administrative in character, the review is properly

by certiora

ri wherein the inquiry

is whether there was material evidence to support conclusions that were neither arbitrary nor unlawful. Metropolitan Air Research Testing Authority, Inc. v. Metropolitan Government of Nashville and Davidson County, Tenn. App. 1992, 842 S.W.2d 611.

In McCallen v. City of Memphis, Tenn. 1990, 786 S.W.2d 633, the plaintiffs filed a suit for declaratory

judgment invalidating a resolution of the city council which approved a planned development. The Trial Court held that the resolution was invalid as "not supported by substantial evidence ." This Court affirmed, holding that there was no ra tional basis for the resolution. The Supreme Court held:

We initially hold that the action of the city council giving approval to the plan was administrative rather than legislative in nature; any c

hallenge of the action is by writ of certiorari. Secondly, both the trial court a nd the Court of Appeals failed to give p roper de ferenc e to the de

terminat ion of the Memphis City Council. We reverse the ac tion of both the trial court and the Court of Appeals and enter a judgment in favor of the defenda nts. Costs a

re adjud ged ag ainst the p laintiff

s.

. . . . The "fairly

debatable, rational basis," as applied to legislative acts, and the "illegal, arbitrar y and ca pricious" standard rel ati ve t o ad mi ni st rat iv e ac ts are ess ent ial ly th e sa me. In either instance, the court's primary resolve is to refrain from substituting its judgment for that of the local governmental body. An action will be invalidated only if it constitutes an abuse of discretion. If " any possible rea son" exists justifying the action, it will be upheld. Both legislative and administrative decisions are presumed to be valid and a heavy burden of proof rests upon the shoulders of the party who challenges the action. If there was e

ver any ba sis for the distinction in the application of the substantive law to legislative and administrative actions, it has dissipated with the passage of time. . . .-5- . . . . While this court recognizes the statutory , procedural distinction between common law certiorari and declara tory judgment, there is no sound logic to maintain different standards of substantive review. Whether the action by the local g overnme

ntal body is legisl ative or

administr

ative in nature, the court should refrain from substituting its judgment for the broad discretionary authority of the loca

l governmental body . An invalidation of the actio n should ta

ke place only when the decision is clear ly illegal, arbitra

ry , or capr

icious. McCallen, 786 S.W.2d at 634, 641-42. Appellan t argue s that McCallen is not applicable because the Nashville Zoning Ordinance differs from the Memphis Zoning Ordinance. Although the full texts of the ordinances do not appear in the record, they have been submitted to this Court as an appendix to appellant's brief. Without objection from appellee, this Court will take judicial knowledge of and compare said texts. T.R.E. Rule 202(b)(3).
Appellant states that Sections 14(B)(2) and (C) of the Memphis Ordinanc e provides that the b asic zonin g of a p arcel isnot changed when a Planned U

nit Devel opment is appro ved. H owever , the c ited p ortio ns of t he Mem phis Ordin ance co ntain the fo llow ing:

(B)(2) Modification of district regulations. Planned developments may be c onstructed in any zoning district subject to the standards and procedures set forth below: a. Except as modified by and a pproved in the resolution approving an outline plan, a planned development shall be governed by

the regulations of the district or districts in which the said planned development is located. b. The resolution approving the outline plan for the planned development may provide for such exceptions from the district regulations governing use , density, area , bulk, parking, and signs, . . . . C. General standards and criteria. The legislative body may grant a permit which modifies the applicable district zoning regulat ions and su bdiv isio n regul ation s upon writt en fin dings and recommendations by

the land use control board which shall be f orward ed pursua nt to the pr

ovisions c ontained

in this section.-6- The Memphis Ordinance recognizes that a planned development may produc e modifications or exceptions to local zoning. Moreover, the ordinance ref ers to "legislative action," which apparently did not influence the decision in McCallen.
Appellan t argue s that, und

er the Na shville Or

dinance , a planned develop ment is a "comple te rezoning of the

propert y." No speci fic provision of the Nashville

Ordinance is cited or found which would support this argument. Even though, a s argued by appellant, the circumstances of this case result in a "complete rezoning" from residential to commercial use, the e nactmen t of the c ommercia

l planned unit secti on of the N ashville O rdinanc e in effect, prospectively

authorized the zoning changes resulting fr om the approval of a planned unit development.
The portions of the Nashville Zoning Ordinance quoted below were included in the appendix to the brief of appellant and will be noticed pursuant to T.R.E. Rules 201(d) and 202(b)(3): 17.108.100 Planning commission action on preliminary

applicatio n.

. . . . C. Metropolitan Council Approval of Preliminary Plan. Any approval of a preliminary application by the metropolitan planning commission shall be transmitted to the metropolitan council for their concurrence.

. . . . 17.108.110 Councilmanic concurrence with preliminary approval required. Prelimina ry approva l of a pla nned unit d

evelopme nt shall require the concurrenc e of the m etropolit an counc il in accordance with the procedure s in Sections 17.136.070 and 17.136.100. . . . By letter , appellant submitted for consideration, sections 17-136-070 and 17-136-100 of the Nashville Ordinance which have been c onsidered. Said sections relate to rezoning-7-

generally , and are not deemed applicable to the concur rence of the council in the approval of
a commer cial plan ned deve lopment.
The Memphis and Nashville Ordinances do differ widely in content, but they establish equivale nt scheme s for app

roval of planned u

nit devel opments.
Appellan t cites au thoritiesthat the f

orm of he aring d

etermine s whethe

r an act ion is legislative or administrative. This Court does not agree. The nature of the question to be decided and the necessar

y pr ocedure for making such d

ecision a re the de terminat ive fac tors, rather than the procedure which wa s selected for the particular decision.

As held in McCallen, the Nashville council had previously enacted the criteria for approval of planned unit developments and reserved only the prerogative of reviewing whether such criteria ha

d been me

t.
Appellant argues that, "if this case ha d been allowed to proceed as a dec laratory action ( appella

nt) would h ave soug

ht to offe r evidence reg arding

the spec ific req

uiremen ts of the Subarea 12 plan."
According to Subarea Plan 12, it contains 27,300 acre s, or 42.7 square miles or 8% of the area of Davidson County . It is bounded by Interstate Highw ay 24 and Rutherf ord County on the ea st, by

Williamson Co

unty on the sout

h, by Franklin Pike and

Inte rstate Highway 65 on the west and a railroad and cree k on the north. The Subarea contains 14 "Sector s" and a

fractio n of a 15th

sector. The plan

states: . . . The predominant land use in Subarea 12 is residential. Out of the 23,633 net acres in the subarea (not including rights-of-way), 15,282 are in residential use. Of this acreag e, 6,884 acres are rural residential, mostly located in the southern portion of the subarea. Nonresidential uses occupy 1,717 net acres. Nolensville Pike from the north end of the subarea to around Old Hickor y-8- Boulevard forms the main commercial spine of the subar ea. Other major commercial areas ar e found at the interchanges of I-24 with Harding Plac e, Hayw ood Lane, and Be ll Road; at the interchanges of I -65 with Harding Place and Old Hickory Bouleva rd; and a t the inter section o f Edmonson Pike and O ld Hickory B oulevard.

. . . . . . . The ba sic conc ept for Su barea 1 2 is that it s hould continue to develop as primarily a residential area. The focus for nonr esidentia l develop ment is on p

roviding activitie s in support of mainly commerc ial service needs genera ted by residential growth within the subarea.

. . . . 6. The I-65/Old Hickory

Boulevard interchange c ommercial area isevolving

as mostly

a major o ffice c oncentr

ation and is envisioned to continue developing in that manner. The location of the planned unit development in the present case is at the inter section of Old Hickory B oulevard and Intersta te Highway

65, where the plan and accompany ing map indic ate a cl

uster of commerc ial uses. This Court i s unable t o find such a gro ss disparity betwee n Subare a Plan 12 a

nd the pro

posed pla nned unit d

evelopme nt as would justify the rejection of the planned unit development on this ground.
Appellan t complain s that the n ature of the planned unit developmen t is calculated to draw a "regional c lientele." A proposed restaurant and dinner theater is included in the planned unit development, and it is possible that it would attract patrons from outside Subarea 12. However, this possibility is not sufficie nt to justify a finding that the planned development is in conflict with Subarea 12 Plan.
Appellant asserts that, if permitted to do so, it might have offered other e vidence of conflict with Subarea 12 plan. Without a tender of such evidence and its pre servation in the record , this Court

is unable to find g rounds of revers al.
No ground of reversal is found in appellant' s first issue.-9- Appellant's second issue is based upon the insistence, that, viewed a s an administrative decision, the action of the council is supported by sufficient evidence. Subarea 12 plan is cited as evidence. I t has been considered and discussed above.
Appellant cites a statement to the council by Mr. Bruce Cole who expressed a desire that the subject property

be developed for office use. An expression of a de sire, without supporting evidence, is not "substantial and material evidenc e." Also cited is a report of the Planning, Zoning and Port Authority Committee of the council which by a vote of 7 - 3 recommended rejection of the proposal. A " recommendation" without supporting evidence of facts is not "substantial and material evidence."
This Court finds that the action of the council is unsupported by substantial and material evidence and therefore cannot be affirmed as an administrative action. Sexton v. Anderson County, Tenn. 1979, 587 S.W.2d 663, Father Ryan v. City of Oak Hill, Tenn. App. 1988, 772 S.W.2d 184.
The judgment of the

Trial Cour

t is affir med. Costs o f this app eal are taxed ag ainst the appe llant. The

cause isremanded to the Tr ial Court f

or appro priate f urther p roceed ings.

Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________-10-

CORNELI

A A. CLARK, SPECIAL JUDGE

# FILED Nov. 1, 199 5 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
DAVIS GROUP (MC), I

NC., )

) Petitioner/Appellee, ) ) Davidson Chancery ) No. 94- 162 0-II VS. ) ) Appeal No. ) 01-A-01-9501-CH-00010 THE METROPOLI

TAN GOVERNMENT ) OF NASHVIL

LE AND DAVI

DSON ) COUNTY; and THE METROPOLI TAN ) PLANNI NG COMMISSION , ) ) Responde nts/Appellants. )

O R D E R
The Supre

me Court ha s denied a

pplicatio n for per

mission to a

ppeal, c oncurring in results only. The original opinion of this Court is withdrawn, and an opinion filed concurrently

with this order is substituted therefor.

ENTER ________________

______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

______________________________________ SAMUEL L . LEWIS, JUDGE

______________________________________ CORNELI

A A. CLARK, SPECIAL JUDGE