IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 10, 2007 Session
BMC ENTERPRISES, INC. d/b/a BOND MEMORIAL CHAPEL v. CITY
OF MT. JULIET, ET AL.
Appeal from the Wilson County Chancery Court
No. 06307 C.K. Smith, Chancellor
No. M2007-00795-COA-R3-CV - Filed March 27, 2008
Plaintiff has operated a funeral home on its property since 1997. In this zoning dispute, the City of
Mt. Juliet Board of Zoning Appeals (“the Board”) refused to allow plaintiff to establish a crematory
as an expansion of plaintiff’s funeral home services. The funeral home had been a legal non-
conforming use of plaintiff’s property since the City’s zoning ordinance was amended in 1998. The
Board refused to allow plaintiff to operate a crematory on the same property because crematories are
not permitted in the zoning district for plaintiff’s property. Plaintiff filed a Petition for Writ of
Certiorari to the Trial Court for judicial review of the Board’s decision. The Trial Court granted the
writ and found that the Board’s decision was arbitrary, illegal, and capricious. The Trial Court
reversed the Board’s decision and ordered defendants to allow plaintiff to build and operate the
proposed crematory on its funeral home property. The Trial Court also granted plaintiff $10,000 in
attorney fees and costs. Defendants appeal. We affirm. We also hold that BMC is entitled to its
reasonable attorney fees and costs incurred during this appeal, not to exceed $10,000, pursuant to
the Equal Access to Justice Act, Tenn. Code Ann. § 29-37-101, et seq. Therefore, we remand to the
Trial Court for a determination of the proper amount of attorney fees and costs to be awarded to
BMC and for collection of costs below.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
ANDY D. BENNETT, J., joined.
William N. Bates and Beth L. Frazer, Nashville, Tennessee, for the Appellants, City of Mt. Juliet;
City of Mt. Juliet Board of Zoning Appeals; and Bryan Grassmeyer, Jackie Heatherly, Roger Morse,
Larry Searcy, and Alfred H. Williams serving in their capacity as members of the City of Mt. Juliet
Board of Zoning Appeals.
Jere N. McCulloch and David H. Veile, Lebanon, Tennessee, for the Appellee, BMC Enterprises,
Inc. d/b/a Bond Memorial Chapel.
OPINION
I. Background
BMC Enterprises, Inc. (“BMC”) operates Bond Memorial Chapel (“the Funeral Home”), a
funeral home located in Mt. Juliet, Tennessee. When BMC opened the Funeral Home in 1997, the
lot on which the Funeral Home is located (“the Lot”) was within the City’s O (Office) zoning
district. Funeral homes were a permitted use within the O zoning district.
However, in 1998, the City Commission amended the City of Mt. Juliet Zoning Ordinance
(“the Zoning Ordinance”), and the Lot was placed into an OPS (Office Professional Services) zoning
district. Funeral homes were not listed as a permitted use in any of the zoning districts established
by the 1998 amendment. However, the Funeral Home was permitted to continue operating as a legal
nonconforming use.
The 1998 amendment to the Zoning Ordinance placed crematories within the IS (Industrial
Special) zoning district. There is, however, no property in the City classified as IS. Crematories are
listed in the “Manufacturing – Basic Industry” subsection of the IS zoning district, along with the
following uses: abrasive and nonmetallic mineral processing; asphaltic cement plants; bulk fuel
storage, processing, and distribution; cement and/or concrete plants; coal yards; cotton ginning; fat
rendering; foundries; grain milling; ore reduction; offal processing; pulp manufacturing;
slaughterhouses; steel works and metal smelting; and tanneries.
In May of 2006, BMC contacted Deborah Moss, City Zoning Administrator, to discuss
establishing a crematory on the Lot as part of the Funeral Home’s business. Ms. Moss denied
BMC’s request on the basis that the City’s Zoning Ordinance allows crematories only in the IS
zoning district, not in the OPS district where the Funeral Home is located. Ms. Moss also
recommended that BMC file an administrative appeal with the Board due to a conflict between the
Zoning Ordinance and the Standard Industrial Classification Manual, a reference guide used by Ms.
Moss in her job that classifies funeral homes and crematories as the same industry.
BMC filed its administrative appeal to the Board, and a hearing was held on June 8, 2006.
Ms. Moss provided an advisory memorandum to the Board members regarding BMC’s appeal,
which stated in pertinent part:
Bond Memorial Chapel recently inquired to have a crematory placed
at their present business located at 1098 Weston Drive Mt. Juliet, TN.
Upon inspection of the Zoning Ordinance, crematories are a use
listing under basic industry. Basic Industry fall under the category of
IS (Industrial Special) a district that is not being utilized anywhere in
the City of Mt. Juliet.
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Bond Memorial is presently zoned OPS (Office Professional
Services). This was a zone granted to them in the year 1995. In the
existing Zoning Ordinance (1998 version with 2001 updates) the
funeral home industry does not have a use listing, therefore making
Bond Memorial a non-conforming use. Non-conforming uses are
allowed to expand (13-103.4).
The Standard Industrial Classification Manual (1987) issued from the
Executive Office of the President of Management and Budget lists
crematories and funeral homes as the same service, therefore they are
a permitted use. This manual is used to determine uses and their
classification.
The initial decision from this office is that crematories are basic
industry and therefore we do not have a zone for them. The funeral
home is a non-conforming use and crematories could be allowed from
the manual. The owners of Bond Memorial Chapel have asked for an
Administrative Appeal from the Board due to the conflict in the
ordinance and the classification manual. This is an appropriate action
to be taken. If the board requires any other information from this
office please contact me and I will be happy to provide any
information.
At the Board hearing regarding BMC’s appeal, BMC owners Andy Bond and Tracy Bond
presented information regarding the proposed crematory. BMC planned to build a three-car garage
on the Lot. This garage would also house a single cremation machine, also referred to as a cremator.
The Bonds showed Board members a diagram of the Lot with the current building and the location
of the proposed garage, as well as an artist rendition of the garage. An Emission Testing Report
supplied by BMC showed that the cremation chamber it planned to purchase would have emissions
well below the levels permitted by federal regulations. A stack extending three feet above the roof
would vent only heat out of the crematory, and the crematory would operate without releasing smoke
or odor into the environment. The crematory also would have to comply with federal emissions
standards. While inspections would be done on an annual basis by the EPA and state officials, there
also could be unannounced inspections at other times.
The Bonds presented data regarding the percentage of BMC’s business derived from
cremations since the Funeral Home opened in 1997. In 1997, only 6.2 percent of the Funeral
Home’s services involved cremation. That number had jumped to an estimated 22.5 percent in 2006.
Nationwide, the rate of cremation in 2006 was approximately 28 percent, and that figure is expected
to increase to between 38 and 42 percent in the next decade. Andy Bond stated that there is no
additional licensing requirement for a crematory in conjunction with an existing funeral home.
Tracy Bond added that a stand-alone crematory would require the presence of a licensed funeral
director.
The Bonds also produced information regarding the values of property near the Funeral
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Home and three crematories in Middle Tennessee. The data showed that neighboring property
values had increased since these funeral businesses opened. However, only one resident who lived
near the Funeral Home spoke in favor of allowing BMC to add a crematory on the property. Several
other neighbors testified against BMC’s request, stating concerns about their property values and the
psychological aspects of having a crematory in the vicinity. Based on a show of hands, 32 residents
at the hearing opposed allowing BMC to install a cremation machine.
City Commissioner Ed Hagerty stated that he would not support rezoning the Lot because
of the community’s objections to a crematory in that area. In response to a Board member’s
question, Mr. Hagerty confirmed that the legislative intent of the City Commission in adopting the
1998 amendment to the Zoning Ordinance was that crematories be in an industrial zone only. Mr.
Hagerty also stated that he was a member of the City Commission when the present Zoning
Ordinance was adopted.
The Board voted unanimously to deny BMC’s appeal. On the form recording its decision,
the Board made the following findings: “The Board does not find that a crematory is [a]
continuation of a non-conforming use. The Board finds that the intention of the City Commission
was to put crematories in an industrial zone per Section 3-103.4 item 2.b.”
On August 4, 2006, BMC filed a Petition for Writ of Certiorari with the Wilson County
Chancery Court (“the Trial Court”), alleging that the Board acted illegally and arbitrarily in refusing
to allow BMC to install a cremation machine on its property and that the Board’s decision was not
supported by any material evidence. BMC named the following as defendants in the lawsuit: the
City of Mt. Juliet; the Board; and Board members Bryan Grassmeyer, Jackie Heatherly, Roger
Moore, Larry Searcy, and Alfred H. Williams in their official capacity (collectively “Defendants”).
BMC requested that the Trial Court grant the writ and then either: remand the matter for a new
hearing before the Board; or reverse the Board’s decision and order the Board “to approve the
construction of the garage and the operation of a cremation chamber on the property as a
continuation of the existing funeral home use.”
The Trial Court granted the writ, and the City filed the administrative record of the Board’s
proceedings (“the Administrative Record”) with the Trial Court. The parties also filed briefs with
the Trial Court. In its brief, BMC argued that Mr. Hagerty, whom the Board relied on during its
hearing to determine the intent of the City Commission regarding the zoning of crematories,
incorrectly stated that he was a City Commissioner when the 1998 amendment to the Zoning
Ordinance was approved. In fact, Mr. Hagerty did not take office until nearly two years later. BMC
filed the minutes from the November 20, 2000, City Commission meeting at which Mr. Hagerty was
sworn in as a new commissioner as an exhibit to its trial brief.
After reviewing the record and hearing arguments of counsel, the Trial Court concluded that
“crematories were basically part of an on-going business of funeral homes,” relying on the
Administrative Record, the definition of funeral establishments at Tenn. Code Ann. § 62-5-101, and
our Supreme Court’s opinion in Cunningham v. Feezell, 400 S.W.2d 716 (Tenn. 1966). The Trial
Court chastised the Board for giving in to public pressure opposing the crematory and then
continued:
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So I am finding the board acted illegally and arbitrarily and I
am reversing their decision and allowing [Plaintiff] to put in a
crematory . . . .
I do find this to be a customary part of the business of funeral
homes through the United States, Tennessee, everywhere, and merely
a continuation and expansion of an existing business. It is just
incidental to the business of running a funeral home.
I don’t feel like the decision of the board was based on any
reasoning nor exercise of any type of reasonable judgment. It was a
disregard of the facts and circumstances of this case. I think it was
just giving in to the number of people. Obviously, it is a clear error
of judgment here.
The Trial Court reserved the issue of BMC’s request for attorney fees and costs, and then
later granted BMC $10,000 in attorney fees and costs pursuant to the Equal Access to Justice Act,
Tenn. Code Ann. § 29-37-101, et seq. Defendants appeal.
II. Discussion
Defendants present two issues for our review, which we restate as follows:
1. Whether the Trial Court erred by finding that the Board acted illegally, arbitrarily, or
capriciously in concluding that Plaintiff’s proposed crematory was not a continuation of the legal
nonconforming use of a funeral home on Plaintiff’s property.
2. Whether the Trial Court erred by finding that the Board acted illegally, arbitrarily, or
capriciously in interpreting the zoning ordinance to conclude the intention of the city commissioners
was to place crematories in an industrial zoning classification.
The proper method for obtaining judicial review of a decision by a local board of zoning
appeals is by filing a petition for a common law writ of certiorari. Harding Academy v. Metro. Gov’t
of Nashville & Davidson County, 222 S.W.3d 359, 362 (Tenn. 2007). The scope of review afforded
to courts by a writ is extremely limited. Id. (citing Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706,
712 (Tenn. 2003)). Thus, the Trial Court, as are we, was restricted to determining whether the Board
exceeded its jurisdiction or acted illegally, arbitrarily, or fraudulently. Lewis v. Bedford County Bd.
of Zoning Appeals, 174 S.W.3d 241, 245-46 (Tenn. Ct. App. 2004). In Leonard Plating Company
v. Metropolitan Government of Nashville and Davidson County, we provided additional guidance
regarding this standard of review:
Review under a common-law writ of certiorari does not extend to a
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redetermination of the facts found by the board or agency whose
decision is being reviewed. The courts may not (1) inquire into the
intrinsic correctness of the decision, (2) reweigh the evidence, or (3)
substitute their judgment for that of the board or agency. However,
they may review the record solely to determine whether it contains
any material evidence to support the decision because a decision
without evidentiary support is an arbitrary one.
Leonard Plating Co. v. Metropolitan Gov’t of Nashville and Davidson County, 213 S.W.3d 898,
903-04 (Tenn. Ct. App. 2006) (internal citations and footnotes omitted).
The issue of whether there is sufficient evidence to support a zoning decision is a question
of law. Wilson County Youth Emergency Shelter, Inc. v. Wilson County, 13 S.W.3d 338, 342 (Tenn.
Ct. App. 1999) (citing MC Properties, Inc. v. City of Chattanooga, 994 S.W.2d 132, 134 (Tenn. Ct.
App. 1999). Therefore, we review the record de novo without a presumption of correctness while
applying the limited standard of review applicable here. Id.
The parties agree that the Funeral Home became a legal nonconforming use in 1998 when
the Zoning Ordinance was amended and no longer listed funeral homes as a use in the zoning district
covering the Funeral Home’s lot. The Funeral Home was permitted to continue its operations
pursuant to Section 13.102.5 of the Zoning Ordinance, which provides in relevant part that “. . . any
use which shall become nonconforming upon enactment of this ordinance, or any subsequent
amendments thereto, may be allowed to continue in operation and be permitted provided that no
change in use . . . is undertaken.”
Section 13.102.7 of the Zoning Ordinance provides for the expansion of nonconforming uses
as follows:
Any use which shall become nonconforming upon enactment of this
ordinance, or any subsequent amendments thereto, may be allowed to
expand operations and construct additional facilities which involve
an actual continuance and expansion of the nonconforming use
provided that any such expansion shall not violate the provisions set
out below.1
City of Mt. Juliet Zoning Ordinance § 13.102.7 (emphasis added).
Tennessee statutory law includes a similar provision regarding expansion of nonconforming
businesses:
1
None of the provisions set forth as exceptions to this section apply to BMC’s situation, and the parties do not
contend otherwise.
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Industrial, commercial or other business establishments in operation
and permitted to operate under zoning regulations or exceptions
thereto in effect immediately preceding a change in zoning shall be
allowed to expand operations and construct additional facilities
which involve an actual continuance and expansion of the activities
of the industry or business which were permitted and being conducted
prior to the change in zoning . . . .
Tenn. Code Ann. § 13-7-208(c) (emphasis added).
Defendants emphasize that crematories are limited to the IS zoning district in the City and,
therefore, are not permitted in the zoning district where the Funeral Home is located. In fact, part
of the Board’s justification for its denial of BMC’s appeal was that the City Commission intended
to permit crematories only in the IS district when it amended the Zoning Ordinance in 1998. While
these statements might be true, they do not control our analysis of this case. The City Commission
may not, even if it intends to do so, eliminate the Funeral Home’s right “to expand operations and
construct additional facilities which involve an actual continuance and expansion of the
nonconforming use . . . .” City of Mt. Juliet Zoning Ordinance § 13.102.7; see also Tenn. Code Ann.
§ 13-7-208(c). We agree with the Trial Court’s determination that the intent of the City Commission
in restricting crematories to the IS district is irrelevant to our analysis. Rather, the key issue is
whether operation of a crematory is “an actual continuance and expansion of the activities” of the
Funeral Home’s business.
The Zoning Ordinance does not include a definition of a funeral home or a crematory.
However, Tenn. Code Ann. § 62-5-101(7) defines a “funeral establishment” as follows:
“Funeral establishment” means any business . . . engaged in
arranging, directing, or supervising funerals for profit or other benefit;
or the preparing of dead human bodies for burial; or the disposition
of dead human bodies; or the provision or maintenance of place for
the preparation for disposition; or for the care or disposition of human
dead bodies[.]
Tenn. Code Ann. § 62-5-101(7) (emphasis added). It is undisputed that the function of a crematory
is to dispose of dead human bodies. Thus, the General Assembly envisioned that a funeral
establishment could include a funeral home and/or a crematory.
Furthermore, the General Assembly has defined “funeral directing” to include the “practice
of directing or supervising funerals or the practice of preparing dead human bodies for burial by any
means, other than by embalming, or the disposition of dead human bodies.” Tenn. Code Ann. § 62-
5-101(6)(A). In State ex rel. Cunningham v. Feezell, we concluded that the definition of “funeral
directing” found at Tenn. Code Ann. § 62-501 “includes the operation of a crematory.” 400 S.W.2d
at 721. Section 62-501 was the predecessor statute to § 62-5-101, and it defined “funeral directing”
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to include:
. . . the business of preparing dead human bodies for burial by means
other than embalming, or the disposition of dead human bodies; or
the provision or maintenance of a place for the preparation for
disposition, or for the care or disposition of dead human bodies; . . .
Because the statute upon which we based our decision in Cunningham is nearly identical to the
current statute regarding funeral directing, we conclude that the practice of funeral directing still
includes the operation of a crematory. This is consistent with the General Assembly’s definition of
a funeral establishment to include both funeral homes and crematories. Clearly, state lawmakers do
not view funeral homes and crematories as separate industries, but, rather, as complementary
services offered by the funeral industry.
Relying on our decision in Lafferty v. City of Winchester, 46 S.W.3d 752 (Tenn. Ct. App.
2000), Defendants argue that allowing BMC to operate a crematory in conjunction with the Funeral
Home would be an illegal change of a nonconforming use of the property. In Lafferty, plaintiffs
purchased property that was being operated as a bed and breakfast. Id. at 754. The bed and breakfast
had been grandfathered in as a nonconforming commercial use when the city annexed and
subsequently zoned the area for low-density residential use prior to the appellants’ purchase of the
property. Id. Plaintiffs submitted a proposed development plan to the city, showing that the inn
would be developed to include three rented bedrooms plus a dining facility for social events such
as wedding receptions, private parties, and meetings of local organizations. Id. at 755. The city
approved the proposed plan and opted to leave the inn as a grandfathered, nonconforming use rather
than re-zoning the parcel. Id. Later, plaintiffs applied for a liquor license and sought the city’s
permission to construct a 20-foot by 20-foot one-story addition to house an ice machine, coolers, and
storage space for beverages. Id. The city approved the site plan for the addition. Id. However,
plaintiffs subsequently constructed a two-story, 20-foot by 38-foot addition which included a
separate outside entrance. In that addition, plaintiffs established a bar called the Green Door Pub.
They also built an outdoor gazebo for live music and other outdoor events. Id. All of this occurred
without the city’s knowledge or consent. Id.
Due to complaints from neighbors regarding the noise caused by plaintiff’s outdoor events,
plaintiffs opted to build a 38-foot by 40-foot banquet room to move their outdoor events inside. Id.
Plaintiffs began construction on the room before obtaining a building permit, and the building
inspector ordered plaintiffs to stop work until they had obtained the city’s permission for the
expansion. Id. Plaintiffs submitted plans for the addition to the local board of zoning appeals, which
declined to issue a permit for the work. Id. at 756. Plaintiffs filed a writ of certiorari, and the trial
court affirmed the board’s decision. Id. Plaintiffs appealed to this Court, and we also affirmed,
finding as follows:
The record contains material evidence from which the Board could
have rationally concluded that the proposed addition would have
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further expanded the Antebellum Inn into a commercial activity quite
different from its original nonconforming use – a bed and breakfast
that would be able to accommodate occasional small social events.
Accordingly, the Board could rightly withhold approval of the
expansion on grounds that it would have changed the way the
property was being used to a different non-conforming use.
Id. at 760.
The facts in Lafferty are strikingly different from those presented in the case at bar. In
Lafferty, plaintiffs opened a bar on the property where their bed and breakfast was located. They
then began providing outdoor entertainment, sometimes charging a cover charge for admittance to
the party area. When plaintiffs attempted to construct an addition that would allow them to move
the events inside that were being held outside, the local board of zoning appeals concluded that a
bar/entertainment hall was a different use of the property than the nonconforming use that was
previously allowed – a three-room bed and breakfast with a dining facility capable of
accommodating small social events. Consequently, the board did not act improperly in refusing to
grant plaintiffs’ request for a building permit.
There has never been a version of the City Zoning Ordinance that listed an appropriate zoning
category for both funeral homes and crematories as each version listed either funeral homes or
crematories, or neither. However, the Standard Industrial Classification Manual, which was cited
by the City’s zoning administrator in her letter to Board members, places both crematories and
funeral homes in the same category, “Funeral Service and Crematories.” In her letter, Ms. Moss
pointed out that the Standard Industrial Classification Manual “is used to determine uses and their
classification.” Therefore, a treatise relied upon, at least to some extent, by the City zoning
administrator places funeral homes and crematories in the same use classification, providing
additional support for BMC’s assertion that the cremation machine it hopes to install is merely an
expansion of its funeral home business.
In contrast to Lafferty, BMC is attempting to install a cremation machine as an additional
service to be offered by the Funeral Home in its funeral home business. Reviewing all the evidence
in the record, we find no error in the Trial Court’s decision that a crematory is an expansion of the
funeral home services already provided by BMC. It is not a use that is different from the Funeral
Home’s nonconforming use grandfathered in when the City Commission amended the Zoning
Ordinance in 1998. Both funeral homes and crematories offer services commonly provided by the
funeral industry, and funeral home services and cremations are frequently offered at the same
location, as BMC seeks to do. As a result, Defendants’ reliance on Lafferty is misplaced. There is
no material evidence in the record supporting any other finding or conclusions.
After carefully reviewing the record, we find no error with the Trial Court’s conclusion that
the evidence is overwhelming that the crematory is an expansion of Plaintiff’s funeral home
business, with no material evidence to contrary, and, therefore, the Board acted illegally in denying
BMC’s request to install a crematory on its property. There is no material evidence in the record to
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support the Board’s decision. The Board applied an incorrect analysis to the issue of expanding
BMC’s nonconforming use pursuant to the Zoning Ordinance and state law, emphasizing the City
Commission’s intent in placing crematories in an IS zoning district, a fact not relevant to
determining whether the crematory is an expansion of Plaintiff’s funeral home business.
In their reply brief, Defendants mention for the first time the issue of the Trial Court’s grant
of attorney fees to BMC. Defendants argue that they were not required to raise this issue on appeal
because BMC would not be entitled to attorney fees if we reverse the Trial Court’s decision because
BMC would no longer be a “prevailing party” entitled to an award of attorney fees pursuant to Tenn.
Code Ann. § 29-37-104. As we are affirming the Trial Court’s ruling, this argument is moot.
BMC has requested an award of its attorney fees and costs incurred during this appeal
pursuant to the Equal Access to Justice Act, Tenn. Code Ann. § 29-37-101, et seq. (“the Act”). The
purpose of the Act is to “offer small business an opportunity for adequate representation in any
administrative hearing involving the operation of such business and, where necessary, in the resulting
appeal process.” Tenn. Code Ann. § 29-37-102. The Act provides, in limited circumstances, for an
award of up to $10,000 for attorney fees and reasonable expenses incurred by a small business which
is the prevailing party in a lawsuit against a government entity. Tenn. Code Ann. § 29-37-104. Our
Supreme Court has held that the $10,000 limit set forth in the Act applies separately to each stage
of litigation. State v. Thompson, 197 S.W.3d 685, 692 (Tenn. 2006). Therefore, we may award
BMC its costs on appeal, regardless of the fact that the Trial Court already has awarded BMC
$10,000 in attorney fees and costs. Because BMC has met the requirements of the Act and has
prevailed on appeal, we award BMC its reasonable attorney fees and costs on appeal to a maximum
of $10,000. We remand this matter to the Trial Court for a determination of the proper amount of
attorney fees and costs to be awarded to BMC for these appellate expenses.
III. Conclusion
After careful review, we find no error with the Trial Court’s order reversing the Board’s
decision and ordering Defendants to allow BMC to establish a crematory, as requested, on its
property. Therefore, we affirm. We also hold that BMC is entitled to its reasonable attorney fees
and costs incurred during this appeal, not to exceed $10,000, pursuant to the Equal Access to Justice
Act, Tenn. Code Ann. § 29-37-101, et seq. We remand to the Trial Court for a determination of the
proper amount of attorney fees and costs to be awarded to BMC and for collection of costs below.
Costs on appeal are taxed against the Appellants, City of Mt. Juliet; City of Mt. Juliet Board of
Zoning Appeals; and Bryan Grassmeyer, Jackie Heatherly, Roger Morse, Larry Searcy, and Alfred
H. Williams serving in their capacity as members of the City of Mt. Juliet Board of Zoning Appeals.
_________________________________________
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D. MICHAEL SWINEY, JUDGE
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