Pauline Cato v. Montgomery County Bd of Commissioners

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 9, 2002 Session

PAULINE CATO v. THE MONTGOMERY COUNTY BOARD OF
COMMISSIONERS

Appeal from the Chancery Court for Montgomery County
No. 2001-01-0027 Michael R. Jones, Judge

No. M2001-01846-COA-R3-CV - Filed May 23, 2002

This appeal arises from a property owner’s efforts to rezone a 94-acre tract of property in the Sango
community of Montgomery County from an agricultural to a residential classification. Despite the
planning commission’s approval of the proposal, the Montgomery County Commission declined to
change the property’s zoning classification. The property owner thereafter filed a petition for
common-law writ of certiorari in the Chancery Court for Montgomery County asserting that the
county commission had succumbed to community pressure and lacked any other appropriate basis
for declining to rezone the property. The trial court, sitting without a jury, upheld the county
commission’s decision after concluding that it was fairly debatable whether the proposed
development was compatible with the surrounding community. The property owner has appealed.
We have determined that the courts have no basis to second-guess the county commission’s decision
and, therefore, we affirm the judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, J., and
WALTER C. KURTZ, SP. J., joined.

Teresa R. Ricks and J. Russell Farrar, Nashville, Tennessee, for the appellant, Pauline Cato.

Roger A. Maness, Clarksville, Tennessee, for the appellee, The Montgomery County Board of
Commissioners.

OPINION

I.

In 1971 Pauline and Gene Cato purchased a 115-acre tract of property in the Sango
community of Montgomery County. After the State of Tennessee condemned a portion of their
property for the construction of I-24, they were left with approximately 94 acres. When Mr. Cato
died, the property was placed in trust for Ms. Cato’s benefit. Faced with declining farm income, the
trust agreed to sell the tract to a local developer who desired to subdivide the property into .25-acre
lots and then to construct between 150 and 200 homes. The contract was specifically made
contingent on rezoning the property from its agricultural classification to an R-1A classification.

The Clarksville-Montgomery County Planning Commission reviewed the developer’s
proposal and recommended that the property be rezoned to an R-1A classification after its staff
concluded that “the positives outweigh the negatives in this case.” The residents of the Sango
community mobilized to oppose rezoning the property, and the members of the Montgomery County
Commission were deluged with telephone calls insisting that the proposed development would
fundamentally alter the character of the neighborhood and would destroy their quality of life.
Following a tumultuous public hearing, the county commission, by a vote of sixteen to five, declined
to rezone the property.

Ms. Cato sought judicial review of the county commission’s decision by filing a petition for
common-law writ of certiorari in the Chancery Court for Montgomery County.1 The trial court,
sitting without a jury, declined to overturn the county commission’s decision after concluding that
the compatibility of the proposed development with the existing neighborhood was fairly debatable.
Ms. Cato appealed and now argues that the trial court erred by upholding the county commission’s
decision because that body lacked material evidence justifying its action. She insists that the county
commission acted only in response to the overwhelming public opposition to the proposed zoning
change. Because we find evidence in the record that creates concerns regarding the impact the
proposed development would have on the Sango community, we affirm the trial court.

II.

Amending a zoning ordinance is a legislative act, McCallen v. City of Memphis, 786 S.W.2d
633, 639 (Tenn. 1990), that is intended to protect the health, safety, and welfare of the citizens living
in the community covered by the ordinance. Draper v. Haynes, 567 S.W.2d 462, 465 (Tenn. 1978);
Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d 52, 54 (Tenn. Ct. App. 1997).
Because local legislative bodies have broad discretion in zoning matters, Family Golf of Nashville
v. Metropolitan Gov’t, 964 S.W.2d 254, 260 (Tenn. Ct. App. 1997), the courts will decline to
second-guess a decision either to approve or to disapprove an amendment to a zoning ordinance as
long as the decision has some conceivable, appropriate basis to justify it. Fallin v. Knox County Bd.
of Comm’rs, 656 S.W.2d at 343-44. Accordingly, when the validity of an amendment to a zoning
ordinance is fairly debatable, the courts must not substitute their judgment for that of the local
legislative body. McCallen v. City of Memphis, 786 S.W.2d at 641.

1
Both the Tennessee Sup reme C ourt and this court have repeated ly admonished property owners who do not
succeed in rezoning their property that an action for declaratory judgme nt is the only prop er vehicle for obtaining
judicial review of a county commission’s legislative decision not to amend a zoning ordinance. Fallin v. Knox C oun ty
Bd. of Com m’rs, 656 S.W .2d 3 38, 3 42 (Ten n. 19 83); Day v. City of Decherd, N o. 01A 01-9708-C H-00442, 1998 WL
684533, at *1 (Tenn. Ct. App. July 1, 1998) (No Tenn. R. App. P. 11 application filed). Like the courts in Fallin and
Day, we will reach the merits of the property ow ner’s claim by treating the petition for com mon -law writ of certiorari
as a co mp laint for declaratory jud gm ent.

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 Based on our review of this record, we do not concur with the trial court’s observation that
“there is no good reason why the resolution failed to pass.” In fact, we find at least four good
reasons for the county commission’s decision. First, the proposed development would place
additional pressure on an already crowded school that serves the children living in the area.2 Second,
the proposed development would impact traffic in the area that was already congested at peak travel
hours. Third, the density of the proposed development made it incompatible3 with neighboring
property. 4 Fourth, a great number of the persons currently residing in the Sango community opposed
rezoning Ms. Cato’s property to an R-1A classification.5

Plainly, persons of good will may differ with regard to the advisability to rezone the Cato
property. The planning commission concluded that the “positives outweigh the negatives.”
However, the county commission ultimately disagreed and concluded that the negatives outweighed
the positives. It is not our prerogative to disagree with the county commission’s decision.

III.

We affirm the judgment dismissing Ms. Cato’s complaint and remand the case to the trial
court for whatever further proceedings may be required. We tax the costs of this appeal to Pauline
Cato and her surety for which execution, if necessary, may issue.

_____________________________
WILLIAM C. KOCH, JR., JUDGE

2
The schoo l system opposed the proposed development. The director of schools had told the planning
commission that the school serving the area was already over capacity and that it was awaiting a portable classroom to
acco mm oda te its current en rollm ent.

3
Comp atibility is a broad concept that connotes

a condition in wh ich lan d uses or co nditions can coexist in relative proxim ity to each other in a stable
fashion over time such that no use or condition is unduly negatively impacted directly or indirectly
by another use or condition. The compatibility of land uses is dependent on numerous development
characteristics which may impact adjacent or surrounding uses. These include: type of use, density,
intensity, height, general appearance and aesthetics, odors, noise, smoke, vibration, traffic generation,
and n uisances.

Windwa rd Marina, L.L.C. v. City of Destin, 743 So. 2d 635, 637 (Fla. Dist. Ct. App. 1997) (quoting City of Destin, Fla.
Ord. No. 151 ). This definition is consistent with the Clarksville-Mo ntgom ery Coun ty Planning Com mission’s
understanding of compatibility. The com mission re prese ntative stated th at the com mission considers p roperty uses, lot
sizes, ch aracteristics of th e pro perty , and traffic as part of its com patibility review.

4
On this appeal, Ms. Cato has not pressed the equal protection or takings arguments that she raised in the trial
court. Accordingly, we have no occasion to address these claims here.

5
W e have already pointed out that local legislative bodies cannot b e faulted for respond ing to their co nstituents
when it comes to rezoning property as long as their actions are co nsisten t with the state and federal constitutions and
with goo d conscience. Day v. City of De cherd, 199 8 W L 6845 33, at *3.

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