IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT KNOXVILLE
FILED
GREENBACK CRUSHED STONE, ) February 26, 1998
INC., )
) Cecil Crowson, Jr.
Plaintiff/Appellant, ) Loudon Circuit No. 5832
Appellate C ourt Clerk
)
VS. ) Appeal No. 03A01-9706-CV-00207
)
LOUDON COUNTY COMMISSION, )
)
Defendant/Appellee. )
APPEAL FROM THE CIRCUIT COURT OF LOUDON COUNTY
AT LOUDON, TENNESSEE
THE HONORABLE RUSSELL E. SIMMONS, JR., JUDGE
DAVID T. BLACK
KIZER AND BLACK
Maryville, Tennessee
Attorney for Appellant
DEAN B. FARMER
HODGES, DOUGHTY & CARSON
Knoxville, Tennessee
Attorney for Appellee
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
WILLIAM H. WILLIAMS, Sr. J.
Plaintiff Greenback Crushed Stone, Inc., appeals the judgment of the trial court
upholding the validity of an amendment to the Loudon County zoning laws enacted by
Defendant/Appellee Loudon County Commission. We affirm.
Greenback owns and operates a rock quarry on Big Hill Road in Loudon County.
The area of Loudon County in which Greenback’s rock quarry is located is zoned A-2,
defined by Loudon County’s zoning laws as a Rural Residential District. In districts zoned
A-2, the subsurface extraction of natural mineral resources, such as Greenback’s rock
quarry, is permitted as a special exception. Loudon County’s zoning laws also permit
“accessory uses which are customarily incidental to the permitted principal uses” in A-2
districts.
In June 1996, Greenback submitted a request for a special exception to Loudon
County’s zoning laws in which it sought permission to operate an asphalt plant as an
accessory use to its rock quarry. In April 1995, Loudon County’s Board of Zoning Appeals
had denied a similar request submitted by Greenback. This time, in response to
Greenback’s request, the Loudon County Regional Planning Commission recommended
to the County Commission that it enact legislation specifying that concrete and asphalt
plants are not permitted accessory uses in districts zoned A-1 or A-2. Consequently, the
County Commission published a notice of a public hearing to discuss an amendment which
provided that “[c]oncrete and asphalt plants/facilities are not considered an accessory use“
to the “[s]ubsurface extraction of natural mineral resources.”
In August 1996, the County Commission held a public hearing in which area
residents participated, as well as representatives of Greenback and the Office of Planning
and Community Development. At the hearing’s conclusion, the County Commission voted
to pass a resolution adopting the amendment by a 6-3 vote.
Greenback subsequently brought this action for a declaratory judgment in which it
challenged the validity of the zoning amendment enacted by the County Commission.
After filing its answer, the County Commission moved for summary judgment contending,
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inter alia, that its passage of the zoning amendment was a legislative matter over which
the trial court had limited review and that, as a matter of law, the Commission’s action
withstood such scrutiny. The trial court agreed and entered a judgment upholding the
validity of the challenged zoning amendment. This appeal followed.
This court recently summarized the standard of review applicable in cases where
courts are asked to rule on the validity of a zoning ordinance or amendment. In Family
Golf of Nashville, Inc. v. Metropolitan Government of Nashville and Davidson County, No.
01A01-9612-CH-00557, 1997 WL 625281 (Tenn. App. Oct. 10,1997), a case involving the
validity of an amendment to the defendant’s zoning ordinance adopted by its Metropolitan
Council, we stated:
Local legislative bodies have broad discretion in
enacting or amending zoning ordinances. When the validity of
a zoning ordinance is fairly debatable, the courts may not
substitute their judgment for that of the local legislative body.
A zoning ordinance should be found valid unless it is “clearly
arbitrary, capricious, or unreasonable, having no substantial
relationship to the public health, safety, or welfare, or plainly
contrary to the zoning laws.” McCallen v. City of Memphis, 786
S.W.2d 633, 640 (Tenn. 1990). Because the “rational basis”
test is the most deferential form of judicial scrutiny, a reviewing
court should uphold a challenged zoning ordinance if there is
any possible reason that can be conceived to justify it. Fallin v.
Knox County Bd. of Comm’rs, 656 S.W.2d 338, 343-44 (Tenn.
1983).
Family Golf, 1997 WL 625281, at *5.
At the August 1996 public hearing on the zoning amendment, several residents who
lived near the rock quarry expressed their concern over permitting an industrial use like an
asphalt plant in a rural area characterized primarily by residential and agricultural uses.
Residents were concerned that the operation of an asphalt plant would result in an
increase in large truck traffic through residential streets, dust emissions from the plant
itself, and water runoff containing plant wastes. Jim Beeler, a salesman for a manufacturer
of furnaces used in asphalt plants, spoke on behalf of Greenback. Beeler stated that dust
emissions from asphalt plants were now kept to a minimum by modern technologies. As
for the waste water runoff, Beeler explained that asphalt trucks would be cleaned at the
asphalt plant by a system which separated the oils from the water. The waste water then
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would go into nearby concrete settling ponds. Although he indicated that the concrete
settling ponds would be designed for flood situations, Beeler acknowledged that accidents
were possible. Beeler also did not dispute the residents’ claims that the asphalt plant
would increase the truck traffic through the area. The Director of the Office of Planning
and Community Development indicated that, if the zoning amendment was passed, asphalt
plants still would be permitted uses in M-1 industrial districts.
Given the arguments and evidence before the Loudon County Commission, we
conclude that the issue of whether the zoning amendment was in the community’s best
interest was “fairly debatable.” The County Commission well may have concluded that an
asphalt plant was an industrial use which was not compatible with the residential and
agricultural uses of the A-2 Rural Residential District. Inasmuch as a rational basis could
have existed for the approval of the amendment, we hold that the Commission’s action was
valid. See Carter v. Adams, 928 S.W.2d 39, 41 (Tenn. App. 1996); see also Family Golf,
1997 WL 625281, at *6.
In opposing the Commission’s motion for summary judgment, Greenback submitted
the affidavits of industry consultants and one of Greenback’s owners, who attested to the
cleanliness and safety of modern asphalt plants, as well as the physical and financial
impracticality of locating an asphalt plant in the areas currently zoned M-1.1 On appeal,
Greenback contends that these affidavits demonstrated the existence of disputed issues
of fact which precluded the grant of summary judgment. In our view, however, these
affidavits further illustrate the “fairly debatable” nature of the issue before the County
Commission and, thus, we decline to substitute our judgment for that of the Commission.
The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to
Greenback, for which execution may issue if necessary.
1
Contrary to Gree nback ’s conten tion, the zonin g am endm ent at issu e in this cas e did not tota lly
exclude aspha lt plants from Loudo n Cou nty. Cf. Robertson County v. Browning-Ferris Indus., 799 S.W.2d
662, 666 (Tenn. App. 1990) (invalidating ordinance insofar as it totally excluded sanitary landfills from coun ty).
W e also reject Greenback’s contention that the Cou nty Co mm issio n’s enactment of the zoning amendment
impaired a vested right of Gr eenba ck. See State ex rel, SCA Chemical Waste Servs. v. Konigsberg, 636
S.W .2d 430, 4 37 (Te nn. 1982 ); Schneider v. Lazarov, 390 S.W .2d 197, 200-01 (Tenn . 1965).
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HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
WILLIAMS, Sr. J.
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