Family Golf of Nashville, Inc. v. Metropolitan Government of Nashville & Davidson County

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE

FILED
October 10, 1997
FAMILY GOLF OF NASHVILLE, INC.,
)
) Cecil W. Crowson
Plaintiff/Appellant, ) Appellate Court Clerk
) Davidson Chancery
) No. 95-3832-I
VS. )
) Appeal No.
) 01A01-9612-CH-00557
THE METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON )
COUNTY, )
)
Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

For the Plaintiff/Appellant: For the Defendant/Appellee:

Peter H. Curry Thomas G. Cross
Tuke, Yopp & Sweeney Metropolitan Attorney
Nashville, Tennessee Nashville, Tennessee

VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
OPINION
 This case involves the validity of an amendment to the Zoning Ordinance for
Metropolitan Government of Nashville and Davidson County intended to permit a
family recreation center to construct a go-cart track. After the Metropolitan Planning
Commission refused to amend the zoning map in accordance with the amendment,
the operator of the recreation center filed a declaratory judgment action in the
Chancery Court for Davidson County. Following a bench trial, the trial court struck
down the ordinance because it conflicted with the General Plan for Nashville and
Davidson County. The operator has appealed. We have determined that the
amendment is valid as long as it was passed in accordance with the super-majority
requirements of the Metropolitan Charter and, accordingly, remand the case for a
definitive factual determination of that issue.

I.

Family Golf of Nashville, Inc. operates an outdoor family recreation center on
a leased 4.32 acre tract at the intersection of Bell Road and Blue Hole Road. The
property lies near the Hickory Hollow Commercial Center and is located in the
floodplain. Family Golf has already constructed a miniature golf course, a driving
range, and a batting cage on the property. The present dispute arises out of its desire
to construct a go-cart track and an arcade.

The property is presently zoned AR2a which permits a variety of agricultural
and low-density residential uses.1 Acting on the advice of representatives of the
Metropolitan Planning Commission that go-cart tracks were not permitted in AR2a

1
Metropolitan Gov’t of Nashville and Davidson County, Tennessee, Code § 17.20.020 (1994)
(“Metro Code”) describes the purposes of AR2a districts as follows:

These districts are designed to provide suitable areas for the
growing of crops, animal husbandry, dairying, forestry and other
similar activities which generally occur and characterize rural rather
than urban areas. These districts are designed, furthermore, to
provide for very low-density residential development generally on
unsubdivided tracts of land whereon public sanitary sewer service and
public water supply is least practical. These districts also include
community facilities, public utilities, and open uses which serve
specifically the residents of these districts or which are benefitted by
an open residential environment without creating objectionable or
undesirable influences upon residential developments or influences
which are incompatible with a rural environment. Further, it is the
intent of this title that these districts be located and developed so that
urban expansion of the metropolitan area will be facilitated.

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zones, Family Golf requested the Metropolitan Council to rezone the property to
place it in a CS zone.2 The record does not contain a precise explanation concerning
why this rezoning was necessary. The existing uses of the property, including the
miniature golf course, the driving range, and the batting cage are permissible as
conditional uses in an AR2a district because they are “extensive impact” community
facilities.3 An extensive impact facility conducts activities such as “boating, picnic
grounds and racing facilities seating over twenty-five thousand, but not . . . other
motor-driven activities.” Metro. Code § 17.12.070(E)(13) (1997). Presumably, a
large motor speedway catering to professional racing is permitted as a conditional use
in an AR2a district but a go-cart track is not. See Metro. Code §§ 17.12.080(18)
(1997), 17.60.020(C)(18) (1996).

Interestingly, the planning commission opposed Family Golf’s proposed
ordinance even though it had earlier recommended that Family Golf rezone the
property to a CS district. The planning commission took the position that rezoning
this property to a CS district would violate the land use policies in Nashville’s current
general plan entitled Concept 2010 - A General Plan for Nashville and Davidson
County (1992). Specifically, the planning commission pointed out that its plan for
the area called for (1) medium density land use policy, (2) confinement of
commercial activities to commercial centers, and (3) protection of floodplains by
favoring zoning that permitted low impact uses. Even though the proposed go-cart
track arguably complies with these criteria, other commercial uses permitted in CS
districts, such as dry cleaning businesses, service stations, and auto repair shops, do

2
Metro. Code § 17.56.080 describes the purposes of CS, commercial service, districts as
follows:

These districts are designed to provide for a wide range of
commercial uses concerned with retail trade and consumer services;
amusement and entertainment establishments; drive-in stores, eating
places and financial institutions; and offices. The uses in these
districts service a wide market area and, therefore, ease of automotive
access is a requisite. However, it is not intended that these districts
permit uses which generate large volumes of truck traffic. Bulk
regulations are designed to control building volumes such that
compatibility with vicinity residential uses is promoted, while
maintaining maximum flexibility in commercial activities.
Appropriate open space between commercial and residential areas is
required unless appropriate design features are accomplished under
the planned unit development procedures for this district.

3
Metro. Code § 17.24.030(A)(16) (1994).

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not.4 While technically correct, the planning commission’s concern seems to be
somewhat overly cautious.5

The Metropolitan Council eventually adopted Ordinance No. 94-1222 that
rezoned the property to a CS district. Notwithstanding the Council’s action, the
planning commission refused to amend the official zoning map to reflect the zoning
change in the ordinance. The planning commission justified its conduct by pointing
to an opinion of the Metropolitan Department of Law that a zoning ordinance in
conflict with Nashville’s general plan was invalid.6 As a result, Family Golf could
not obtain a building permit to construct its go-cart track.

Family Golf filed suit in the Chancery Court for Davidson County seeking a
declaration that Ordinance No. 93-1222 was valid notwithstanding the planning
commission’s assertion that the ordinance was inconsistent with Nashville’s general
plan. The trial court found that the ordinance was inconsistent with the general plan
and declared it invalid. The trial court rested its decision on Metro. Charter § 18.02
which states, in part, that “[z]oning regulations shall be enacted by the council only
on the basis of a comprehensive plan prepared by the metropolitan planning

4
See Metro. Code §§ 17.12.080(10) (1997), 17.60.020(16) (1996) (dry cleaning businesses);
Metro. Code §§ 17.12.080(11) (1997), 17.60.020(C)(3) (1996) (gas stations); Metro. Code §§
17.12.080(4) (1997), 17.60.020(C)(19) (1996) (auto repair shops).
5
Because the property is located in a floodplain, Family Golf must obtain a conditional use
permit from the Metropolitan Board of Zoning Appeals for any use of the property other than “[c]rop
and animal raising” or a “[p]lant nursery.” Metro. Code §§ 17.116.020, 17.116.030 (1992). In
addition, all structures constructed in a floodplain are subject to stringent requirements such as (1)
minimal floor elevations that are equal to or higher than the “flood protection elevation,” Metro.
Code § 17.124.360(B), (C) (1992); (2) placement on the site so as “to minimize obstruction to the
flow of floodwaters,” Metro. Code § 17.124.360(D); (3) being firmly anchored to prevent flotation
and movement, Metro. Code § 17.124.360(E); and (4) the prior approval of the project by the board
of zoning appeals and the Director of Public Works, Metro. Code § 17.124.360(A), (F). It seems
likely that most structures would have to be built on stilts to satisfy these requirements. Even
presuming that the owner of a dry cleaning business, gas station, or auto repair shop could comply
with these ordinances, the expense of doing so would, as a practical matter, make the project
uneconomic.
6
The Metropolitan Department of Law must provide legal advice to and represent the
Metropolitan Government, including the Metropolitan Council and the planning commission.
Charter of the Metropolitan Gov’t of Nashville and Davidson County, Tennessee § 8.602(a)-(c)
(“Metro. Charter”). In the present case, the Department of Law is representing the planning
commission but not the Metropolitan Council. The Council has not retained independent counsel
even though it could do so. Metro. Charter § 8.607. Thus, the Council is unrepresented in this
proceeding even though the legality of one of its ordinances is at issue.

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commission.”7 This appeal by Family Golf requires us to examine the manner in
which the Charter of the Metropolitan Government of Nashville and Davidson
County has allocated land use control authority between the Metropolitan Council
and the planning commission.

II.
LAND USE CONTROL IN NASHVILLE AND DAVIDSON COUNTY

Local governments lack inherent power to control the use of land within their
boundaries. This power rests with the State; however, the General Assembly may
delegate it to local governments. See Henry v. White, 194 Tenn. 192, 196, 250
S.W.2d 70, 71 (1952); Anderson County v. Remote Landfill Servs., Inc., 833 S.W.2d
903, 909 (Tenn. Ct. App. 1991); State ex rel. Browning-Ferris Indus. of Tenn., Inc.
v. Board of Comm’rs, 806 S.W.2d 181, 184 (Tenn. Ct. App. 1990); State ex rel. SCA
Chem. Servs., Inc. v. Sanidas, 681 S.W.2d 557, 562 (Tenn. Ct. App. 1984).
Accordingly, local governments must exercise their delegated powers consistently
with the delegation statutes. Henry v. White, 194 Tenn. at 197, 250 S.W.2d at 72.

7
Metro. Charter § 18.02 reads in full as follows:

Zoning regulations shall be enacted by the council only on the
basis of a comprehensive plan prepared by the metropolitan planning
commission in accordance with the applicable state laws and as
provided in section 3.05 of this Charter.
Any revision, modification or change in the zoning
regulations of the metropolitan government as provided in this
section shall be made only by ordinance. Where a proposed
ordinance revises, modifies, or changes the zoning regulations and is
not accompanied at introduction by a favorable recommendation of
the metropolitan planning commission, a copy thereof shall be
promptly furnished by the metropolitan clerk to said planning
commission, and the same shall not be passed on second reading until
the recommendation of said planning commission with respect to the
proposal has been received or thirty (30) days have elapsed without
such recommendation. No ordinance making any revision,
modification or change in the zoning regulations which has been
disapproved by the metropolitan planning commission shall be finally
passed or become effective unless it shall be adopted by a two-thirds
majority of the whole membership of the council and also then be
approved by the metropolitan mayor, with a three-fourths majority of
the whole membership of the council required to override a veto.

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 The General Assembly has empowered county and municipal legislative bodies
to zone property. See Tenn. Code Ann. §§ 13-7-101 to 13-7-210 (1992 & Supp.
1996). At the same time, it has delegated the land use planning function to local and
regional planning commissions. See Tenn. Code Ann. §§ 13-3-101 to 13-4-309 (1992
& Supp. 1996). The power to zone must be distinguished from the power to plan.

Zoning and planning are complementary pursuits that are largely concerned
with the same subject matter. They are not, however, identical fields of municipal
endeavor. See 1 E. C. Yokley, Zoning Law and Practice §§ 1-2, at 2 (4th ed. 1978)
(“Yokley”). Planning involves coordinating the orderly development of all
interrelated aspects of a community’s physical environment as well as all the
community’s closely associated social and economic activities. See 1 Norman
Williams, Jr. & John M. Taylor, American Land Planning Law § 1.05, at 13 (rev. ed.
1988) (“American Land Planning Law”); Robert W. Phair, Planning and Zoning:
Principles and Practice, 29 Tenn. L. Rev. 514, 514 (1962). It is a continuous process
carried out indefinitely through time. Common sense and reality dictate that a
general plan “is not like the law of the Medes and the Persians; it must be subject to
reasonable change from time to time” as conditions in the community change.
Furniss v. Lower Merion, 194 A.2d 926, 927 (Pa. 1963).

Zoning, on the other hand, involves the territorial division of land into districts
according to the character of the land and buildings, their suitability for particular
uses, and the uniformity of these uses. See 1 Kenneth H. Young, Anderson’s
American Law of Zoning § 1.13, at 19 (4th ed. 1996) (“Young”) (citing Schultz v.
Pritts, 432 A.2d 1319, 1330 (Md. 1981)). Zoning ordinances are now the most
important and prevalent type of American land use control. See American Land
Planning Law § 16.01, at 434. These ordinances focus primarily on the use of
property and the structural and architectural designs of the buildings. See In re
Sundance Mountain Ranches, Inc., 754 P.2d 1211, 1213 (N.M. Ct. App. 1988);
Kaufman v. Planning & Zoning Comm’n, 298 S.E.2d 148, 153 (W.Va. 1982); Yokley
§§ 1-2, at 14-15.

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 The state enabling legislation places the authority to plan and the authority to
zone with different local governmental entities. Planning is entrusted to appointed
municipal or regional planning commissions. See Tenn. Code Ann. §§ 13-3-101, 13-
4-101 (1992 & Supp. 1996). In contrast, the zoning power is squarely placed in the
hands of the local legislative bodies because the power to zone is viewed as
essentially a legislative exercise of the government’s police power. See Holdredge
v. City of Cleveland, 218 Tenn. 239, 247-48, 402 S.W.2d 709, 712 (1966); Brooks v.
City of Memphis, 192 Tenn. 371, 375, 241 S.W.2d 432, 434 (1951). Local legislative
bodies may enact zoning plans recommended by planning commissions, but they are
not obligated to. See Tenn. Code Ann. §§ 13-7-102, 13-7-202. Local legislative
bodies may also amend zoning ordinances; however, they must submit proposed
changes to the planning commission for review. If the planning commission
disapproves of a proposed change, a majority of the “entire membership” of the local
legislative body must approve the proposed change in order for it to be valid. See
Tenn. Code Ann. §§ 13-7-105(a), 13-7-203(b), 13-7-204. Accordingly, the state
enabling legislation vests the local legislative bodies with the prerogative to make
final decisions on all zoning matters. See State ex rel. SCA Chem. Servs., Inc. v.
Sanidas, 681 S.W.2d at 564; E.C. Yokley, The Place of the Planning Commission
and the Board of Zoning Appeals in Community Life, 8 Vand. L. Rev. 794, 795
(1955).

Local governments may decide for themselves how best to exercise the land
use
control powers delegated by the General Assembly as long as their decisions do not
conflict with state law. In the case of the Metropolitan Government of Nashville and
Davidson County, the Charter Commission allocated portions of these powers to the
Metropolitan Council and to the Metropolitan Planning Commission. Consistent with
state law, the Metropolitan Council received the power to control land use in the city.
See Metro. Charter §§ 2.01(25), 3.06. The Metropolitan Planning Commission was
vested with the powers “granted . . . by general state law.” Metro. Charter § 11.504.
By allocating the powers in this way, the Charter Commission stated clearly that the
Metropolitan Council has the final say over zoning matters.

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 The division of power evident in the state enabling legislation is mirrored in
Metro. Charter § 18.02 – the very section on which the Metropolitan Planning
Commission relies in this case. This provision states that a proposed zoning change
that has been disapproved by the planning commission can become effective only if
adopted by a two-thirds majority of the “whole membership of the council.” If the
mayor vetoes the ordinance containing the proposed zoning change, then it cannot
become effective unless a three-fourths majority of the “whole membership” of the
Metropolitan Council overrides the veto. The primary difference between the state
enabling legislation and Metro. Charter § 18.02 is the charter’s requirement that
changes in zoning ordinances that are either disapproved by the planning commission
or vetoed by the mayor can become effective only with the vote of a super-majority
of the entire membership of the Metropolitan Council.

The Metropolitan Planning Commission’s interpretation of Metro. Charter §
18.02 rests on its perception that there should be a distinction between proposed
zoning changes that violate the general plan and proposed zoning regulations that it
has disapproved. The former, the commission contends, are invalid under all
circumstances; while the latter may be overridden by a super-majority of the
Metropolitan Council. This distinction is extremely subtle, especially in light of the
unprecedented shift of power it would accomplish. It is also not supported by the
Metropolitan Charter.

Metro. Charter § 11.505 states, in part, that
[w]henever the commission shall have adopted the master
or general plan . . . thenceforth no street, park or other
public way . . . [or] no public building or structure . . . shall
be constructed or authorized . . . unless . . . approved by the
planning commission; provided, that in case of disapproval
. . . said council by a vote of a majority of its membership,
shall have the power to overrule such disapproval.

This section refers to the “general plan” and the planning commission’s
“disapproval” in the same sentence without distinguishing the terms. There is good
reason for this. The planning commission may amend the general plan by resolution
at any time. See Tenn. Code Ann. § 13-4-201; Metro. Charter § 11.504(e).
Therefore, the planning commission’s approval or disapproval of any proposed

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zoning ordinance is, in that sense, synonymous with the general plan. Accordingly,
the Metropolitan Charter does not distinguish between zoning ordinances that are
contrary to the general plan and ones that have been disapproved by the planning
commission. Either may be validly passed by a super- majority of the Metropolitan
Council.

Had the Charter Commission intended to give the appointed Metropolitan
Planning Commission veto authority over the Metropolitan Council’s zoning power,
it would have done so more clearly. We do not read Metro. Charter § 18.02 as some
sort of surreptitious departure from the state law. Instead, we view Section 18.02 as
clear confirmation of the important advisory role the Metropolitan Planning
Commission plays in the control of the use of land in Nashville. By requiring a
super-majority of the Metropolitan Council to override the planning commission’s
disapproval of a proposed zoning change, the Charter Commission intended to protect
against random or ad hoc zoning and to ensure that the Metropolitan Council takes
the carefully crafted general plan seriously.

In summary, any zoning ordinance that conflicts with the general plan or that
has been disapproved by the Metropolitan Planning Commission is nevertheless valid
if it was enacted in accordance with the super-majority requirements of Metro.
Charter § 18.02. This charter provision does not change the balance of power
between the Metropolitan Council and the Metropolitan Planning Commission.8

III.
THE ENACTMENT OF ORDINANCE NO. 94-1222

We must also determine whether the enactment of Ordinance No. 94-1222
complies with the super-majority requirements of Metro. Charter § 18.02. In the
absence of a mayoral veto, this provision requires a zoning ordinance to be passed by
a two-thirds vote of the “whole membership” of the council. Since the Metropolitan
Council consists of forty members,9 twenty-seven members or more must vote in

8
We note parenthetically that our interpretation of Metro. Charter § 18.02 is consistent with
the conclusions of other courts that have been confronted with similar issues. See Young § 5.06, at
369-73.
9
See Metro. Charter § 3.01.

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favor of the ordinance in order for it to be valid. If the mayor vetoes10 the ordinance,
three-fourths of the “whole membership” of the council, thirty or more members,
must vote to override the veto.

The appellate record does not reveal the number of council members who voted
in favor of Ordinance No. 94-1222. Nor does it reveal when the ordinance was
delivered to the mayor for consideration or what disposition the mayor made of the
ordinance. Since the Metropolitan Council enacted the ordinance over the planning
commission’s objection, it seems probable that at least twenty-seven council
members voted in its favor. Nevertheless, the record does not reveal the vote, and if
less than twenty-seven council members voted for the ordinance, it is invalid.

By the same token, we can only speculate concerning when the mayor received
the ordinance and what he did with it after he received it. If he signed the ordinance
and returned it or held it for more than the time provided in Metro. Charter § 5.04,
then the ordinance is valid. If, however, he vetoed or disapproved the ordinance in
the manner provided in Metro. Charter § 5.04, then the ordinance is valid only if the
Metropolitan Council overrode the mayor’s disapproval by a vote of three-fourths of
its entire membership. There is no evidence in the record of the mayor’s action or
whether the Metropolitan Council took another vote on Ordinance No. 94-1222.

IV.
THE CONSTITUTIONALITY OF ORDINANCE NO. 94-1222

The Metropolitan Planning Commission finally asserts that Ordinance No. 94-
1222 is unconstitutional because it lacks any rational or justifiable basis. It argues
that the ordinance amounts to spot zoning because the Metropolitan Council singled
out Family Golf’s property for rezoning and thus conferred on Family Golf a benefit
denied to similarly situated property owners. Thus, the commission contends that the

10
Under Metro. Charter § 5.04, the mayor may veto or “disapprove” an ordinance by
returning it unsigned to the council at or prior to the next regular council meeting occurring ten days
or more subsequent to the date that the ordinance was delivered to the mayor for consideration. The
mayor may, but is not required to, attach a message explaining the reasons for his or her disapproval.
If the mayor does not return the ordinance within the prescribed time, it automatically becomes
effective.

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ordinance does not legitimately advance the health, safety, morals, or welfare of the
Nashville community. We disagree.

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 Commr’s, 656 S.W.2d 338, 343-44 (Tenn. 1983).

We find that it is possible to conceive of reasons to justify Ordinance No. 94-
1222. The Council could very well have believed that permitting a go-cart track at
this location was not as radical a departure from the existing uses of the property as
a miniature golf course, driving range, and a batting cage. The Council could also
have believed that the surrounding community would benefit from having this type
of activity nearby since the property is in the floodplain and surrounded by land
zoned for agricultural and low-density residential development, and since the
property is located on a major roadway very close to Hickory Hollow Mall, one of
Nashville’s major commercial activity centers. Under these circumstances, it is not
for this court to substitute its judgment for that of the Metropolitan Council. Hence,
Ordinance No. 94-1222 survives rational basis scrutiny and thus passes constitutional
muster.

V.

We vacate the judgment and remand the case to the trial court to enable the
parties to introduce competent evidence concerning the Metropolitan Council’s and
the mayor’s actions regarding Ordinance No. 94-1222. If the ordinance was enacted
in compliance with Metro. Charter §§ 5.02 & 18.02, then the trial court should enter
a judgment upholding the validity of the ordinance. We tax the costs of this appeal
to the Metropolitan Government of Nashville and Davidson County.

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 ____________________________
WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________
WILLIAM B. CAIN, SPECIAL JUDGE

NOT PARTICIPATING:

BEN H. CANTRELL, JUDGE

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