IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
September 3, 1999
WILSON COUNTY YOUTH EMERGENCY ) C/A NO. 01A01-9812-CH-00634
SHELTER, INC., ) Cecil Crowson, Jr.
) Appellate Court Clerk
Plaintiff-Appellant, )
)
)
)
V. ) APPEAL AS OF RIGHT FROM THE
) WILSON COUNTY CHANCERY COURT
)
)
)
)
WILSON COUNTY AND WILSON )
COUNTY BOARD OF ZONING APPEALS,)
) HONORABLE C.K. SMITH,
Defendants-Appellees.) CHANCELLOR
For Appellant For Appellees
RANDLE W. HILL, JR. MICHAEL R. JENNINGS
Nashville, Tennessee Lebanon, Tennessee
O P I N IO N
REVERSED AND REMANDED Susano, J.
1
The Wilson County Board of Zoning Appeals (“the BZA”)
denied the petition of Wilson County Youth Emergency Shelter,
Inc. (“the Shelter”) for a use on review to construct a group
home on 5.46 acres of property in Wilson County. The Shelter
proposes to move its existing facility in the county to the new
location. On petition for certiorari, the trial court affirmed
the action of the BZA. The Shelter appeals, arguing that the
BZA’s decision was illegal, arbitrary, and beyond its
jurisdiction. By way of a separate issue, the Shelter argues
that there is no material evidence to support the BZA’s denial of
its petition.
I. The Petition
The Shelter proposes to build a group home as a
residence and in-house-schooling facility for up to 12
individuals in an A-1 Zone -- being the Agricultural Zone -- in
Wilson County. The home is designed to accommodate up to 12
individuals and two staff members.1
Testimony before the BZA reflects that the residents
are, and will continue to be, children between the ages of 12 and
18. Some are abused and neglected, while others have been unruly
at home. The home is described as a level-one facility -- “not a
lock-down facility.” Some of the inhabitants have been guilty of
“passive delinquen[cy] charges,” such as burglary and minor
larceny, while some have “drug issues.” The home does not take
1
The Shelter offered testimony that more than two staff members would
sometimes be at the home.
2
children who have been guilty of violent crimes.
The majority of the children come from the Department
of Children Services under a contract with the state.
Approximately 25% of the residents are from Wilson County. The
average stay is approximately 27 days. In 1996, the existing
facility in Wilson County serviced 162 children. The director of
the facility testified that there had been runaways in the past
but that there were no incidents associated with those
individuals. He stated that the Shelter had been at its present
location, on a quarter-acre lot, for seven years with no problems
regarding crime in the community.
When the children leave the facility, some go to foster
homes; some return home; and some go to the Wilson County Youth
Ranch, another group home in Wilson County. The home operated by
the Shelter is described as a “temporary emergency shelter.” The
facility is a United Way agency. It receives $45 per day per
child from the state to help defray the daily per-child cost of
$56. United Way and private fund-raising make up the difference.
II. The Opposition
The Shelter’s petition was met by a petition in
opposition signed by 96 individuals who live in the area of the
proposed site. Numerous people spoke in opposition at the
hearing before the BZA.
Among the reasons given for opposing the Shelter’s
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petition were the following: because the “crime rate [is]
climbing like it is”; there are elderly people in the community
who don’t feel safe “by having this type of shelter put in their
community”; the proposed home will depreciate the values of the
surrounding properties; at “other facilities,”2 there “has been a
lot of robbery around the area, break-ins”; fear that someone
will break out “and rob somebody, or rape[] one of the[] kids in
the neighborhood”; because there is no public sewer “out there”;
“won’t feel safe to let the kids roam around”; two people can’t
supervise “12 kids with this type background”; a nearby creek
will rise and cover up the property in question; problems with
sewage because of the composition of the soil; lack of water to
the site; and similar complaints.
The neighbors’ vocal opposition was met by statements
of the Shelter’s personnel to the effect that there was a water
easement to the property; that a fire hydrant had already been
purchased; and that the property had been approved by the Health
Department for a sanitary septic tank system.
III. Planning Staff’s Recommendation
The Wilson County Planning Commission staff recommended
approval of the Shelter’s petition “if it is found by the [BZA]
to follow the intent of the A-1 district.” The staff suggested
that the BZA give “[c]areful consideration...to the level of
services available to” the property, and stated that
2
These “other facilities” were not identified. No one testified as to
any crimes or other incidents involving the residents of the Shelter’s
existing facility.
4
there is no public water along this portion
of Highway 231 South and fire protection
would be restricted accordingly. There’s no
fire hydrant, and service would be provided
by Emergency Management from a pumper truck.
Staff is concerned with the lack of fire
protection for this proposed group home.
IV. BZA’s Decision
In a three-to-one decision, the BZA denied the
Shelter’s petition. As a basis for its decision, the BZA cited
the proposed “location,” lack of fire protection, and the number
of people at the group home on a daily basis.
V. The A-1 Zone
As pertinent to the issues on this appeal, Wilson
County’s A-1 Agricultural Zone regulations provide as follows:
SECTION 5.20 AGRICULTURAL (A-1)
5.20.01 GENERAL INTENT
This district is intended to accommodate uses
typically conducted in agricultural areas, in
addition to rural density residential uses.
Within A-1 Agricultural Districts as shown on
the Official Zoning Atlas of Wilson County,
the following regulations shall apply.
5.20.02 USES PERMITTED
* * *
5.20.03 USES PERMISSIBLE ON APPEAL
The following uses may be permissible on
appeal by the Board of Zoning Appeals in
accordance with provisions contained in
Section 6.40 of these regulations.
A. Aircraft landing field, hangars and
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equipment.
* * *
B. Automobile graveyard;
C. Bicycle service and repair;
D. Cemetery;
E. Church;
F. Commercial animal facility;
G. Country Club;
H. Dog kennel;
I. Golf course;
J. Group home;
K. Hospital;
L. Library;
M. Livestock holding/feeding area;
N. Manufacturing incidental to retail
utilizing no more than 35% of the area of
structure for manufacturing;
O. Nursing home;
P. Recreational uses;
Q. Retirement center;
R. Sanitary landfill subject to meeting all
requirements of a registered solid waste
disposal site as defined in Chapter 1200-1-7
of the Rules of the Tennessee Department of
Public Health and Environment and any
criteria identified by Wilson County
officials;
S. School;
T. Service uses;
U. Utility and/or governmental use;
V. Uses permitted or permissible on appeal
in a C-1 Neighborhood Commercial District.
W. Other similar uses as reviewed and
approved by the Board of Zoning Appeals.
5.20.04 USES PROHIBITED
Uses not specifically permitted or
permissible on appeal.
(Emphasis added). Pertinent provisions regarding the BZA are as
follows:
SECTION 6.40 BOARD OF ZONING APPEALS
6.04.01 CREATION AND APPOINTMENT. A Wilson
County Board of Zoning Appeals (hereafter
referred to as the Board) is hereby
established in accordance with Section 13-7-
106 of the Tennessee Code Annotated....
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* * *
6.40.04 POWERS. The Board shall have the
following powers and duties:
* * *
B. SPECIAL EXCEPTIONS. To hear and decide
in accordance with the provisions of this
regulation, requests for special exceptions,
such as uses permitted on appeal,...
The Board may at its discretion require
reasonable conditions be met concerning the
location of structures, access to property,
noise, dust, vibrations, and any other
reasonable requirement the Board deems
necessary to protect the surrounding property
when granting special exceptions,...
* * *
D. PROCEDURE FOR AUTHORIZING A SPECIAL
EXCEPTION AS A USE PERMISSIBLE ON APPEAL.
The following procedure is established to
integrate properly the Uses Permissible on
Appeal with other land uses located in the
zone. These uses shall be reviewed by the
Board of Zoning Appeals as a Special
Exception Use on Appeal request and
authorized or rejected under the following
procedure:
1. APPLICATION. An application shall
be filed with the Board of Zoning Appeals for
review. Said application shall show the
location and intended uses of the site, and
shall be accompanied by five (5) copies of a
plot plan of proposed development which has
been approved by the County Health
Department, together with any other material
pertinent to the request which the Board may
require.
2. PUBLIC HEARING. Upon application,
the Board of Zoning Appeals shall give a ten
(10) day notification of a public hearing.
Such notice of time and place of such hearing
shall be published in a daily paper of
general circulation in Wilson County.
3. RESTRICTIONS. In the exercise of
its approval, the Board of Zoning Appeals may
impose such conditions regarding the
location, character, or other features of the
proposed use of land or buildings as it may
deem advisable in the furtherance of the
general purpose of these Regulations.
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4. VALIDITY OF PLANS. All approved
plans, conditions, restrictions, and rules
made a part of the approval of the Board of
Zoning Appeals shall constitute certification
on the part of the applicant that the
proposed uses shall conform to such
regulations at all times.
VI. Applicable Law
Zoning laws, being in derogation of the common law and
tending to deprive a property owner of a use of its property that
would otherwise be lawful, “are to be strictly construed by the
courts in favor of the property owner.” State ex rel. Browning-
Ferris Industries of Tenn., Inc. v. Board of Commissioners of
Knox County, 806 S.W.2d 181, 187 (Tenn.App. 1990). See also
Anderson County v. Remote Landfill Services, Inc., 833 S.W.2d
903, 909 (Tenn.App. 1991).
An action by a board of zoning appeals is an
administrative rather than a legislative act. McCallen v. City
of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990). This is because
such an action “executes [a law] already in existence.” Id. The
term “administrative” is “used interchangeably with judicial or
quasi-judicial.” Id. at 638.
A review of an administrative action is by common law
writ of certiorari. See T.C.A. § 27-8-101. See also McCallen,
786 S.W.2d at 639.
“Whether the action by the local governmental body is
legislative or administrative in nature, the court should refrain
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from substituting its judgment for the broad discretionary
authority of the local governmental body.” Id. at 641-42.
However, a court should invalidate a decision that is clearly
illegal, arbitrary, or capricious. Id.
The question of whether there is sufficient evidence to
sustain a zoning action is a question of law. MC Properties,
Inc. v. City of Chattanooga, 994 S.W.2d 132, 134 (Tenn.App.
1999). Hence, appellate review is de novo without a presumption
of correctness. Id.
If there is no evidence to support the zoning action,
it is arbitrary. Sexton v. Anderson County, 587 S.W.2d 663, 667
(Tenn.App. 1979). In reviewing a zoning action, an appellate
court must do so with the recognition that “the discretionary
authority of the government body must be exercised within
existing standards and guidelines.” McCallen, 786 S.W.2d at 639.
VII. Analysis
There is no evidence to support the BZA’s decision to
deny the Shelter’s petition for a use on review to establish a
group home on property in the Wilson County A-1 Zone. The BZA
based its denial on a vague reference to “location,” a lack of
fire protection, and the number of people living in the home.
The proof simply does not sustain the BZA’s reasons for denying
the Shelter’s petition.
At the outset, it should be noted that the A-1 Zone
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contemplates use of property as a group home and for a school.
Such uses are clearly specified as uses permitted on review.
This means that an applicant for such uses cannot obtain the
necessary permit to proceed with its plans without going through
the appeal process outlined in the Zoning Ordinance; but once the
applicant goes through the process and the requested use
satisfies all other pertinent regulations of the local zoning
regulations, it must be granted. The planning staff was in error
when it stated that it was for the BZA to say whether a group
home was an “intended use” in the A-1 Zone; the zoning ordinance
expressly says that it is. Cf. Sexton, 587 S.W.2d at 665 (When
a legislative body includes a certain use within a given zone as
a use on review, such a use is an intended use in that zone).
As previously indicated, numerous citizens appeared in
opposition to the Shelter’s proposed use of the subject property;
but “it is not a function of the board to conduct a referendum on
public attitudes relative to [a] petition.” 587 S.W.2d at 664
n.1. What we said in Sexton regarding a landfill applies with
equal force here:
Various members of the community expressed
beliefs and opinions that the presence of the
landfill would create noxious odors and
result in falling property values; they also
thought that trucks delivering refuse to the
site of the fill would cause additional
damage to the local roads. These statements
were offered on the issue of whether the
intended use is “potentially dangerous,
noxious or offensive.” None rises to the
dignity of being material evidence on the
issue. In each instance, the statements
amount to an expression of opinion on the
ultimate issue, unsubstantiated by factual
premises. Speculations, expression of fears
and considerations of an aesthetic or
political nature do not form a basis to
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support a decision made by an administrative
body charged with adjudicatory
responsibility.
Id. at 665-66.
The only evidence before the BZA regarding fire
protection was the Shelter’s proof that it had a water easement
to the property and that it had already purchased a fire hydrant.
On the issue of a sewage system, the only proof before the BZA
was that the Health Department had approved a sanitary septic
tank system for the property.
When an employee of the planning commission was asked
if the planned use met all requirements other than the water
issue -- which, as we have noted, has in fact been fully
satisfied -- he replied: “[a]s far as we are aware, yes, it
does.”
There is simply no evidence that the Shelter’s
application for a use on review violates any part or provision of
the A-1 Zoning Regulation. While the BZA has authority to act
under the zoning regulations, it must act “within existing
standards and guidelines.” McCallen, 786 S.W.2d at 639. It
clearly does not have unbridled authority to deny an otherwise
fully-compliant request simply because other citizens are opposed
to the use.
VIII. Conclusion
The judgment of the trial court is reversed. This
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matter is remanded to the trial court for the entry of an order
directing the BZA to approve the Shelter’s request for a use on
review to construct a group home on the subject property. Costs
on appeal and costs in the trial court are taxed to the
appellees.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
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