The opinion
IN THE COURT OF APPEALS
AT KNOXVILLE
FILED
December 14, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
) LOUDON COUNTY
MARK MATLOCK d/b/a MSM, ) 03A01-9904-CV-00132
DEVELOPMENT, INC., )
)
Plaintiff/Appellant, )
)
v. )
) HON. RUSSELL E. SIMMONS, JR.
LENOIR CITY BOARD OF ) JUDGE
ZONING APPEALS, )
)
Defendant/Appellee. )
)
) REVERSED AND REMANDED
)
ARTHUR G. SEYMOUR, JR. and MARY ELIZABETH MADDOX, Frantz,
McConnell & Seymour, LLP, Knoxville, for Appellant
ROBERT G. HINTON and MELODY DANIEL MUSICK, Sproul & Hinton,
Lenoir City, for Appellee
O P I N I O N
Goddard, P.J.
This appeal involves a zoning dispute between Mark
Matlock, doing business as MSM Development, Inc., the
Plaintiff/Appellant, and the Lenoir City Board of Zoning Appeals,
the Defendant/Appellee. The Loudon County Circuit Court affirmed
the decision by the Board, and Mr. Matlock now appeals.
Mr. Matlock presents three issues for our
consideration:
1. Whether the Board exceeded its jurisdiction
and abused its discretion in denying a permit
to the plaintiff for the use of below-ground
storage tanks for propane gas distribution in
a C-3 zone where the language of the zoning
ordinance clearly allows such a use.
2. Whether the Board acted illegally,
arbitrarily, and capriciously in denying a
permit to the plaintiff for the use of
below-ground storage tanks for propane gas
distribution in a C-3 zone where the language
of the zoning ordinance clearly allows such
a use.
3. Whether the Board acted illegally,
arbitrarily, and capriciously in denying a
permit to the plaintiff for the use of above-
ground storage tanks for propane gas
distribution in a C-3 zone where the
ordinance is not being actively enforced as
against other property owners in that zone.
Mr. Matlock owns four acres of land on Simpson Road in
Lenoir City having purchased the property on April 20, 1998. He
would like to build a propane gas distribution center on the
property, which is zoned C-3 “Highway Commercial District”
pursuant to the Lenoir City Zoning Ordinance.
On May 4, 1998, Mr. Matlock submitted to the Loudon
County Office of Planning a site plan, which did not indicate
locations for the propane gas tanks. Pat Phillips with the
Loudon County Office of Planning requested changes to the site
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plan to indicate tank locations. Mr. Matlock made the requested
changes and resubmitted the plan.
At its June 2, 1998 meeting, the Board decided that
above-ground tanks were not permitted in a C-3 zone and denied
Mr. Matlock’s request for them on his property.
At its July 7, 1998, the Board considered Mr. Matlock’s
proposal for below-ground tanks, but decided that a bulk
distribution center for propane gas is not permitted in a C-3
zone. On August 18, 1998, Mr. Matlock filed a Petition for a
Writ of Certiorari in the Loudon County Circuit Court.
On March 22, 1999, the Loudon County Circuit Court
dismissed Mr. Matlock’s Petition for Writ of Certiorari, and Mr.
Matlock filed this appeal.
Mr. Matlock argues that the Board acted illegally,
arbitrarily, and capriciously in denying his permit for the use
of below-ground storage tanks. The Lenoir City Zoning Ordinance
provides for the following permitted uses and structures in a C-3
zone:
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a. Any use permitted in the C-2, Central
Business District.
b. Motels and tourist courts.
c. Service repair establishments, including
service stations, automobile sales, and
repair garages.
d. Tire recapping or retreading.
e. Veterinary establishments provided that
all animals shall be kept inside
soundproof, air-conditioned buildings.
f. Wholesale and distributing center not
involving over five thousand (5,000)
square feet for storage of wares.
g. Shopping centers, including the location
of more than one building on a lot
provided such buildings share a common
fire resistant wall.
Mr. Matlock insists that his proposed use for the
Simpson Road site is permitted under section “f” above. He
argues that his propane gas business would consist of a wholesale
and distribution center less than 5,000 square feet for propane
gas, which is a “ware.”
The Board, however, argues that a propane gas
distribution center is not a permitted use in a C-3 zone.
Because there was no definition of “wares” in the ordinance, the
Board had to interpret the definition to determine whether the
proposed use was permissible in a C-3 zone, and it concluded that
a propane gas distribution center was permissible in an
industrial zone, not a C-3 zone. Mr. Phillips also noted that
tanks are usually measured in volume, not square footage.
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Tennessee Code Annotated § 27-8-101 provides for a writ
of certiorari:
The writ of certiorari may be granted whenever
authorized by law, and also in all cases where an
inferior tribunal, board, or officer exercising
judicial functions has exceeded the jurisdiction
conferred, or is acting illegally, when, in the
judgment of the court, there is no other plain,
speedy, or adequate remedy.
Review of a writ of certiorari is limited to whether
“the inferior board or tribunal (1) has exceeded its
jurisdiction, or (2) has acted illegally, arbitrarily, or
fraudulently.” McCallen v. City of Memphis, 786 S.W.2d 633, 638
(Tenn. 1990) (citations omitted).
Rules applicable to the construction of statutes and
other ordinances also apply to zoning ordinances. City of
Knoxville v. Brown, 195 Tenn. 501, 507, 260 S.W.2d 264, 267
(1953). Zoning ordinances should be strictly construed. City of
Knoxville, 195 Tenn. at 507, 260 S.W.2d at 267. Therefore, a
zoning ordinance is construed as a whole, with words given their
natural and ordinary meaning. Tennessee Manufactured Housing
Association v. Metropolitan Government of Nashville, 798 S.W.2d
254, 257 (Tenn. Ct. App. 1990).
Courts “must also construe zoning ordinances with some
deference toward a property owner’s right to the free use of his
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or her property.” Lions Head Homeowners’ Association v.
Metropolitan Board of Zoning Appeals, 968 S.W.2d 296, 301 (Tenn.
Ct. App. 1997)(citations omitted). Courts should resolve
ambiguities in a zoning ordinance in favor of a property owner’s
unrestricted use of the property. Lions Head Homeowners’
Association, 968 S.W.2d at 301.
Webster’s Third New International Dictionary defines
“ware” as “goods, commodities, manufactures, or produce of a
specific class or kind . . . an intangible item (as a service or
a literary product) that is a marketable commodity.”
If we strictly construe the pertinent zoning ordinance,
Mr. Matlock’s proposed use for the site would consist of a
distribution center less than 5,000 square feet for storage of
the propane gas, which is a commodity. Consequently, we
conclude that Mr. Matlock’s proposed use for the Simpson Road
site is permitted under the C-3 zoning ordinance.
Based on the foregoing, we conclude that the Board
acted arbitrarily and capriciously in denying a permit to Mr.
Matlock for the use of below-ground storage tanks for his propane
gas distribution center.
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Having found that the Board acted arbitrarily and
capriciously, we need not address the remaining issues on appeal.
This case is remanded to the Trial Court for further proceedings
consistent with this opinion and collection of costs below.
Costs of appeal are adjudged against the Board.
_________________________
Houston M. Goddard, P.J.
CONCUR:
______________________
Herschel P. Franks, J.
______________________
D. Michael Swiney, J.
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