Wilson County Youth Emergency Shelter, Inc. v. Wilson County

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

3

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

5

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....

6

* * *

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.

7

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

8

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

9

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

10

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

11

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.

12