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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