John R. Wills, Jr. v. The City of Memphis

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 25, 2014

JOHN R. WILLS, JR. V. THE CITY OF MEMPHIS ET AL.

Appeal from the Chancery Court for Shelby County

No. CH1118143 Kenny W. Armstrong, Chancellor

No. W2013-01861-COA-R3-CV - Filed August 13, 2014

Landowner filed a petition for writ of certiorari in the Chancery Court of Shelby

County, seeking review of the City of Memphis City Council’s decision to deny the

landowner’s petition to subdivide his Belle Meade Subdivision lot into two lots. The trial

court reversed the City Council’s decision, finding that the landowner had satisfied the

requirements for subdivision under the Uniform Development Code, and remanded the case

for rehearing before the City Council. On remand, the City Council’s review was limited to

the record established at the previous hearing. For the reasons discussed herein, we affirm

in part and vacate in part, and remand to the trial court with instructions to remand to the City

Council for reconsideration.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in

Part; Vacated in Part; and Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,

W.S., and D AVID R. F ARMER, J., joined.

Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellants, The City of

Memphis and Memphis City Council.

Ricky E. Wilkins and Sharon H. Loy, Memphis, Tennessee, for the appellee, John R. Wills,

Jr.

OPINION

Appellee John R. Wills, Jr. is the owner of Lot 94 in the Belle Meade Subdivision in

Memphis. Lot 94 is located at the northwest corner of Poplar Avenue and Belle Meade Lane.

Belle Meade Subdivision contains approximately 94 lots and is zoned R-10.1 R-10 zoning

permits single-family homes on lots with a minimum lot size of 10,000 square feet, and a

minimum lot width of 60 feet.

On April 27, 2011, after a fire destroyed the existing house on the property, Mr. Wills

filed an application for subdivision of Lot 94 with the Memphis and Shelby County Office

of Planning and Development (“OPD”).2 By his application, Mr. Wills sought to have Lot

94 divided into two lots, proposed Lot 94A and proposed Lot 94B. The typical lot in Belle

Meade Subdivision is 20,000 square feet, rectangular in shape, and has approximately 100

feet of street frontage. Lot 94 is atypical in that it is one of the largest lots in the Subdivision,

containing approximately 31,247 square feet, with 226.98 feet of street frontage on Belle

Meade Lane.3 Thus, as Mr. Wills argues, Lot 94 is one of the few (or only) lots in Belle

Meade Subdivision that could be divided into two lots that each meet the R-10 zoning

restrictions of 10,000 square foot lots, with at least 60 feet of street frontage. According to

Mr. Wills’ application, Proposed Lot 94A, which would be the corner lot at Poplar Avenue

and Belle Meade Lane, would contain 14,004 square feet in area with 116 feet of street

frontage. Proposed Lot 94B would contain 16,672 feet, with 104.98 feet of frontage along

Belle Meade Lane.

It is undisputed that Mr. Wills’ application is governed by the provisions contained

in the original version of the Unified Development Code (“UDC”), which was approved by

1

As established by the record, Belle Meade Subdivision was originally established

containing 94 lots. Currently, it contains approximately the same number of lots; however, there have been

alterations to some lots over the years. For example, the lot immediately to the north of Mr. Wills’ property,

281 Belle Meade Lane, is “the south part of Lot 93, Clark & Fay Belle Meade Subdivision as shown on plat

of record in Plat Book 12 Page 26 and part of Lot 31 Re-Subdivision of Lot B and part of Lot A Tuckahoe

Subdivision as shown on plat record in Plat Book 14 Page 14.” The re-subdivision of Lot B and part of Lot

A Tuckahoe Subdivision occurred in January 1950.

2

At the time the application was filed, the home that had been destroyed by fire was still on the

property. Mr. Wills proposed to tear down what remained of the existing home and replace it with two

homes on the subdivided lot. At the time the City Council considered Mr. Wills’ resolution request, the

existing home had been removed. By the time of the trial court hearing, Mr. Wills had completed

construction of a new home on the north side of Lot 94. There is no dispute in the record concerning whether

the new construction complies with applicable building requirements.

3

Appellants contend that there is a dispute of fact concerning whether Lot 94 is atypically large

for the Belle Meade Subdivision. However, our review of the record, including plat drawings of

the other lots in the subdivision, indicates that Lot 94 is larger than most of the other lots in the

subdivision.

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the Memphis City Council and the Shelby County Board of Commissioners in August 2010,

and was effective from January 1, 2011 to August 27, 2012. The UDC is the development

code for the City of Memphis (together with the Memphis City Council, “Appellants”) and

unincorporated Shelby County. Prior to adoption of the UDC by the Memphis City Council

and the Shelby County Commission, subdivisions in the City of Memphis were governed by

the Subdivision Regulations, which were adopted by the City Council as Ordinance No. 3352

on December 20, 1983 (“Subdivision Regulations”).

Mr. Wills’ application was considered a “major preliminary plan,” under Section

9.7.4(B) of the UDC. The UDC delegates review and approval authority for all major

preliminary subdivision plans to the Planning Director and the Memphis and Shelby County

Land Use Control Board (“LUCB”), subject to appeal to the Memphis City Council. The

“Planning Director” refers to the director of the Memphis and Shelby County Division of

Planning and Development a/k/a the Office of Planning and Development (“OPD”). The

UDC confers “reviewing authority” on the Planning Director to review and make

recommendations regarding major preliminary subdivision plans. The Planning Director may

designate a staff member to represent him or her in any function assigned to the Planning

Director.

Under Section 9.3.1(B) of the UDC, Mr. Wills was required to attend a mandatory

pre-application conference with the Planning Director “to discuss the procedures, standards

and regulations required for approval in accordance with this development code.” Mr. Wills

was required to submit the complete application, containing all of the information necessary

for the Planning Director to “decide whether or not the development as proposed will comply

with all of the requirements of this development code.” Section 9.3.3.E(3) provides that “the

applicant may rely on the recommendations of the Planning Director as to whether more or

less information” is required. There is no indication in the record that Mr. Wills was

informed that his application failed to conform to any of the technical requirements of the

UDC, or that any further information was required.

After the application is submitted, Section 9.7.7(D) of the UDC provides that:

1. Upon submission of a completed application, the Planning

Director may schedule the major preliminary plan for review by

the Technical Review Committee. If applicable, the Technical

Review Committee shall review the major preliminary plan for

consistency with the requirements of this development code.

2. Upon completion of the technical review, the Planning

Director may meet with the applicant to discuss any changes in

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the development design.

3. The Planning Director shall prepare a report that reviews the

application in light of comments provided by the Technical

Review Committee, any plans to be considered (See Chapter

1.9) and the general requirements of this development code.

The report, preliminary plan and any related application

materials shall be forwarded to the Land Use Control Board.

In this case, the Planning Director complied with the foregoing sections by preparing a report

that expressly provides that “the proposed re-subdivision meets the technical requirements

of the Unified Development Code.” Mr. Wills’ application then moved to the LUCB for

approval.

Section 9.7.7(E) of the UDC outlines the LUCB’s action as follows:

1. Not less than 35 or more than 75 days after an application has

been determined complete, the Land Use Control Board shall

hold a public hearing and Notification.

2. The Land Use Control Board shall approve, approve with

conditions, or reject the major preliminary plan after

deliberation and prior to the close of the public hearing. The

Land Use Control Board may, prior to the close of the public

hearing, take the matter under advisement or defer decision until

the next regular meeting of the Board.

On June 9, 2011, the LUCB considered Mr. Wills’ application and denied it by a vote

of 1–8. Thereafter, on or about June 15, 2011, Mr. Wills appealed the LUCB’s decision to

the Memphis City Council. On August 16, 2011, after due notice was sent to all interested

landowners, the Memphis City Council considered Mr. Wills’ proposed resolution

overturning the LUCB’s rejection of his application to re-subdivide Lot 94. The resolution

failed by a vote of 3–10.

On November 4, 2011, Mr. Wills filed a petition for writ of certiorari in the Shelby

County Chancery Court, seeking review of the LUCB and Memphis City Council’s rejection

of his application. On November 17, 2011, the Chancellor signed a Fiat, ordering the

issuance of a writ of certiorari as prayed for by Mr. Wills in his petition. Pursuant to the writ,

on December 21, 2011, the City filed the affidavit of Valerie Snipes, Deputy Comptroller

for the City of Memphis. Ms. Snipes attached, to her affidavit, a true and exact copy of the

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City Council’s proceedings as maintained by the City Comptroller. The attachments include

a certified copy of the Resolutions, approved minutes of the meeting, a written report from

the OPD, records from the LUCB, and other documents presented to the Council during the

meeting.

The matter was heard by the trial court on April 22, 2013. At that time, the trial court

ordered the parties to brief the issue of what evidence the court may consider, the remedies

available, and the question of whether Section 3.9.2 of the UDC is applicable. Following the

submission of the parties’ trial briefs and hearing, the court entered a Memorandum Opinion

on July 10, 2013, finding in favor of Mr. Wills and remanding the matter to the City Council

with instructions. Specifically, the order states, in relevant part, that:

In its meeting considering this application, the City Council

heard from neighboring property owners and their attorney who

opposed the application on the ground that the proposed

subdivision was not in keeping with the character of the

neighborhood. They described Belle Meade as one of the last

existing Memphis neighborhoods with large lots. The neighbors

also expressed fears regarding traffic congestion at the

intersection of Poplar and Belle Meade Lane where the re-

subdivision is proposed. The objections raised at the City

Council’s meeting on August 16th were the same objections and

fears raised in 2000 by neighbors when the City Council

approved the application to allow the lot directly across the

street to be divided into two lots. During its meeting on the

instant application, one City Council member who opposed

approval of the application stated he grew up in the

neighborhood and requested the support of the rest of the City

Council members in siding with him and the neighbors.

Another City Council member who lives near the Belle Meade

subdivision and represents the area on the City Council stated he

would be voting with the neighbors and implored his colleagues

to join with him opposing the application to subdivide Lot 94.

Before the vote by the City Council, the OPD’s

professional staff provided detailed information about the

proposed subdivision of Lot 94 and reported that the two

proposed lots fully complied with all existing zoning

regulations. OPD further pointed out that neighbors’ concern

about future re-subdivision of other lots in Belle Meade was

misguided since most other lots in Belle Meade were too small

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to be subdivided into two lots and meet the R-10 zoning

requirements for lot size and frontage. OPD further pointed out

that while the two lots proposed were smaller in size than the

typical lot in Belle Meade, there were currently lots in Belle

Meade smaller than these two lots.

* * *

In reviewing the transcript of the City Council meeting in

this case, the opposition to the application to subdivide Lot 94

centered entirely around the neighbors’ fears that approval of

[Mr. Wills’] application would change the character of Belle

Meade. The two City Council members who publicly expressed

their opposition during the meeting echoed the same sentiments

as the neighbors. No zoning requirements were cited or

discussed by the City Council as a basis to reject [Mr. Wills’]

application. Nor was any evidence presented or introduced into

the record to support the claim that approval of the application

would adversely impact the character of Belle Meade. Also,

prior to voting, the City Council never discussed any other

consideration for its denial of the application. While the City

now argues that the proposed lots do not meet the requirements

of the . . . UDC with respect to lot width or frontage, a review of

the record reveals this was not discussed during the City

Council’s meeting. In fact, the only reference to the UDC was

the staff report prepared by the OPD which was available to City

Council members during its meeting and is part of the record in

this case. The OPD report specifically states that the proposed

re-subdivision meets all of the technical requirements of the

UDC. As such, the City Council’s decision to deny the

application could not have been based on a determination by the

City Council that the infill compatibility standards of the UDC

were not met by the proposed lots.

In this case, the Court finds from the record that the City

Council made its decision to deny [Mr. Wills’] application

solely upon the expressed concerns of neighbors which were not

substantiated by any evidence introduced into the record. The

law is well settled that community fears and concerns should not

be the basis for denying an application which otherwise

complies with all of the conditions and technical requirements

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of the specified zoning ordinance. . . . As such, the Court is

compelled to find that the City Council’s decision to reject [Mr.

Wills’] application is not supported by substantial and material

evidence and is, therefore, arbitrary and capricious. As found by

OPD, [Mr. Wills’] proposal to subdivide his lot complies with

R-10 zoning and the UDC enacted by the City. To allow

applications such as the one submitted by [Mr. Wills] to be

decided based on the unsupported fears and concerns of

neighbors would effectively invalidate zoning requirements and

ordinances enacted by the City.

The matter is remanded to the City Council with

instructions to grant the permit unless there is a finding that the

proposed re-subdivision does not comply with duly enacted

zoning regulations and requirements for Belle Meade

Subdivision.

On July 31, 2013, Mr. Wills filed a motion to alter or amend the Memorandum

Opinion. Therein, Mr. Wills asked the court to “amend its findings, make additional finding,

and/or alter or amend the judgment in order to:”

1. State whether the City’s attempt to argue for the first time at

judicial review that [Mr. Wills’] application failed to comply

with the UDC is proper;

2. State what additional evidence, if any, may be considered by

the Memphis City Council when it reconsiders the matter on

remand;

3. State whether the statements and/or behavior by the two

Council Members who opposed the opposition to [Mr. Wills’]

application was appropriate and whether these specific Council

Members may take part in the hearing and vote on remand;

4. In the event the Court rules that the City may raise the issue

of contextual infill development standards on remand, state

whether the contextual infill development standards provision

of the UDC apply to [Mr. Wills’] application . . . .

Appellants opposed the motion to alter or amend. Following hearing on the motion, on

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October 18, 2013, the trial court entered an order, which states, in relevant part, that:

2. The Court finds that [Mr. Wills’] application complies with

all provisions of the . . . UDC.

3. Upon remand, the Memphis City Council shall not consider

any additional evidence from any party or person that [Mr.

Wills’] application fails to comply with the UDC.

4. Upon remand, the Memphis City Council may not consider

any additional evidence from any parties or persons beyond the

record at the time of the hearing before the Memphis City

Council on August 16, 2011.

5. The Court denies [Mr. Wills’] request that certain council

members must recuse themselves from participating in the

hearing on [Mr. Wills’] application upon remand to the

Memphis City Council.

6. As amended by this Order, the Court’s Memorandum

Opinion dated July 10, 2013 remains in full force and effect.

Appellants appeal. They raise six issues for review, as stated in their brief:

1. Whether the trial court erred by applying an incorrect legal

standard for considering a common law writ of certiorari?

2. Whether the trial court erred in finding that the Memphis

City Council’s decision to reject [Mr. Wills’] application for re-

subdivision of Lot 94 in Belle Meade Subdivision was arbitrary

and capricious?

3. Whether the trial court erred in finding that the City Council

made its decision to deny [Mr. Wills’] application solely upon

the expressed concerns of neighbors which were not

substantiated by any evidence introduced into the record?

4. Whether the trial court erred in finding that [Mr. Wills’]

application for re-subdivision of Lot 94 in Belle Meade

Subdivision complies with all provisions of the [UDC]?

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5. Whether the [OPD’s application] of outdated Subdivision

Regulations to [Mr. Wills’] subdivision application requires

remand?

6. Whether the trial court’s remand instructions erroneously

prohibit the Memphis City Council from considering any

additional evidence on the issue of whether [Mr. Wills’]

application fails to comply with the UDC? 4

In its Memorandum Opinion, the trial court stated the applicable standard of review

for common law writs of certiorari as follows:

The Court’s standard of review in these matters is limited to

whether the City exceeded its jurisdiction or acted illegally,

arbitrarily, or fraudulently. McCallen v. City of Memphis, 786

S.W.2d 633, 638 (Tenn. 1990). A decision that is not supported

by substantial and material evidence is by definition considered

to be arbitrary and capricious.

We begin by noting that the City Council was acting in an administrative capacity

exercising judicial or quasi-judicial powers in this case rather than in a legislative capacity.5

See, e.g., McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990) (stating “a

crucial test in distinguishing legislative from administrative acts is whether the action taken

(resolution or ordinance) makes new law or executes one already in existence.”). Here, the

rejection of Mr. Wills’ subdivision application required the City Council to apply existing

law; thus, the Council’s decision is administrative in nature.

It is well settled that the common law writ of certiorari is the proper method for

4

In his brief, Mr. Wills asserts that the City Council violated his procedural due process rights by

allowing the neighbors to submit a packet of photographs and information for consideration because he was

not provided the documents prior to the public hearing. Mr. Wills also argues that the statements of two City

Council members opposing the subdivision violated his procedural due process rights. Mr. Wills, however,

failed to raise these arguments as issues on appeal. These issues are, therefore, waived. See Forbess v.

Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011) (holding that an appellee may waive arguments on

appeal by failing to designate them as issues in a Statement of the Issues section of his or her appellate brief).

5

The term “administrative” is used interchangeably with “judicial” or “quasi-judicial.”

Wilson County Youth Emergency Shelter, Inc. V. Wilson County., 13 S.W.3d 338, 342 (Tenn. Ct. App.

1999) (citing McCallen, 786 S.W.2d at 638).

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challenging an administrative action of a board, commission, or legislative body. McCallen,

786 S.W.2d at 634; Abbington Ctr., L.L.C. v. Town of Collierville, 393 S.W.3d 170, 175

(Tenn. Ct App. 2012); Steppach v. Thomas, 346 S.W.3d 488, 498–99 (Tenn. Ct. App. 2011).

The common law writ of certiorari is an order from a superior court to an inferior tribunal

or board to send up the record for review. Utley v. Rose, 55 S.W.3d 559, 563 (Tenn. Ct. App.

2001). Review under the common law writ of certiorari is generally limited to the record

made before the lower tribunal or board. 421 Corp. v. Metro. Gov’t of Nashville & Davidson

County, 36 S.W.3d 469, 474 (Tenn. Ct. App. 2000). “It envisions that the court will review

the record independently to determine whether it contains ‘such relevant evidence that a

reasonable mind might accept as adequate to support a rational conclusion.’” Lafferty v. City

of Winchester, 46 S.W.3d 752, 759 (Tenn. Ct. App. 2000) (quoting Hedgepath v. Norton,

839 S.W.2d 416, 421 (Tenn. Ct. App. 1992)). A court reviewing the decision of a local board

is not permitted to re-weigh the evidence, Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d

274, 277 (Tenn. 1980), inquire into the intrinsic correctness of the lower tribunal’s decision,

Arnold v. Tenn. Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997), or substitute its

judgment for that of the lower tribunal or board, 421 Corp., 36 S.W.3d at 474. In Harding

Academy v. Metropolitan Government of Nashville and Davidson County, 222 S.W.3d 359

(Tenn. 2007), our Supreme Court stated:

This writ provides a limited scope of review by the courts.

Review of [a board’s] action in this case is limited to

determining whether the board exceeded its jurisdiction,

followed an unlawful procedure, acted illegally, arbitrarily, or

fraudulently, or acted without material evidence to support its

decision. In proceedings involving a common law writ of

certiorari, illegal, arbitrary, or fraudulent actions include: 1) the

failure to follow the minimum standards of due process; 2) the

misrepresentation or misapplication of legal standards; 3) basing

a decision on ulterior motives; and 4) violating applicable

constitutional standards. . . .

Id. at 363.

On the issue of whether material evidence exists to support the decision of the lower

tribunal or board, the reviewing court is prohibited from receiving new or additional

evidence. Weaver v. Knox County Bd. of Zoning Appeals, 122 S.W.3d 781, 786 (Tenn. Ct.

App. 2003); Massey v. Shelby County Retirement Bd., 813 S.W.2d 462, 465 (Tenn. Ct. App.

1991). When reviewing the evidentiary basis for a local board’s decision, the question of

whether the record contains material evidence to support the board’s decision becomes a

question of law. Lafferty, 46 S.W.3d at 759; see also Pack v. Royal-Globe Ins. Companies,

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457 S.W.2d 19, 22 (Tenn. 1970); Boyce v. Williams, 389 S.W.2d 272, 276 (Tenn. 1965);

Weaver, 122 S.W.3d at 784. The decision of a local board will only be considered arbitrary

when it is determined that the record contains no evidence to support the decision. Lafferty,

46 S.W.3d at 759 (citing Sexton v. Anderson County, 587 S.W.2d 663, 667 (Tenn. Ct. App.

1979)); Watts, 606 S.W.2d at 276–77. New or additional evidence may only be received by

the reviewing court on the issue of whether the lower tribunal or board exceeded its

jurisdiction or acted in an illegal, arbitrary, or capricious manner. Massey, 813 S.W.2d at

465; see also Watts, 606 S.W.2d at 277; Weaver, 122 S.W.3d at 786.

Based upon its finding that the City Council’s decision to reject Mr. Wills’ application

was not supported by “substantial and material” evidence, the court found that the decision

was arbitrary and capricious under the foregoing standard of review. In the brief, Appellants

first contend that the trial court erroneously applied the standard for judicial review of an

administrative decision pursuant to the Tennessee Uniform Administrative Procedures Act

(“UAPA”), by requiring “substantial and material evidence.” Appellants argue that the

correct standard, under Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256 (Tenn. 2009),

is whether the City Council’s decision is supported by “any material evidence.” Id. at 262

(emphasis added). In Davis, the Supreme Court distinguished between the UAPA standard

and the common law writ of certiorari standard, noting that, “[u]nder common law writ of

certiorari review, a board’s determination is arbitrary and void if it is unsupported by any

material evidence.” Id. (citing Watts, 606 S.W.2d at 276–77) (emphasis added). In Heyne

v. Metropolitan Nashville Board of Public Education, our Supreme Court defined the nature

and quantum of evidence needed to uphold a board’s decision under certiorari review:

For the purpose of this inquiry, “material evidence” is relevant

evidence that a reasonable person would accept as adequate to

support a rational conclusion. Hedgepath v. Norton, 839 S.W.2d

416, 421 (Tenn. Ct. App. 1992) (quoting Pace v. Garbage

Disposal Dist., 54 Tenn. App. 263, 267, 390 S.W.2d 461, 463

(1965)). The amount of material evidence required to support an

agency’s decision “must exceed a scintilla of evidence but may

be less than a preponderance of the evidence.” Leonard Plating

Co. v. Metropolitan Gov’t of Nashville & Davidson Cnty., 213

S.W.3d at 904.

Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 738 (Tenn. 2012). While

we concede that the evidence standard, under a writ of certiorari, is somewhat less than

“substantial” and material evidence, the distinction between “substantial and material

evidence” and “any material evidence” is a distinction without difference in the context of

this case, and in light of our decision to remand back to the City Council, infra.

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As evidenced by the OPD’s staff report, there was opposition from the neighbors to

Mr. Wills’ subdivision request. According to the OPD, the opposition was based on concerns

regarding the “lot size compatibility” of proposed Lots 94A and 94B as compared to other

lots in the Belle Meade Subdivision. The report from the OPD concedes that the neighbors’

concerns regarding erosion of the character of Belle Meade Subdivision, one of the “few

larger lot subdivisions in the City,” were warranted. Nevertheless, the OPD distinguishes

“lot size compatibility” from “street character compatibility,” and concludes that Mr. Wills’

proposal is not out of character with the neighborhood because it matches the “street

character” of the two lots directly across the street. Street character refers to lot width and

front set backs. The lots across the street from Lot 94 were re-subdivided in 2000, and are

the smallest lots in the subdivision.6 Proposed Lots 94A and 94B would be smaller than the

two lots across the street; however, the OPD opined that the size difference would not be

visible from the street because Mr. Wills’ proposal matched the lot width and set backs from

Poplar Avenue and Belle Meade Lane of the lots across the street. Thus, the crux of OPD’s

opinion is that the “street character” is “arguably more important than the overall size [of the

lots] since the character and compatibility of the development is most noticeable from the

front of the lot along the street and not in the back yard which is not visible from the street.”

It is undisputed that the Subdivision Regulations governing subdivision application

in Memphis and Shelby County have historically permitted consideration of an application’s

compatibility with the character of the existing neighborhood, and have provided criteria to

be considered in determining neighborhood compatibility. See, e.g., Memphis and Shelby

County Subdivision Regulations § 403.1(D). However, the standard was changed in the new

comprehensive UDC. Specifically, UDC Section 3.9.2 provides the minimum “contextual

infill development standards” that must be utilized on any applicable residential project. See

Memphis & Shelby County Unified Dev. Code § 3.9.2(B), discussed in detail, infra. The

standards set forth in Section 3.9.2 of the UDC “are intended to accommodate the majority

of infill development in existing residential neighborhoods,” and have “been crafted to allow

an applicant (and staff) to look to the surrounding ‘context’ for guidance in construction.”

Memphis & Shelby County Unified Dev. Code § 3.9.2(A). Moreover, the standards “are

intended to encourage reinvestment in existing neighborhoods and [to] reinforce the

traditional character of established residential neighborhoods.” Id. To these ends, UDC

Section 3.9.2(D) sets out the minimum lot width standard:

The minimum lot width requirement is the smaller of:

6

Mr. Wills argues that his application is similar to the 2000 approval of the re-subdivision of the

two lots across the street from Lot 94. It is important to note, however, that the 2000 re-subdivision of the

two opposite lots, Case #S 99-094, was approved under the former Subdivision Regulations, and not under

the UDC.

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1. The average width of the four lots on either side of the

project site fronting on the same block face (the two closest lots

in either direction along the street); or

2. The average of the widths for all lots fronting on the same

block face.

Memphis & Shelby County Unified Dev. Code § 3.9.2(D).

Appellants contend that the LUCB and City Council’s denial of Mr. Wills’ application

was based upon the fact that his proposal failed to meet the Section 3.9.2 lot width

requirement, supra. Specifically, Appellants argue that Mr. Wills’ proposed subdivision of

Lot 94 fails the mathematical formula for minimum lot width as set forth in the foregoing

section of the UDC. According to Section 3.9.2, Appellants aver that Mr. Wills’ proposed

lots must both be at least 117.31 feet wide because the average width of the four closest lots

on the same block face as Mr. Wills’ lot, i.e., the west side of Belle Meade Lane, is 117.31

feet. This average, as noted by Appellants, is less than the average width of all lots on the

same block face as Mr. Wills’ lot, i.e., the west side of Belle Meade Lane, which average

126.57 feet of frontage.7 Mr. Wills’ lot is 227 feet wide; his Proposed Lots 94A and 94B are

116 feet wide and 104.98 feet wide, respectively. Appellants note that Mr. Wills did not seek

a waiver of the minimum lot width requirement, and instead argued that his application was

consistent with the subdivision’s R-10 zoning, which required only 60 feet of frontage.

Accordingly, Appellants contend that Mr. Wills’ proposed lots do not meet the minimum lot

width requirements under the UDC standard, which requires greater frontage than the

minimum width for R-10 zoned properties. In their presentation to the City Council, the

Appellants used a map that depicted the lot widths in the Subdivision to show that Mr. Wills’

proposed lots were not in compliance with the average frontage of other relevant properties.

In addition to the lot width requirements, the UDC also provides standards for

setbacks. As is relevant here, Section 3.9.2(E) provides:

Structures shall be located within the range of front setbacks on

the street. This range of setbacks is measured on the basis of the

four lots surrounding the project site (the two closest lots in

7

As noted by Appellants, Mr. Wills’ lot is a corner lot and, thus, there are no lots on the south

side fronting on the same block face. The average of 117.31 feet represents the average of the four closest

lots on the same block face. The average of just the two closest lots on the north side of Mr. Wills’ lot would

result in an average width of 124.5 feet. Therefore, Appellants contend that, under any possible calculation,

Mr. Wills’ proposed Lots 94A and 94B would not meet the minimum average lot width.

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either direction along the street). The new structure shall be

located within the range of setbacks (no closer than the

narrowest setback, no further than the deepest setback). Where

a setback in these four lots is significantly out of the range of

setbacks along the street, it may be eliminated from the range.

Where the calculation of a range of setbacks is not practicable,

the structure shall be located a minimum of 20 feet from the

front of the property line.

Appellants argue that neither the OPD, nor Mr. Wills’ application addressed the UDC’s

setback requirements. Mr. Wills’ plan, however, provides for a 30-foot front setback, which

Appellants contend would not be permissible under the compatibility setback requirements

for in the contextual infill standards of the UDC. Relying on the plat map for Belle Meade

Subdivision, Appellants aver that the plat reflects that all lots on the west side of Belle

Meade Lane (other than Lot 94) have setbacks greater than 30 feet, which was consistent

with the setback of the other lots on that block face. Therefore, Appellants contend that the

trial court’s finding that Mr. Wills’ application complies with all provisions of the UDC, see

discussion infra, was erroneous.

On the other hand, Mr. Wills contends that the LUCB was required to approve his

application because it met the criteria set out in UDC Section 9.7.7. He further notes that the

LUCB’s written recommendation, which summarizes the proceedings before the LUCB,

contains no indication that the LUCB even considered UDC Section 3.9.2 in addressing Mr.

Wills’ application. Specifically, he states that the LUCB recommendation fails to mention:

(1) the applicability criteria set out at UDC Section 3.9.2(B), or whether these criteria apply

to Mr. Wills’ application; (2) any discussion or calculation of the “minimum lot width

requirement” set forth at UDC 3.9.2(D); (3) any discussion or calculation of the “range of

front setbacks” as set forth in UDC Section 3.9.2(E); or (4) any discussion of any of the other

contextual infill standards set forth in UDC Section 3.9.2. In fact, Mr. Wills correctly points

out that the LUCB’s recommendation does not mention UDC Section 3.9.2 at all. He notes

that UDC Section 3.9.2 requirements were not specifically raised by the Appellants until they

filed their trial brief. According to Mr. Wills, it was only then that the Appellants claimed

that Mr. Wills’ application failed to comply with the infill standards of UDC 3.9.2. In short,

Mr. Wills argues that the LUCB recommendation, and the lack of any specific reference to

UDC Section 3.9.2, indicates that the LUCB erroneously based its recommendation on the

old Subdivision Regulations, which were not applicable following enactment of the UDC.

Specifically, Mr. Wills contends that the “LUCB recommendation indicates that the LUCB

ignored that the zoning law had changed significantly from the prior zoning law which

‘historically permitted evaluation of an application’s compatibility with the character of the

existing neighborhood.’”

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Despite the absence of any reference to UDC Section 3.9.2, the Appellants contend

that the LUCB and the City Council did “silently consider Section 3.9.2” in reaching the

decision to deny Mr. Wills’ application. To support this argument, the Appellants point out

that the arguments to the City Council concerned the “character of the neighborhood,” which

directly implicates UDC Section 3.9.2, regardless of whether that Section number was

actually cited. In addition, the Appellants argue that it was not their burden to show that Mr.

Wills’ proposed subdivision did not comply with UDC Section 3.9.2, but that it was Mr.

Wills’ burden to show that it did. See UDC 9.3.3(E)(2) (noting that an application may only

be approved if it “contains all of the information necessary to decide whether or not the

development as proposed will comply with all of the requirements of this development

code”); see also Memphis & Shelby County Unified Dev. Code § 9.7.7(C)(1) (requiring that

an application for a major preliminary plan comply with UDC Section 9.3.3); c.f. Abbington

Center, LLC v. Town of Collierville, 393 S.W.3d 170 (Tenn. Ct. App. 2012) (emphasizing

that the applicant has the burden of proof to show that his or her proposal conforms to

applicable ordinances). Finally, the Appellants point out that both this Court and the trial

court are constrained by the applicable standard of review to only consider whether any

material evidence in the record supports the local agency’s decision. See Davis, 278 S.W.3d

at 262. Because the evidence in the record indicates that the proposed subdivision does not

comply with UDC Section 3.9.2, the Appellants urge this Court to consider the requirements

of UDC Section 3.9.2 despite the fact that the provision was not specifically cited by the

LUCB or the City Council.

The record in this case does little to facilitate appellate review on this issue. Here,

both parties set forth waiver arguments regarding the use of the UDC in this case. While

evidence regarding the subject matter of UDC Section 3.9.2 is clearly contained in the

record, neither the City Council, nor the LUCB specifically reference the UDC in their

decisions. We note that the City Council, unlike a trial court, is not required to make

findings of fact and conclusions of law to support its decisions. See Moore v. Metropolitan

Bd. of Zoning Appeals, 205 S.W.3d 429 (Tenn. Ct. App. 2006) (holding that a local agency

is not required to make findings of fact and conclusions of law in order to withstand writ of

certiorari review). Under these circumstances, we decline to conclude that consideration of

the applicability of the UDC was waived by either party. Accordingly, we go on to consider

whether the UDC provided an appropriate basis for the denial of Mr. Wills’ subdivision

application.

Before specifically addressing the issues concerning the nature and weight of the

evidence adduced in the hearings on Mr. Wills’ proposal, it is necessary to understand the

requirements for approval of the subdivision of Lot 94 under the UDC in order to determine

what provisions of the UDC are applicable in this case. This inquiry requires a close reading

of the UDC.

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In Brunetti v. Board of Zoning Appeals of Williamson County, this Court discussed

our role in evaluating and interpretation zoning ordinances. We find the language equally

applicable to interpretation of the UDC:

The interpretation of a zoning ordinance and its

application to a particular set of facts are, in the first instance,

questions for decision by local officials. Courts are hesitant to

interfere with decisions by local [] officials unless clearly

necessary and will not substitute their judgment for that of the

local zoning officials. See Hoover [v. Metro. Bd. of Zoning

Appeals of Davidson Cnty.], 955 S.W.2d [52,] at 54 [Tenn. Ct.

App. 1997] (citing McCallen [McCallen v. City of Memphis,

786 S.W.2d 633,] 639 [(Tenn. 1990)]; Whittemore v.

Brentwood Planning Comm’n., 835 S.W.2d 11, 15 (Tenn. [Ct.]

App.1992). However, while courts may defer to local officials’

interpretations where the interpretation is fairly debatable and

the ordinance is ambiguous, they will set aside an interpretation

which is arbitrary and capricious, contrary to the drafters’ intent,

or which undermines the ordinance’s validity. Whittemore, 835

S.W.2d at 16.

We interpret these and other relevant authorities to mean

that our role is not to provide the initial interpretation of the

Ordinance . . . . If the Ordinance may reasonably be interpreted

more than one way, we will not substitute our judgment of the

more preferable interpretation as long as the board’s choice has

a reasoned basis.

Brunetti v. Bd. of Zoning Appeals of Williamson Cnty., No. 01A01-9803-CV-00120, 1999

WL 802725 (Tenn. Ct. App. Oct. 7, 1999). When the language of an ordinance is clear,

courts will enforce the ordinance as written; when the language of an ordinance is

ambiguous, however, courts will resort to principles of statutory construction. 421 Corp. v.

Metro. Gov’t of Nashville & Davidson Cnty., 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000).

With the foregoing principles in mind, we turn to the UDC. The introductory section

of the UDC is entitled “How to Use this Code.” Under this section, the property owner is

directed to various portions of the UDC depending on what action the property owner is

pursuing. For example, if the property owner wants “[t]o modify a building or develop a new

building,” he or she is instructed, inter alia, to “[g]o to Article 3, Building Envelope

Standards, for your specific district to review the dimensional standards that apply to your

property.” UDC Section 3.9 is titled “Residential Compatibility,” and the disputed

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“Contextual Infill Standards” are contained in UDC Section 3.9.2. As is relevant to the

instant case, where the property owner wants “[t]o subdivide my property,” the introductory

section of the UDC cautioned that “[p]roperty can only be subdivided in accordance with the

procedures in Chapter 9.7, Subdivision Review.”

As noted above, Mr. Wills’ subdivision application was deemed a “major preliminary

plan,” as opposed to a “minor preliminary plan.” The distinction is important insofar as the

application requirements are concerned. A “minor preliminary plan” is given expedited

procedure for approval, which “is intended to simplify processing of routine small

subdivisions with regard to protection of the public interest.” Memphis & Shelby County

Unified Development Code 9.7.6(A). UDC Section 9.7.6(G) sets out the “Approval Criteria”

for minor preliminary plans; these criteria include the requirement that “[t]he plan complies

with the standards of Article 3, Building Envelope Standards . . . .” Thus, the criteria for

minor preliminary plans requires that the plan complies with Article 3 of the UDC, which

includes UDC Section 3.9.2 regarding contextual infill standards. However, after reading

Chapter 9.7 of the UDC in its entirety, we do not find any language therein that specifically

requires major preliminary plans, such as Mr. Wills’, to comport with UDC Article 3,

including the Section 3.9.2. contextual infill requirements. Rather, the approval criteria for

major preliminary plans are enumerated in UDC Section 9.7.7(H) as follows:

A major preliminary plan shall be approved by the Land Use

Control Board if it meets the following criteria:

1. Conforms with all of the provisions and requirements of any

plans to be considered (See Chapter 1.9);

2. There are adequate public facilities available, to be provided

by the applicant or programmed within the five-year capital

improvements program of the government bodies to

accommodate the proposed development;

3. Conforms with all of the applicable provisions of this

development code; and

4. Conforms with all the provisions and requirements of other

applicable codes and ordinances relating to land development

not included in this development code.

This section broadly requires that the major preliminary plan “[c]onform[] with all provisions

and requirements of any plans to be considered (see Chapter 1.9 [Chapter 1.9 contains a list

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of more City-wide developments, such as the “Shelby County Greenway Plan,” and

“Victorian Village Redevelopment Plan,” which are not specifically applicable to Mr. Wills’

application]).” Concerning criterion 2, i.e., that “adequate public facilities” are available,

there appears to be no dispute in the record that this requirement is met. Accordingly, criteria

3 and 4 are the dispositive requirements in Mr. Wills’ case. Criterion 3 requires that the

major preliminary plan “[c]onform[] with all the applicable provisions and requirements of

the [UDC].” Memphis & Shelby County Unified Development Code 9.7.7(H) (emphasis

added). As discussed above, the thrust of Appellants’ argument is that Mr. Wills’ property

does not comport with Section 3.9.2 of the UDC in terms of frontage and setback

requirements. This argument begs the initial question of whether Section 3.9.2 of the UDC

is “applicable” to Mr. Wills’ proposal to subdivide his lot (as set out above, criterion 3 of

UDC Section 9.7.7(H) requires the plan to conform with applicable sections of the code).

We conclude that UDC Section 3.9.2 is applicable to both minor preliminary plans

and major preliminary plans for subdivision. UDC Section 3.1.2 specifically requires that:

“All subdivision shall occur in conformance with this Article [i.e., Article 3] as set forth in

Chapter 9.7, Subdivision Review.” This Court has held that: “The well-known in pari

materia rules also apply to the construction of zoning ordinances. Thus, zoning ordinances

dealing with the same subject should be construed together.” 421 Corp. v. Metropolitan

Government of Nashville and Davidson County, 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000)

(citing Lions Head Homeowners’ Ass’n v. Metropolitan Bd. of Zoning Appeals, 968

S.W.2d 296, 301 (Tenn. Ct. App. 1997)). Accordingly, all subdivision plans, including major

preliminary plans, must comply with all applicable provisions of Article 3, including UDC

Section 3.9.2.

Mr. Wills argues, however, that even if the UDC is applicable to a major preliminary

plan to subdivide property under Chapter 9.7, UDC Section 3.9.2 does not apply to the

specific property at issue in this case. To support this argument, Mr. Wills points to UDC

Section 3.9.2(B)(1), the provision that specifically outlines the applicability of UDC Section

3.9.2.’s contextual infill standards. UDC Section 3.9.2(B) states:

B. Applicability

1. The contextual infill development standards shall be used on

any residential project that is less than two acres in size and is

surrounded on all sides by existing single-family detached or

single-family attached development legally established before

1950 in a residential district.

2. Residential projects two acres or more in size shall follow the

applicable district standards (see Chapter 3.6, 3.7, or 3.8).

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3. These contextual infill standards may not be used for

nonresidential development in residential districts.

Mr. Wills argues that his property is not “ surrounded on all sides by existing single- family

detached or single- family attached development legally established before 1950 in a

residential district” and that, therefore, the contextual infill standards are not applicable to

bar his proposed subdivision. According to Mr. Wills, the Appellants concede in their brief

that this is the only section of the UDC that may bar Mr. Wills proposed subdivision. Indeed,

from our review of the Appellants’ brief, they state: “Significantly, there is only one section

of the UDC that provides the compatibility standards; and thus, any consideration of whether

Petitioner’s proposal meets the ‘character of the neighborhood’ requirements must be made

pursuant to that section [i.e., UDC Section 3.9.2].” Further, nothing in the Appellants’ brief

indicates any other provisions of the applicable zoning ordinances or the UDC which are

violated by the proposed subdivision of Lot 94. Accordingly, because UDC 3.9.2 is the only

section alleged by the Appellants to be violated by Mr. Wills’ proposed subdivision, the

question of the applicability of UDC Section 3.9.2 is the central question in this appeal.

Before we address the applicability of UDC Section 3.9.2, we first note that

Appellants argue on appeal that regardless of the UDC Section 3.9.2's applicability to Lot 94,

the decision of the City Council should not be reversed for using the contextual infill

standards to deny Mr. Wills’ subdivision application. Specifically, the Appellants argue that:

(1) the City Council had discretion to apply UDC Section 3.9.2 to Mr. Wills’ proposal

regardless of whether the UDC provides that it is applicable to Lot 94; and (2) assuming that

the contextual infill standards are not applicable to Mr. Wills’ project, the City Council’s

misapplication of UDC Section 3.9.2 to Mr. Wills’ proposal is not sufficient to justify

reversal of the City Council’s decision. We consider each of these arguments in turn.

Appellants first argue that regardless of whether UDC Section 3.9.2 must be applied

to Mr. Wills’ property, the “language [in UDC Section 3.9.2] does not prohibit discretionary

application of the infill development standards where this criteria is not met.” We

respectfully disagree. As previously discussed, in construing the language of an ordinance,

we use the familiar rules of statutory construction. Garrett v. City of Memphis, 327 S.W.3d

37, 40 (Tenn. Ct. App. 2010) (citing Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799,

802 (Tenn. 2000) (“The rules of statutory interpretation are used when interpreting an

ordinance.”)). According to this Court:

Our principal goal in statutory construction is to give effect to

the intent of the legislature. Hawks v. City of Westmoreland,

960 S.W.2d 10, 16 (Tenn.1997). “Legislative intent or purpose

is to be ascertained primarily from the natural and ordinary

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meaning of the language used, without forced or subtle

construction that would limit or extend the meaning of the

language.” Carson Creek Vacation Resorts, Inc. v. State, Dep't

of Revenue, 865 S.W.2d 1, 2 (Tenn.1993) (citation omitted). It

is not within the province of the courts to alter or amend a

statute. Gleaves, 15 S.W.3d at 803 (Tenn.2000) (citations

omitted). Similarly, the judiciary should not substitute its own

policy judgment for that of the legislature. Id. (citation omitted).

It is our duty to interpret and enforce the enactment as written.

Id. (citation omitted).

Garrett, 327 S.W.3d at 40.

In this case, the UDC specifically provides that the contextual infill standards

contained in UDC Section 3.9.2 “shall” apply to all residential projects that are “ less than

two acres in size and [] surrounded on all sides by existing single-family detached or single-

family attached development legally established before 1950 in a residential district.” UDC

Section 3.9.2 goes on to specifically address property where the contextual infill standards

shall not be applied. See Memphis & Shelby County Unified Dev. Code § 3.9.2(B)(2–3). The

Tennessee Supreme Court has expressed approval for the statutory construction canon

“expressio unius est exclusio alterius,” an expression that means “to mention one thing is

to exclude others.” See In re Estate of Davis, 308 S.W.3d 832, 841 (Tenn. 2010) (citing

Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 633 (Tenn. 2008),

abrogated on other grounds, Hayes v. Am. Zurich Ins. Co., No. E2010-00099-WC-R3-WC,

2011 WL 2039402, at *6 (Tenn. Workers Comp. Panel, May 25, 2011) (citing Tenn. Code

Ann. § 50-6-204(a)(1–2)); see also Calaway v. Schucker, 193 S.W.3d 509, 516

(Tenn.2006); Etheridge ex rel. Etheridge v. YMCA of Jackson, 391 S.W.3d 541, 547

(Tenn. Ct. App. 2012). Here, the UDC contains a very specific provision regarding the

applicability of the contextual infill standards. See Memphis & Shelby County Unified Dev.

Code § 12.1(D) (noting that the use of the word “shall” in the UDC indicates that the

requirement is mandatory, rather than permissive). Nothing in UDC Section 3.9.2, however,

indicates that the local agency may apply the contextual infill standards to a project,

notwithstanding the project’s failure to fall within the stated bounds of applicability. Under

these circumstances, we decline to conclude that City Council may apply the contextual infill

standards if the residential project does not fall without the express bounds of UDC Section

3.9.2(B)(1).

The Appellants next argue that even if the City Council improperly applied the

provisions of UDC Section 3.9.2 to Lot 94, such mistake is insufficient to overturn the City

Council’s decision. To support this argument, the Appellants cite the Tennessee Supreme

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Court’s Opinion in Yokley v. State, 632 S.W.2d 123 (Tenn. Ct. App. 1981). In Yokely, the

Tennessee Court of Appeals indicated that a writ of certiorari may only be used “ to ascertain

the validity of proceedings before a court of justice, either on the charge of their invalidity,

because the essential forms of law have not been observed, or on that of the want of

jurisdiction in the court entertaining them.” Id. at 126 (quoting State ex rel. McMorrow v.

Hunt, 137 Tenn. 243, 192 S.W. 931, 932 (1917)). The Court explained that in reviewing a

decision in a writ of certiorari, the court could not “inquire into the correctness of the

judgment” so long as the judgment was “rendered where the court had jurisdiction.”Yokley,

632 S.W.2d at 126 (quoting Hunt, 192 S.W. at 932). Based on this language, the Court

concluded that “an error of law is not ‘an illegal decision.’ Nor is it an arbitrary or capricious

one.” Yokley, 632 S.W.2d at 126.

The scope of review in a common law writ of certiorari, however, is not so limited as

to require us to affirm a decision based upon a misapplication of the law. As previously

discussed, the Tennessee Supreme Court recently held that in order to determine whether a

decision by a local agency is “illegal, arbitrary, or fraudulent,” the reviewing court should

consider whether there was a “misrepresentation or misapplication of legal standards.”

Harding Academy, 222 S.W.3d at 363. Thus, if the City Council improperly applied UDC

Section 3.9.2 to Mr. Wills’ proposed subdivision, that decision would be “illegal, arbitrary,

or fraudulent,” for purposes of a writ of certiorari. Accordingly, a determination of whether

UDC Section 3.9.2 is applicable to Mr. Wills’ proposed subdivision is necessary to the

determination of this case. We turn to address that issue.

With regard to the applicability standards expressly contained in UDC Section

3.9.2(B), Mr. Wills’ proposed subdivision undisputedly involves a residential project and is

less than two acres in size. There is considerable dispute, however, as to whether the project

is “ surrounded on all sides by existing single- family detached or single- family attached

development legally established before 1950 in a residential district.” Memphis & Shelby

County Unified Dev. Code § 3.9.2(B)(1). On the one hand, Appellants argue that the term

“development” refers to other subdivisions surrounding the Belle Meade subdivision. They

argue that UDC Section 3.9.2 is applicable because Mr. Wills’ property is surrounded:

(a) on the north side and the east side by Belle Meade subdivision, an existing single-

family detached “development” legally established in 1947; (b) on the south side by The

Village Subdivision, an existing single-family detached “development” legally established

in 1938; and (c) on the west side by the Tuckahoe Subdivision, an existing single-family

detached “development” legally established in 1938. Thus, Appellants argue that UDC

Section 3.9.2 is properly applicable to Mr. Wills’ property.

In contrast, Mr. Wills argues that the term “development” is ambiguous and should

be defined to mean the lots surrounding the lot at issue. To support this argument, Mr. Wills

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cites a Staff Report of the OPD prepared on April 12, 2012 (“Staff Report”), which details

plans to amend the UDC in the future. With regard to UDC Section 3.9.2, the Staff Report

proposes:

3.9.2 - Infill Standards – Housekeeping

Two amendments are being considered for this section that deals with infill residential

development. These are located in Paragraph 3.9.2B(I) and Sub-Section 3.9.2J. A

clarification is made regarding the conditions that trigger contextual infill development

standards, these standards are triggered when a lot is abutted on two or more sides, not when

entirely surrounded. A cross-reference to the building height section of the UDC (Sub-

Section 3.2.6A) has been provided to determine foundation height. Sub-Section 3.9.217 is

revised to permit rear yard encroachments in addition to side yard encroachments.

(Emphasis added). Although the UDC was not amended to reflect this change until 2012, Mr.

Wills argues that this change is evidence of the existing interpretation of the word

“development” in UDC Section 3.9.2(B)(1). See In re Estate of Jenkins, 8 S.W.3d 277

(Tenn. Ct. App. 1999) (holding that where a statute is ambiguous, the court may look to the

legislative history of an enactment, including any subsequent amendments). Thus, Mr. Wills

argues that the Staff Report evidences the OPD’s interpretation of the term “development”

in UDC Section 3.9.2 to mean “lots” rather than larger subdivisions.

Although not cited by either party in their brief to this Court, the UDC expressly

defines the term “development.” According to UDC Chapter 12.3: “For the purpose of this

development code, certain numbers, terms, and words used shall be used, interpreted, and

defined as set forth below.” Thus, we are constrained to follow the definition of

“development” expressly provided in the UDC. Pursuant to UDC Section 12.3.1,

“development” is defined as: “Any man-made change defined as the construction of

buildings or other structures, mining, dredging, paving, filling, grading or site clearing, and

grubbing in amounts greater than ten cubic yards on any lot or excavation.” Accordingly,

the UDC definition defines “development” as a “man-made change . . . on any lot or

excavation.” See also Memphis & Shelby County Unified Dev. Code § 12.3.1 (defining a

“lot” as, inter alia, “[a] parcel or tract of land that is recorded in the Shelby County

Register's Office that is part of a subdivision and designated on the subdivision plat as a

lot”). Based on the above definition, the UDC definition appears to support Mr. Wills’

argument that a development could mean a change in a single lot. However, the resolution

of this issue is far from clear; while the UDC definition clearly indicates that a development

involves the construction of “buildings” and “structures” on a “lot”, the UDC makes clear

that “[w]ords in the singular number include the plural number and words in the plural

number include the singular number.” Memphis & Shelby County Unified Dev. Code §

12.1(B). Thus, the definition of “development” is not determinative of whether the term

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contemplates a single structure on a single lot or multiple structures on multiple lots.

Consequently, the definition of “development” provided by the UDC does little to resolve

this dispute.

The Appellants essentially argue that the term “development” is synonymous with the

term “subdivision,” and that it must mean more than a single lot. The term “subdivision,”

however, is not defined by the UDC. According to the UDC, where a term is not expressly

defined by ordinance, it “shall be interpreted in accord with their usual dictionary meaning

and customary usage.” Memphis & Shelby County Unified Dev. Code § 12.1(M). Black’s

Law Dictionary defines a “subdivision” as “[a] parcel of land in a larger development.”

Black’s Law Dictionary 1560 (9th ed. 2009). Black’s Law Dictionary defines

“development” only as “[a] substantial human-created change to improved or unimproved

real estate, including the construction of buildings or other structures.” Thus, the dictionary

definitions of “subdivision” and “development” indicate that a subdivision, which by

definition contains multiple parcels (or lots, as defined by the UDC, discussed supra) is

contained within a “development,” implying that the term “development” cannot be defined

as a single lot.

Under these circumstances, we conclude that UDC Section 3.9.2(B)(1) is ambiguous

as to what type of “development” must surround a residential project in order for the UDC’s

contextual infill standards to apply. Based upon Mr. Wills’ interpretation of the term

“development” as only a single lot, he argues that the contextual infill standards do not apply

because his lot is not surrounded on all sides by developments established prior to 1950. In

contrast, based on the Appellant’s interpretation of the term, they argue that Mr. Wills’

property is surrounded on all sides by developments established prior to 1950. The

resolution of this ambiguity is necessary to determine whether the City Council

“misappli[ed] [] legal standards” in denying Mr. Wills’ subdivision application. See Harding

Academy, 222 S.W.3d at 363. Mr. Wills urges this Court to resolve the ambiguity in his

favor and conclude that UDC Section 3.9.2 is not applicable to the subdivision of Lot 94.

The City argues, however, that “any question regarding the applicability of the infill

development standards should be determined, in the first instance, by ‘the community

decision-makers closest to the events, who have been given broad powers in the area, to

make zoning and land use decisions.’” See Wadlyn Corp. v. City of Knoxville, 296 S.W.3d

536, 544 (Tenn. Ct. App. 2008). Indeed, this Court has previously held that while questions

of law are generally reviewed with no presumption of correctness, courts are required to

afford deference and controlling weight to an agency’s interpretation of its own rules and

regulations. Jones v. Bureau of TennCare, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002)

(citing Profill Dev., Inc. v.. Dills, 960 S.W.2d 17, 27 (Tenn. Ct. App. 1997). Indeed, in

Profill Dev., Inc. v. Dills, 960 S.W.2d 17, 27 (Tenn. Ct. App. 1997), a case involving the

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Tennessee Department of Environment and Conservation (“TDEC”), this Court held that:

[TDEC] has the knowledge, expertise and experience and is

charged with the administration of the technical details of the

statute. Accordingly, [TDEC’s] decisions concerning the

applicability of technical terms of the statute are entitled to

deference in the same manner as other technical decisions.

Wayne County v. Solid Waste Disposal Control Board, 756

S.W.2d 274, 279–280 (Tenn. Ct. App.1988).

Id. at 27. The question in this case likewise involves “the applicability of technical terms”

in an ordinance. Id. Although the decision in Dills involved the decision of a State agency

under the UAPA, this Court has held that similar deference should be accorded to a local

agency’s “interpretation of [a] zoning ordinance.” Advanced Sales, Inc. v. Wilson County,

No. 01-A-01-9805-CH00245, 1999 WL 336305, at *4 (Tenn. Ct. App. May 28, 1999)

(“This case involves an interpretation of the zoning ordinance, a matter in which the Board’s

expertise is entitled to great deference.”) (citing C.F. Industries v. Tenn. Pub. Serv.

Comm., 599 S.W.2d 536, (Tenn. 1980)). Further, in Hoover, Inc. v. Metropolitan Board

of Zoning Appeals for Davidson County, 955 S.W.2d 52 (Tenn. Ct. App. 1997), we stated:

The common-law writ of certiorari is a supervisory writ, that

provides the courts with limited options for dealing with error

discovered in the proceedings being reviewed. Because courts

should avoid requiring local zoning authorities to take a

particular action except in the most extraordinary circumstances,

the most common judicial remedy in zoning cases is to remand

the case to the zoning agency with instructions appropriate to the

circumstances of the case. Rather than shouldering the local

agency’s responsibilities, the courts should insist that the agency

carry out its task in an appropriate manner. The goal of a remand

should be to place the parties and the agency in the position they

would have been in had the agency not acted improperly.

Hoover, 955 S.W.2d at 55 (citations omitted). Thus, remand to the City Council is

appropriate to resolve this dispute.

Nothing in the record indicates that the City Council actually considered and resolved

the issue of the interpretation of the term “development” in UDC Section 3.9.2. However,

the resolution of that issue is necessary to the determination of whether the City Council

acted illegally in denying Mr. Wills’ subdivision application. Instead of considering this

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issue, the trial court based its determination that the LUCB and the City Council erred in

denying Mr. Wills’ petition upon a finding that the decision was arbitrary and capricious.

This finding was predicated upon the trial court’s conclusion that the evidence of neighbors’

concerns was not material to the inquiry of compliance with the UDC. As previously

discussed, however, the Appellants contend that the evidence went beyond mere conjecture

in that they provided plat maps and evidence showing that the proposed lots did not comply

with UDC Section 3.9.2's infill requirements. Further, the trial court specifically held “that

[Mr. Wills’] application complies with all provisions of the . . . UDC.” Without a

determination as to the applicability of UDC Section 3.9.2, that holding was in error. As

we have determined that consideration of the UDC was not waived by either party, there

remains a material dispute as to whether UDC Section 3.9.2 is applicable to the residential

project at issue. Further, because this issue involves the proper interpretation of a zoning

ordinance, as well as specific factual findings regarding the properties surrounding Lot 94,

it should be decided, in the first instance, by the City Council. Consquently, we vacate the

judgment of the trial court finding that Mr. Will’s “application complies with all provisions

of the . . . UDC” and remand this matter to the trial court, with instructions to remand to the

City Council to determine the proper interpretation to be given to UDC Section 3.9.2(B)(1).

If Lot 94 is determined to be “ surrounded on all sides by existing single-family detached or

single-family attached development legally established before 1950 in a residential district”

the City Council may then consider whether Mr. Wills’ proposed subdivision complies with

the contextual infill standards. If, however, Lot 94 is found not to be “ surrounded on all sides

by existing single-family detached or single-family attached development legally established

before 1950 in a residential district,” the City Council is directed to grant Mr. Will’s

application for subdivision of Lot 94.

Our analysis to this point adjudicates all of the Appellants’ issues except for the last,

i.e., “[w]hether the trial court’s remand instructions erroneously prohibit the Memphis City

Council from considering any additional evidence on the issue of whether [Mr. Wills’]

application fails to comply with the UDC.” As set out in its October 18, 2013 amendment,

the trial court held, in relevant part, that:

3. Upon remand, the Memphis City Council shall not consider

any additional evidence from any party or person that [Mr.

Wills’] application fails to comply with the UDC.

4. Upon remand, the Memphis City Council may not consider

any additional evidence from any parties or persons beyond the

record at the time of the hearing before the Memphis City

Council on August 16, 2011.

Here, the Appellants appear to infer from the trial court’s order that the City Council may

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not, on remand, consider the issue of whether the UDC prohibits the subdivision of Lot 94.

We disagree. From our review of the trial court’s order, the trial court merely ordered that

the City Council may not consider additional “evidence” regarding the applicability of the

UDC, rather than additional argument. Moreover, our holding herein has specifically

mandated that the City Council consider this issue.

Thus, we interpret the trial court’s order only as prohibiting the Appellants from

submitting additional evidence, not contained in the record, regarding the applicability of the

UDC. We find no error in the trial court’s prohibition. This Court in Hoover held that with

regard to a decision by a local agency, “the most appropriate remedy is to remand the case

to the Board with directions to conduct a new hearing based on the existing record without

introduction of additional factual evidence.” Hoover, 955 S.W.2d at 55 (emphasis added).

“Reopening the record at this late stage would only give the parties a second bite at the

apple.” Id. Thus, the trial court’s mandates clearly comply with our decision in Hoover, and

we cannot assign error to its directions.Further, our determination that Lot 94's compliance

with the UDC was not waived is based, in part, on the Appellants’ argument that the record

already contains sufficient evidence that the proposed subdivision of Lot 94 does not comply

with UDC Section 3.9.2. Accordingly, if the City Council determines that the contextual

infill standards are applicable to Mr. Wills’ proposed subdivision, based upon the Appellants’

own arguments, there is sufficient evidence in the record to determine whether UDC Section

3.9.2 prohibits the proposed subdivision without the need to present additional evidence.

Finally, Mr. Wills has asked this Court to award his attorney’s fees and costs for the

appeal. However, Mr. Wills has not set forth a legal argument regarding why he may be

entitled to such relief. An award of appellate attorney’s fees is a matter within this Court’s

sound discretion. Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). Exercising

that discretion, we respectfully decline to award Appellee attorney’s fees on appeal.

For the foregoing reasons, we affirm in part, and vacate in part the order of the trial

court. The case is remanded for such further proceedings as may be necessary and are

consistent with this Opinion. Costs of the appeal are assessed one-half to the Appellants, The

City of Memphis and the Memphis City Council, and their surety, and one-half to the

Appellee, John R. Wills, for all of which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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