The opinion
09/20/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 6, 2022 Session
SPORTING CLUB OF TENNESSEE, INC. v. MARSHALL COUNTY
TENNESSEE BOARD OF ZONING APPEALS
Appeal from the Chancery Court for Marshall County
No. 19404 J.B. Cox, Chancellor
No. M2021-01361-COA-R3-CV
This appeal concerns a zoning decision. The Sporting Club of Tennessee, Inc. (“the
Sporting Club”) filed an application with Marshall County, Tennessee for a special
exception for a private park. The club was to be situated on 285 acres of property and
would feature a number of recreational activities like shooting. It would have 150 members
and corporate members along with their families and guests. After a hearing, the Marshall
County Board of Zoning Appeals (“the Board”) denied the Sporting Club’s application on
grounds that the Sporting Club would not be low-impact, or passive, with respect to its
surroundings. The Sporting Club filed a petition for common law writ of certiorari in the
Chancery Court for Marshall County (“the Trial Court”). The Trial Court upheld the
Board’s decision. The Sporting Club appeals to this Court. We conclude that the Board’s
decision was supported by material evidence—namely, evidence concerning the Sporting
Club’s 150 members and guests and the likely impact they would have on the property’s
surroundings. The Board’s decision neither was arbitrary, capricious, nor illegal. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
George A. Dean, Nashville, Tennessee, for the appellant, the Sporting Club of Tennessee,
Inc.
Barbara G. Medley, Lewisburg, Tennessee, for the appellee, the Marshall County,
Tennessee Board of Zoning Appeals.
OPINION
Background
In February 2021, the Sporting Club filed an application with Marshall County,
Tennessee for a special exception for a private park. In April 2021, a hearing on the
Sporting Club’s application was held before the Board. Evidence for and against the
Sporting Club’s application was presented at this hearing. One piece of evidence from the
proceedings below is an email from Keith Covington (“Covington”), a land use planner, to
Don Nelson (“Nelson”), Marshall County Building Codes and Zoning Administrator.
Covington wrote:
Don:
I was able to complete a cursory review of the application and supporting
documentation for the Sporting Club of Tennessee and I have the following
comments/concerns:
Membership vs. Families vs. Guests
They have stated in their application that this is a members-only facility, but
they also mention “families” and “guests” throughout. I believe additional
information on the definitions and restrictions on who constitutes a family
member and/or guest, including the maximum numbers of each at any given
time would be useful information for the BZA. Additionally, one of the
letters of support from Old Hickory Smokehouse mentioned their “interest in
the Corporate Membership model which will allow us to provide a retreat for
customers and suppliers, while remaining within the county for
entertainment.” 150 members/corporate members plus family plus guests
could have a significant impact that should be considered by the BZA with
specific information and policies provided by the applicant.
If it is determined that the proper category for this request is a Special
Exception for a Private Park under Community Assembly, I have the
following comments based on 8.060 Procedure for authorizing special
exceptions in the Marshall County Zoning Resolution:
• Under “C. Criteria for Review,” the BZA must make “written
findings certifying that” the application is in compliance with a list of
seven specific items. To make such a certification, I believe the BZA
should have more information about the specific plans for this
property beyond the drawings that have been provided. The site plan
is very generic and diagrammatic in nature and includes a site layout
that from all appearances looks to be from another site. The drawing
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does not include topography, other natural features, and context to
make a clear decision as to whether the use effectively mitigates its
impact.
• “E. Validity of Plans” is a reminder that the granting of a Special
Exception runs with the property, not the owner(s). It is imperative to
have enough information to make a decision.
• “L. Special Conditions for Community Assembly” indicate that the
proposed facility shall not “adversely affect the properties within the
surrounding area.” I believe the burden of proving this should fall on
the applicant, so that the BZA has all of the necessary information to
make a decision.
I hope this helps.
Keith
The Board ultimately denied the Sporting Club’s application. In May 2021, the
Sporting Club filed a petition for common law writ of certiorari in the Trial Court. In its
petition, the Sporting Club stated, in part:
17. A planning analysis by a well qualified planning expert was also
submitted. She reviewed the requirements for the special exception from a
planning perspective, and concluded that all requirements were met by the
application.
18. A traffic review filed by the petitioner also indicated that the small
amount of additional traffic would have no discernible impact on
surrounding highways. This review was not mandated by the provisions of
the zoning regulations but offered by the applicant in an effort to reassure
County officials that impact on the surrounding properties would be minimal.
19. Finally a real estate broker compared properties used exclusively
for shooting activities and concluded that there would be no impact on
property values even if the only activity on this 285 acre site was shooting
related. This review was not mandated by the provisions of the zoning
regulations but offered by the applicant in an effort to reassure County
officials that impact on the surrounding properties would be minimal.
20. The public hearing was lengthy and contested with a large number
of neighbors opposing the application.
21. The public hearing was closed after presentations by both the
petitioner and numerous neighborhood opponents of the project.
22. The Board of Zoning Appeals disapproved the application even
though the petitioner clearly demonstrated compliance with all requirements.
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23. Tennessee courts presume that special exceptions serve the public
interest when located in the district where it is authorized.
24. Classification of a use as one that is permitted as a special
exception constitutes a legislative finding that the use accords with the
general zoning plan, is in harmony with, or will not adversely affect, the
surrounding neighborhood, and meets a public need.
25. The decision of the Marshall County Board of Zoning Appeals
was illegal, arbitrary, and/or capricious in that there was no evidence to
justify its decision denying approval of the requested special exception.
The Board filed an answer to the Sporting Club’s petition. In its answer, the Board
stated as follows, in part:
It is admitted that the BZA denied the application for the special
exception for the private park. Mr. Wilson of the BZA made the motion to
deny the special exception for the private park stating that he did not consider
the use low impact or passive by the definition that was provided. Mr. Kelso
seconded the motion and it unanimously passed. The procedure for
authorizing special exceptions is set forth at 8.060 of the Marshall County
Zoning Regulations. The general requirements provide that a conditional use
permit (a special exception) shall be granted provided the Board finds that it:
A. Is so designed, located and proposed to be operated so that
the public health, safety and welfare will be protected.
B. Will not adversely affect in the area in which it is located.
C. Is within the provision of “special exceptions” as set forth
in this ordinance.
D. Conforms to all applicable provisions of this ordinance for
the district in which it is to be located as well as provisions
cited in Section 8.060 and is necessary for public convenience
and the location planned.
According to Mr. Wilson of the BZA, they have reasonable concern
and could not find that the conditional use would not adversely affect the area
in which it is located.
The criteria for review set forth in 8.060 includes seven (7) factors
which must be met prior to the issuance of special exception. It was
determined that criteria numbers two (2), five (5) and seven (7) were not
proven and would be reasons for denying this special exception. In
particular, number two (2) provides, “Economic, noise, vibrations, glare, or
odor effects of the special exception on or by adjoining properties and
properties generally in or near the district.[”] Number five (5) provides
screening and buffering with referenced to type, dimensions and character.
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Seven (7) provides general compatibility with adjacent properties and other
property in the district.
It is denied that the Petitioner clearly demonstrated compliance with
all requirements as set forth above.
(Internal record citations omitted).
In November 2021, the Trial Court entered its final order in which it upheld the
Board’s decision. The Trial Court stated, in part:
The dispute concerns Petitioner’s attempt to obtain the special use
exception and have a private park designation on approximately 285 acres in
North Chapel Hill, in Marshall County, near the Williamson County line.
For context, the private park would be a club of private entities that offers
club members various outdoor recreational activities, such as shooting,
hunting, fishing, kayaking, hiking, and outdoor pursuits. From the record, a
club house much akin to a private golf club house, would be built on the land.
To further its application, Petitioner appended numerous exhibits
addressing its plans for the club and offered the opinion of experts relating
to land use planning and traffic engineers. Petitioner went to great lengths
to provide the BZA information from which it could make a reasonable
decision.
The BZA heard from Mr. Don Nelson who made the initial decision
to deny the permit. Mr. Nelson went to great lengths explaining his position
that the application as submitted is not the proper way to go about obtaining
what the Petitioner desires. He was of the strong opinion that Petitioner
should have pursued as a zoning change as another shooting range (Strategic
Edge) had done, instead of a special use exception. During the course of his
work in preparing for the public hearing, he reached out to another land use
planner, Mr. Covington, who wrote an email that is part of the record. Mr.
Nelson not only explained the public hearing process, he then served as a
witness within the public hearing.
Mr. Nelson was not the only witness. Numerous members of the
community spoke against granting the exception. Emotions ran high and
witnesses testified to the potential negative effects that they perceived if the
special use exception were granted. They testified as to the noise and
disruption of life that would occur if the Sporting Club were permitted to
operate in Marshall County. They testified that their perception was that their
property values would decrease if this special use exception were allowed by
the BZA. One property owner even offered evidence based upon a realty
website that generally provided that property values decrease in proximity to
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a shooting range. However, these opinions and conclusions were not backed
up by expert proof.
After the conclusion of the public hearing, the BZA considered its
actions. The Court finds it important to reproduce the record as it exists
concerning the actions of the BZA. For context, Ms. Medley is the county
attorney and was acting as such in giving advice to the BZA on the night in
question. After closing the public hearing, the BZA chairman opened the
BZA meeting and the following occurred:
“Mr. Chairman: I’m going to close the public hearing
and let the Board discuss this any way y’all would like to do it,
and I’ll accept a motion one way or the other.
Mr. Wilson: What we have in front of us — I don’t
know if everybody can hear me — what we have in front of us
is a request for a special exception for a private park: is that
right?
Ms. Medley: Right. And also reviewing the —
administrative decision of Mr. Nelson. And he has determined
that it would not meet the definition, and he’s also determined
it would be more appropriately presented to the Planning
Commission as an issue of rezoning rather than being a special
exception under the Agricultural Zoning Regulations. You’re
considering their application but in doing that you’re
considering whether he was correct in the decisions he made
during the initial process.
Mr. Kelso: What’s the precedent?
Ms. Medley: Well, I think — I think he probably — that
Mr. Nelson gave precedent on a similar situation is when the
— what was the name of it? — Strategic Edge. They pointed
out that there was a shooting range out there and it was zoned
agricultural so they had to go before the Planning Commission
and request it be rezoned. But that’s the closest precedent that
was discussed today.
Mr. Wilson: Mr. Chairman, I’d like to make a motion if
I may? My motion would be to deny the special exception for
the — private park. I do not consider the use low impact or
passive by the definition that was provided, and for that reason
I would make a motion to deny the special exception.
Mr. Chairman: A motion’s been made. Do I hear a
second?
Mr. Kelso: Second.
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Mr. Chairman: All those in favor say aye.
(Board members vote.)
Mr. Chairman: (Inaudible.) Continue discussion.
Ms. Medley: I just — under our zoning regulations,
when you are ruling on a special exception, you’re really
supposed to make a finding of fact. I do not know if you want
to say that on the record or if you want to submit a written
finding of fact.
It’s General Requirements when the BZA is ruling on
procedures or authorizing special exceptions. And I don’t
know if you’ve got that in front of you, Will, it is Page Roman
Numeral 3.4 of the zoning regulations.
Mr. Wilson: I’m sorry Barbara. What do you mean? I
don’t understand that rule.
(Respite)
Mr. Chairman, so I’m in Section 8 on Page 4 under the
“General Requirements.” Item B is that — it states: Will not
adversely affect other property in the area in which it’s located.
And I do believe that we have a reasonable concern that that is
not going to be the case.
And then moving over to Section 8, Page 5 under the
“Criteria for Review.” Item 2: Economic, noise, vibrations,
glare, and odor effects of the special exception. So that would
be a reason for denying there. Screening and buffering with
reference to type, dimensions, and character would be — Item
5 would be a reason. And Item 7 is general compatibility with
adjacent properties and other property in the district, and so
denied for those reasons.
Mr. Chairman: Thank you Mr. Wilson. I’m going to
call this meeting adjourned.”
***
This was an application for a special use exception. The property is
presently zoned A-1 for agricultural and forestry purposes within Marshall
County’s zoning ordinance. Applicants seek to use the property as a private
park for operation of a private club. The definition of “private park” in the
zoning ordinance is:
A tract of land presently owned or controlled and used by
private or semi-private persons, entities, group, etc. for the low
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impact active and/or passive recreational purposes. This
definition is inclusive of small scale, private race tracks; paint
ball facilities and fields; or other such group assembly land
uses that are determined by the Building Inspector, to be of a
low intensity impact and have a low impact on the surrounding
land owners. This use, allowed only as a Special Exception in
A-1, Agriculture — Forest District, is subject to the
restrictions, enumerated in Article VIII, Section 8.060 herein.
BZA Record at page 129.
***
In stating that he did not believe that the proposed use of the property
qualified as a low impact use, Mr. Wilson was expressing his agreement with
Mr. Nelson’s determination that the proposed use did not in fact conform
with the definition of a private park. Mr. Wilson’s motion to deny the
application on this basis was properly seconded and voted upon by the Board.
Therefore, the Court must review this decision pursuant to the common law
writ of certiorari to determine whether this decision, in essence to uphold Mr.
Nelson’s assessment that the proposed use did not fall into the definition of
a private park, was based upon material evidence or whether this decision
was made unlawfully.
A thorough review of the record reveals that Mr. Nelson formed his
opinion based upon his consultation with Mr. Covington the land planner.
The statements that concerned Mr. Nelson were that it was impossible to
determine the use based on the information that was presently in the record.
There was a great concern that if there were one hundred fifty members and
guests on the property for a shooting event that involved hunts and training
for those hunts that this would in fact be a high impact use as opposed to a
low impact use. This evidence represents material evidence by which the
BZA could reach the conclusion that it reached.
Even though there was contrary evidence in the record, Mr. Nelson is
empowered by the zoning regulation to make this determination. It appears
that there was enough information not raised by public opinion with which
to base his decision that the use was incompatible with characterizing the use
as a private park and that the intensity of anticipated activity was indeed too
high to say it was a low impact active or passive use.
Therefore, given the deferential standard forced upon the Court in
these type [of] cases, the Court is compelled to uphold the decision of the
BZA.
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The Sporting Club timely appealed to this Court.
Discussion
Although not stated exactly as such, the Sporting Club raises the following issues
on appeal: 1) whether the Board acted arbitrarily, capriciously, illegally, and without
sufficient basis in fact in denying the Sporting Club’s application and 2) if the Board
erroneously denied the application, whether the Sporting Club should receive an award of
attorney’s fees under the Tennessee Equal Access to Justice Act, Tenn. Code Ann. § 29-
37-101 et seq.
In Leonard Plating Company v. Metropolitan Government of Nashville and
Davidson County, we discussed the limited and deferential standard applied to decisions
reviewed under a common law writ of certiorari as follows:
The scope of review afforded by a common-law writ of certiorari is
extremely limited. Reviewing courts may grant relief only when the board
or agency whose decision is being reviewed has exceeded its jurisdiction or
has acted illegally, arbitrarily, or fraudulently.
Review under a common-law writ of certiorari does not extend to a
redetermination of the facts found by the board or agency whose decision is
being reviewed. The courts may not (1) inquire into the intrinsic correctness
of the decision, (2) reweigh the evidence, or (3) substitute their judgment for
that of the board or agency. However, they may review the record solely to
determine whether it contains any material evidence to support the decision
because a decision without evidentiary support is an arbitrary one.
Ascertaining whether the record contains material evidence to support
the board’s or agency’s decision is a question of law. For the purpose of this
inquiry, “material evidence” is relevant evidence that a reasonable person
would accept as adequate to support a rational conclusion. The amount of
material evidence required to support a board’s or agency’s decision must
exceed a scintilla of evidence but may be less than a preponderance of the
evidence.
Leonard Plating Co. v. Metro. Gov’t of Nashville and Davidson Cnty., 213 S.W.3d 898,
903-04 (Tenn. Ct. App. 2006) (citations and footnotes omitted).
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We first address whether the Board acted arbitrarily, capriciously, illegally, and
without sufficient basis in fact in denying the Sporting Club’s application. The Sporting
Club agrees that the sole dispositive question before this Court is whether the record
contains material evidence to support the Board’s decision to deny the Sporting Club’s
application on grounds that the club would not have a “low impact” on its surroundings.1
The Sporting Club makes a number of arguments as to why it believes the Trial Court erred
in upholding the Board’s decision, to wit: that its activities would not adversely impact its
neighbors as the property at issue is 285 acres in size and is effectively buffered; that
Covington’s email was not a sufficient basis upon which to deny its application; that
Covington wrongly placed the burden of proof on the Sporting Club; that Covington’s
concerns about the impact of club members and their guests constituted mere speculation
on his part; and that Covington’s opinion must be discounted because he did not personally
attend the hearing before the Board. The Sporting Club also notes the extensive public
opposition to its application, suggesting that the Board’s decision was based more upon
placating the public than upon material evidence. See Crawley v. Metro. Gov’t of Nashville
& Davidson Cnty., No. M2021-00210-COA-R3-CV, 2022 WL 1015544, at *7 (Tenn. Ct.
App. Apr. 5, 2022), no appl. perm. appeal filed (quoting Sexton v. Anderson Cnty., 587
S.W.2d 663, 666 (Tenn. Ct. App. 1979)) (“Speculations, expression of fears and
considerations of an aesthetic or political nature do not form a basis to support a decision
made by an administrative body charged with adjudicatory responsibility.”).
Our standard of review in this matter is narrow. We do not make a fresh
determination as to whether the Sporting Club’s application should be granted. Rather, in
keeping with the limited and deferential common law writ of certiorari standard, we review
whether the Board’s decision was supported by material evidence. In his email to Nelson,
Covington stated in part that “150 members/corporate members plus family plus guests
could have a significant impact that should be considered by the BZA with specific
information and policies provided by the applicant.” This observation by Covington
squarely relates to the question of the club’s likely impact on its neighbors. Indeed, we
can well see how a membership including corporate memberships of the size planned by
the Sporting Club, along with guests and family, could adversely impact the surrounding
area. This requires no illogical leap or stretched assumption; Covington’s email and the
facts undergirding it constitute “relevant evidence that a reasonable person would accept
as adequate to support a rational conclusion.” Leonard Plating Co., 213 S.W.3d at 904
(citations omitted). That is to say, it is material evidence, of which there is more than a
scintilla. While the Sporting Club argues that Covington’s non-attendance at the hearing
1
The Sporting Club argues that ordinance/regulation 3.130 concerning outdoor firearms training facilities
and shooting ranges on county-owned property, a subject of contention below, is inapplicable as the
Sporting Club did not seek to operate a shooting range, per se, and the property at issue is not owned by
the county. We agree with the Sporting Club that this ordinance/regulation is inapplicable insofar as the
property at issue is not county-owned.
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means that his opinion should be discounted, the Sporting Club’s prospective membership
and policy of allowing guests is established in the record. Covington’s personal appearance
was not necessary to further substantiate this evidence. The Sporting Club, too, relied
largely upon submitted documentary evidence. The evidence available to the Board
regarding the size of the Sporting Club’s membership at 150 members including corporate
memberships, as well as its guest policy, was sufficient to sustain the Board’s decision.
Finally, we discern no evidence that the Board’s decision was based simply upon negative
public opinion. That there was significant public opposition to granting the Sporting
Club’s application at the hearing below does not mean, ipso facto, that the Board’s decision
to deny the application was unsupported by material evidence.
The Sporting Club nevertheless points to evidence it submitted in favor of its
application, including the opinion of a rural planning expert who concluded that the
Sporting Club’s application met all of the necessary requirements for a private park.
However, that material evidence exists in this record to support another possible result by
the Board does not mean that the Board’s ultimate decision was unsupported by material
evidence. While two contrary positions cannot both be supported by a preponderance of
the evidence, each such position can be supported by material evidence. Under our
applicable limited standard of review, we are not to reweigh the evidence or substitute our
judgment for that of the Board. As to this question of law, we conclude that the Board’s
decision to deny the Sporting Club’s application was supported by material evidence. The
Board’s decision neither was arbitrary, capricious, nor illegal.2 We affirm the judgment of
the Trial Court.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Chancery Court for Marshall County for collection of the costs below. The costs on appeal
are assessed against the Appellant, the Sporting Club of Tennessee, Inc., and its surety, if
any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
2
The Sporting Club’s second issue concerning its request for an award of attorney’s fees is pretermitted as
it depended upon success in the first issue.
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