                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                August 16, 2011 Session

         411 PARTNERSHIP, v. KNOX COUNTY, TENNESSEE, et al.

                   Appeal from the Circuit Court for Knox County
                   No. 2-26-10     Hon. Harold Wimberly, Judge


            No. E2010-02390-COA-R3-CV-FILED-NOVEMBER 16, 2011




The Knox County Board of Zoning Appeals denied plaintiff's use on review application for
a proposed shopping center. Plaintiff appealed the decision to the Circuit Court by way of
a Writ of Certiorari. The Trial Court upheld the Board of Zoning Appeals' decision and
plaintiff appealed to this Court. We reverse the decision of the Circuit Court on the grounds
the record before the Board of Zoning Appeals does not contain substantial material evidence
to uphold the Board's ruling. We reverse the Judgment of the Trial Court and remand.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                   Remanded.


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., and J OHN W. M CC LARTY, J., joined.


Arthur G. Seymour, Jr., and Benjamin C. Mullins, Knoxville, Tennessee, for the appellant,
411 Partnership.

Daniel A. Sanders, Deputy Knox Law Director, Knoxville, Tennessee, for the appellees,
Knox County, Tennessee, and the Knox County Board of Zoning Appeals.


                                        OPINION

      This is an appeal of the Knox County Board of Zoning Appeal’s (BZA) decision to
deny plaintiff/appellant’s use on review application for a proposed shopping center
development. 411 Partnership appealed the BZA’s decision to the Circuit Court for Knox
County, by a Writ of Certiorari and Complaint for Declaratory Judgment. 411 Partnership
contended that the BZA record was devoid of evidence to justify the denial of the use-on
review or to support justification that the development was not reasonably necessary.

        The Trial Court held a hearing and entered a judgment affirming the BZA’s decision
and dismissing 411 Partnership’s Petition for Writ of Certiorari and Complaint for
Declaratory Judgment. The Circuit Court incorporated its Memorandum Opinion in the Final
Judgment, wherein the Circuit Court stated that since this matter was before it pursuant to
a Writ of Certiorari it was not the purpose of the Court to weigh the evidence but, rather, to
determine if there was evidence presented to the BZA that would support the BZA’s denial
of 411 Partnership’s use on review application. The Court found that while there was
“stronger evidence in favor of . . . [411 Partnership] here, the evidence opposed to it still
exists, so that the BZA . . . could appropriately have found against the project.” 411
Partnership has appealed to this Court.

       The subject property of approximately twelve acres is located in Knoxville, Tennessee
on the south side of Norris Freeway and west of Maynardville Pike. The property is zoned
SC (Shopping Center), A (Agricultural), and F (Floodway). Crossroads Center, a shopping
center anchored by Wal-Mart and Ingle’s, is across Norris Freeway to the north of the subject
property. Land west of the subject property has been designated to be developed as a park,
to be known as Halls Park and Greenway. The subject property is divided by Beaver Creek,
which runs through the southeast portion of the property. The Knox County Commission had
approved the rezoning of approximately 4.2 acres of the subject property to SC in April,
2006.

       In early 2005, 411 Partnership began planning to develop a shopping center on the
subject property. In 2008 plaintiff purchased the subject property and initially sought the
approval of the Knoxville-Knox County Metropolitan Planning Commission (MPC) for a
use-on-review to construct a retail shopping center of approximately 31,000 square feet in
the area of the property designated as SC. The MPC staff and the Knox County Department
of Engineering and Public Works reviewed the proposal and recommended it for approval
subject to seventeen conditions. MPC approved the use-on-review at its August, 2008
meeting. The MPC decision was appealed to the BZA by opponents of the development.
The appeal was granted and at its September, 2008 meeting, BZA overturned the MPC’s
decision to grant use on review approval. Plaintiff appealed the BZA’s decision to the
Chancery Court by Petition of Certiorari, and the Chancellor upheld the BZA’s decision to
deny use on review.

       Following the Chancery Court’s affirmation of the BZA decision, plaintiff returned

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to the MPC where it submitted a new application for essentially the same development with
the hopes of creating a more complete record and providing additional information that
addressed the issues that had been raised regarding the development. 411 Partnership’s
second application was approved by the MPC staff subject to thirteen conditions. The MPC,
however, denied the use on review application at its November 2009 meeting. 411
Partnership appealed the MPC’s decision to the BZA. The BZA considered the appeal at its
December 2009 meeting and heard extensive presentations by both one of the principals of
411 Partnership and those in opposition to the development.

        Nathan Silvus, one of the owners of the 411 Partnership development and the project
engineer for the development, spoke at length at the BZA hearing. He explained that as part
of the development of the twelve acres owned by 411 Partnership, the developers planned
to offer the Halls Park and Greenway, which adjoined 411's property, a five and a half acre
conservation area to expand the park and to construct a mitigation wetland on the site. He
explained that the wetland would capture and filter water from 411's site as well as water
from the much larger shopping center across the street. He noted that the Knox County
Storm Water Ordinance requires that a commercial site remove at least eighty percent of the
total suspended solids from runoff but that in the case of his project, they would be removing
a higher percentage of the total suspended solids. He stated that the waters of Beaver Creek,
which runs through the proposed development, will be cleaner after the project is completed
than they are now. Additionally, the total pollution load in Beaver Creek will be lower after
the project is constructed than at the present. He summarized that there will also be more
wetlands, not less, better water quality, not worse and lower pollutants, not higher. He also
stated that the project would not adversely impact Beaver Creek. He noted that in response
to earlier opposition to the 411 project, they had modified the project to decrease the layout
of the shopping center by thirty percent of leaseable space and had added a comprehensive
outdoor dining and landscaping plan to enhance the use of the adjacent park. In response to
the concerns of some opponents of the shopping center over increased flooding in the area,
Mr. Silvus stated that his project would reduce the one hundred year flood plain by nearly
two feet. In support of Mr. Silvus’ testimony regarding the 411 Partnership project, plaintiff
presented as exhibits its Flood Study Plan and a Wetland Mitigation Plan prepared by a
geologist.

       Opponents of the 411 Partnership project and supporters of the planned Halls Park and
Greenway adjacent to the property also spoke at the hearing. One of the opponents to the
project, Wilma Jordan, was represented at the hearing by attorney John King. Mr. King
pointed to the North County Sector Plan that provided for the “protection of the water quality
of Beaver Creek . . . by minimizing impervious surfaces and preserving vegetation along all
creek corridors to reduce surface runoff.” He stated that the 411 Partnership project would
require extensive fill above Beaver Creek and would create four acres of impervious surface

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on property within the flood plane. He presented photographs of existing flooding in the area
near the proposed project. Mr. King estimated that the amount of fill proposed by the
developer’s plans would leave portions of the property “some ten to fourteen feet higher than
the adjoining property with no connectivity to the park. He also stated that the 411
Partnership project is adjacent to residential property and a community park and that the
substantial fill included in the project’s plans would result in topographical changes within
the Beaver Creek flood plain that would exacerbate flooding of those adjacent properties.
Mr. King also noted that the North County Sector Plan referred to the subject area as
“saturated” with shopping centers that exceeded what the population could support.

        Marvin Hammond, the president emeritus of the Hallsdale-Powell Utility District,
stated that he had been a utility operator for forty-five years and a conservationist who had
devoted his life to the protection of wetlands and to water shed issues. He stated that the 411
Partnership’s proposal would cause degradation of Beaver Creek, which was already
impaired. He stated that the impairment had occurred over a long period of time and at the
present time the fish from the creek could not be eaten nor could the creek be waded in. Mr.
Hammond argued that he knew from forty-five years of experience that engineers can make
mistakes in their plans and that “we can’t afford to have mistakes made” with Beaver Creek.

       In addition to the testimony of Mr. Hammond and the presentation made by Mr. King,
seven homeowners who lived in the immediate area of the proposed development stated their
opposition to the project based on their concerns about the exacerbation of the already
existing flood problems in the neighborhood. These homeowners also stated they were not
against the development per se, but were concerned about property values, damage to
property and unsafe conditions caused by increased flooding.

        At the conclusion of the testimony from the proponents and opponents of the 411
Partnership project, BZA Chairman William Daniels made several comments. He stated that
he has a good understanding of hydrology and that, in his experience, engineers can and do
make mistakes. He noted that if 411's engineers’ designs fail and the neighborhood floods,
it will be the County and the insurers of the individually owned properties who will be
responsible for taking care of the problem and not Mr. Silvus or his engineers. He stated that
“when you throw a brick in a bucket of water, that water’s got to go somewhere . . .”
Chairman Daniels went on to express scepticism regarding Mr. Silvus’s testimony on the
issues of flood control and storm water runoff. A motion was made to deny 411 Partnerships
appeal, which was passed unanimously by the BZA. No reasons for this decision were
stated.

       The issue raised on appeal is:



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       Whether the record before the Knox County Board of Zoning Appeals contains any
       evidence of a material or substantial nature from which the Board could have denied
       411 Partnership’s use on review application?

        An action by a board of zoning appeals is an administrative or quasi-judicial act rather
than a legislative act. McCallen v. City of Memphis, 786 S.W. 2d 633, 638 - 639 (Tenn.
1990). The proper method of judicial review of an action of a board of zoning is through the
common law writ of certiorari. Tenn. Code Ann. § 27-9-101 et seq.; McCallen at 639. The
Middle Section of this Court, in State ex rel. Moore & Associates, Inc. v. West., 246 S.W.3d
569 (Tenn. Ct. App. 2005), explained that “the primary consequence of a determination that
a party must seek judicial review through the common law writ of certiorari procedure is that
the trial court must apply a limited standard of review to decisions already made by
administrative officials, rather than address the issue de novo as the initial decision maker.”
Moore at 574. The Moore court explained this limited standard of review as follows:

       Under the limited standard of review in common law of writ of certiorari proceedings,
       courts review a lower tribunal's decision only to determine whether that decision
       maker exceeded its jurisdiction, followed an unlawful procedure, acted illegally,
       arbitrarily, or fraudulently, or acted without material evidence to support its decision.
       Petition of Gant, 937 S.W.2d 842, 844–45 (Tenn.1996), quoting McCallen v. City of
       Memphis, 786 S.W.2d 633, 638 (Tenn.1990); Fallin v. Knox County Bd. of Com'rs,
       656 S.W.2d 338, 342–43 (Tenn.1983); Hoover Motor Exp. Co. v. Railroad & Pub.
       Util. Comm'n., 195 Tenn. 593, 604, 261 S.W.2d 233, 238 (1953); Lafferty v. City of
       Winchester, 46 S.W.3d 752, 758–59 (Tenn. Ct. App.2001); Hoover, Inc. v.
       Metropolitan Bd. of Zoning Appeals, 955 S.W.2d 52, 54 (Tenn. Ct. App.1997);
       Hemontolor v. Wilson Co. Bd. of Zoning Appeals, 883 S.W.2d 613, 616 (Tenn. Ct.
       App.1994).

       Under the certiorari standard, courts may not (1) inquire into the intrinsic correctness
       of the lower tribunal's decision, Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478,
       480 (Tenn.1997); Powell v. Parole Eligibility Rev. Bd., 879 S.W.2d 871, 873 (Tenn.
       Ct. App.1994); (2) reweigh the evidence, Watts v. Civil Serv. Bd. for Colum., 606
       S.W.2d 274, 277 (Tenn.1980); Hoover, Inc. v. Metro Bd. of Zoning App., 924 S.W.2d
       900, 904 (Tenn. Ct. App.1996); or (3) substitute their judgment for that of the lower
       tribunal. 421 Corp. v. Metropolitan Gov't of Nashville, 36 S.W.3d 469, 474 (Tenn. Ct.
       App.2000). It bears repeating that common law writ of certiorari is simply not a
       vehicle which allows the courts to consider the intrinsic correctness of the conclusions
       of the administrative decision maker. Powell, 879 S.W.2d at 873; Yokley v. State, 632
       S.W.2d 123, 126 (Tenn. Ct. App.1981).



                                              -5-
       Further, especially where zoning decisions by local officials are involved, the
       common law writ of certiorari, being a supervisory writ, somewhat limits the remedies
       courts employ when there has been error. 421 Corporation, 36 S.W.3d at 474;
       Hoover, Inc., 955 S.W.2d at 55. Remand is most commonly used, because courts
       should give local zoning officials the opportunity to perform their duties appropriately
       rather than substituting the courts' own judgments for those of the zoning officials.
       421 Corporation, 36 S.W.3d at 475; Hoover, Inc., 955 S.W.2d at 55.

       In fact, one principle that infuses the approach of Tennessee courts to judicial review
       of local land use decisions, whether those decisions are legislative or administrative
       in nature, is that “the court's primary resolve is to refrain from substituting its
       judgment for that of the local governmental body.” McCallen, 786 S.W.2d at 641.
       There exists a public and judicial policy that favors permitting the community
       decision-makers closest to the events, who have been given broad powers in the area,
       to make zoning and land use decisions. Consequently, courts give wide latitude to
       local officials who are responsible for implementing zoning ordinances, are hesitant
       to interfere with zoning decisions, and will refrain from substituting their judgments
       for that of the local governmental officials. Lafferty, 46 S.W.3d at 758; Hoover, Inc.,
       955 S.W.2d at 54; Whittemore v. Brentwood Planning Comm'n., 835 S.W.2d 11, 15
       (Tenn. Ct. App.1992).

Moore at 574 - 575.

       Here, this Court’s task is to determine whether the BZA’s decision to deny 411
Partnership’s appeal was supported by sufficient substantial evidence. We are not permitted,
however, to inquire into the intrinsic correctness of the BZA’s decision, reweigh the evidence
or substitute our judgment for that of the BZA. The question of whether there is sufficient
evidence to sustain a zoning action is a question of law, thus appellate review is de novo
without a presumption of correctness. Wilson County Youth Emergency Shelter, Inc. v.
Wilson County, 13 S.W.3d 338, 342 (Tenn. Ct. App. 1999)(citing MC Properties, Inc. v. City
of Chattanooga, 994 S.W.2d 132, 134 (Tenn.App.1999)).

        As a preliminary issue, we note that although both appellant and appellee rely on the
Knox County Zoning Ordinances to support their arguments, neither party put the relied upon
ordinances into the record at the proceedings below or at the BZA zoning proceeding. Prior
to the enactment of the Tennessee Code of Evidence on January 1, 1990 the law in Tennessee
was that courts could not take judicial notice of municipal ordinances because the ordinances
were not readily available to the courts and could be amended at frequent intervals. In cases
involving such ordinances it was necessary for the parties to stipulate the existence and the
accurate texts of ordinances or else to prove the same through municipal officials or by

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supplying certified copies in accordance with the Tennessee Rules of Civil Procedure.
Metro. Gov't of Nashville & Davidson County v. Shacklett, 554 S.W.2d 601, 605 (Tenn.
1977). On January 1, 1990, the Tennessee Rules of Evidence was enacted and Tenn. R.
Evid. 202 provides for judicial notice of law. Rule 202(a) requires the courts to take
mandatory judicial notice of certain laws, including “the constitutions and statutes of the
United States and of every state, territory and other jurisdictions of the United States.” Rule
202(b) provides that courts may also take, at their option, judicial notice of other rules, laws,
ordinances and treaties. The Rule 202(b) states:

       Optional Judicial Notice of Law. Upon reasonable notice to adverse parties, a
       party may request that the court take, and the court may take, judicial notice of
       (1) all other duly adopted federal and state rules of court, (2) all duly published
       regulations of federal and state agencies and proclamations of the Tennessee Wildlife
       Resources Agency, (3) all duly enacted ordinances of municipalities or other
       governmental subdivisions, (4) any matter of law which would fall within the scope
       of this subsection or subsection (a) of this rule but for the fact that it has been
       replaced, superseded, or otherwise rendered no longer in force, and (5) treaties,
       conventions, the laws of foreign countries, international law, and maritime law.

Tenn. R. Evid. 202(b)(emphasis added).

         During the certiorari proceeding at the Trial Court neither the BZA nor 411
Partnership informed the other party that it intended to rely on any of the Knox County
Zoning Ordinances, nor did either party request that the Trial Court take judicial notice of
any ordinance or submit a copy of that ordinance to the Trial Court. Nor is there an
authenticated copy of the ordinances relied upon on appeal in this appellate record.
Accordingly, the parties did not comply with Rule 202 (b) and this Court will not take
judicial notice of the ordinances cited in the parties’ briefs. Moreover, the ordinances relied
on in the parties’ appellate briefs were not included in the record of the BZA proceeding,
and review under the common law writ of certiorari is generally limited to the record made
before the lower tribunal or board, and as the ordinances are not included in the BZA record,
it is inappropriate to consider them. See 27–9–111(b); Kittrell v. Wilson County, M2010-
00792-COA-R3CV, 2011 WL 3339132 at * 5(Tenn. Ct. App. Aug. 3, 2011)(citing 421 Corp.
v. Metro. Gov't of Nashville & Davidson County, 36 S.W.3d 469, 474 (Tenn. Ct. App.
2000)).

       411 Partnership contends that the record lacks substantial material evidence to support
a denial of the use on review and that 411 presents sufficient substantial evidence to support
the use on review. To support this contention, 411 Partnership points to the detailed Flood
Study Plan it prepared with a licensed engineer and the Wetland Mitigation Plan and Permit


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Application it had prepared by a group of professional geologists. 411 Partnership contends
that the Flood Study Plan, which was approved by the Knox County Department of
Engineering and Public Works before it was presented to the MPC and later the BZA, shows
that the project would not increase the flooding and that the development would actually
reduce the 100-year flood plain elevation by two feet. 411 also contends that its Wetland
Mitigation Plan shows that its proposed development would actually create additional
wetlands on the site and that the additional wetlands would be of a higher quality than
actually exists, causing an improvement in the water quality and functionality of Beaver
Creek, which has been classified as an impaired stream. In addition to the documents
prepared and presented by 411 Partnership, one of the principals of 411, Nathan Silvus, a
project engineer, explained the studies.

        On the other hand, 411 Partnership contends that the testimony presented by the
opponents to its development was based on their fears that the pre-existing flood conditions
in the neighborhood might get worse because of the proposed development. 411 Partnership
points to the testimony of several people who live in the neighborhood of the proposed
development who testified to the current flooding situation in that neighborhood. These
individuals testified that they believed that the development would make the flooding worse,
although none of the neighbors pointed to facts to back up their fears.

       In addition to the neighbors' testimony, the opponents to the project presented the
arguments of attorney John King, on behalf of a neighboring landowner, who showed that
the North County Sector Plan provided for the “protection of the water quality of Beaver
Creek . . . by minimizing impervious surfaces and preserving vegetation along all creek
corridors to reduce surface runoff.” He argued that the project would require extensive fill
above Beaver Creek and would create four acres of impervious surface on property within
the flood plane and cause topographical changes within the Beaver Creek flood plain that
would exacerbate flooding of those adjacent properties. King also relied on the North
County Sector Plan to argue that the area was “saturated” with shopping centers that
exceeded what the population could support. King did not present himself as an expert in
the areas of engineering, hydrology or urban planning.

        Marvin Hammond, the president emeritus of the Hallsdale-Powell Utility District, also
testified on behalf of the opponents to the project. He did not provide any information
regarding his education or describe his areas of expertise related to his former position as
president of the utility district. His testimony was that it was his opinion that the proposed
development would cause degradation of Beaver Creek, which was already impaired. Mr.
Hammond made the argument that he knew from forty-five years of experience that
engineers can make mistakes in their plans and that “we can’t afford to have mistakes made”
with Beaver Creek.

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        411 Partnership contends that although all of the opponents to the project who
testified believed the development would make flooding worse, none of them provided a
factual basis as to why they disagreed with the engineering plans and calculations that
showed that the grading and wetlands mitigation would actually better prevent flooding by
improving the capacity of Beaver Creek to carry storm water runoff away from the
neighborhood. 411 argues that instead of offering countervailing facts regarding hydrology
and engineering to back up their position, the opponents “merely speculated that the
extensive engineering and permitting process intended to ensure compliance during the
phases of construction and development would be inadequate, might be wrong, and might
have an adverse effect on Beaver Creek and local neighborhoods.” 411 contends that the
statements of the opponents to the project “merely amounted to expressions of opinions on
the ultimate issue, unsubstantiated by any factual premise.”

       In the context of quasi-judicial tribunals, such as the BZA, material evidence is
defined as “such relevant evidence as a reasonable mind might accept as adequate to support
a rational conclusion and such as to furnish as reasonably sound basis for the action under
consideration. . . . Mere beliefs, opinions and fears of neighborhood residents do not
constitute material evidence.” Sexton v. Anderson County, 587 S. W. 2d 663, 666 (Tenn. Ct.
App. 1979). This Court, in Sexton considered the denial of the BZA of plaintiff’s application
for permission to operate a sanitary landfill. The BZA had denied the application for a
permit after a hearing where the opponents to the landfill had voiced their fears and
objections about possible contamination of the land by using it as a landfill. The trial court
and this Court held that the BZA denial of the permit was arbitrary upon a finding that no
material facts were set forth by the opponents to support their position, thus, the action of the
BZA was held to be invalid. This Court stated:

       Various members of the community expressed beliefs and opinions that the presence
       of the landfill would create noxious odors and result in falling property values; they
       also thought that trucks delivering refuse to the site of the fill would cause additional
       damage to the local roads. These statements were offered on the issue of whether the
       intended use is “potentially dangerous, noxious or offensive.” None rises to the
       dignity of being material evidence on the issue. In each instance, the statements
       amount to an expression of opinion on the ultimate issue, unsubstantiated by factual
       premises. Speculations, expression of fears and considerations of an aesthetic or
       political nature do not form a basis to support a decision made by an administrative
       body charged with adjudicatory responsibility. Harvey v. Rhea County Beer Board,
       563 S.W.2d 790 (Tenn.1978); Ewin v. Richardson, 217 Tenn. 534, 399 S.W.2d 318
       (1966).



                                               -9-
       The opponents of the landfill attended the public hearing conducted by the board in
       substantial numbers and voiced strong and sincere beliefs that the operation would
       have an adverse impact on their community but none of their suggestions was
       supported by facts. No witness purported to have any knowledge of any odor
       problems at a landfill, either operated by Waste Management or operated in the same
       manner as the one proposed. . . .

       In the absence of material evidence on these issues, the expression of fears by
       members of the community alone, however sincere, will not support the determination
       of the Board of Zoning Appeals.

Sexton at 665 - 666.

        Here there is no doubt that those in opposition to the 411 Partnership development
were sincere in their concern and fears that the project would cause an increase in flooding
in the adjacent neighborhood and cause further degradation to Beaver Creek. However, not
one opponent, including Mr. Hammond, offered any facts to refute the engineering plans
submitted by 411 Partnership or to support their own contention that there would be
increased flooding such that “a reasonable mind might accept as adequate to support a
rational conclusion and such as to furnish as reasonably sound basis” for the denial of the
use on review requested by 411. The testimony offered by the opponents to the project was
based on opinions unsubstantiated by facts, including the statement of Mr. Hammond that
“engineers make mistakes.” If Mr. Hammond had provided reasons why the engineers had
made mistakes in the plans at issue, his testimony could have provided material evidence to
support the BZA’s decision, but he did not. After a careful review of the BZA record, we
conclude that the Trial Court was in error when it affirmed the BZA decision as there was
no material substantial evidence in the record to support that decision. Essentially, the
opponents of the development's evidence was opinion without a factual basis, and mere
conclusions which is not sufficient to deny the development. We hold that the BZA's denial
of 411 Partnership’s appeal was arbitrary and invalid, and not supported by substantial
material evidence.

       We reverse the Trial Court's affirmation of the BZA's decision and hold that the
BZA's decision was arbitrary and invalid. The decision of the Trial Court is reversed, and
the cause remanded, with the cost of the appeal assessed to Knox County.




                                                   _________________________________
                                                   HERSCHEL PICKENS FRANKS, P.J.


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