LUE ANN SMITH,                      )
     Petitioner/Appellant,          )
                                    )
v.                                  )   APPEAL NO.
                                    )   01-A-01-9609-CV-00419
WINCHESTER CITY COUNCIL,            )
consisting of JOHN B. CUNNINGHAM, )     Franklin Circuit
TERRY HARRELL, SUZANNE              )   No. 9745-CIV
McDOWELL, BOB CURL, BILL COWAN,)
and MAYOR DAVID BEAN, Individually, )
        Respondents/Appellees,

KARL SMITH,
                                    )
                                    )
                                    )
                                                            FILED
        Intervening Petitioner.     )
                                                              March 5, 1997

                                                            Cecil W. Crowson
                                                           Appellate Court Clerk

                      COURT OF APPEALS OF TENNESSEE

                       MIDDLE SECTION AT NASHVILLE


      APPEAL FROM THE CIRCUIT COURT FOR FRANKLIN COUNTY

                         AT WINCHESTER, TENNESSEE


                 THE HONORABLE J. CURTIS SMITH, JUDGE




FLOYD DON DAVIS
201 First Avenue N.W.
Winchester, Tennessee 37398
       ATTORNEY FOR PLAINTIFF/APPELLANT

GREGORY M. O'NEAL
P.O. Box 555
Winchester, Tennessee 37398
       ATTORNEY FOR DEFENDANT/APPELLEE
       CITY OF WINCHESTER




                              AFFIRMED IN PART,
                              REVERSED IN PART,
                               AND REMANDED




                                                      SAMUEL L. LEWIS, JUDGE
                                            OPINION

         This is an appeal by petitioner/appellant, Lue Ann Smith, from an order of the Franklin
County Circuit Court quashing her writ of certiorari. The writ suspended the decisions of
respondent/appellee, the Winchester City Council (“the Council”), allowing intervening petitioner,
Karl Smith, permission and denying Appellant permission to sell fire works within the City of
Winchester. The facts out of which this matter arose are as follows.


         The Council passed Winchester Municipal Ordinance 7-501 (“the Ordinance”) in 1983. The
Ordinance prohibited the sale, display, or shooting of fireworks inside the city limits. On 10 April
1996, the Council passed a resolution amending the Ordinance such that it only prohibited the sale
of fireworks. The Council held a meeting on 14 May 1996. Two persons requested permission to
sell fireworks on two adjacent lots owned by Discount Plumbing and Electric.


         The Council granted the request of Karl Smith. Karl Smith lived in Franklin County. He had
sold fireworks for nineteen years on property owned by United Cities Gas Company. The City of
Winchester annexed this property in 1987. Each year thereafter, the Council granted Karl Smith
permission to sell fireworks by authority of Tennessee Code Annotated section 13-7-208, the
“preexisting nonconforming use” statute. The United Cities Gas Company property is adjacent to
the Discount Plumbing and Electric property which was also annexed by the City of Winchester in
1987.1


         The Council denied Appellant's request for permission as it had also done three years earlier.
Appellant lived in Marion County. She had sold fireworks one year without permission on land
within the City of Winchester.


         Appellant filed a petition for writ of certiorari on 17 May 1996. The petition named the
Council and the Mayor of Winchester as respondents. Appellant claimed the following: 1) the
exceptions to the Ordinance were illegal; 2) the Council denied her request because she was female
and was not a resident of Winchester, Franklin County, Tennessee; 3) the Council's actions created
an illegal monopoly; and 4) the Council's actions were a tyrannical exercise of municipal power. The


         1
         The City had also granted Duran Clark and Edgar Hill permission to sell fireworks.
The parties stipulated as follows:
                10.    That Duran Clark has sold fireworks on Highway 41-A and
       Highway 64 South on the Wriker Pontiac property with permission from the city
       for the past two (2) years, 1994 and 1995, which location was recently annexed by
       the City of Winchester.
                11.    That Edgar Hill, the owner of property located on the northside of
       the Discount Plumbing and Electric property which was recently annexed, was
       granted permission to sell fireworks on his property in May 1996. This property
       was recently annexed by the City of Winchester. Edgar Hill has sold fireworks on
       this property prior to being annexed.

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trial court issued the writ of certiorari on the same day. The writ ordered the Council to produce the
transcript of the 14 May meeting and suspended the decision of the Council as to all applicants. Karl
Smith filed a petition to intervene on 6 June 1996. In his petition, Karl Smith alleged he would
suffer real and irreparable harm if the court did not lift the writ before the Fourth of July holiday.


        The trial court entered its final order on 18 June 1996. The court made the following orders:
                1.      That the intervening petition of Karl Smith is allowed and he is to be
        considered a party to this lawsuit.
                2.      The Court finds this fireworks ordinance is a zoning ordinance as used
        by the City Commission.
                3.      That the writ of certiorari previously granted the plaintiff in this cause
        be and the same is hereby quashed.
                4.      That the Court specifically finds that the Winchester City Council's
        actions in denying a fireworks permit to Lue Ann Smith were neither arbitrary or
        capricious.
                5.      That the Court specifically finds that the location of the intervening
        petitioner, Karl Smith, at Discount Plumbing and Electric was not grandfathered
        under T.C.A. § 13-7-208.
                6.      That the Court specifically finds that the Winchester City Council's
        actions in allowing Karl Smith a variance to sell fireworks on the Discount Plumbing
        & Electric property, which is adjacent to his original place of business did not
        constitute any abuse of discretion.

Appellant filed her notice of appeal on 9 July 1996 and presented the following issues:
        I.       Whether the trial court erred in holding that Winchester City Ordinance 7-501
        is strictly a “land use” zoning ordinance and does not constitute a “police power”
        municipal ordinance as enacted?
        II.      Whether the trial court erred in holding that Winchester City ordinance 7-501
        “sell [sic] of fireworks prohibited” as applied to the appellant is not an arbitrary and
        capricious abuse of municipal power?
        III.     Whether the actions of the Winchester City Council were unconstitutional and
        violative of both state and federal laws.
We address the second and third issues first.


        When reviewing a common law writ of certiorari, this court's scope of review is the same as
that of the trial court. Hemontolor v. Wilson County Bd. of Zoning Appeals, 883 S.W.2d 613, 616
(Tenn. App. 1994). The reviewing court may not address the intrinsic correctness of the decision.
Instead, it may only determine whether the decision-making body exceeded its jurisdiction or acted
illegally, fraudulently, or arbitrarily. Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873
(Tenn. App. 1994); Yokley v. State, 632 S.W.2d 123, 126 (Tenn. App. 1981). Thus, the petition in
this case asked the trial court to issue the writ and to determine whether the Council's decision as to
Appellant exceeded the Council's jurisdiction or whether the Council acted illegally, fraudulently,
or arbitrarily


        The trial court held “the Winchester City Council's actions in denying a fireworks permit to
Lue Ann Smith were neither arbitrary or capricious.” We agree. The Ordinance prohibits the sale
of fireworks within the City of Winchester and does not contain any exceptions. The Council had


                                                   -3-
no other choice but to deny Appellant's request for permission to sell fireworks within the city. The
Council did not exceed its jurisdiction or act arbitrarily when it prohibited a person from violating
a municipal ordinance. Appellant also argues, however, that the Council acted illegally and
arbitrarily because it denied her request for permission and granted the request of Karl Smith. It is
the opinion of this court that this argument, while possibly valid, is without effect. To explain, were
this court to hold that the decision was arbitrary and remand the issue to the Council for a second
decision, the Council could only deny Appellant permission because the Ordinance is clear and
without exception. In other words, if the Council granted Appellant permission, it's decision would
be illegal and arbitrary because the Council may not allow persons to violate ordinances at the
Council's discretion. Moreover, a remand to the Council for a second decision would amount to an
order from this court requiring the Council to allow Appellant permission to sell fireworks. This
court is without jurisdiction to make such an order. Finally, Appellant seems to want this court to
declare that the Ordinance prohibits the Council from allowing any person to sell fireworks within
the City of Winchester. Unfortunately, such a declaration is outside the jurisdiction of the trial court
and this court when addressing a writ of certiorari. Appellant's second and third issues are without
merit.


         Before determining Appellant's first issue, we address a jurisdictional issue not raised by
either party. See Tenn. R. App. P. 13(b) (West 1996). The issue is whether the trial court had
jurisdiction to determine whether the Council's decision as to Karl Smith was an abuse of discretion.
It is the opinion of this court the trial court lacked jurisdiction. To explain, the constraints of the writ
of certiorari limited the trial court's jurisdiction in this case to the single issue of whether the
Council's decision as to Appellant exceeded the Council's jurisdiction or whether the Council acted
illegally, fraudulently, or arbitrarily. While it is true Karl Smith filed an intervening petition, he did
not request the court review the Council's decision as to him. Instead, his petition was more a cry
of urgency given the impending Fourth of July holiday. Thus, it is the opinion of this court the trial
court erred when it determined the Council's decision as to Karl Smith was not an abuse of
discretion.


         In her first issue, Appellant contends the Ordinance is not a zoning ordinance. We agree.
There are three primary functions of zoning:
         1.     To regulate the use of land, and the use of buildings and other structures.
         2.     To regulate the size of buildings and other structures.
         3.     To regulate the location of buildings and other structures, in relation to lot
                lines and to other buildings.
1 NORMAN WILLIAMS, JR, AMER . PLANNING LAW § 16.03 (rev. 1988). Zoning is defined as:
         The division of a city or town by legislative regulation into districts and the
         prescription and application in each district of regulations having to do with
         structural and architectural designs of buildings and of regulations prescribing use to
         which buildings within designated districts may be put. Division of land into zones,
         and within those zones, regulation of both the nature of land usage and the physical
         dimensions of uses including height setbacks and minimum area.


                                                    -4-
BLACK'S LAW DICTIONARY 1618 (6th ed. 1990). The Ordinance at issue neither fulfills the functions
listed above nor fits within the definition. The operation of the Ordinance was in no way connected
to the land. This is evidenced by the fact that the Council granted Karl Smith permission to sell
fireworks on land other that on which he had previously sold fireworks.


       Therefore, it results that the decision of the trial court is affirmed in part and reversed in part,
and the cause is remanded to the trial court. On remand, the trial court shall enter an order in
conformity with this opinion. Cost on appeal are taxed to respondents/appellees.




                                                _________________________________________
                                                SAMUEL L. LEWIS, JUDGE

CONCUR:


___________________________________
HENRY F. TODD, P.J., M.S.



___________________________________
WILLIAM C. KOCH, JR., JUDGE




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