               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               August 27, 2010 Session

              MELVIN CHRISTMAS v. THE TOWN OF SMYRNA

               Appeal from the Chancery Court for Rutherford County
                No. 08-0977CV     Robert E. Corlew, III, Chancellor


               No. M2009-02589-COA-R3-CV - Filed December 6, 2010


        Property developer applied to the Town of Smyrna for a rezoning request for a
planned development. The request was initially approved by the Planning Commission, but
the Town Council later voted to deny the request. The developer appealed by writ of
certiorari to the Rutherford County Chancery Court, which affirmed the decision. On appeal,
the developer asserts that the Town Council’s action was arbitrary and capricious. We
affirm.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, J.J., joined.

George Arthur Dean, Nashville, Tennessee, for the appellant, Melvin Christmas.

Douglas Berry, Nashville, Tennessee, for the appellee, the Town of Smyrna.

                                        OPINION

I. Factual and Procedural Background

       Melvin Christmas is the owner of a parcel of land located on Rocky Fork Road in
Smyrna, Tennessee. The property consists of 11.69 acres and is zoned R-3, medium density
residential. In January of 2008, he applied to the Smyrna Municipal Planning Commission




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for approval to rezone the land from R-3 to PRD1 in order to construct a multi-family
residential development consisting of 47 duplex, triplex, and quadraplex units. The plan
called for two phases of development: Phase I would consist of 17 units, and Phase II would
consist of 30 units.

       The rezoning request was brought before the Planning Commission on eight
occasions.2 Throughout the course of those meetings, adjustments and modifications to the
development plan were made in response to comments from members of the Planning
Commission. After Mr. Christmas submitted the final request, he met with the Planning
Commission at its May 1, 2008 meeting. At that meeting, an extensive discussion was held
regarding the sewer systems proposed for both phases of the development.




        1
            PRD is defined as:

        Any planned development for a land use, uses, or combination of uses permitted by right or
        by special exception in the R-1, R-2, R-3, R-4, R-5, and R-6 districts as indicated in Article
        V of this Ordinance shall be classified as and shown on the official zoning map as a PRD,
        Planned Residential District.

SM YRNA , TENN ., ZONING ORDINANCE art. IV, § 4.072 (2009).
        2
            The rezoning request had originally been introduced by James Scruggs at the Planning
Commission’s August 2, 2007 meeting. The meeting minutes and transcripts indicate that he was an owner
and developer of the property, but nothing else in record explains his relationship to the proceedings, and
he is not a party to this lawsuit. According to the Planning Commission meeting minutes, the rezoning
request was deferred for 30 days. Mr. Scruggs presented the request at the Planning Commission’s
September meeting, but the Planning Commission unanimously carried a negative recommendation. Mr.
Scruggs again presented the request at the October 2007 meeting, and the minutes reflect that a unanimous
negative recommendation was again made by the Planning Commission. Mr. Christmas submitted the
rezoning request to the Planning Commission at its January 2008 meeting; how he became involved with the
rezoning request is not evident from the record, but the January minutes list him as an owner and developer
of the property. At the conclusion of the discussion at the January meeting, the request was deferred to the
February Planning Commission meeting in order to obtain storm water, grading, and engineering information.
The minutes indicate that the rezoning request was on the agenda at the February and March Planning
Commission meetings, but they show that the request was withdrawn by Mr. Christmas at both meetings.
Mr. Christmas presented the rezoning request to the Planning Commission at its April 3, 2008 meeting. After
discussion, a motion to recommend approval of the request to the Town Council was made, but it failed by
a vote of 3-4. Despite the motion failing, the item was apparently submitted to the Town Council at its April
8 meeting. Although there is a transcript of the discussion at the meeting, there are no minutes, and it is not
clear why or how the item was brought before the Town Council. Regardless, the Town Council voted to
deny the application. After the April meetings with the Planning Commission and Town Council, Mr.
Christmas modified his development plan and resubmitted the rezoning request. The request was heard at
the Planning Commission’s May 1 meeting and, subsequently, the Town Council’s May 13 meeting.

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        The sewer system in Phase I was designed to be a gravity sewer3 which would connect
to the existing sewer main on Rocky Fork Road. Because the natural lay of the land would
not support the proposed system, the plans called for utilizing a “cut and fill” technique to
make the system in Phase I operable.4 For Phase II, however, Kevin Rigsby, Smyrna’s Town
Planner, recommended that the Commission require Mr. Christmas to obtain easements
across adjoining properties, thereby allowing the gravity sewer to utilize the existing drainage
way. Utilizing the existing drainage way would eliminate the need for a pumping station 5
and “cut and fill” at the Phase II development site. After extensive discussion, the Planning
Commission voted 5-2 to recommend the Town Council accept the proposed development,
and it imposed the following special conditions in accordance with Mr. Rigsby’s
recommendation:6

        6. A sewer/PUD easement must be granted for gravity sewer as part of Phase
        II of the development.
        ....
        9. Phase II cannot be built until gravity sewer, not involving cut and fill, is




        3
          Conventional gravity sewers are large networks of underground pipes that use gravity to convey
wastewater from individual households to a centralized treatment facility. They are designed to maintain
self-cleansing velocity, and a constant downhill gradient must be guaranteed along the length of the sewer
to maintain self-cleaning flows. If a downhill gradient cannot be maintained, a pump station may be
necessary. See ELIZABETH TILLEY ET AL ., SWISS FEDERAL INST . OF AQUATIC SCI . AND TECH . (EAWAG ),
COMPENDIUM OF SANITATION SYSTEM S AND TECHNOLOGY 87–88 (2008), http://www.eawag.
ch/forschung/sandec/publikationen/sesp/dl/compendium_high.pdf.
        4
         As testified throughout the course of the meetings, cut and fill is a method of construction in which
earthen material is excavated in order to create embankments. See also Encyclopædia Britannica Online,
http://www.britannica.com/EBchecked/topic/147458/cut-and-fill-mining (discussing the use of cut-and-fill
in underground mining) (last visited Nov. 30, 2010). In the context of a gravity sewer, the technique could
be employed to create an embankment with an artificial slope, which would enable the gravity sewer to
maintain a downhill gradient and function without a pumping station.
        5
          According to Jerome Dempsey, the Smyrna Engineer of Record, the Utility Department opposed
the construction of a pumping station.
        6
         Under the Municipal Zoning Ordinance of Smyrna (“MZO”), complete applications for planned
development are submitted to the Planning Commission for review. The MZO specifies that “[w]ithin thirty
(30) days of the date of the Planning Commission meeting at which the planned development is first
considered, the Planning Commission shall make a recommendation to the Town Council for approval,
disapproval, or approval subject to special conditions.” SM YRNA , TENN ., ZONING ORDINANCE art. IV, §
4.076(C) (2009) (emphasis added).

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        available through the natural draw,7 such gravity sewer being subject to staff
        approval and approval by the Town’s engineer of record.

      Following the Planning Commission’s recommendation for approval, the application
was heard by the Smyrna Town Council at its May 13 meeting. After extensive discussion,
the Council voted unanimously to deny the application.

       Mr. Christmas thereafter filed a writ of certiorari with the Rutherford County
Chancery Court. The Court affirmed the decision, concluding that the entire record fairly
supported a conclusion that the Town Council rejected the proposal because of incomplete
information regarding the sewage system and a lack of detailed plans to sewer Phase II; the
court held that the Town Council’s denial of the application was not arbitrary or capricious,
or otherwise illegal.

II. Standard of Review

        Judicial review of an action by an administrative body is by way of the common law
writ of certiorari. Tenn. Code Ann. § 27-8-101; see also McCallen v. City of Memphis, 786
S.W.2d 633, 639 (Tenn. 1990); Demonbreun v. Metropolitan Bd. Of Zoning Appeals, 206
S.W.3d 42, 46 (Tenn. Ct. App. 2005). In such a review, the action of the administrative body
may be reversed or modified only upon a determination that the action was: (1) in violation
of constitutional or statutory provisions; (2) in excess of statutory authority; (3) an unlawful
procedure; (4) arbitrary or capricious; or (5) unsupported by material evidence. Demonbreun,
206 S.W.3d at 46 (citing Massey v. Shelby County Retirement Bd., 813 S.W.2d 462, 464
(Tenn. Ct. App. 1991)). Action that can be characterized as falling into any of the above
categories warrants reversal or modification. McCallen, 786 S.W.2d at 642; Demonbreun,
206 S.W.3d at 46; Massey, 813 S.W.2d at 464. Our scope of review is no broader than that
of the trial court. Demonbreun, 206 S.W.3d at 46.

III. Analysis

       Mr. Christmas asserts that because the Town Council did not state a reason for its
denial, he does not know why his rezoning request was denied. He argues that, because he
has complied with all applicable zoning ordinances, a lack of current sewer availability for
a subsequent phase of a planned development is not a valid consideration for approval or
disapproval. Further, he asserts that there was no evidence to support the Town Council’s
decision, and the denial was arbitrary and capricious. We will consider each issue in turn.


        7
          A gravity sewer with natural draw would rely on the natural lay of the land to maintain a downhill
gradient, as opposed to artificially constructed embankments created by cut and fill.

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        A. Reason for the Denial

       When the Town Council denied the rezoning request, a specific reason was not given,
but the transcript of the May 2010 meeting reveals that the discussion was dominated by
concerns regarding the development’s proposed sewer system and, more specifically, sewer
availability for Phase II. Mr. Rigsby stated that, in accordance with the conditions imposed
by the Planning Commission, Phase II could not be developed until easements allowing Mr.
Christmas to utilize an existing drainage way8 were obtained from a neighboring landowner,
or until an adjoining tract was developed. He further stated that, as of the date of the
meeting, Mr. Christmas had been unable to obtain those easements, and no adjoining tract
was developing a sewer system that Mr. Christmas could utilize.

       Several of the members of the council noted that construction on Phase II would be
indefinitely postponed because of the inability of Mr. Christmas to show that he could
comply with the conditions imposed by the Planning Commission if approval for the
development was granted. Other discussion centered on the extent to which residents in
Phase I would suffer the loss of planned common areas in Phase II9 and the effect on
surrounding properties if Phase II was not developed.

       Considering the entire discussion of this matter at the Town Council meeting and in
the context in which the comments were made, we agree with the trial court that the Town
Council denied the request based on concerns about the sewer system.

        B. Consideration of Lack of Sewer in Phase II

       Mr. Christmas asserts that, inasmuch as he complied with the applicable provisions
in the MZO, the Town could not consider the lack of sewer in Phase II in evaluating his
rezoning request.

       The Planning Commission and the Town Council are given wide discretion in the
Smyrna Municipal Zoning Ordinance (“MZO”) to evaluate the merits of rezoning requests
for planned developments. Article IV section 4.070 contains a broad statement of purpose
regarding the purpose of planned developments:


        8
          The existing drainage way provided the only option for constructing a gravity sewer that utilized
the natural draw.
        9
         Mr. Rigsby responded that he had “looked at that” and “fe[lt] like there is an adequate common area
in Phase One to serve the 17 units that are proposed.”

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       The purpose and intent of this section is to encourage the total planning of
       tracts of land consistent with the long-range general comprehensive plan of
       the Town, encourage innovations in design and the application of sound design
       principles, provide a framework within which an effective relationship of
       different land uses and activities can be planned on a total basis, provide a
       harmonious relationship with surrounding development, minimizing such
       influences as land use incompatibilities, heavy traffic and congestion, and
       excessive demands on planned and existing public facilities, and provide a
       means of developing areas of physiographic or other physical features to
       enhance natural beauty and other attributes. This section shall only be used for
       planned developments upon determination by the Planning Commission and
       Town Council that the proposed development is in harmony with the purpose
       and intent as stipulated.

S MYRNA, T ENN., Z ONING O RDINANCE art. IV, § 4.070 (2009) (emphasis added). In addition,
Article IV, section 4.071 governs how the Town approves phased developments. Section
4.071 states:

       The Planning Commission may permit the development to progress in phases
       and sections, provided, each phase or section of the development is so planned
       and so related to existing surroundings and available facilities and services
       that failure to proceed to subsequent stages will not have an adverse impact on
       the initial phases or sections of the planned development or its surroundings.

S MYRNA, T ENN., Z ONING O RDINANCE art. IV, § 4.071(E)(2) (2009) (emphasis added).

        The record shows that the Town Council acted pursuant to the authority granted it in
the MZO. Section 4.070 provides the Town Council with authority to evaluate PRD
rezoning requests by considering more than the list of factors contained in the MZO; it
enables the Town Council to evaluate whether “the total planning of tracts of land” is
consistent with the Town’s long-range plan. Furthermore, while the MZO allows for phased
development, the emphasized language in Section 4.071 indicates that discretion to permit
phasing lies with the Planning Commission, which “may permit” phased development in light
of “existing surroundings and available facilities and services.” Whether the lack of sewer
for Phase II and the inability to proceed with its construction comports with the Town’s long-
range plan or “is in harmony with [the long-range plan’s] purpose and intent” are matters
specified in the MZO to be considered in acting on a rezoning request. The Town Council’s
consideration of such matters in acting on Mr. Christmas’ request was not arbitrary or
capricious.



                                              6
       C. Sufficiency of the Evidence for Denial

       Mr. Christmas asserts that the decision to deny the rezoning request is not supported
by the evidence and is, therefore, arbitrary and capricious.

        In determining whether the Town Council’s action was arbitrary and capricious we
do not reweigh the evidence or scrutinize the intrinsic correctness of the decision. McCallen,
786 S.W.2d at 642. Instead, we must determine whether the record “contain[s] ‘such
relevant evidence that a reasonable mind might accept as adequate to support a rational
conclusion and such as to furnish a reasonably sound basis for the action under
consideration.’” Hedgepath v. Norton, 839 S.W.2d 416, 421 (Tenn. Ct. App. 1992) (quoting
Pace v. Garbage Disposal Dist., 390 S.W.2d 461, 463 (1965)); see also Lafferty v. City of
Winchester, 46 S.W.3d 752, 759 (Tenn. Ct. App. 2000). If there is no evidence to support
the action of an administrative board, it is arbitrary. Sexton v. Anderson County, 587 S.W.2d
663, 667 (Tenn. Ct. App. 1979).

       The record does not support a finding that the Town Council acted arbitrarily or
capriciously in denying the rezoning request. Consideration of the lack of sewer, and by
extension the possibility that Phase II could not be built, was proper under the MZO. At the
time of the meeting, Mr. Christmas could not show how or when development of Phase II
might occur due to his inability to provide a gravity sewer in accordance with the Planning
Commission’s conditions. Accordingly, the evidence supports the Town Council’s denial
of the application.

IV. Conclusion

       We find the Town Council’s denial of the rezoning request was based on concerns
regarding the development’s proposed sewer system. In light of the Municipal Zoning
Ordinance, consideration of the sewer system was proper, and we find evidence in support
of the Town Council’s decision. Accordingly, the Town Council did not act arbitrarily or
capriciously, and the decision of the Rutherford County Chancery Court is AFFIRMED.




                                           ___________________________________
                                           RICHARD H. DINKINS, JUDGE




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