DAVIS GROUP (MC), INC.,         )
                               )
     Petitioner/Appellee,      )
                               )          Davidson Chancery
                               )          No. 94-1620-II
VS.                            )
                               )          Appeal No.
                               )          01-A-01-9501-CH-00010
THE METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON)
COUNTY; and THE METROPOLITAN
PLANNING COMMISSION,         )
                               )
                                                              FILED
                               )                                  Nov. 1, 1995
     Respondents/Appellants.   )
                                                              Cecil Crowson, Jr.
                                                               Appellate Court Clerk
                    IN THE COURT OF APPEALS OF TENNESSEE

                         MIDDLE SECTION AT NASHVILLE


        APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY

                           AT NASHVILLE, TENNESSEE


                   HONORABLE C. ALLEN HIGH, CHANCELLOR


George A. Dean
PARKER, LAWRENCE, CANTRELL & DEAN
Fifth Floor
200 Fourth Avenue, North
Nashville, Tennessee 37219
ATTORNEY FOR PETITIONER/APPELLEE

James L. Murphy, III,
Director of Law

Joseph R. Mouer
Leslie Shechter
Francis H. Young
Metropolitan Attorneys

THE DEPARTMENT OF LAW OF THE
METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY
204 Metropolitan Courthouse
Nashville, Tennessee 37201
ATTORNEYS FOR RESPONDENTS/APPELLANTS

AFFIRMED AND REMANDED

                                     HENRY F. TODD
                                     PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
CORNELIA A. CLARK, SPECIAL JUDGE
DAVIS GROUP (MC), INC.,                 )
                                               )
       Petitioner/Appellee,                    )
                                               )       Davidson Chancery
                                               )       No. 94-1620-II
VS.                                            )
                                               )       Appeal No.
                                               )       01-A-01-9501-CH-00010
THE METROPOLITAN GOVERNMENT                    )
OF NASHVILLE AND DAVIDSON )
COUNTY; and THE METROPOLITAN                   )
PLANNING COMMISSION,       )
                                               )
       Respondents/Appellants.                 )


                                            OPINION


       This is a proceeding for judicial review of the action of the Metropolitan Council, the

elected legislative body of the Metropolitan Government of Nashville and Davidson County,

Tennessee, in refusing to concur in the action of the Metropolitan Planning Commission

approving a "Planned Unit Development." The Trial Court reversed the action, and the City

filed notice of its "intention to appeal" which, in the absence of challenge, will be treated as

a notice of appeal. The City presents the following issues:

               1. Whether it was error to deny the Metropolitan
               Government's motion to dismiss, since this action should have
               been brought as a declaratory judgment action.

               2. Whether there was sufficient evidence to support the
               decision of the Metropolitan Council.


       On February 24, 1994, the captioned petitioner filed with the Metropolitan Planning

Commission an application for approval of a proposed commercial planned unit

development to be known as "Music City Cafe," containing separate places of entertainment

and dining, upon a 10.3 acre tract near the intersection of Old Hickory Boulevard and U.S.

Interstate Highway 65. The petition alleged that petitioner held an option to purchase the

tract and intended to construct the improvement if permitted to do so.




                                               -2-
       On March 20, 1994, the Planning Commission granted "conditional preliminary

approval," but the local ordinance, COMZO §17.100.010 et seq, required concurrence of the

Metropolitan Council to effectuate the action of the Commission.



       Thereafter, two proposed ordinances were presented to the Metropolitan Council.

Council Bill #094-1008 made applicable to the subject tract the provisions of COMZO

(Metropolitan Zoning Code) relating to commercial planned unit developments. Council

Bill #094-1009 changed the zoning classification of the tract from R20 (residential with a

20,000 square foot minimum) to O.G. (office general). Both bills were approved on first

reading, but passage upon three readings is required by Metropolitan Charter §3.05. A

public hearing on both bills was held by the council on May 5, 1994. On May 17, 1994,

both bills were defeated.



       On May 27, 1994, the captioned petitioner filed the present petition for certiorari for

judicial review of the action of the council in disapproving Bill #094-1008 on the theory

that such action was administrative in nature and subject to judicial review as such. Bill

#094-1009 to change zoning classification is not involved in the present judicial proceeding.



       On November 2, 1994, the Trial Court reversed the decision of the council, stating:

                                      Conclusions of Law

                       At the public hearing before the Metropolitan Council,
               residents of the affected area voiced sincere concerns about
               possible traffic problems, a possible decrease in property
               values, and unhappiness with the proposed use of the property
               as an entertainment facility. None of these opinions was based
               upon any factual premise apparent in the record. Expression
               of fears by members of the community alone, no matter how
               sincere, will not support the decision. Sexton v. Anderson
               County, 587 S.W.2d 663, 666 (Tenn. App. 1979). There is no
               material proof in the record that the proposed use of the
               property as a restaurant and entertainment facility is
               incompatible with the Subarea 12 Land Use Plan.




                                             -3-
                        -First Issue: Proper Form of Action for Review-

        The determination of this issue depends upon the character of the action under

review. If the action is legislative in character, it is not subject to review by certiorari, but

only by an action for declaratory judgment. If the action is administrative in character, the

review is properly by certiorari wherein the inquiry is whether there was material evidence

to support conclusions that were neither arbitrary nor unlawful. Metropolitan Air Research

Testing Authority, Inc. v. Metropolitan Government of Nashville and Davidson County,

Tenn. App. 1992, 842 S.W.2d 611.



        In McCallen v. City of Memphis, Tenn. 1990, 786 S.W.2d 633, the plaintiffs filed a

suit for declaratory judgment invalidating a resolution of the city council which approved a

planned development. The Trial Court held that the resolution was invalid as "not supported

by substantial evidence." This Court affirmed, holding that there was no rational basis for

the resolution. The Supreme Court held:

                 We initially hold that the action of the city council giving
                approval to the plan was administrative rather than legislative
                in nature; any challenge of the action is by writ of certiorari.
                Secondly, both the trial court and the Court of Appeals failed
                to give proper deference to the determination of the Memphis
                City Council. We reverse the action of both the trial court and
                the Court of Appeals and enter a judgment in favor of the
                defendants. Costs are adjudged against the plaintiffs.

                 ....

                 The "fairly debatable, rational basis," as applied to legislative
                acts, and the "illegal, arbitrary and capricious" standard
                relative to administrative acts are essentially the same. In
                either instance, the court's primary resolve is to refrain from
                substituting its judgment for that of the local governmental
                body. An action will be invalidated only if it constitutes an
                abuse of discretion. If "any possible reason" exists justifying
                the action, it will be upheld. Both legislative and
                administrative decisions are presumed to be valid and a heavy
                burden of proof rests upon the shoulders of the party who
                challenges the action.

                  If there was ever any basis for the distinction in the
                application of the substantive law to legislative and
                administrative actions, it has dissipated with the passage of
                time. . . .



                                                -4-
                ....

                While this court recognizes the statutory, procedural
               distinction between common law certiorari and declaratory
               judgment, there is no sound logic to maintain different
               standards of substantive review. Whether the action by the
               local governmental body is legislative or administrative in
               nature, the court should refrain from substituting its judgment
               for the broad discretionary authority of the local governmental
               body. An invalidation of the action should take place only
               when the decision is clearly illegal, arbitrary, or capricious.

McCallen, 786 S.W.2d at 634, 641-42.


       Appellant argues that McCallen is not applicable because the Nashville Zoning

Ordinance differs from the Memphis Zoning Ordinance. Although the full texts of the

ordinances do not appear in the record, they have been submitted to this Court as an

appendix to appellant's brief. Without objection from appellee, this Court will take judicial

knowledge of and compare said texts. T.R.E. Rule 202(b)(3).



       Appellant states that Sections 14(B)(2) and (C) of the Memphis Ordinance provides

that the basic zoning of a parcel is not changed when a Planned Unit Development is

approved. However, the cited portions of the Memphis Ordinance contain the following:

               (B)(2) Modification of district regulations. Planned
               developments may be constructed in any zoning district
               subject to the standards and procedures set forth below:

               a. Except as modified by and approved in the resolution
               approving an outline plan, a planned development shall be
               governed by the regulations of the district or districts in which
               the said planned development is located.

               b. The resolution approving the outline plan for the planned
               development may provide for such exceptions from the district
               regulations governing use, density, area, bulk, parking, and
               signs, . . . .

               C. General standards and criteria. The legislative body may
               grant a permit which modifies the applicable district zoning
               regulations and subdivision regulations upon written findings
               and recommendations by the land use control board which
               shall be forwarded pursuant to the provisions contained in this
               section.




                                              -5-
       The Memphis Ordinance recognizes that a planned development may produce

modifications or exceptions to local zoning. Moreover, the ordinance refers to "legislative

action," which apparently did not influence the decision in McCallen.



       Appellant argues that, under the Nashville Ordinance, a planned development is a

"complete rezoning of the property." No specific provision of the Nashville Ordinance is

cited or found which would support this argument. Even though, as argued by appellant, the

circumstances of this case result in a "complete rezoning" from residential to commercial

use, the enactment of the commercial planned unit section of the Nashville Ordinance in

effect, prospectively authorized the zoning changes resulting from the approval of a planned

unit development.



       The portions of the Nashville Zoning Ordinance quoted below were included in the

appendix to the brief of appellant and will be noticed pursuant to T.R.E. Rules 201(d) and

202(b)(3):

               17.108.100 Planning commission action on preliminary
               application.

               ....

               C. Metropolitan Council Approval of Preliminary Plan. Any
               approval of a preliminary application by the metropolitan
               planning commission shall be transmitted to the metropolitan
               council for their concurrence.

               ....

               17.108.110 Councilmanic concurrence with preliminary
               approval required.

               Preliminary approval of a planned unit development shall
               require the concurrence of the metropolitan council in
               accordance with the procedures in Sections 17.136.070 and
               17.136.100. . . .


By letter, appellant submitted for consideration, sections 17-136-070 and 17-136-100 of the

Nashville Ordinance which have been considered. Said sections relate to rezoning




                                             -6-
generally, and are not deemed applicable to the concurrence of the council in the approval of

a commercial planned development.



       The Memphis and Nashville Ordinances do differ widely in content, but they

establish equivalent schemes for approval of planned unit developments.



       Appellant cites authorities that the form of hearing determines whether an action is

legislative or administrative. This Court does not agree. The nature of the question to be

decided and the necessary procedure for making such decision are the determinative factors,

rather than the procedure which was selected for the particular decision.



       As held in McCallen, the Nashville council had previously enacted the criteria for

approval of planned unit developments and reserved only the prerogative of reviewing

whether such criteria had been met.



       Appellant argues that, "if this case had been allowed to proceed as a declaratory

action (appellant) would have sought to offer evidence regarding the specific requirements

of the Subarea 12 plan."



       According to Subarea Plan 12, it contains 27,300 acres, or 42.7 square miles or 8%

of the area of Davidson County. It is bounded by Interstate Highway 24 and Rutherford

County on the east, by Williamson County on the south, by Franklin Pike and Interstate

Highway 65 on the west and a railroad and creek on the north. The Subarea contains 14

"Sectors" and a fraction of a 15th sector. The plan states:

               . . . The predominant land use in Subarea 12 is residential.
               Out of the 23,633 net acres in the subarea (not including
               rights-of-way), 15,282 are in residential use. Of this acreage,
               6,884 acres are rural residential, mostly located in the southern
               portion of the subarea.

               Nonresidential uses occupy 1,717 net acres. Nolensville Pike
               from the north end of the subarea to around Old Hickory

                                              -7-
               Boulevard forms the main commercial spine of the subarea.
               Other major commercial areas are found at the interchanges of
               I-24 with Harding Place, Haywood Lane, and Bell Road; at the
               interchanges of I-65 with Harding Place and Old Hickory
               Boulevard; and at the intersection of Edmonson Pike and Old
               Hickory Boulevard.

               ....

               . . . The basic concept for Subarea 12 is that it should
               continue to develop as primarily a residential area. The focus
               for nonresidential development is on providing activities in
               support of mainly commercial service needs generated by
               residential growth within the subarea.

               ....

               6. The I-65/Old Hickory Boulevard interchange commercial
               area is evolving as mostly a major office concentration and is
               envisioned to continue developing in that manner.


       The location of the planned unit development in the present case is at the intersection

of Old Hickory Boulevard and Interstate Highway 65, where the plan and accompanying

map indicate a cluster of commercial uses. This Court is unable to find such a gross

disparity between Subarea Plan 12 and the proposed planned unit development as would

justify the rejection of the planned unit development on this ground.



       Appellant complains that the nature of the planned unit development is calculated to

draw a "regional clientele." A proposed restaurant and dinner theater is included in the

planned unit development, and it is possible that it would attract patrons from outside

Subarea 12. However, this possibility is not sufficient to justify a finding that the planned

development is in conflict with Subarea 12 Plan.



       Appellant asserts that, if permitted to do so, it might have offered other evidence of

conflict with Subarea 12 plan. Without a tender of such evidence and its preservation in the

record, this Court is unable to find grounds of reversal.



       No ground of reversal is found in appellant's first issue.



                                              -8-
       Appellant's second issue is based upon the insistence, that, viewed as an

administrative decision, the action of the council is supported by sufficient evidence.

Subarea 12 plan is cited as evidence. It has been considered and discussed above.



       Appellant cites a statement to the council by Mr. Bruce Cole who expressed a desire

that the subject property be developed for office use. An expression of a desire, without

supporting evidence, is not "substantial and material evidence." Also cited is a report of the

Planning, Zoning and Port Authority Committee of the council which by a vote of 7 - 3

recommended rejection of the proposal. A "recommendation" without supporting evidence

of facts is not "substantial and material evidence."



       This Court finds that the action of the council is unsupported by substantial and

material evidence and therefore cannot be affirmed as an administrative action. Sexton v.

Anderson County, Tenn. 1979, 587 S.W.2d 663, Father Ryan v. City of Oak Hill, Tenn.

App. 1988, 772 S.W.2d 184.



       The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

the appellant. The cause is remanded to the Trial Court for appropriate further proceedings.



       Affirmed and Remanded.



_______________________________________
                                    HENRY F. TODD
                                    PRESIDING JUDGE, MIDDLE SECTION

CONCUR:



_____________________________________
SAMUEL L. LEWIS, JUDGE



_____________________________________

                                              -9-
CORNELIA A. CLARK, SPECIAL JUDGE




                               -10-
                    IN THE COURT OF APPEALS OF TENNESSEE
                         MIDDLE SECTION AT NASHVILLE



DAVIS GROUP (MC), INC.,      )
                             )
     Petitioner/Appellee,    )
                             )                          Davidson Chancery
                             )                          No. 94-1620-II
VS.                          )
                             )                          Appeal No.
                             )                          01-A-01-9501-CH-00010
THE METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON    )
COUNTY; and THE METROPOLITAN
PLANNING COMMISSION,
                             )
                             )
                             )
                                                                   FILED
     Respondents/Appellants. )                                       Nov. 1, 1995

                                                                   Cecil Crowson, Jr.
                                                                    Appellate Court Clerk
                                         O R D E R



       The Supreme Court has denied application for permission to appeal, concurring in

results only. The original opinion of this Court is withdrawn, and an opinion filed

concurrently with this order is substituted therefor.



       ENTER ________________



                                               ______________________________________
                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION



                                               ______________________________________
                                               SAMUEL L. LEWIS, JUDGE



                                               ______________________________________
                                               CORNELIA A. CLARK, SPECIAL JUDGE
