                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                       February 15, 2005 Session

 ROBERT BREWSTER, JR. v. FAYETTE COUNTY BOARD OF COUNTY
                 COMMISSIONERS, ET AL.

                    Direct Appeal from the Chancery Court for Fayette County
                           No. 12222   Dewey C. Whitenton, Chancellor



                        No. W2003-01842-COA-R3-CV - Filed April 14, 2005


The Fayette County Board of Commissioners denied Plaintiff/Appellant’s application for a change
in zoning. The Chancery Court for Fayette County affirmed. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Gregory C. Morton, Memphis, Tennessee, for the appellant, Robert Brewster, Jr.,

Richard G. Rosser, Somerville, Tennessee, for the appellees, Fayette County Board of County
Commissioners, John W. Arnett, Floyd Bonner, Charles D. Brewer, Sr., Joe Burnette, Jr., Odis Cox,
Carl Doyle, Willie L. German, Jr., Ronnie Graves, Ronald R. Harris, David Kelley, Sylvester Logan,
Alonzo Morman, Sr., Calvin Moore, David Morris, J. M. Sullivan, Jr., Rhea “Skip” Taylor, Albert
W. Thomas, Gordon Tomlin, Miles Wilson, and Jim Voss, Mayor.

                                      MEMORANDIUM OPINION1

        This action concerns Robert Brewster, Jr.’s (Mr. Brewster’s) application to re-zone property
at 4300 Cowan Loop Road in Fayette County, Tennessee (“the property”). Mr. Brewster purchased
the property in September 1994 from the widow and daughter of Anderson Minor (Mr. Minor), who

       1
           Rule 10 of the Tennessee Court of Appeals provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
       the actions of the trial court by memorandum opinion when a formal opinion would have no
       precedential value. W hen a case is decided by memorandum opinion it shall be designated
       "MEMORANDUM OPINION", shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
died in September 1993. The property consists of 3.6 acres and includes three buildings: a barn, a
trailer home, and a building in which Mr. Minor had operated a neighborhood grocery store for at
least 20 years. Mr. Brewster asserts that he planned to continue to use the property for this purpose.
The property was zoned R-1(rural residential), however, and the Fayette Planning Commission
informed Mr. Brewster that in order to use the property for a non-conforming use he would be
required to produce proof that the prior business had been in operation within a year of Mr.
Brewster’s purchase of the property. Mr. Brewster submitted telephone and utility bills paid for the
property in May 1994 as proof that the business had continued past Mr. Minor’s death and was in
operation during the year prior to his purchase. The Planning Commission determined this evidence
was insufficient to show that the business had been in operation during the previous year. It
accordingly determined that Mr. Brewster could not re-open the business.2

        In November 1994, Mr. Brewster applied for the property to be re-zoned from R-1 to B-3
(community business). In his application, he stated that he intended to use the property for a “sports
bar and restaurant.” Mr. Brewster testified that he planned to operate a facility to teach sports and
to record and show sports games, “day and night.” This application was denied. In January 1998,
Mr. Brewster again applied for re-zoning from R-1 to B-3, this time designating the intended purpose
of grocery and restaurant.

       In April 1998, the Planning Commission recommended denial of Mr. Brewster’s application
by unanimous vote. The Fayette County Commission deferred action on the application for two
months to allow for additional evidence. On September 1, 1998, the Planning Commission held a
public meeting and considered additional evidence on the matter. It again unanimously
recommended denial of Mr. Brewster’s application for re-zoning.

        On September 22, 1998, the Board of Commissioners (the “Board”) conducted a public
hearing on the matter. The Board rejected Mr. Brewster’s application by a 12 to 5 vote, with 2
abstentions. On October 22, 1998, Mr. Brewster filed a petition for writ of certiorari in the Chancery
Court of Fayette County, alleging the action of the Board was illegal, arbitrary, capricious and
without a legal right, basis, or authority. In December 2001, he amended his pleadings to add, in the
alternative, a complaint for declaratory judgment. Following a hearing on the matter in April 2003,
the chancery court affirmed the Board’s determination. Mr. Brewster filed a timely notice of appeal
to this Court.

                                                 Issues Presented

        The determinative issue raised on appeal in this case, as we perceive it, is whether the trial
court erred in determining the Board’s decision was not illegal, arbitrary, or capricious.



         2
           The property was zoned as R-1 throughout the period in which its previous owner had operated a grocery store,
which was a “grandfathered” business. There is no proof in the record, other than Mr. Brewster’s assertion to the
contrary, that the grocery was in business during the year prior to purchase of the property by Mr. Brewster.

                                                          -2-
                                         Standard of Review

        Although Mr. Brewster amended his petition to include, in the alternative, a complaint for
declaratory judgment, this action is properly a petition for writ of certiorari. An action for
declaratory judgment is the correct action to be employed when seeking to invalidate an ordinance,
resolution, or other legislative action of a county or municipal legislative authority enacting or
amending zoning legislation. Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 342 (Tenn.
1983). Mr. Brewster’s assertion, as we understand it, is not that the Board improperly enacted or
amended the zoning ordinance applicable to his property, but that the Board’s decision to deny his
application for re-zoning was illegal, arbitrary, or capricious. Thus, we review his petition as one
for a writ of certiorari.

         A court's review of an administrative agency's decision under a petition for writ of certiorari
is limited to a determination of whether the administrative body acted within its jurisdiction or acted
illegally, arbitrarily, or capriciously. Hutcherson v. Lauderdale County Bd. of Zoning Appeals, 121
S.W.3d 372, 375 (Tenn. Ct. App. 2003). The reviewing court does not re-weigh the evidence, but
must uphold the board's decision if the board acted within its jurisdiction, did not act illegally or
arbitrarily or fraudulently, and if there is any material evidence to support the board's findings. Watts
v. Civil Serv. Bd. of Columbia, 606 S.W.2d 274, 276-77 (Tenn. 1980). These determinations are
issue of law. Id. at 277. Our review of the trial court's conclusions on matters of law is de novo with
no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000); Tenn. R. App
P. 13(d).

                                               Analysis

        Upon review of the record, we cannot say the Board acted illegally, arbitrarily, or capriciously
in this matter. Contrary to Mr. Brewster’s assertion in this Court, we find no denial of due process
by the Board. At least two public hearings were held in this matter, and the matter was deferred once
in order to allow Mr. Brewster to submit additional evidence to the Planning Commission. Mr.
Brewster was permitted to present witnesses at the Board hearing in September 1998, and a full
hearing was held on the matter in the chancery court.

         Mr. Brewster bears the burden of demonstrating that the Board’s refusal to re-zone his
property was arbitrary or capricious. See Board of Comm'rs of Roane County v. Parker, 88 S.W.3d
916, 922 (Tenn. Ct. App. 2002). It is not disputed that Mr. Brewster’s property is located in a
sparsely populated, rural/residential area. Moreover, contrary to Mr. Brewster’s assertion in his brief
to this Court, in his application for re-zoning Mr. Brewster sought not only to re-open a grocery
business on the property, but also to operate a restaurant business. The minutes of the Planning
Commission meeting of September 1, 1998, reflect that five letters were submitted by neighboring
property owners in objection to Mr. Brewster’s application, and that no one at the public hearing
spoke in favor of his application. The minutes also reflect that Mr. Brewster’s attorney represented
that if the re-zoning were approved, Mr. Brewster would make short-term improvements to the
property and would, in the long-term, make it a tourist attraction. At the September 22 hearing held


                                                  -3-
by the Board, the Board heard testimony concerning the nature of the roadways and traffic problems
that would arise should the property be used to operate a club or restaurant. The Board also heard
testimony from area residents that there was no demand for an additional grocery store in the
sparsely populated area. Residents also voiced concerns about the operation of what amounted to
a club in the rural area, where law enforcement officers are already thinly spread. Further, despite
Mr. Brewster’s assertion to the contrary, the transcript of the hearing before the Board reflects that
the Chairman permitted full discussion of the matter, stating that the Board would hear an equal
amount of testimony from both sides of the dispute, and that no additional testimony was offered.

        The re-zoning proposed by Mr. Brewster in this case is clearly contrary to the Fayette County
land use plan, which calls for the formation of new B-3 districts close to existing population centers
and adjacent or close to road intersections. It is not disputed that Mr. Brewster’s property meets
neither requirement. Further, the Planning Commission determined Mr. Brewster’s property “[abuts]
a small residential enclave,” that there is “very little population within miles,” and that “the
circuitous route and distance to the proposed business would not be convenient to citizens.”
Additionally, Mr. Brewster testified in the chancery court that, although he excluded the designation
“sports bar” from the re-zoning application submitted in January 1998, he nevertheless intended to
use the property as some sort of club with a sports theme. Mr. Brewster also conceded in the court
below that most of the applications for re-zoning which had been approved by the Board had been
from one residential classification to another residential classification, and that the Fayette County
land use plan favors re-zoning for businesses along Highway 64.

        In light of the entire record in this matter, and despite Mr. Brewster’s assertion in the
September 1998 hearing before the Board that he does not “think the Planning Commission should
care where it’s located” and that “[i]t could be setting in the middle of the river,” we cannot say the
Board acted arbitrarily or capriciously when it denied Mr. Brewster’s application for re-zoning of
his property from R-1 to B-3 in a sparsely populated, rural area.

                                              Holding
       We affirm the judgment of the trial court.3 Costs of this appeal are taxed to the Appellant,
Robert Brewster, Jr., and his surety, for which execution may issue if necessary.



                                                               ___________________________________
                                                               DAVID R. FARMER, JUDGE




         3
           On appeal, Mr. Brewster asserts that the trial court erred in finding that had the Board changed the zoning
classification of the property to B-3, its determination would have been invalid as a matter of law. In light of our
disposition of this matter, this issue is pretermitted as requiring an advisory opinion.



                                                         -4-
