                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       July 9, 2002 Session

                    HOOVER, INC.
                         v.
METROPOLITAN BOARD OF ZONING APPEALS OF METROPOLITAN
 GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL.

                  An Appeal from the Chancery Court for Davidson County
                       No. 98-619-II   Carol L. McCoy, Chancellor



                     No. M2001-00924-COA-R3-CV - Filed March 11, 2003


This is the fourth appeal from a zoning board’s denial of a conditional use permit. In April 1992,
the petitioner stone processing company filed an application with the respondent zoning board for
a conditional use permit to operate a rock quarry. After years of litigation, the board issued findings
of fact and denied the petitioner’s application. The application was denied in part because the
reclamation plan in the petitioner’s proposal used water as fill material, contrary to the specification
in the applicable ordinance that solids be used as fill material. The petitioner filed a petition for a
writ of certiorari, arguing that the board’s decision was arbitrary and capricious because reclamation
plans using water as fill material had been approved in the past. The trial court denied the writ and
upheld the board’s decision. The stone processing company appealed. We affirm, finding that the
board’s decision was not arbitrary or capricious, and that material evidence supported the board’s
decision.

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

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and DAVID R. FARMER , J., joined.

Thomas V. White and George A Dean, Nashville, Tennessee, for the appellant, Hoover, Inc.

J. Brooks Fox, John L. Kennedy, Kelli Haas, Nashville, Tennessee, for the appellee, Metropolitan
Board of Zoning Appeals of Metropolitan Government of Nashville and Davidson County.

James R. Tomkins, Nashville, Tennessee, for the appellees, Edward Knight, Beverly Knight, James
Phillip Carter, Maridee Carter, Marie Carter, William Carter, Mary Jane Carter, and Stop the Quarry.

Shayna R. Abrams, Franklin, Tennessee, for the appellee, Williamson County, Tennessee.
Roger A. Horner, Brentwood, Tennessee, for the appellee, City of Brentwood.

Herbert R. Rich, Nashville, Tennessee, for the appellee, Paul Johnson.

                                              OPINION

        For many years, Petitioner/Appellant Hoover, Inc. (“Hoover”), operated a stone processing
plant, also called a rock quarry, near Nashville, Tennessee. In 1987, the Nashville airport was
expanded, and Hoover was forced to stop operations. Hoover sought to establish another quarry on
its property at 6682 Nolensville Road in Nashville, which is located in an AR2a (agricultural and
residential -- two-acre minimum) zone district. Under the zoning ordinance for Metropolitan
Nashville and Davidson County (“COMZO”),1 operating a rock quarry is a type of agricultural and
extractive activity. See COMZO § 17.12.050B. Agricultural and extrative activity is not permitted
by right by the Metropolitan Zoning Administrator. That type of activity is allowed only pursuant
to a conditional permit, and applications for such permits must be reviewed by the
Respondent/Appellee Metropolitan Board of Zoning Appeals (“the Board”). See COMZO §
17.24.030.

       Consequently, on April 23, 1992, Hoover filed an application with the Board for a
conditional use permit to operate a quarry on its Nolensville Road property. On May 28, 1992, the
Board held a hearing on Hoover’s petition. Over 1,300 citizens residing near the quarry opposed
Hoover’s application. After much debate in the hearing, the Board denied the permit by operation
of law because an insufficient number of board members voted in favor of the proposal.

        Hoover appealed the Board’s decision to the Davidson County Chancery Court under a
common law writ of certiorari. See Tenn. Code Ann. § 27-8-101. The chancery court reversed the
Board’s denial of the petition, concluding that two of the abstaining Board members were
“disqualified” from voting under the applicable regulations, and that the Board erred in failing to
issue specific findings of fact. The Board appealed the chancery court’s decision to this Court. On
June 15, 1994, this Court reversed the chancery court’s decision, holding that the two abstaining
members were not “disqualified” under the applicable regulations, and that the Board need not issue
findings of fact when a permit is denied by operation of law. Hoover, Inc. v. Metropolitan Bd. of
Zoning Appeals, No. 01A01-9307-CH-00312, 1994 WL 260693, at *3 (Tenn. Ct. App. June 15,
1994). The cause was remanded to the chancery court for a review of the Board’s decision on the
merits. Id.

       On remand, the chancery court affirmed the Board’s denial of Hoover’s application. The
chancery court determined that the requirements of the ordinance were not satisfied because the




        1
          “COMZO” is a commonly used acronym for the Comprehensive Zoning Ordinances of the Metropolitan
Go vernm ent for N ashville, D avidson C ounty.

                                                  -2-
reclamation plan2 submitted by Hoover was inappropriate, and Hoover did not establish that the
surrounding area was “sparsely developed.” Hoover filed the second appeal to this Court. On
January 5, 1996, the decision of the trial court was reversed on appeal. Hoover, Inc. v. Metropolitan
Bd. of Zoning Appeals, 924 S.W.2d 900 (Tenn. Ct. App. 1996). This Court noted that a court
reviewing the decision of an administrative body cannot determine whether the administrative
decision was supported by material evidence unless the administrative body makes findings of fact
setting forth the reasons for the decision. Id. at 905. The Court noted that the reasons given by the
chancery court for upholding the Board’s decision were not the reasons given by the Board for its
decision to deny the permit, since the denial was by operation of law. Id. at 905-06. We held also
that a Board member cannot abstain from voting if he or she believes that the applicant has fulfilled
the zoning requirements. Id. at 906. Considering the abstentions to be the equivalent of a vote to
deny Hoover’s petition, the Court held that it was arbitrary for Board members who stated publicly
that Hoover met the requirements to establish a quarry to nonetheless vote against it. Consequently,
the cause was reversed and remanded to the chancery court for “any further necessary proceedings.”
Id. at 907.

        On remand, “the parties became embroiled in a dispute concerning the scope of our remand
directions.” Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d 52, 54 (Tenn. Ct.
App. 1997). On August 5, 1996, the chancery court remanded the case back to the Board to consider
the case upon the record “together with such additional evidence” regarding changed circumstances
over time. Id. In the third appeal to this Court, Hoover appealed the order directing the Board to
reconsider in light of additional evidence. On appeal, this Court affirmed the chancery court’s
remand order but instructed that language permitting the consideration of additional evidence be
omitted from the order of remand. Id. at 55. The chancery court was directed to remand the case
to the Board to “conduct a hearing . . . based on the record of the May 28, 1992 hearing.” Id.

        On December 18, 1997, the Board held a hearing, prior to which each member of the Board
reviewed the audio tape or reviewed the written record of the hearing held on May 28, 1992. At the
hearings, the Board again denied Hoover’s application. On January 15, 1998, the Board approved
eight findings of fact on which denial of the permit was based:

           1. Failure to provide acceleration lanes for trucks departing from the quarry will
         not adequately protect the public health, safety and welfare of motorists traveling on
         Nolensville Rd.

            2. The quarry pit, when filled with water, will become a safety hazard and will
         become an attractive nuisance.




        2
     The reclamation plan explains how the site will be used after the quarrying o peration has been terminated. See
COMAO § 17.124.330B.8.

                                                        -3-
              3. The particulate matter which will be introduced into the atmosphere by the
          quarrying activity will have a substantial negative impact on the health of nearby
          residents.

              4. The proposed quarry will adversely affect property values and marketability
          of homes in the nearby community.

             5. The General Plan (Subarea 12 Plan) specifies that the area surrounding the
          proposed quarry will remain residential or will be developed in a residential manner.

              6. The reclamation plan indicates that the quarry pit will be filled with water.

              7. Water is not a noncombustible solid.

             8. 45- 50 ft. cliffs will be present on portions of the reclaimed quarry pit which
          will be filled with water and it will not be in substantial conformity with the
          topography of the surrounding lands.

The Board also set out conclusions of law, which restated the findings of fact and cited the
corresponding regulations to which they applied. See COMZO §§ 17.124.040 and 17.124.330B.8.

        On March 2, 1998, Hoover filed a petition for writ of certiorari in the chancery court below.
Hoover argued that the Board’s denial of the permit was arbitrary and capricious, and it sought to
have the Board’s decision set aside and have the conditional use permit granted. In addition, Hoover
asserted that the actions of the Board violated its rights to due process and equal protection under
42 U.S.C. §§ 1983 and 1988. Hoover also requested an award of attorney’s fees under those statutes.
On March 31, 1998, the chancery court entered an agreed order allowing the following parties to
intervene in the case as respondents: Edward Knight, Beverly Knight, James Philip Carter, Maridee
Carter, Marie Carter, William Carter, Mary Jane Carter, Stop the Quarry (an unincorporated
association), Paul E. Johnson, Williamson County, Tennessee, and City of Brentwood, Tennessee
(collectively, “intervening respondents”).3



          3
           The intervening respondents argue that Hoover’s petition for a writ of certiorari was untimely because it was
not filed within sixty (60) days of the Board’s Decemb er 18, 1997 d ecision to deny the permit, citing Advanced Sales,
Inc. v. W ilson C oun ty, No. 01-A -01-9 805 -CH 002 45, 1 999 W L 33 630 5 (T enn. C t. App . May 28, 199 9). See Tenn.
Code. Ann. § 27-9-102 (20 00). In Advanced Sales, this court determined that the triggering date for the accrual of the
60-day perio d was the date on which the Bo ard d enied the permit, and not the date on which the Board’s minutes
reflecting that denial were approved. Id. at *2. However, we reaffirmed the general rule that the date on which the
Bo ard’s decision is “entered” is the critical date, and that the date of entry is essentially a question o f fact. Id.; see Carter
v. Board of Zonin g Appe als, 377 S.W .2d 9 14, 916 (Tenn. 1964) (finding that “rendering” a decision is the Board’s act
of making the decision in a conclusive manner, and that “entering” a decision is the ministerial act of recording it). In
the instant case, the record reflects that the order denying the permit and enumerating the eight findings of fact listed
abo ve were entered o n January 15, 19 98. T herefo re, Hoover’s petition, filed on M arch 2 , 199 8, was not untim ely.

                                                               -4-
         On March 13, 2001, the chancery court entered an order affirming the Board’s denial of
Hoover’s application for a conditional use permit. The chancery court first dismissed Hoover’s civil
rights claims, finding that they were original claims that could not be joined with a writ of certiorari.
Next, the court upheld the Board’s determination that Hoover’s application did not satisfy the
requirements of COMZO, because Hoover’s proposed reclamation plan used water as the fill
material rather than “nontoxic, nonflammable, and noncombustible solids,” as specified in the
ordinance. See COMZO § 17.124.330B.8. Hoover noted that similar reclamation plans had been
approved in the past, but the chancery court stated that such a pattern of non-compliance does not
vitiate the law. See State ex rel. Lewis v. Bowman, 814 S.W.2d 369, 373 (Tenn. Ct. App. 1991).
Hoover now appeals from the chancery court’s decision, making this the fourth appeal in this matter.

        On appeal, Hoover argues that the decision of the Board was arbitrary and was based on a
an overall animosity towards the proposed project. Hoover contends that the chancery court erred
in upholding the Board’s decision based on the use of water in the reclamation plan, because
previously the Board had never denied an application for that reason. Hoover asserts that “every
other stone processing plant has submitted the same plan of reclamation and received approval.” In
response, the Metropolitan Government of Nashville and Davidson County (“Metro government”)
and the intervening respondents argue that the chancery court’s decision should be affirmed based
on Hoover’s failure to use solid material in its reclamation plan.

         “[T]he only issue raised by a writ of common law certiorari is whether the Board exceeded
its jurisdiction or acted illegally, arbitrarily, or fraudulently,” or acted without material evidence to
support its decision. Hoover, 924 S.W.2d at 904; see also McCallen v. City of Memphis, 786
S.W.2d 633, 639 (Tenn. 1990); Hemontolor v. Wilson County Bd. of Zoning Appeals, 883 S.W.2d
613, 616 (Tenn. Ct. App. 1994). “Material evidence” is evidence “material to the question in
controversy, which must necessarily enter into consideration of the controversy and [which] by itself,
or in connection with other evidence, is determinative of the case.” Fuller v. Tennessee-Carolina
Transp. Co., 471 S.W.2d 953, 956 (Tenn. Ct. App. 1970). The reviewing court does not weigh the
evidence or determine where the preponderance lies. If the Board’s action is lawful, within its
jurisdiction, and supported by material evidence, then the decision must be affirmed. Goodwin v.
Metropolitan Bd. of Health, 656 S.W.2d 383, 386-87 (Tenn. Ct. App. 1983).

         Hoover argues that the Board’s decision to deny the permit based on the use of water, rather
than solid material, in its reclamation plan was arbitrary and capricious. Hoover acknowledges that
COMZO § 17.124.330 is the applicable law, and that the regulation requires that “[a]ll fill material
[in the reclamation plan] shall be nontoxic, nonflammable, and noncombustible solids.” COMZO
§ 17.124.330B.8. (emphasis added). Hoover admits that it proposed to fill the quarry with water
after the quarry resources had been exhausted, creating a lake rather than filling the quarry site with
solid material. It argues, however, that “the Board of Zoning Appeals has always allowed this
manner of reclamation,” and asserts that the Board has never enforced the “solid fill” condition in
the history of the regulations. Hoover argues that the regulation should be read simply as requiring
that the fill material be nontoxic, nonflammable, and noncombustible, and that it is immaterial
whether fill material is solid or a liquid. Hoover asserts in its appellate brief that counsel for Hoover


                                                  -5-
represented an applicant who received approval of a quarry with the same reclamation plan only four
years earlier. Hoover notes that, although the Board determined that Hoover’s plan presented a
safety hazard, the Metro Council adopted a new zoning ordinance in 1997 expressly providing that
water may be used as the fill material in a quarry reclamation plan.4

        The Metro government argues that the Board’s decision to deny Hoover’s application based
on its proposed use of water as a fill material in the reclamation plan was not arbitrary, and that it
was supported by material evidence.5 It argues that the Board was required to deny the permit if
Hoover did not meet all of the conditions specified in COMZO § 17.124.330, because the Board
does not have the authority to deviate from the requirements of the ordinance if the language of the
ordinance is plain and unambiguous. The Metro government maintains that the chancery court did
not err in concluding that “[a] pattern of non-compliance with the law, no matter how long
established, does not vitiate the law.” See State ex rel. Lewis v. Bowman, 814 S.W.2d 369, 373
(Tenn. Ct. App. 1991). Even if the Board were bound by a past practice of overlooking certain
conditions in COMZO, the Metro government argues, Hoover did not set forth sufficient evidence
to prove that such a past practice exits in this case. Metro government maintains that the Board did
not act unlawfully or arbitrarily in denying Hoover’s permit, and that material evidence supported
its decision.

        In this case, it is clear that Hoover’s efforts to establish the quarry have been repeatedly
thwarted, and that some of the Board members were, indeed, reluctant to approve Hoover’s
conditional use permit because the proposed quarry stoked the ire of many citizens in the
surrounding neighborhoods. See Hoover, 924 S.W.2d at 906 (stating that “[t]here is no doubt that
the public opposition to the quarry influenced the board members who abstained”). On appeal,
however, we are not at liberty to disagree with the Board based on perception of an underlying
motive to placate neighboring landowners. Rather, the scope of our review is limited to determining
whether the Board acted arbitrarily or capriciously and whether there was material evidence to
support the Board’s denial of the permit. Hoover’s proposal admittedly did not satisfy a specific
condition set out in the ordinance. This Court has held that “when the language of a zoning
ordinance is clear, the courts will enforce the ordinance as written.” Lions Head Homeowners’
Ass’n v. Metropolitan Bd. of Zoning Appeals, 968 S.W.2d 296, 301 (Tenn. Ct. App. 1997). Hoover
asserts that the Board engaged in a regular practice of ignoring certain specific conditions in the
zoning ordinance. Hoover, however, has not submitted evidence to support this assertion. Indeed,
Hoover cites only two instances in which the Board has approved water as the fill in a similar
reclamation plan. Even in these two instances, there is no way to know if the circumstances involved
were similar to those in the instant case. Therefore, we need not address whether the Board would
be bound by a past practice of ignoring the requirement to use solids as the fill material, because no
such past practice has been established. Under these circumstances, we cannot conclude that the

         4
          The new body of regulations is referred to as “MetZo” and was adopted in 1997. The parties agree that MetZo
is not applicable in this case.

         5
          In this appeal, the arguments of the Metro government apply with equal force to the intervening respond ents
unless otherwise noted.

                                                         -6-
Board acted arbitrarily or capriciously in enforcing an unambiguous specific condition of the zoning
regulations. In light of this holding, the other issues raised on appeal are pretermitted.

      The decision of the trial court is affirmed. Costs on appeal are to be taxed to the appellant,
Hoover, Inc., and its surety, for which execution may issue, if necessary.




                                                      ___________________________________
                                                      HOLLY KIRBY LILLARD, JUDGE




                                                -7-
