               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 April 13, 2015 Session

       NAN E. SCOTT, ET. AL. v. THE CITY OF KNOXVILLE, ET. AL.

                 Appeal from the Chancery Court for Knox County
                No. 1827332   Hon. Michael W. Moyers, Chancellor


                No. E2014-01589-COA-R3-CV-FILED-JUNE 8, 2015


This is an appeal from a judgment in a certiorari review action where the trial court
upheld the Knoxville City Council‟s ruling in favor of the respondents. The Knoxville
City Council found that a proposed expansion project involving the construction of a
crematory for incinerating human bodies was permitted as an accessory use for the
existing funeral home. The trial court found that the Knoxville City Council had not
exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or
fraudulently, or acted without material evidence to support its decision. The petitioners
appeal. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY and THOMAS R. FRIERSON, II, JJ., joined.

Wendell K. Hall, Knoxville, Tennessee, for the appellants, Nan E. Scott, Bonnie H.
Peters, Edwin M. Scott, Jr., Sandra K. Simpson, Robert A. Davis, Carol B. Davis,
Charlotte M. Davis, Jamie S. Rowe, B. Catherine Freels, Penelope L. Berridge, Fred R.
Arrington, III, Janet C. MacFarlane, Leslie A. Feulner, Randall J. Kurth, and Kent W.
Nicholson.

Crista M. Cuccaro, Knoxville, Tennessee, for the appellee, the City of Knoxville.

Robert B. Frost, Jr., Knoxville, Tennessee, for the appellee, the City Council of
Knoxville.

Arthur G. Seymour, Jr. and Benjamin C. Mullins, Knoxville, Tennessee, for the appellee,
Evergreen Services of Tennessee, LLC d/b/a Gentry-Griffey Funeral Home.
                                              OPINION

                                       I.      BACKGROUND

       In July 2010, Evergreen Services of Tennessee, LLC d/b/a Gentry-Griffey Funeral
Home (“Gentry-Griffey”) began the process of applying for a building permit to add a
crematory1 to its existing funeral home in Fountain City, Tennessee. Gentry-Griffey is
located in an O-1 zone, an area that is designated for professional and business offices
and related activities. On August 23, 2011, the City of Knoxville Building Inspections
and Plans Review Department (“the City”) issued the requested permit to Gentry-Griffey
to construct the crematory as an accessory use of the funeral home establishment.

       In December 2011, several Fountain City residents (“Petitioners”) appealed the
issuance of the permit to the City‟s Board of Zoning Appeals (“BZA”). The BZA voted
unanimously to deny the appeal. Petitioners then appealed to the Knoxville City Council
(“the City Council”) pursuant to Article VII, Section 6 of the Knoxville Zoning Code
(“the Code”), which provides,

        Any person, firm or corporation aggrieved by any decision of the
        metropolitan planning commission or the board of zoning appeals may
        petition the city council to consider the same.

                                             ***

        The city council shall consider de novo in public hearing and may affirm,
        modify, impose restrictions as provided in article VII, section 5 or overrule
        the action of the planning commission or board of zoning appeals.

Petitioners stated their reason for the appeal as follows:

        Determination was arbitrary and capricious as evidenced by area funeral
        homes who had previously applied and were denied, and conversations
        with a City employee; references from the Zoning Ordinance of Knoxville
        show the determination was arbitrary and capricious including but not
        limited to, Article II Definitions “accessory use,” Article IV Section 2.2.1;
        Article IV Section 2.3.2 and 2.3.3; Article V Section 1 Performance
        Standards B.2, 3 and 4; and Article VII Administration and Enforcement
        Section 1.C.a and other reports regarding cremation.
1
  Tennessee Code Annotated section 62-5-101(4) defines “crematory” as “the building or portion of a
building that houses one (1) or more cremation chambers used for the reduction of body parts or bodies of
deceased persons to cremated remains and the holding facility.”
                                                  -2-
        A hearing was held at the monthly meeting on February 21, 2012. The City
Council entertained presentations with accompanying exhibits from several speakers on
both sides of the issue. The City Council even extended the time limitations to allow
adequate argument. Jamie Rowe, a Fountain City resident, feared that the crematory
would become the principal use of the business. She noted that Gentry-Griffey
performed 70 funerals last year but that the permit allowed the cremation chamber to
operate for 16 hours a day, 7 days a week, thereby permitting 1,400 cremations per year.
She was also concerned that the cremation chamber would affect the air quality and omit
smoke and odor as evidenced by the Blount County crematory that emitted visible smoke
and an unpleasant odor. She asserted that the proposed crematory would emit mercury at
a rate of four grams of vaporized mercury per cremation.

        Nan Scott, M.D., a Fountain City resident, argued that the construction of a
crematory did not qualify as an accessory use of the existing funeral home when Gentry-
Griffey was adding the crematory to increase business and expected to advertise its
crematory services to the surrounding areas. She claimed that an I-4 zone was the only
zoning classification that permitted the use of a crematory as evidenced by several other
businesses that had requested to construct crematories and were not granted permits. She
stated that the use of a cremation chamber in an I-3 zone was even expressly prohibited.
She claimed that the approval of a crematory “in an O-1 zone was arbitrary and
capricious,” that the building inspector made an “arbitrary and capricious decision,” and
that the administrative decision was “arbitrary and capricious.”

       Catherine Freels, a Fountain City resident, argued that “the City did not conduct a
proper review” in determining whether the requested use was permitted and that the City
also failed to document how it came to the decision “to allow the crematory in an O-1
zone.” She claimed that the review made by the City was “seriously flawed and [did] not
support the City‟s determination.” Ms. Freels stated that the “City‟s action or inaction
resulted in an arbitrary and capricious decision unsupported by the evidence.”

       Arthur Seymour, who spoke on behalf of Gentry-Griffey, stated that the City
Council was tasked with “sitting in judgment of whether or not this building permit was
properly issued.” He argued that the City‟s decision to issue the permit was proper as an
accessory use of the existing funeral home. He noted that the Tennessee Court of
Appeals has held that funeral homes and crematories are not viewed as separate
industries but are viewed as “complimentary services offered by the funeral industry.”
He further claimed that since the issuance of the initial permit, Gentry-Griffey had
acquired a vested right to operate the crematory as evidenced by the substantial
expenditures made to construct the crematory in reliance upon the permit. He stated that
the City had also issued a certificate of occupancy after performing several inspections of
                                           -3-
the completed addition. He noted that the air quality permit had not yet been issued but
that any emissions would be regulated by the Knox County Department of Air Quality
Management.

       In rebuttal, Ms. Freels stated that the permit was issued based upon claims that the
crematory would be an accessory use but that the residents were concerned that the
crematory would eventually become the primary use of the funeral home. Relative to
vested rights, she argued that Gentry-Griffey obtained the certificate of occupancy while
the appeal was underway. She claimed that Gentry-Griffey continued to fund the
construction even though it had knowledge that the residents intended to appeal the
issuance of the permit as early as November 2011. She related that despite claims to the
contrary, Gentry-Griffey bought a used cremation chamber that cost approximately
$36,000 and had also built two handicapped bathrooms, a kitchen, a viewing area and
other improvements that were unrelated to the crematory.

       Following arguments, the City Council engaged in deliberations. Councilman
Nick Della Volpe expressed concern that the issuance of the permit was “handled like a
routine matter with no consultation.” He related that the existing funeral establishment
was perfectly acceptable for an O-1 zone in the city when the facilities were used as a
place to allow the residents to grieve and share love and condolences for friends and
family. He related that prior to the issuance of the permit, those electing cremation
services were sent to an industrial park in Rockford, Tennessee, where the cremation was
performed at a facility that was tasked with performing cremations. He related that the
crematory was not subordinate to the principal use of the establishment and did not
contribute to the comfort, convenience or necessity of users who relied upon the principal
use when Gentry-Griffey was advertising its cremation services to other counties.
Relative to whether Gentry-Griffey had obtained a vested right to operate the crematory,
he asserted that Gentry-Griffey spent approximately $30,000 prior to the issuance of the
permit and another $36,799 following the issuance of the permit. He related that Gentry-
Griffey continued to fund its efforts even after it was aware that the residents of Fountain
City objected to the issuance of the permit. He noted that the residents learned of the
addition in October 2011, held a meeting in November 2011, and then appealed the
issuance of the permit in December 2011.

       At the request of the City Council, Anita Cash, the Zoning Coordinator for the
City, spoke on behalf of the City. She explained that Gentry-Griffey had not requested a
free-standing crematory but simply desired to add a crematory for its patrons. She related
that she and other members of the office researched the issue and determined that the
crematory was an appropriate accessory use of the principal business. She asserted that
she was never asked for documentation concerning the decision-making process.

                                            -4-
        Councilman Mark Campen stated that he believed the City erred in issuing the
permit and that the BZA erred in denying the appeal. He believed the issue should have
been looked at closer. He expressed concern regarding the emissions and stated that an
O-1 zone was a “very poor place for this kind of facility.” He related that the increased
operating hours also caused concern. He opined that the City Council would be forced to
approve other businesses that requested to construct crematories or their refusal to grant
like requests would promote a monopoly for crematory services.

       Councilman Marshall Stair stated that the issue before the City Council was
whether the permit was granted “in an arbitrary and capricious manner.” He noted a
recent case from the appellate court where the trial court found that the decision to deny a
permit in a similar case was found to be arbitrary and capricious. He related that if the
City Council granted the appeal it would be reversed by the trial court.

       Councilman Duane Grieve stated that the issue before the City Council was
whether the building officials made the right decision. He suggested that the parties
come to an agreement whereby Gentry-Griffey allows additional air quality testing. He
related that the Ensafe report submitted by Petitioners reflected that there were 45 human
crematories in the State of Tennessee and that all but 6 were located in residential or
commercial areas where people live and work. He stated that despite the location of the
crematories, there had been very few complaints from the surrounding public. He asked
Mr. Seymour if Gentry-Griffey would come to an agreement with the residents of
Fountain City regarding the concerns related to air pollution.

        Mr. Seymour responded by stating that Gentry-Griffey would be amenable to
inspections at any time and that the unit was also self-monitoring. He related that the
public could peruse the unit‟s records upon request. He agreed that mercury was emitted
from dental fillings in bodies that were cremated. He opined that mercury emissions
would eventually decrease because dentists had largely stopped using the dental fillings
that emitted mercury upon burning. He related that mercury emissions would only be an
issue if the crematory ran non-stop for an entire year with each body having 17 or more
dental fillings. Randy Kerr confirmed that mercury testing could be performed by
consulting firms.

       Councilman Finbarr Saunders asked the City‟s attorney, Charles Swanson, if
proper procedures had been followed in issuing the permit. Mr. Swanson answered in the
affirmative. Likewise, Councilman Saunders asked Robert B. Frost, Jr., the City
Council‟s attorney, what the City Council‟s role was relative to the BZA decision. Mr.
Frost responded by stating that the “City Council needs to decide whether the City
Building Official[‟]s decision was correct based on the information and factors that he
reviewed and the information presented at the time to support his decision.” He related
                                            -5-
that the City Council should review the record from the BZA hearing and the statements
and evidence presented at the current hearing.

       Councilman George Wallace made a motion to postpone the decision to allow the
parties to come to an agreement. His motion was not seconded. Mr. Seymour stated that
Gentry-Griffey sought a prompt resolution because they had expended approximately
$400,000 in reliance upon the permit.

      Councilwoman Brenda Palmer stated that the appeal should be denied if the City
Council found that the inspector followed the proper procedure.

        Vice Mayor Nick Pavlis supported the appeal on the basis that the permit was
likely not issued in an appropriate manner.

       Councilman Della Volpe stated that those involved never really considered the
impact to the community or the way crematories operated but simply discussed the
construction aspect of the permit request, namely whether the foundations were adequate
and whether the plans anticipated building within the proper boundaries. He spoke
extensively concerning the air pollution aspect of the issue and finished by stating, “We
have to search our own conscience, look at this evidence and try to make a decision.”

        Following some discussion, City Council attorney Frost then stated, “This is not a
legislative decision; it‟s an administrative decision about whether or not the decision of
the Building Official that this use was an accessory use to a funeral home was correct.
I‟ve heard Councilman Della Volpe again and once again I appreciate his passion on this
issue, but this is not a question of whether or not a crematory should be permitted.”
Thereafter, Councilman Della Volpe moved to approve the appeal on the basis that the
permit “was arbitrar[ily], capricious[ly], or illegally or improperly granted.” The motion
failed by a 5-4 vote. Councilmen Campen, Della Volpe, and Brown and Vice Mayor
Pavlis voted in favor, while Councilmen Grieve, Saunders, Stair, and Wallace and
Councilwoman Palmer voted against.

       Petitioners then filed a petition for a writ of certiorari with the Knox County
Chancery Court. Petitioners named the City and the City Council (collectively
“Respondents”) as respondents. Gentry-Griffey filed a motion to intervene, which was
granted. Petitioners argued that the City Council should have considered the issuance of
the permit under a de novo standard of review but that the City Council erroneously
considered whether the City acted in an illegal, arbitrary, and capricious manner in
issuing the permit. The court disagreed and found that the City Council ultimately
applied the appropriate de novo standard of review as evidenced by its consideration of
additional evidence in the form of presentations with accompanying exhibits. The court
                                           -6-
dismissed the petition for writ of certiorari, holding that the City Council had not
exceeded its jurisdiction, acted illegally, arbitrarily, or fraudulently, or acted without
material evidence to support its decision. This timely appeal followed.


                                       II.     ISSUES

      We consolidate and restate the issues raised on appeal as follows:

      A.     Whether the trial court abused its discretion denying the petition for
      a writ of certiorari.

Gentry-Griffey raised an issue on appeal for our consideration that we restate as follows

      B.     Whether Gentry-Griffey held a vested right to operate the crematory.


                             III.   STANDARD OF REVIEW

       This action is brought pursuant to Tennessee Code Annotated section 27-8-101, et
seq., which governs the extraordinary remedy of common law writ of certiorari, and
section 27-9-101 et seq., which provides procedures for review by writ of certiorari of
decisions by boards and commissions.

        An action by a board of zoning appeals or the city council is an administrative or
quasi-judicial act rather than a legislative act. See McCallen v. City of Memphis, 786
S.W.2d 633, 638-39 (Tenn. 1990). The proper method of judicial review of such actions
is through the common law writ of certiorari. Tenn. Code Ann. § 27-9-101, et seq.;
McCallen, 786 S.W.2d at 639. In State ex rel. Moore & Assocs., Inc. v. West, 246
S.W.3d 569, 574 (Tenn. Ct. App. 2005), we explained that “the primary consequence of a
determination that a party must seek judicial review through the common law writ of
certiorari procedure is that the trial court must apply a limited standard of review to
decisions already made by administrative officials, rather than address the issue de novo
as the initial decision maker.” Furthermore,

      Reviewing courts may grant relief only when the board or agency whose
      decision is being reviewed has exceeded its jurisdiction or has acted
      illegally, arbitrarily, or fraudulently.

      Review under a common-law writ of certiorari does not extend to a
      redetermination of the facts found by the board or agency whose decision is
                                             -7-
       being reviewed. The courts may not (1) inquire into the intrinsic
       correctness of the decision, (2) reweigh the evidence, or (3) substitute their
       judgment for that of the board or agency. However, they may review the
       record solely to determine whether it contains any material evidence to
       support the decision because a decision without evidentiary support is an
       arbitrary one.

Leonard Plating Co. v. Metro. Gov’t of Nashville and Davidson Cnty., 213 S.W.3d 898,
903-04 (Tenn. Ct. App. 2006) (internal citations and footnotes omitted).

       “The issue of whether there is sufficient evidence to support a zoning decision is a
question of law.” BMC Enters., Inc. v. City of Mt. Juliet, 273 S.W.3d 619, 624 (Tenn. Ct.
App. 2008) (citing Wilson County Youth Emergency Shelter, Inc. v. Wilson Cnty., 13
S.W.3d 338, 342 (Tenn. Ct. App. 1999)). We review questions of law de novo with no
presumption of correctness. Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006).
However,

       [a] common-law writ of certiorari is not available as a matter of right. The
       petition for a writ is addressed to the trial court‟s discretion. Accordingly,
       appellate courts must review a trial court‟s decision either to grant or to
       deny a petition for common-law writ of certiorari using the “abuse of
       discretion” standard of review.

Heyne v. Nashville Bd. of Pub. Educ., 380, S.W.3d 715, 730 (Tenn. 2012) (internal
citations omitted). If a discretionary decision is within a range of acceptable alternatives,
we will not substitute our judgment for that of the trial court simply because we may have
chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
App. 1999).


                                    IV.    DISCUSSION

                                             A.

       Petitioners assert that the City Council acted illegally, arbitrarily, or fraudulently
by reviewing the issuance of the permit under the wrong standard of review. Petitioners
claim that the City Council should have conducted a de novo hearing but that
consideration of the issuance of the permit was limited to a determination of whether the
City acted in an illegal, arbitrary, or fraudulent manner in granting the permit request.
Petitioners further assert that the record did not contain any material evidence to support
the decision. Respondents and Gentry-Griffey claim that the City Council considered the
                                            -8-
issue under the appropriate standard of review as evidenced by the fact that Petitioners
were afforded a full and fair hearing by the City Council. Citing BMC Enterprises,
Respondents and Grentry-Griffey also claim that the record contained material evidence
to support the decision.

       “[D]e novo judicial review” is defined by Black‟s Law Dictionary, 9th ed., as

       [a] court‟s nondeferential review of an administrative decision, usu.
       through a review of the administrative record plus any additional evidence
       the parties present.

We agree that the meeting minutes reflect confusion regarding the appropriate standard of
review. The meeting minutes also reflect that the City Council considered the
administrative record and additional evidence presented by the parties. Indeed, the City
Council considered numerous exhibits, e.g., environmental reports, newspaper articles,
photographs, and even allowed the parties additional time to present their arguments.
The proof presented to the City Council was not limited in any manner. The discussion
between the City Council members reflects that they considered the exhibits presented
and that some even visited an area crematory to aid in the decision-making process. With
these considerations in mind, we agree with the trial court that the City Council applied
the appropriate standard of review.

       Petitioners next assert that the record did not contain material evidence to support
the decision as evidenced by the fact that Gentry-Griffey is located in an O-1 zone.
Petitioners note that the addition of a crematory may not be considered an accessory use
in an O-1 zone when crematories are limited to the I-4 heavy industrial district in the City
and when similar requests to construct a crematory were denied by the City due to the
zoning classification of the proposed location.

       Article IV Section 2 of the Code lists the “[d]istillation of bones” as a use
permitted on review in the I-4 heavy industrial district. However, Article IV, Section 2 of
the Code also provides as follows:

       Uses permitted. The following uses shall be permitted in the O-1 office,
       medical, and related services district:

                                           ***

       1. Undertaking establishments and funeral homes.

                                           ***
                                            -9-
       11.   Accessory buildings and uses permitted customarily incidental and
       subordinate to permitted or permissible uses and structures.

While free-standing crematories may be limited to the I-4 heavy industrial district, the
City may not limit Gentry-Griffey‟s right to further utilize its property for a use that is
customarily incidental and subordinate to permitted or permissible uses and structures.
Thus, the key issue is whether operation of the crematory is an accessory use of the
existing property. Cf. BMC Enterprises, 273 S.W.3d at 625 (identifying the key issue in
a similar case as whether operation of a crematory was „“an actual continuance and
expansion of the activities‟ of the Funeral Home‟s business”).

       Article II of the Code defines an accessory use as follows: “A use customarily
incidental, appropriate, and subordinate in area, extent, and purpose to the principal use
of land or buildings and located on the same lot therewith.” For further clarification,
Article V, Section 4 of the Code, provides as follows:

       A. General Provisions. Each permitted accessory use shall:

       1.     Be customarily incidental to the principal use established on the
       same lot.
       2.     Be subordinate to and serve such principal use.
       3.     Be subordinate in area, extent and purpose to such principal use.
       4.     Contribute to the comfort, convenience or necessity of users of such
       principal use.

       The code does not include a definition of an undertaking establishment or a
funeral home. However, Tennessee Code Annotated section 62-5-101(7) defines a
“funeral establishment” as

       any business, whether a proprietorship, partnership, firm, association or
       corporation, engaged in arranging, directing or supervising funerals for
       profit or other benefit, the preparing of dead human bodies for burial, the
       disposition of dead human bodies, the provision or maintenance of place for
       the preparation for disposition, or for the care or disposition of human
       bodies[.]

In BMC Enterprises, a panel of this court stated,




                                           - 10 -
      It is undisputed that the function of a crematory is to dispose of dead human
      bodies.     Thus, the General Assembly envisioned that a funeral
      establishment could include a funeral home and/or a crematory.

273 S.W.3d at 625. Tennessee Code Annotated section 62-5-101(6)(A)(i) defines
“funeral directing” as the

      Practice of directing or supervising funerals or the practice of preparing
      dead human bodies for burial by any means, other than by embalming, or
      the disposition of dead human bodies[.]

This court has held that the practice of funeral directing includes the operation of a
crematory. BMC Enters., 273 S.W.3d at 626. Thus, cremation services are customarily
incidental to the operation of an undertaking establishment or funeral home.

       Here, Gentry-Griffey is attempting to construct a crematory to provide cremation
services as an expansion of the services already offered to its patrons. Following our
review, we agree with the trial court that there was material evidence in the record to
support the conclusion that the construction of the requested crematory was customarily
incidental to the funeral home industry, subordinate to and subservient to the funeral
home at issue, and subordinate in area, extent, and purpose to the funeral home at issue.
The offering of cremation services would also contribute to the comfort, convenience, or
necessity of Gentry-Griffey‟s funeral home patrons. With all of the above considerations
in mind, we also agree that the crematory was an appropriate accessory use to the existing
funeral home establishment and likewise conclude that the trial court did not abuse its
discretion in denying the petition for a writ of certiorari.

                                            B.

        Gentry-Griffey argues on appeal that it held a vested right in the crematory
addition as evidenced by the substantial expenditures made in reliance upon the permit.
Having concluded that the trial court did not abuse its discretion in denying the petition,
this issue is pretermitted. Additionally, this issue was not addressed by the trial court,
likely as a result of its ruling that the record contained material evidence to support the
conclusion that the crematory was an appropriate accessory use to the existing funeral
home establishment and that the City Council had not exceeded its jurisdiction or acted
illegally, arbitrarily, or fraudulently.




                                           - 11 -
                                  V.     CONCLUSION

       The judgment of the trial court is affirmed, and the case is remanded to the trial
court for further proceedings as may be necessary. Costs of the appeal are taxed equally
to the appellants, Nan E. Scott, Bonnie H. Peters, Edwin M. Scott, Jr., Sandra K.
Simpson, Robert A. Davis, Carol B. Davis, Charlotte M. Davis, Jamie S. Rowe, B.
Catherine Freels, Penelope L. Berridge, Fred R. Arrington, III, Janet C. MacFarlane,
Leslie A. Feulner, Randall J. Kurth, and Kent W. Nicholson.


                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




                                          - 12 -
