             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                        FILED
                                                           July 1, 1998

BENNIE DAY and KAREN DAY,     )                         Cecil W. Crowson
                              )                        Appellate Court Clerk
      Petitioners/Appellants, )
                              )              Appeal No.
                              )              01-A-01-9708-CH-00442
VS.                           )
                              )              Franklin Chancery
                              )              No. 14,381
CITY OF DECHERD,              )
OTIS B. SMITH, JR., MAYOR,    )
HANK WEDDINGTON, BILL         )
VAN HOOSIER, FRANK GREEN, AND )
DARYL DONEY, COMMISSIONERS, )
                              )
      Respondents/Appellees.  )


     APPEALED FROM THE CHANCERY COURT OF FRANKLIN COUNTY
                  AT WINCHESTER, TENNESSEE

       THE HONORABLE L. CURTIS SMITH, SITTING BY INTERCHANGE




MICHELLE M. BENJAMIN
102 First Avenue, N.W.
P. O. Box 177
Winchester, TN 37398
       Attorney for Petitioners/Appellants

J. RUSSELL FARRAR
DEBORAH R. SOWELL
FARRAR & BATES
211 Seventh Street No., Suite 320
Nashville, Tennessee 37219-1823
      Attorney for Respondents/Appellees




                           AFFIRMED AND REMANDED




                                             BEN H. CANTRELL, JUDGE




                                OPINION
              Property owners alleged in a petition for common law certiorari that the

city of Decherd acted arbitrarily and capriciously in refusing to rezone their property

from residential to commercial. The Chancery Court of Franklin County dismissed the

petition. We affirm.



                                           I.



              Bennie Day and wife, Karen D. Day, own a city lot in Decherd. On

March 1, 1995 they filed a petition for writ of certiorari in the Chancery Court of

Franklin County alleging that the City and its commissioners had arbitrarily and

capriciously refused to rezone the property from residential to commercial uses. The

petition prayed for the writ of certiorari to issue pursuant to Tenn. Code Ann. § 27-9-

107; that the court set aside the City’s action and enjoin the City from enforcing the

zoning ordinance.



              The City filed an answer and moved for summary judgment. The

petitioners also moved for summary judgment. The court’s order denied both motions

but found that the City’s denial of the requested zone change was supported by the

record. The court, therefore, denied the petition for the common law writ of certiorari.



                                           II.



              If the court’s order is confusing, the confusion can, perhaps, be traced

to the initial pleading in this case. The common law writ of certiorari is not the

appropriate vehicle by which to review the “purely legislative” acts of a legislative

body. Fallin v. Knox County Bd. of Commissioners, 656 S.W.2d 338 (Tenn. 1983).

The statute that authorizes issuance of the writ authorizes its use to review the actions

of an inferior tribunal exercising judicial functions. Tenn. Code Ann. § 27-8-101. In

this context, “judicial” refers to a proceeding where a decision is rendered on a record


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made at a hearing required by law. L. Jaffe, Judicial Control of Administrative Action,

166 (1965). The writ of certiorari itself is a command to the lower tribunal to certify the

record to the reviewing court.



              In Fallin the Supreme Court held that

              “an action for declaratory judgment, as provided by T.C.A.
              §§ 29-14-101 -- 29-14-113, rather than a petition for
              certiorari is the proper remedy to be employed by one
              who seeks to invalidate an ordinance, resolution or other
              legislative action of county, city or other municipal
              legislative authority enacting or amending zoning
              legislation.”

656 S.W.2d at 342. The Court went on to point out that an action creating or

amending zoning regulations, “is a legislative, rather than administrative, action and

is not ordinarily accompanied by a record of evidence, as in the case of an

administrative hearing.” Id. See also McCallen v. City of Memphis, 786 S.W.2d 633

(Tenn. 1990).



              Since lawyers continue to file petitions for certiorari to review purely

legislative zoning decisions -- fifteen years after the Fallin decision -- apparently the

story needs to be retold. We add our voices to the Supreme Court’s chorus.



              In Fallin the Court did, however, get to the merits of the case by treating

the petition as one for a declaratory judgment. We will do the same in this case.

Once we arrive at that point, however, we encounter an even greater limitation on the

scope of review. Legislative classifications in a zoning law are valid if any possible

reason can be conceived to justify them. State ex rel. SCA Chemical Waste Services,

Inc. v. Konigsberg, 636 S.W.2d 430 (Tenn. 1982). Specifically, zoning decisions are

immune from judicial interference if the validity of the ordinance is “fairly debatable.”

Fallin v. Knox County Bd. of Commissioners, 656 S.W.2d 338 (Tenn. 1983).




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              In this case the Days purchased the residential property and presented

a plat to the Decherd planning commission seeking a zone change so that the

property could be used for mini-warehouses.               The planning commission

recommended the change but apprised Mr. Day of the fact that the ordinance would

have to pass three readings before the Board of Mayor and Aldermen. The ordinance

passed the first two readings, but when moved for passage on third and final reading,

it failed for lack of a second.



              The property involved is a large lot on the highway out of town. An old

home sits at the back of the lot, and the property on three sides is currently zoned for

residential purposes. The state community planner, who consults with the City on

land use problems, advised the planning commission that he had reservations about

using the property for mini-warehouses, considering other plans for the downtown

area.



              We think that the question of whether the property should have been

rezoned is fairly debatable. The Board, performing its legislative function, decided not

to rezone the property, and that decision is not ours to change.



              The appellants argue that the Board’s action should be set aside

because the Board refused to re-zone the property solely on the basis of

neighborhood opposition. They argue that this court’s decision in Hoover, Inc. v.

Metropolitan Board of Zoning Appeals, 924 S.W.2d 900 (Tenn. App. 1996), makes the

Board’s decision arbitrary.



              We have already noted that the record contains other evidence on which

the Board could have acted.         But the appellants’ argument is based on a

fundamentally flawed view of the two cases. Hoover involved an application for a

conditional use permit before the Board of Zoning Appeals. Under the zoning


                                         -4-
ordinance, the applicant was entitled to the permit when all the ordinance

requirements had been met. The Board of Zoning Appeals in that case was acting

in an administrative or quasi-judicial capacity, compiling a record that could be

reviewed under the common-law writ of certiorari. See Fallin v. Knox Co. Bd. of

Commissioners, 656 S.W.2d 338 (Tenn. 1983). In that case it was wrong to base a

decision solely on the neighborhood opposition.



             Legislators, however, do what legislators do: they listen to their

constituents; they test the wind; they try to please as many people as possible,

consistent with the constitution and a good conscience. And they are not to be

condemned for doing so. That is their job.



             The judgment of the trial court is affirmed and the cause is remanded

to the Chancery Court of Franklin County for any further proceedings necessary. Tax

the costs on appeal to the appellants.




                                         ____________________________
                                         BEN H. CANTRELL, JUDGE

CONCUR:


__________________________________
WILLIAM C. KOCH, JR., JUDGE


SEPARATE CONCURRING OPINION:
WALTER W. BUSSART, SPECIAL JUDGE




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